Clause 22

Tribunals, Courts and Enforcement Bill – in a Public Bill Committee at 1:45 pm on 15th March 2007.

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Tribunal Procedure Rules

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I beg to move amendment No. 65, in clause 22, page 19, line 38, at end insert—

‘(za) that the interests of justice are achieved,’.

Photo of John Bercow John Bercow Conservative, Buckingham

With this it will be convenient to discuss the following amendments: No. 66, in clause 22, page 20, line 1, after ‘expressed,’, insert—

‘(da) that the tribunal system complies with the European Convention on Human Rights,’.

No. 68, in clause 22, page 20, line 5, leave out ‘(4)(b)’ and insert ‘(4)’.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

This is a modest point and concerns the powers to make procedural rules for tribunals. A number of categories are set out in clause 22(4)(a) to (e), which we think could be strengthened by adding an expression relating to the achievement of the interests of justice. I imagine that the Minister will say that the achievement of the interests of justice underlies every  measure in the Bill, but I would suggest that having the words contained in amendment No. 66 in the Bill would send an important message and that the Bill would be stronger as a consequence.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

There are three amendments in this group and I want to speak specifically to amendments Nos. 66 and 68. The hon. Member for North-West Norfolk moved amendment No. 65. I anticipate that the Minister will say that that amendment does not materially change what is currently in 22 (4) (a), which also talks about justice. However, does she not agree that the amendment is slightly wider and therefore slightly better? Also, an important point in the amendment establishes that every part of the judiciary and the judicial process complies with the European convention on human rights, which states that people must have access to justice and a fair trial—either civil or criminal. The amendment is a link to amendment No. 67, which comes in the following group.

When we come to debate the next group, which is specifically about legal aid provisions, it is important to see the amendments as part of the debate about access to justice and compliance with the European convention. If the Minister can satisfy us that all aspects of the tribunal system have been checked and proof read for ECHR compliance, as every Bill is required to be, and that all the rules issued to the tribunals are satisfactory, then we will have to accept that for the time being. Does she not think that it would be better to have that sort of statement within the Bill? In that context, I want to ask the wider question. For those who know the workings of the civil and the High Courts relatively well, they will know that there are two books of rules that are used by all practitioners, including judges and lawyers. One is a large white book for the High Court and the other a smaller green book for the lower courts, which is known as the county court book. Many of the rules governing the courts are in those two books rather than in primary legislation. Why, in this case, was the judgment made to put slightly more of the detailed rules into primary legislation than Governments normally wish to do? Is there an exact comparison that has been done to make sure that we are doing here what we have already done in the High Court?

I’m always keen that we have Bills that are as short and as simple as possible. Matters that are entirely technical should be in secondary legislation—unless they are of significance—and in rules if they are of importance to practitioners but not to members of the public. I would be grateful to know what led the Minister to make the judgment that we need as much of the regulation of the process in primary legislation, of which clearly this is part.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

Amendment No. 65, which was moved by the hon. Member for North-West Norfolk, adds an interest of justice test to the list of principles that the tribunal procedure committee should keep in mind when making rules. Lord Kingsland, the colleague of the hon. Member for North-West Norfolk, moved an amendment with exactly the same effect in Grand Committee in the House of Lords. The Government accepted, as I do now on behalf of the Government in this House, its general intention in principle. An  alternative more in keeping with the drafting of the Bill was offered to Lord Kingsland and he tabled the draft on Report, which is now clause 22 (4) (a). It would be extraordinary to add to the Bill the alternative which Lord Kingsland rejected in favour of 22 (4) (a). Therefore, I do not think that we should entertain the prospect of doing that.

The hon. Member for North Southwark and Bermondsey gave almost the same answer that I have given to amendment No. 65, although he asked whether the provision proposed by the hon. Member for North-West Norfolk was not wider and therefore better. However, Lord Kingsland was satisfied that the term “ensure that justice is done” was just as good as “acting always in the interests of justice”. I am inclined to agree.

