Speaking at the Legal Aid Practitioners Group conference in Birmingham on Friday (7 October) he said that one of the disadvantages of the plan for the Ministry of Justice to take direct control of the administration of legal aid would be the lack of independence in the decisions on whether or not to grant legal aid to groups such as 'Travellers and terrorists' who can be politically controversial: 'It is very important there is some protection from political interference in decisions on granting legal aid.'
Questioned by LAG on what he believed would be the right way to do this, he replied that the LSC has advised ministers that an 'independent tribunal to appeal decisions on granting legal aid would be the best system'. He expressed concern that the Legal Aid, Sentencing and Punishment of Offenders Bill, currently before parliament, did not have any provisions to protect the civil servants who would be making decisions on entitlement to legal aid from political interference from ministers. Implying there had been problems in the past he told the meeting of around 200 legal aid lawyers that as chairman of the LSC, 'I've seen ministers with arms of very different lengths when it comes to decision-making on entitlement to legal aid.'
Sir Bill argued that the special review system which currently looks at decisions in complex cases using independent experts could be examined as a possible alternative to the tribunal system which he suggests. He said that he would be looking carefully at the legislation to ensure that there was an element of independence in the decision-making process to stop interference from ministers.
LAG has spoken to other senior sources at the LSC who share Sir Bill's fears about ministers exercising improper influence in cases. Interestingly they have no concerns about their current political master, Kenneth Clarke, doing so, but say that there were incidents under the previous Labour administration in which ministers might have done so. Sir Bill is the first official from the LSC to go on the record to voice his fears. His comments will be embarrassing to the government which has so far rejected calls to amend the bill to include an independent tribunal system to hear appeals against a refusal to grant legal aid.
In the case of Evans, which was widely reported earlier this year, evidence emerged of Lord Bach, the then legal aid minister, being lobbied in secret by the Defence Secretary Bob Ainsworth to prevent legal aid being granted in such cases. The rules were subsequently changed to prevent third parties from claiming legal aid to bring human rights challenges in similar cases.
In LAG's view, whether officials believe an individual secretary of state might or might not decide to try and prevent legal aid in a politically sensitive or otherwise controversial case is not the point. LAG believes Sir Bill is right - an independent tribunal system to appeal decisions on entitlement to legal aid will be essential if the government goes ahead with its plan to take direct control of the administration of legal aid. What matters is that both in practice and appearance there is no suggestion of political interference in granting legal aid as the credibility of the justice system is at stake.
Image: Legal Services Commission