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Lord Kingsland: My Lords, at Committee stage we had an amendment covering the same ground, although not as skilfully cast as that of the noble Lord, Lord Goodhart, which we have now withdrawn in favour of the noble Lord's amendment.

The noble Lord has argued his amendment with his customary cogent relentlessness and left those of your Lordships who have taken an interest in this matter with, I suspect, nothing left to add. I feel somewhat apologetic in standing here to support the amendment tabled by the noble Lord, Lord Goodhart. Not because I have any doubts about its merit, but because I am aware that the noble Baroness, throughout this Bill, with her unique combination of determination and good will, has done everything she can to meet the concerns of the opposition parties.

We have already had one illustration of her efforts with the amendment that she has tabled to substitute the "Lord Chancellor" for the "Secretary of State". Another good example is the way in which the noble Baroness and her department have striven all summer to produce a thorough and comprehensive set of regulations which set out the detailed calculations necessary to assess whether individuals will be entitled to relief not only at the magistrate's court level but also at the Crown Court level—work which was not anticipated in July but which was requested by your Lordships' House.

It is a shame, therefore, that this remarkable achievement should be overshadowed by one remaining disagreement that we have. But the issue of the application of Article 6 to the question of appeals is one that the Government have not quite grappled with to our satisfaction. We know from cases such as Alconbury that, where matters of policy are concerned, judicial review often satisfies the Article 6 criteria. However, where it is a case of the rights of the individual, review does not normally go far enough. The illustrations given by the noble Lord, Lord Goodhart, about the definitions that are contained in the admirable set of calculations that the noble Baroness has laid before us make out a sufficiently powerful case for the opposition parties standing their ground on this issue.

Lord Mayhew of Twysden: My Lords, with a lifelong interest in advocacy, as well as a great admiration for the noble Baroness who is to reply, I rise only to say that I am enormously interested to hear how she will address herself to the compelling case that has been made from these Benches—unless of course it is to accept it.

Baroness Ashton of Upholland: What an introduction to my remarks, my Lords. I am grateful to the noble Lords, Lord Kingsland and Lord Goodhart, and the noble and learned Lord, Lord Mayhew, who have been incredibly helpful in helping us decide how to take the Bill forward. A lot of work has gone on this summer. That is why officials and I are already tired as we start the parliamentary year, but I am grateful for the acknowledgement of the work
 
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that has gone on. It has been detailed and has fulfilled my obligations to the House. I shall endeavour to persuade noble Lords at least to consider the issue one more time, because it is important that we do so. I want to reflect on the principles behind what we have sought to do.

As the noble Lord, Lord Goodhart, indicated, and expressed pleasure about, we will allow a full appeal to the court on the grounds of misapplication of the "interests of justice" test. Noble Lords will know that our original proposal, when the Bill was introduced, was that the court could consider an appeal only as if it were hearing a judicial review rather than making the decision itself. We also proposed that the court's view would not replace the original decision, but that it would be referred back to the Legal Services Commission. There were strong representations in this House at Second Reading and in Committee. We have changed our minds and our position in the light of that. As the noble Lord, Lord Goodhart, said, the supplementary framework document, which was laid before Parliament last Monday, makes our revised position clear. The court will hear appeals on the interests of justice. It will be able to consider the matter afresh, and its decision will replace that of the Legal Services Commission. I hope that that goes some way to addressing noble Lords' concern in Committee.

I undertook to bring forward amendments to clarify the process, and have done so. We do not consider that we have to make specific amendments in primary legislation, as the appeals process will be set out in secondary legislation. However, I have provided draft secondary legislation which demonstrates how the appeals process will work. I hope that it meets your Lordships' approval.