On the further amendments to which the hon. Gentleman spoke, it is exactly as he said. Of course, the tribunal system and the provisions of the Bill have to be convention-compliant. As the hon. Gentleman said, all Bills have to be considered in detail to ensure that they are compliant, and they are considered in that way before the Minister—in this case, me—signs to say that they are compatible with the European convention. To add something saying that the Bill shall comply with the European convention is pointless. As the hon. Gentleman, who is an experienced Committee member, knows, if something odd and unnecessary is included in a piece of legislation to make things clearer, the next piece of legislation that does not include it is always called into question. There is nothing to be gained from adding such a thing to the Bill and it would add not one iota to its human rights calibre.

Amendment No. 66 would ensure that the rules are compliant with the ECHR. One could say that they may have to be all the more compliant than the legislation. The legislation could be declared incompatible if it were not compliant and, anyway, hon. Members would not want to bring into play legislation that was not convention-compliant. Subsidiary legislation could be overturned by the judiciary if it were not compliant, so the tribunal procedure committee will have to ensure that it is convention-compliant.

Is there more detail about this matter in the Bill than is normal? There is no intention that that should be so. We intend the level of primary and secondary legislation to be broadly similar to that which is customary. I invite the hon. Member for North-West Norfolk to ask leave to withdraw his amendment.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

In the light of what the Minister said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I beg to move amendment No. 67, in clause 22, page 20, line 4, at end insert—

‘(4A) The Tribunal Procedure Rules shall make provision for the granting by a judge of the First-tier Tribunal of legal aid for appropriate advice and representation in relation to any decision within the jurisdiction of the tribunal system.’.

Photo of John Bercow John Bercow Conservative, Buckingham

With this it will be convenient to discuss amendment

No. 69, in clause 22, page 20, line 4, at end insert—

‘(4A) The Tribunal Procedure Rules may allow for the provision of legal aid.’.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

The amendments, which both say basically the same thing, would give the Minister a degree of choice. They would introduce a provision whereby the tribunal procedure rules may allow legal aid to be granted by a judge of the first-tier tribunal.

We are having a wide-ranging and, at times, passionate debate about the way in which the legal aid changes proposed by the Government are being implemented. I do not want to go down that route. However, it has struck me for a while as slightly bizarre and unfair that people cannot get legal aid for cases in tribunals, except in a few circumstances. There are a number of exceptions. I gather that in the Lands Tribunal, for example, people can get legal aid. Perhaps the Minister will comment on whether legal aid is available in other tribunals.

We should not like to include in the Bill the power to grant legal aid automatically, because that would be a step too far. I am well aware, as are other Opposition Members, of the pressures within the Department for Constitutional Affairs. We realise that there are pressures on the legal aid budget, which has increased from £1.5 billion 10 years ago to more than £2 billion, and we understand why the Government are now bringing in means-testing in magistrates courts and the fixed-fee system for many civil cases. Although we have some legitimate discussions and arguments with the Government about how that is being implemented, we accept the thrust of what they are doing. However, in respect of tribunals, I should imagine that it would be appropriate for legal aid to be awarded only in a very small number of cases.

A lot of the time lawyers are not wanted in tribunals. We want people to take their case to tribunal and feel that they are performing and presenting their arguments in an informal and relaxed manner, and that they can put their case without any pressure or undue sense of the occasion getting on top of them or stifling their free expression and explanation of the problem. I submit that lawyers often come along and make the matter a whole lot worse. They can give the client a lot of ideas, stand up and make boring speeches on points of law, whereas what we want is for the public to go to those tribunals and feel that they can have their cases heard sympathetically and understandingly by tribunal chairs who can emphasise with the public.

I would have thought that, in the vast majority of cases, there would be no need for the provision of such legal aid. However, there are going to be tribunals—I certainly came across a few during my time at the Bar—in which there are points of laws and complexities. There may even be situations in which a particular case suddenly becomes multi-faceted and unanticipated factors suddenly come into play.

