Commons Reasons and Amendments

Part of Legal Aid, Sentencing and Punishment of Offenders Bill – in the House of Lords at 8:45 pm on 23 April 2012.

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Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat 8:45, 23 April 2012

My Lords, I am very pleased to welcome the government amendment in lieu, which follows very closely the amendments that the Liberal Democrats put down, both in Committee and on Report, for ensuring that there is proper legal support for appeals on a point of law to the Upper Tribunal, the Court of Appeal or the Supreme Court. The Government are to be congratulated on taking that step.

The lacuna in the amendment that I moved in Committee and on Report was that legal points might arise at First-tier Tribunal hearings. It was to that end that my colleague Mr Tom Brake put down an amendment in order to clarify that, or to try to obtain a concession from the Government in relation to that, when the matter came before the Commons. A number of points have been made about it. About 80 per cent of cases, maybe more, before the First-tier Tribunal are decided on the facts: whether a person has sustained a particular injury, whether that injury disables him from doing a particular job or whatever. It covers a wide range of possibilities, but it is usually a factual issue.

However, from time to time a point of law arises. Now, there is no difficulty whatever in identifying what a point of law is. The best illustration that I can make is the famous case of Donoghue and Stevenson-the snail in the ginger beer bottle. For the purposes of coming to a conclusion on the law of negligence and how it should develop, the House of Lords, in considering that case from Scotland in the 1930s, assumed that the claimant's facts were true; namely, that there was a snail in the ginger beer bottle that the claimant drank. Accordingly, all the argument was based upon that assumed fact. As a result, the law was clarified and developed, and is the foundation of the law of negligence to this day. When the case was remitted to the Scottish court to determine the facts, it was discovered that it was impossible to prove that there was a snail in the ginger beer bottle at all. Consequently the claim was, I think, settled, or it may have failed, but that is the distinction. A point of law is when you have a difficulty in coming to a conclusion, even if the claimant's facts are true.

The First-tier Tribunal will frequently be faced with mixed facts and law. That is to say, it will have to determine what the facts are and, in that light, consider whether there is any legal problem in the statutory provisions-any point of law-which has to be decided as well before the claimant gets his compensation, allowance or benefit, or whatever it may happen to be. So there is no problem. Every day, in every court and tribunal, points of law are being disclosed, discovered, analysed and dealt with. Indeed, you cannot appeal from the First-tier Tribunal to the Upper Tribunal unless there is a point of law that the First-tier Tribunal identifies. Similarly, in going from the Upper Tribunal to the Court of Appeal or the Supreme Court, there has to be a point of law, so there is no problem-as there appeared to be among certain minds in the other place-as to what a point of law is.

The problem that one has to face is: can an unrepresented applicant determine himself whether there is a point of law? There are two answers to that. First, any tribunal with a legally qualified chairman will perceive that there is a point of law involved in coming to a conclusion on the case, so it is in the hands of the chairman of the tribunal to determine whether a point of law arises. If it is unexpected, he can stop the case there, adjourn it and give legal aid for the case to be argued properly by a lawyer who is familiar with the statutory provisions. There is then equality on both sides. However, there is another approach. In the criminal context, if I am prosecuting and the defendant is representing himself when appearing in court, and if I as the prosecutor-the qualified lawyer-realise that a point of law arises which the unrepresented defendant has not realised, it is my professional duty to tell that defendant in a criminal case, "Look, there is a point of law in your case, which you should mention to the judge. Let's have a discussion about it". It is my job to bring it out.

I suggest to the Government that when it comes to tribunals, anybody representing the state-the Government or a government department-in a tribunal should be under a duty, which regulation should point out, to inform an unrepresented applicant if that state representative appreciates that a point of law arises. This is so that before they even get before the tribunal, the state representative will have told the litigant or applicant in person, "Look, my friend, you have a point of law in this case, which you must mention to the tribunal judge. If you don't do it, I will". That is the tradition of the legal system, and it must apply even when the state is represented not by lawyers but by representatives of the department in question. I urge upon my noble friend that he takes that on board and ensures that there is such a duty, as there is elsewhere, for lawyers to point out to the unrepresented applicant that there is a point that he should take.

I am very pleased that points of law will be properly dealt with under the government amendment. I hope that the moves that the Lord Chancellor makes to ensure that, where a point of law arises in a First-tier Tribunal, a case is either by agreement put forward for legal aid or the tribunal chairman will stop the proceedings and adjourn them until the point can be properly argued. In my view, that is the way in which all the fears that have been expressed on the position of the unrepresented applicant will be dealt with.