Criminal Defence Service Bill [HL]

I associate myself with all the speeches that have been made on the topic so far, and I shall add my own observations in support of Amendment No. 11. As I understand it, the Joint Committee on Human Rights raised concerns about the absence of a provision for a right of appeal beyond review from decisions on the grant of legal aid, following the transfer of decision-making powers on legal aid from the courts to the LSC. At Second Reading, several noble Lords referred to Article 6 of the European Convention on Human Rights. As the Committee is aware, Article 6 does not contain any absolute bar to the decisions of administrative bodies. As such, these bodies cannot be considered to provide an independent and impartial tribunal, such as would satisfy Article 6; the article requires that such decisions be subject to some form of review by an independent and impartial tribunal. Where the decision is primarily one of policy, appeal by way of review is likely to be sufficient for Article 6. There are a number of cases in the jurisprudence of the European Court of Human Rights relating to, for example, town and country planning in which the policy issue is predominant and in which, therefore, Article 6 is satisfied by the provision of a review. Where the decision directly concerns an individual’s personal or economic rights, however, a full appeal on both fact and law is required. I think it likely that, were the matter to be litigated in Strasbourg, the court would come to the conclusion that what the Government propose in the Bill did not meet the Article 6 test. The noble Baroness, in her famous letter to me, kindly addresses the issue in some detail and believes that my own conclusions are incorrect. She believes that, whether we are talking about a simple reassessment of the factual basis in order to see whether there is a factual error or not, or whether we are looking at the wider interests of justice test, in both those cases a review would be satisfactory. I adduced in support of my submissions at Second Reading the Government’s stance in relation to asylum appeals, where in a sense they have been moving in the opposite direction from that in which they have moved under these proposals. Under the asylum Act, the legal aid decision has been transferred from the Legal Services Commission to the judge. In her letter the noble Baroness said:"““The approach taken in the AIT supports different policy aims and objectives which underpin the new single-tier tribunal””." I am not quite sure what she means by that; but on looking at the matter in principle, if anything when compared with the tribunal system, the judges ought to play a greater role in the magistrates’ court. Why do I say that? The noble Baroness is well aware that under the jurisprudence of the European Court of Justice, asylum seekers have fewer rights in front of national tribunals than do citizens. If that is the case, why do citizens having their legal aid requests dealt with in the magistrates’ court not have the right to have those decisions ultimately taken by the judge, and yet, by contrast, asylum seekers do have that right? That is an important question which needs answering. I have one further matter to address, and that is the service level agreement. There is to be a service level agreement whereby the decision which is to be made, in principle, by the Legal Services Commission is, in practice, contracted back to the administrative staff of the court. Does that not further undermine the power of the magistrates in magistrates’ courts? In effect, the procedure of contracting back seems to transfer power from the judiciary to the administrative staff. Judges’ hands, whether we are talking about a stipendiary magistrate or a bench of three magistrates—his, hers or theirs—are in effect tied behind their backs. Over the past five years we have had a series of debates in your Lordships’ House warning the Government that they have been steadily undermining the position of lay magistrates. Here is a further example of that. Perhaps we should draw wider conclusions about what the Government are seeking to do in magistrates’ courts.