In those circumstances, it might be in the applicant’s interests to seek legal advice. For example, there might be a fairly straightforward case in the Employment Appeal Tribunal, or one of the other tribunals such as the Asylum and Immigration Tribunal, where the case is proceeding quite smoothly and it all looks straightforward, but complexities then arise. At that stage, will the applicant be denied the ability to deal with the matter on a roughly level playing field?

I submit that there will be cases in which respondents might be a corporate entity or a Department. One has only to look at those families in various cases involving the Ministry of Defence. In one case, the MOD employed a host of lawyers and QCs. I am thinking not about a coroner case, but about a tribunal case for injuries caused not in the front line, but during training. I read that the Department in question had a battery of lawyers and the case went from being quite straightforward to being complicated. Yet, the family were unable to get legal aid.

If the tribunal rules allowed for the grant of legal aid by the judge in the first-tier tribunal, it would at least mean that the applicant had a much fairer deal and would not have to suddenly abandon the case. The applicant might be completely overwhelmed by paperwork, legal points and legal statutes that they have absolutely no idea how to handle, however sympathetic the tribunal judge or its non-legal members might be to them.

Despite the expertise and the background of the people involved, and however much they might try—the Minister has made a great deal of their attitude and their desire to help the public and be as open, flexible and user-friendly as possible—things might become very difficult if one starts getting bogged down in technical legal matters. Precedents might need to be looked at and other tribunal decisions might need to come into play. It might be that such factors are not always something that the tribunal judge can help the applicant with.

That is why legal aid might be appropriate in a small number of cases. In that small minority of cases, building such flexibility into the system would bring significant relief to the applicant. It would make the system fairer and more just for a very small number of applicants and cases. I do not believe for one moment that it would have a significant impact on the legal aid budget. When we look at that budget in the round—I might now be told off by our shadow Chief Secretary for making a spending commitment—it is clear that we are talking about a small sum of money. I am a great believer, as are my hon. Friends, not only in getting the best value possible, but in using public money to make a difference to some of the more oppressed and vulnerable people in society.

A number of hon. Members have spoken about how tribunals are very often the only point of contact that members of the public have with the judicial system. The chances are that the tribunal system is the only interface that many of our constituents will ever have with the judicial system, unless they happen to end up in a magistrates court for some minor criminal offence. People who go to tribunals are not criminals; they are applicants—people pursuing their case to try to secure justice for themselves and their families.

We have given the Minister a choice of two amendments, which I hope fits in with the spirit of the Committee. Both amendments are by definition broad and flexible. In fact, amendment No. 69 is more flexible than amendment No. 67. I hope that the Minister will accept the amendments not only in the interests of providing extra assistance and making the system more open and flexible, as the new structure will do, but to ensure that no one is in any way excluded from putting their case.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats 2:00 pm, 15th March 2007

This is probably the most important amendment that we have debated so far. It has the support of the Liberal Democrats, the Conservatives and, I hope, some on the Labour Benches. Even hon. Members who are not lawyers, as some of us are, will have come across in their constituency work cases in which the decision of a tribunal cites legal cases. That goes for both the oral and subsequent written tribunal decisions. In tribunal hearings in which lawyers are present—the system is not set up on the presumption that lawyers will normally be present—there is often quite robust debate about the application of cited cases, which could be judgments from the House of Lords, the European Court, the Court of Appeal and so on. Judgments from the Employment Appeal Tribunal or a higher court that dealt with an employment appeal case might also be cited. It is therefore sometimes necessary for people to have legal assistance to be able to put their arguments.

Some people go to tribunals literally on their own, with no support, and some go with family support, friends or non-legal support from their local advice centre or citizens advice bureau or whatever. Normally, people will go with no lawyers accompanying them, which is as it should be. The best person to judge whether people should have an entitlement or need to receive legal aid is the person running the tribunal—the judge figure whom we have discussed. I have signed my name to amendment No. 67, would give such discretion to the judge, and amendment No. 69 would have the same effect.

