Report (3rd Day)

Part of Legal Aid, Sentencing and Punishment of Offenders Bill – in the House of Lords at 9:45 pm on 12th March 2012.

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Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat 9:45 pm, 12th March 2012

My Lords, we have finally clawed our way out of Schedule 1 and back into the body of the Bill to meet immediately a difficulty-what is meant by an exceptional case determination under Clause 9. The problem that lawyers see immediately on seeing the word "exceptional" is that when it is normally used in proceedings it means that out of a cohort of cases one stands out because of some exceptional peculiarity. However, that cannot be the meaning of what we see in Clause 9, because an exceptional case determination is defined in subsection (3), which says:

"For the purposes of subsection (2), an exceptional case determination is a determination", and then describes what type of determination it is: first,

"that it is necessary to make the services available ... because failure to do so would be a breach of ... the individual's Convention rights ... or ... enforceable EU rights, or", secondly,

"that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach".

That is it; that is what exceptional case determination is.

My mind immediately goes to the sort of issues that we discussed earlier in relation to appeals, from the First-tier Tribunal to the Upper Tribunal and beyond, where a litigant in person is seeking to cope with a government legal team that appears on the other side to argue what must necessarily be issues of law, otherwise it would not be up in that area. That immediately rings the bell of equality of arms in a very serious way, and I cannot imagine that any of these cases would not fall within the definition of an exceptional case determination as set out in Clause 9(3), which I have already read out. In one sense it is a very narrow definition, but in another it introduces all the rights that are available under the European convention. Yet there must be other cases where the European convention is not engaged.

The purpose of my amendment, and I note amendments in the name of other noble Lords, is to widen the ambit of an exceptional case determination to the point where the director of legal aid services considers,

"that it is in the interest of justice generally".

I appreciate that is a very wide definition, but unless the director of legal aid services has a wide discretion, how can he cope with the multifarious applications that will be made to him on the basis of their being exceptional cases? I am not going to spell out any, because these things come out of the woodwork. All of a sudden a case will obviously require, in the interests of justice, to be supported by legal aid because of the wider interest that is involved or because of the public points that have been made, and so on. One can envisage all sorts of circumstances. Although the words here seem modest, they are asking for a wide discretion, and that is the purpose of my amendment. I beg to move.