We do not accept that we should allow a full appeal to the court when an applicant alleges that there has been an error in making an assessment on financial eligibility. I have discussed that with senior members of the judiciary, who gave me permission to report to the House that I did so. They agreed with me when I met them last week—they confirmed it again to my officials this morning—that the matter is administrative rather than judicial in nature. They believe strongly that an appeal to the court would simply divert judicial resource to an inappropriate area of work. Ultimately, if the Government set the eligibility levels too low or if an individual is unable to get mistakes corrected, there is recourse to the courts through judicial review. The Government and the senior members of the judiciary agree that that affords sufficient oversight by the court. Should there be a fundamental or material change to an applicant's financial circumstances, he will, of course, be able to re-apply.

My two assertions are, first, that we have dealt with the issue of the interests of justice—to your Lordships' satisfaction, I trust—and secondly, that, in consultation with the senior judiciary, we are clear that we are talking about an administrative function best done in the way that I shall describe and that is not appropriate to be taken up by the judiciary.
 
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Noble Lords will know that grant of legal aid is a two-limbed test—financial eligibility for legal aid, and its being in the interests of justice. If the applicant passes the "interests of justice" test, it may well be that he should be represented. The question is who should pay—the defendant or the state. We believe—it is a fundamental basis of the Bill—that those who can afford to pay for their own defence should do so. We have made it clear that, just as happens now with defendants who choose to pay for their own representation, an individual who is acquitted will be entitled to apply for reimbursement of their legal costs.

It has been put to me that there are certain circumstances in which the issues may be more complicated; we discussed them with the judiciary. For example, a defendant might choose to use the fact that he has to pay for his own defence as an excuse to defend himself, and it might be in someone else's interest for him to be represented. Provision already exists to prevent a defendant from using cross-examination of witnesses as a method of bullying. The Youth Justice and Criminal Evidence Act 1999 deals with cross-examination by the accused. Section 34 prevents a person accused of a sexual offence cross-examining the complainant in connection with the offence. Section 35 does the same in certain types of case where the witness is a protected witness such as a child. Section 36 enables the court to direct—either on the application of the prosecution or of its own motion—that the accused is not to cross-examine a witness in any case not covered by Sections 34 or 35. That would include, for example, a domestic violence case, if the quality of the witness's evidence is likely to be diminished if the accused cross-examines in person, and is likely to be improved if a direction is given, and if it would not be against the interests of justice to give a direction. Arrangements can then be made for a legal representative to do the cross-examining. That applies in both the magistrates' courts and the Crown Courts. The legislation will be unaffected by the re-introduction of a means test.

We have done the interests of justice test. We have confirmed with the judiciary that it considers it to be administrative. And I have made it clear that under the sections of the Act that I have indicated, it is possible for the courts to instruct for representation to be given because it is in the interests of the other party or the victim.

It has been put to me that situations which might affect the interests of justice test, such as an unforeseen legal point, can arise during a trial. Noble Lords who are lawyers will understand that. If that happens it will be possible to make an application during the short adjournment, when it will in any case be necessary to instruct a legal representative. We intend that the means-testing process will be very straightforward with minimal, or no evidence required to be produced at the point of application. Thus the means test will not slow down the court process. That is another reason why noble Lords felt it important to consider this issue.
 
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It is also worth pointing out that in the Crown Court, where cases are more serious and their presentation more complex, no individual will be denied legal aid on the ground of means. Instead, if the means test is not passed, a contribution will be required as a condition of legal aid being made available.

It is important to remember that the means test will not be absolute. If an individual fails the means test, but nevertheless cannot afford to pay his legal expenses, to pick up the point made by the noble Lord, Lord Goodhart, either because the individual has unusually high living costs, or because his case is unusually expensive, he can apply to the Legal Services Commission to grant legal aid on the basis of a hardship test. In those circumstances, rather than using proxy measures, the LSC will look at the actual resources available to the individual and decide whether or not legal aid should be granted.

I think—certainly from my discussions with the judiciary—that we have covered a range of the issues that were raised on why there should be an appeal in court. It was either because the judiciary wanted it, there might be circumstances when a victim might be in some difficulty or there might be exceptional circumstances for the individual—the hardship test. I believe that we have made all those stack up. In addition, the process will be simple and straightforward. Therefore, there will be no delay in court proceedings, which is another issue that has been raised with me.