The Minister said that there are provisions for Ministers to grant legal aid exceptionally, but that is an exemptive decision. The Opposition are arguing that in the interests of justice it is necessary, and would be better, for the granting of legal aid sometimes to be a judicial decision. Such decisions could be made on the spot, with the judge having assessed the nature of the case and rated a person—the lay applicant—and their ability to put their case against a representative of the Department for Work and Pensions or whoever is on the other side. There is often an official on the opposing side of a tribunal who is fully versed in the legislation and regulations, and who carries a double ring binder file. The tribunal itself will have ring binder files, as will the clerks, and they will contain information on the law, not only matters of fact.

There are strong arguments for the amendments, and it is clear to us that a system of fair access to justice must ensure that people are not disadvantaged. It is good that we are to have a new, streamlined, expanded tribunal system. However, if this area of administrative law is to be separate from the court system, the possibility of people getting legal aid should not be less than in the elements of the legal system that consider matters of criminal, civil and other areas of administrative law.

As the Minister said, magistrates do not deal only with crime. They deal with administrative and licensing matters, civilian disputes and family law, in all of which there is an entitlement to legal aid. There is a strong case in principle for such issues. The proposed approach would not be an open door. We are not saying that we want legal aid as a matter of right for   tribunal cases, but arguing that it should be the norm that the judge on the case has the power to make such a judgment.

Yes, there is a financial implication, but justice always has financial implications. I hope that the Minister will not resist the amendment on the basis that it would have an unhelpful or harmful financial implication. There have been debates elsewhere on legal aid and its budget. I accept that it is larger than in some places and that it has grown. However, it has not grown in the same way as much of the welfare state has grown. It has grown less, and there is a strong case for justice being done with legal aid when the judge thinks that that is right. I hope that the hon. and learned Lady will be sympathetic to the amendment. It is certainly something that we want to pursue.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

I shall deal first with the latter two points made by the hon. Member for North Southwark and Bermondsey. It is not the case that the legal aid budget in the United Kingdom is larger than in some places. It is larger by a very significant factor than anywhere else in the world. I shall leave it there, having made that important point.

I sympathise enormously with the passion with which the hon. Gentleman and the hon. Member for North-West Norfolk assert the right for fairness in access to justice. It is a passion that I share and which the Government accept entirely. It is a bit of an oddity that the hon. Member for North-West Norfolk has sought to introduce such a provision when an identical amendment was defeated resoundingly in the other place, because the Tories did not vote for it. However, that does not alter the merit in its being discussed today.

I shall reiterate the points made during the debate in the House of Lords. The tribunal system is intended and designed so that people should not, as a rule, need lawyers to pursue their points. As we have said in a different context today, tribunals are not courts. Unlike courts, most tribunals do not rely on the strict rules of evidence. They adopt a much more inquisitorial approach, questioning the user to find out the relevant information rather than expecting him to put his case or present an argument. Granted the high level of skills that we have acknowledged in tribunal chairs, the majority of tribunal users should be able to, and can with experience, relay their evidence by answering questions without the need for legal representation.

For those who qualify within the legal aid system anyway, legal help is available across the whole gamut to give advice and assist the users to prepare their cases and answers to questions that might be asked. Legal advice can be obtained about points of law and help can be received to pay for counsels’ advice. That does not present a problem. Aid is readily available in that fashion and it can pay for everything up to its limit to prepare a person for a tribunal, short of their actually being represented.

Both hon. Gentlemen argued strongly that we do not want lawyers to be in tribunals as a matter of course. The right hon. Member for Berwick-upon-Tweed (Mr. Beith), the Chairman of the Select Committee on Constitutional Affairs, said the same on Second Reading: we do not want representation in tribunals as a matter of course. I am glad that both Opposition spokesmen understand and share that view.

