A House of Lords select committee has warned that the Lord Chancellor's “almost untrammelled power” to give directions under the Access to Justice Bill may breach the Human Rights Act.
The select committee's report on delegated powers and deregulation says the Lord Chancellor's powers regarding the Legal Services Commission under the Bill, are “of considerable concern”.
Committee member Lord Goodhart QC tells The Lawyer: “This is effectively a power to legislate and is not confined to administrative arrangements.
“It's the extent of the powers that are given – which are not only given to him, but also to his successors – which we think is unjustifiable.”
The report says that if the general power to give directions applies to criminal matters, “it will not be possible to guarantee that convention rights will be respected”.
It adds that it would be “disturbing”, if a minister of the state had “an undefined power to change the arrangements for giving legal assistance to an impecunious defendant”, since “the state is a party to the case”.
Liberty's legal officer Mary Cunneen says: “It's alarming that the state – which prosecutes criminals – also seems to want the power to decide who should defend them and how.”
Vicki Chapman, of the Legal Action Group, says: “He has effectively given himself absolute power to do anything without the safety net provided by Parliament. The danger is that these powers are for all time and could be used in a way not envisaged by the Lord Chancellor. He should turn all directions into regulations – at least then there would be some parliamentary control.”
The Lord Chancellor's planned power to interfere with the rules of professional bodies also came under fire. The report calls for the Bill to spell out: firstly, that the Lord Chancellor may only order rule changes if the body unreasonably restrict rights of audience, or rights to conduct litigation; and secondly, that a strong, independent and self-regulating legal profession should be preserved.
A Bar Council spokesman says: “This is the strongest possible pressure a committee can put on a Government and we would urge the Lord Chancellor to reconsider.”