I have deliberately spent time giving noble Lords the detail of the refinements because it is important to understand how much work has gone into making sure that the system does not deny people access to justice or representation in all the circumstances within the context of the purpose of this Bill, which is to introduce a means test, and which is supported in principle by your Lordships' House.

The noble Lord, Lord Kingsland, referred me to Article 6 as a key part of the reason why he ought to support the amendment. I refer him to the Seventh Report of the Joint Committee on Human Rights on appeals, which states:

The Government are right to take notice of what the Joint Committee said, and I ask your Lordships to do the same.

Let me explain why we cannot support the two amendments. Amendment No. 3, as the noble Lord, Lord Kingsland, said, would remove the existing power to prescribe cases in which an applicant cannot appeal against a decision. The noble Lord gave some of the history of paragraph 4 of Schedule 3 to the Access to Justice Act. The Legal Aid Act 1988 was replaced by the Access to Justice Act 1999. Section 21(10) of that earlier Act gave a power—not a duty—for regulations to provide for appeals.
 
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Under the Legal Aid Act , appeals were not available in every case. On the right of review of merits decisions, appeals were not available if the individual had renewed his application, nor did the appeals process apply to certain summary offences. Furthermore, there was no right of review of eligibility decisions. An individual could only renew his application.

5.15 pm

While it has not yet been necessary to prescribe the cases in which no appeal would be given, as the noble Lord, Lord Goodhart, indicated, the power was put there should it be needed, and we wish to preserve it. As I stated in Committee, this power would never be used to implement regulations that seek a wholesale ban on the right of appeal. The right of appeal is a fundamental element of the new system that we hope to introduce and will remain so.

It is important to be able to guard against abuse of the system; for example, if we remove it, an applicant could submit countless appeals against an unfavourable decision. We want to retain the power so that we have the ability to tackle abuse of that kind. In doing so, we are trying to be sensible and prudent, but I make it absolutely clear that we would not use it in any shape or form to seek a ban on the right of appeal. As we are simply replacing what is already in law, I hope that noble Lords will feel able to withdraw Amendment No. 3. It is a power to which your Lordships have agreed in passing the Access to Justice Act.

I have dealt with the overarching reasons why I cannot support Amendment No. 8. The decision on eligibility as regards the means test is a matter of fact rather than opinion. I have already indicated that the senior judiciary hold that view and that there are very clear ways in which we shall ensure that issues of hardship or concern for other parties will be dealt with. However, we believe that a full appeal should lie with the court only on the ground of misapplication of the interests of justice test. A suspected error in applying the test of financial eligibility would be examined by way of a review. Should the outcome of the review be that there has been an error, legal aid will be granted if the interests of justice test is satisfied. Only if the original decision is upheld will the court become involved through the judicial review process. I agree with the senior judiciary that this is a better use of the court's resources.

I believe that I have gone a long way to meeting all the concerns raised with me at Second Reading, in Committee and throughout the summer about why there may be a need for such an appeal to be given. I believe that the Government have satisfied each and every one of those in the way that we have put this matter forward. But, as always, I am willing to continue the dialogue and I could perhaps provide the opportunity for the noble Lords, Lord Goodhart and Lord Kingsland, to discuss the matter either with the judiciary, if they are willing, or with me again. I hope and believe that I have resolved all the reasons why we
 
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should leave this as it stands currently. I recognise that it is an administrative function and that, if there are errors, they will be dealt with and that, if there are exceptional circumstances, they will be taken into account. If there is any potential difficulty or danger for a victim or a witness, the power already exists for the court to do something different. I believe that in our supplementary document we have laid out the simple, clear process that the courts can administer very quickly.

I take heed of the views of the judiciary on this and what the Joint Committee on Human Rights has said in Article 6.3. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.


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