We must ensure that people have enough information as users, so that they understand that they can get advice if they need it and understand what they need to do to ensure that they put their best foot forward. We will work on that.

We acknowledge that legal aid for representation has a role in some tribunals. It is not available in the Lands Tribunal now, but it is available in the Asylum and Immigration Tribunal, the Employment Appeals Tribunal, the Mental Health Review Tribunal and in cases of special difficulty in all tribunals. If a case falls within the provision that I have mentioned already—section 6(8)(b) of the Access to Justice Act 1999—legal aid can be granted exceptionally for representation. That will apply in a minority of cases, because in most circumstances tribunal users should not need representation for a just outcome. None the less, legal aid is available in exceptional circumstances, as we have already discussed.

I imagine that, if a case suddenly became more complex than anybody could have predicted, one of two things would happen: either the inquisitor judge would adjourn so that legal help could be obtained—along with counsel’s advice or whatever were necessary to ensure that the legal points that emerged were advanced in a proper fashion in the applicant’s interests—or he would write, as many coroners do, in support of an application for exceptional circumstances, so that a Minister could consider granting legal aid. With those two fall-back positions available, the situation is not immensely troubling.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

Both would require a delay, as the case would have to be interrupted and the application would have to be considered, then accepted or rejected. If a judge is able, at the beginning of a case or at any stage, to assess whether a case would need legal aid, to make the decision then and implement it would be much quicker for the tribunal and much quicker and more certain for the individual in terms of the remedy. It is the judge who can assess that. Experienced judges will be able to make such assessments on the spot.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

The hon. Gentleman slightly contradicts himself. If it is obvious to the judge at the beginning that a case is complex, an adjournment in the middle, with a consequent delay, will not be necessary, because he can make it clear that legal aid should be made available and he can either suggest that the applicant seeks legal help or he can support an application for exceptional circumstances. Given the experience and calibre of tribunal judges, it would be a rare case that suddenly multiplied out of all recognition into a complex legal issue, thereby meriting an application in the middle of it. However, if that were so, everybody’s view would surely be that it was essential that the person had the opportunity to be represented. In such an extremely rare case, it would undoubtedly be the  norm for the inquisitor judge to adjourn and support an application for full legal aid or advise the applicant to get legal help. We would like to do more. I think that I said that clearly on Second Reading.

Like the hon. Member for North-West Norfolk, I do not want to stray into the generality of legal aid reform at present, but it is well known that we intend to put lawyers on to fixed fees for standard cases, starting very soon this year, with only exceptional cases being paid for by the hour thereafter. That should make the legal aid budget become more predictable, which would strengthen our arm in respect of having resources available to be moved over.

It would be our intention, as I have said time and again—and I have no difficulty saying it once more—that such resources should move over into the welfare sector, with which the tribunals basically deal. Whether representation in tribunals is the right place to put those resources or whether they are put elsewhere would be a matter for discussion at that point. I hope that Opposition Members will accept that there is an adequacy of provision within the present system and that when resources are made available by the reforms that we are currently implementing, the intention is to put them into this sector. I hope that the hon. Members will withdraw their amendment, which was, as I have already said, resoundingly defeated in the House of Lords and I fear will suffer the same fate in Committee.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

Has the Minister the figures—either numbers or costs—that tell us how many cases under the present regime are given legal aid through the exercise of ministerial discretion? What sort of number is it for the past year?

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

I cannot help with that. I know that I get one or two cases a fortnight to determine. They are mostly coroners’ inquisitions with the occasional tribunal case. I do not know whether that is a fair representation, but we will look into it and give the information to the hon. Gentleman if we can.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

I was being generous and trying not to divide the Opposition by not reminding the hon. Member for North-West Norfolk that his party did not support the proposal in the other place. However, I am glad that such enlightenment has come its way as the Bill has moved down the Corridor. That is always to be welcomed. Progressive conservatism often moves more quickly now than it did in the past.

