Select Committee on European Union Forty-Ninth Report

LEGAL AID (5513/02)

Letter from the Chairman to Rt Hon Baroness Scotland of Asthal QC, Parliamentary Secretary, Lord Chancellor's Department

  The draft Directive was considered by Sub-Committee E (Law and Institutions) at its meeting on 10 April.

  The Committee was grateful for the information given in your Explanatory Memorandum. The Committee noted that you are consulting interested parties. We would be grateful if you could let us have details of the timetable of that consultation exercise and, in due course, a summary of the results. It would also be helpful if you could provide periodic reports on the progress of the negotiations.

  It would also be helpful if you could indicate whether or not the Government intends to opt-in to the negotiation of the draft Directive. As we understand the position, if that decision has not already been taken, it must be an urgent matter.

  The Committee decided to hold the document under scrutiny. I look forward to receiving the information requested above.

11 April 2002

Letter from The Rt Hon Baroness Scotland of Asthal QC, Parliamentary Secretary, to the Chairman

  I am writing to provide additional information to that contained in the supplementary Explanatory Memorandum of 1 September, for the benefit of the Committee in considering this item. It is my intention to give political agreement to this proposal, should it be necessary to do so, at the Justice and Home Affairs Council meeting on 14-15 October.

  This has been a difficult directive to negotiate, but as I made clear in the supplementary Explanatory Memorandum, significant and beneficial changes to the text have been achieved. It is important and in the UK's interests that those gains are now secured.

  Negotiations on this text have progressed significantly more quickly than had been expected—it is just five months since the decision to opt-in to the negotiations was confirmed—and the fact that it is to be tabled at the October Council rather than the November one has to a certain extent come as a surprise, although we did (as indicated in the supplementary Explanatory Memorandum) know that the Presidency accorded this dossier a high priority and considered it possible that the proposal could be adopted at or before the November Council.

  Discussion now centres particularly on questions of scope in Articles 1 and 1A, and eligibility for legal aid in Article 3. On Article 1, concerns remain about the possible inclusion of defamation and business cases, although these may be allayed to a certain extent by possible tightening of the merits test (in Article 14) in such cases. On Article 1A, the Government has considered Option 2 to be on balance preferable, but considers that in practical terms the two options are very similar, since the principle of equality of arms would in practice require us to provide legal aid in the terms of the Directive for any cross-border case. On Article 3, some delegations have concerns about defining legal aid as including pre-litigation advice, while others, including the UK, regard it as a vital element of the scheme and key to maintaining a viable merits test; and work is focused on elaborating a way forward which will meet the concerns of all Member States.

  The speed of developments has affected the consultation process, about which you asked on the Committee's behalf in your letter of 11 April. As explained in paragraphs 22 and 23 of the supplementary Explanatory Memorandum, the Government initially consulted the legal professional bodies, receiving responses from the Bar Council and the Law Society of Scotland in March supporting the Commission's original draft (now considerably amended, in particular by being limited to cross-border cases) and from the Commercial Bar Association in May concerned with the effect on costs of Article 17 (now deleted), and holding a meeting in June at official level with the Law Society, whose primary concern was that the Directive should not have a disproportionate impact on the overall civil legal aid scheme. Such was the rapidity of developments in the first months after the proposal was made that wider consultation was delayed until the likely shape of the final proposal became clearer, and was launched in July, with the National Association of Citizens' Advice Bureaux, the Law Centres Federation, the Legal Aid Practitioners Group and the Consumers' Association all being consulted. At the time of preparing the supplementary Explanatory Memorandum, no responses to the second round of consultation had been received, and that remains the case as I write; but I will ensure that the Committee is informed as soon as any response is received.

2 October 2002

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