I am very clear that this is right as a matter of principle and is something that we should pursue. I heard what the Minister said on Second Reading and accept her intention that this is an area of law in which practice will feature and in which the Government hope there will be more resources to assist with legal aid and advice as appropriate. I want to make one comment on the practicality of the arrangements, which the Minister cited as her explanation why we do not need the system at the moment. If an issue was spotted on the papers by the judge at the very beginning of a case, then it would require the hearing to stop and start and be adjourned and start again. It  may even put back the date when a case is dealt with. When the papers arrive at the tribunal in the normal way and an issue is spotted, there will be a delay, even if it is not the interruption that we are talking about. If a legal case arises during the hearing, then that is interruption and delay.

In any event, it seems that that process is one that takes away the discretion that judges could properly have—through hearing the argument and seeing the nature of the applicant—to determine a case. On paper, an applicant may appear to be competent and able to represent themselves. However, they may not be well; they may be mentally, physically or emotionally ill. There are all sorts of circumstances that are not intrinsic to the case, but may become evident. The person may become distressed. They may have a poor attention span, not be very intelligent and not able to understand things. It seems to me that those are the sorts of reasons where the discretion should be given to the tribunal there and then. I am very keen that we pursue the matter and I hope that the hon. Gentleman will agree with me.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

It might be wise to rehearse the basis on which exceptional funding is given because it will cover most of what the hon. Gentleman is worried about. It is given, first, if there is a significant wider public interest that the user be represented—that is rather aside from what he is saying—and, secondly, if the case is of overwhelming importance to the user or if a lack of representation would lead to obvious unfairness in the proceedings. Those two provisions are likely to cover all the situations which would produce injustice if they were not covered, as the hon. Gentleman has set out. Thirdly, it is given if it would also be practically impossible for the user to bring or defend the proceedings without representation. I think that he will find that there is already provision for exactly what he is worrying about, although not in the hands of a judge, but in the hands of the executive.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

I understand that. I have in mind a case involving an allegation of unfair dismissal that I have been dealing with and which I chose as the subject of an Adjournment debate on behalf of a constituent. The case was clearly a matter of significance to the individual, who had been summarily dismissed from the job that he had been held for 25 years. The Minister is right that there are exceptions, but as she rightly said, they are not granted at the instigation of a judge. It seems that that is a good place for them to be.

One could start with the same set of criteria. Obviously, some cases are much more likely to get ministerial certification, where a judge spots that it is of prospective national interest, in that it will determine what the law will be in future and will have wide-ranging implications, and deals with a controversial issue. Such cases are likely to get through the system but, from the perspective of the individual, cases in which people lose their jobs or something happens that significantly affects their finances might be another category.

I am not arguing about whether the criteria are more or less correct; I am arguing that the judge should have the opportunity that has been outlined. That is not a million miles away from what the Minister would like  to happen in future. Here is the legislation that gives us the opportunity for that to happen. I hope that we have persuaded the Committee that it should happen now.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

If one considers the high-cost and highly complex cases that receive legal aid, costing the legal aid budget millions of pounds, it becomes clear that we are talking about a small crumb in the trouser turn-ups of one or two High Court judges. It is a small amount of money, but it would help a number of people.

There are three points that I should like to raise with the Minister. She mentioned the changes in the legal aid budget and the reforms that the Government are introducing, the bulk of which we support. We can see exactly where the Minister is coming from and we can see the need for reform. If the reforms lead to significant savings, could Ministers redeploy the legal aid in other directions—including to tribunals, for example—simply by ministerial edict or would that require a statutory instrument? Doing that would certainly not require primary legislation, but would it require an order in the House? Could Ministers simply take such redeployments on board? If so, we would feel that we could push them on the issue.

Amendment No. 67, to which the hon. Member for North Southwark and Bermondsey has added his name, would not exactly put a huge amount of extra pressure on the legal aid budget. We are talking about flexibility and the final decision being in the hands of the tribunal judge. The first-tier tribunal judge would make the decisions and the rules would allow legal aid to be granted in rare circumstances.

The Minister mentioned the rule on exceptional cases that enables the tribunal chair to adjourn proceedings and recommend that legal aid be granted. I would have thought that there would be an inevitable delay, but she has not yet told the Committee what sort of delay there would be. I take on board her point that if it becomes apparent before the tribunal has started, or even on the first day, that exceptional circumstances apply, it might make sense for the tribunal to be adjourned and for a decision to be made on legal aid. However, if the tribunal is adjourned halfway through because of the complexities that the hon. Gentleman mentioned, how long would it take to get the legal aid set up? I imagine that that would take at least three to four weeks, in which time there would be a great deal of added uncertainty, stress and worry.

We want to make the tribunals as user-friendly as possible, but there will always be stress and strain on the applicant. The amendment is modest and does not ask for a great deal. Its public expenditure implications are absolutely minimal. As I said, we are talking about a small fraction of what is spent from the legal aid budget on the high-complexity cases. We Conservatives would certainly want to consider the issue in the context of our ideas for reorganising legal aid. It would be a minor step forward.

Will the Minister answer those points? If she does not do so in a way that we find satisfactory, we may have to push the issue to a Division.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs 2:30 pm, 15th March 2007

The hon. Gentleman is right in saying that primary legislation would not be required to  change the legal aid rules. The Lord Chancellor has a power to change legal aid—presumably the funding code. Legal aid is covered by a funding code, so that could be done by the Lord Chancellor’s direction.

I pause to thank the hon. Gentleman very warmly for saying that his party supports the bulk of the legal aid reforms that we are implementing. I am most grateful for that; his support is extremely welcome.

As the budget levels out and comes under control under the impact of the changes, we will need a review of how best and earliest to start using that other money in the welfare benefit sector. That is how we should consider the use of that money; representation for certain tribunals in certain circumstances might well be one way forward. However, there may be other priorities to roll out first. To a large extent, that is why the amendment is not acceptable.

In the extremely rare situation conjured up by the hon. Gentleman, the judge would have looked at his case file and considered how he would deal with the tribunal hearing. He would do that well ahead of time. Perhaps he would require information to be ready for it; perhaps, in writing or some other way, a sort of informal pre-trial review would have to be held to tee up the way forward. Such things all happen. If, having done all that, he had failed to see that there was a complexity, we would be in the territory conjured up by the hon. Gentleman. However, when I set out the process, he can see that it is pretty unlikely that that would happen, save once in what used to be called a blue moon.

If what the hon. Gentleman envisages did happen, one of two things might occur. First, the tribunal chair—soon to be called a judge—might adjourn so that the individual can get legal help. The judge might think that the person needs not representation, but advice on a particular point of law. That adjournment would enable the individual to go to a supplier of legal services—a citizens advice bureau, legal centre or solicitor—that would already be available and empowered to grant legal help, subject to a simple means test, which is done quickly. If legal help were needed, that could be obtained quickly.

Secondly, the tribunal chair might think that actual representation is necessary. That would require an adjournment while some communication—a letter or note from the judge or applicant—was sent to the Legal Services Commission, which would have to recommend that the exceptional circumstances power be used by Ministers. As soon as it had considered the issue and made the recommendation, the issue would come before Ministers. Such applications are often urgent. There need be no very significant delay, although I agree that it would be much better if such a situation were avoided. In 99 per cent. of cases, I am sure that it would be.

I hope that I have satisfied Opposition Members that there is adequate provision and an intention to look again when our now well supported legal aid reforms come to the fore. I hope that I can persuade the hon. Member for North-West Norfolk to seek leave to withdraw the amendment, which was abandoned by his party in the Lords.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

The Minister has said that there is every possibility of coming back to the matter of legal  aid being available once the reforms have moved on. I feel that the amendment would hasten that process, so I shall press it to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 10.

Division number 1 Nimrod Review — Statement — Clause 22

Aye: 5 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.