Bach Commission: The Right to Justice - Motion to Take Note

– in the House of Lords at 3:09 pm on 14th December 2017.

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Moved by Lord Bach

To move that this House takes note of the report of the Bach Commission, The Right to Justice, published in September.

Photo of Lord Bach Lord Bach Labour

My Lords, I start by declaring an interest as the elected police and crime commissioner for Leicestershire and Rutland. I thank noble Lords who have agreed to speak in this debate. The last business on a Thursday afternoon in the middle of December is not always the most popular occasion, but I hope that the importance of the matters we are discussing will make it worth while. Certainly, the number and list of speakers is hugely impressive, from all sides of the House. My one regret is that noble Lords will have only five minutes to make their contributions; that seems too little time.

Why do I argue that these matters are important? First, I hope the House will not need persuading that the right to justice—The Right to Justice is the title of the report of the commission that I was privileged to chair—is a crucial element of the agreement or pact, unsaid, of course, between the state and its citizens, as a result of which the citizen agrees to live under and support the rule of law. Secondly, while the right to justice is not, of course, all encompassing, it must include some access to justice for every citizen. That right, in the words of the report, includes the,

“right for individuals to receive reasonable legal assistance without costs they cannot afford”.

The foreword to the report states:

“We live at a time when the rule of law is under attack. Too many powerful institutions pay lip service to the concept of access to justice without having sufficient regard for what it actually means. It is, after all, fairly simple: unless everybody can get some access to the legal system at the time in their lives when they need it, trust in our institutions and in the rule of law breaks down. When that happens, society breaks down”.

Thirdly, it is a commonly held view in legal circles and beyond that modern Governments—I include Governments of all political persuasions—sometimes find it just too easy and comfortable to forget those rights, particularly when they are inconvenient to the Government in question or affect large parts of the population who do not or cannot assert those rights. The country as a whole would rise up if there was no real commitment to a decent education for everyone or a health service for all on the part of government. Why should there not be the same response when something as important as access to justice is, in practice, denied to a considerable number of people?

The background to the commission is as follows. Taking a longer view, the decline in the number of our citizens now eligible for legal aid is startling: in 1950, it was 80%; in 1998, it was 53%; in 2007, it was 29%; and it has now been estimated at around 20%. In the short term, I would argue that taking large areas of the law, including housing, debt, employment, welfare benefits, immigration and the vast majority of private family law, out of the scope of legal aid over the last few years has given rise to the anxiety that it is often those with least who now have least access to justice.

The LASPO Act was how the coalition Government chose to cut back on civil legal aid, although other decisions outside that Act also played their part. The consequences have been frightening. As the Bar Council itself in its briefing for this debate says at paragraph 11,

“official statistics … show that the number of civil legal aid matters initiated has fallen by 84% from 933,815 in 2009-2010 to just 146,618 in 2016-2017 and the number of legal aid certificates granted for civil representation is down 36%”.

The way it was possible for any citizen to get some quality legal advice in the area of social welfare law at the time in their lives when they needed it—something that did not, incidentally, cost the public purse very much money—represented a sensible, pragmatic and workable system, very much in the British tradition. Above all, it gave everyone some access but, in practical terms, often meant that cases without merit did not go near a court and cases with merit could be sorted out promptly. Ironically, it saved a huge cost in human and financial terms. Indeed, paragraph 18 of the Bar Council briefing says that as,

“the Bach Commission has pointed out, £0.5 billion more was saved as a result of LASPO than was ever intended; and it is inexplicable that the Government has failed to take any account of both the evidence and the sheer logic that for every £1 spent on legal aid, far more is saved elsewhere”.

Because that system is now gone, the commission believes strongly that something should be done about it urgently, and I hope the House agrees.

As for the commission itself, I emphasise that when I was encouraged and asked by the leader of the Opposition to set it up, we were determined that those involved should be chosen for their expertise and not for their ideology. I am proud to say that the quality of the commissioners was extraordinarily high; they covered a range of legal experience across many fields of law. I pay special tribute to someone who is well known to many noble Lords speaking in the debate today—Sir Henry Brooke, who gave us our intellectual weight and phenomenal hard work, as well as years of experience at the Bar, the Court of Appeal and afterwards. Although I have not done so myself, I strongly recommend that noble Lords read the seven appendices he has attached to the report, which can be found online. They give a wonderful background to legal aid and to the commission and its reports.

Of course, we all felt strongly about the state’s obligation towards its citizens in this area, but we were not all of one or any political persuasion, and we agreed early that consensus in this field was much to be desired. I hope all noble Lords will agree that our system of legal aid and access to justice has always worked best when political parties agree on general principles and disagreements are at the margins. Indeed, a major purpose of the report is to argue that the changes we need can be effected only by broad agreement between the major political parties.

The report itself is in two parts. Our major conclusion, which owes a lot to the advice of my noble and learned friend Lord Falconer of Thoroton, who I am delighted is speaking this afternoon, is that the time has come for there to be statutory recognition of the right to justice by way of an Act of Parliament for these purposes, named the “Right to Justice Act”. As part of that Act, a justice commission would be created, independent of government and led by a senior judge, whose job it would be to enforce, monitor and advise. If we are right about the somewhat careless—to put it rather gently—attitude that modern Governments have and take towards access to justice, something surely needs to be done to force or oblige government to put this right into practice as a matter of course. Judges who for a number of years have, with great skill and bravery, protected our constitutional rights, forcefully and to good effect, would be assisted by statutory backing.

Some might argue that there is no need for legislation, and that judges have shown themselves more than able to protect access to justice. Our argument in response is that it is not right to put this burden wholly on the judiciary and, more pertinently, that government must be shocked out of its complacent attitude towards this issue. I repeat that by “government” I am not referring to the present Government particularly, but to modern government over a large number of years. We accept that this major proposal needs to be debated by lawyers and the general public. We do not pretend to have come up with a detailed scheme—that is for later. What is important is that the principle is accepted. Up to now, we have enjoyed a wide degree of support for this proposal, since the commission’s report was published by the Fabian Society. I look forward very much to hearing noble Lords’ comments about that matter in this debate.

The second part of the report makes a case for urgent action to put right some of the blatant injustices that we thought had been caused by the LASPO Act and other government decisions. I am delighted that the Government’s own review of LASPO is now under way. We hope that a number of our 25 proposals will be accepted. Our recommendations include widening the scope of legal aid and restoring it for social welfare law. We argue that all matters concerning support for children should be brought into scope, as should a number of private family law cases. We also argue that inquests should be within scope, if the state is funding other parties. Reform of the exceptional case funding scheme is urgently needed, and we recommend a boost in public legal education. The truth is that our country is desperately poorly educated in knowledge of the law. We believe that the decline in the number of social welfare lawyers as a result of cutbacks and the closing of many offices and advice centres that practise in this field must be looked at and acted on as well.

If I were to emphasise one thing only as to where we think urgent action is needed, it would be our belief that early advice—whether in social welfare or, more particularly perhaps, in private family law—is absolutely essential, both in the interests of justice and in practical terms, to cut back the number of unrepresented litigants who end up before tribunals or family courts and who clog up the system entirely. The noble Lord, Lord Low, who I am delighted will speak in this debate, made this point very forcefully, and is quoted in our report.

I was of course proud to chair the commission, which I believe has produced a sensible, practical, grown-up report. The Government should, at the very least, examine it extremely carefully and, I hope, act on it.

The cost of our recommendations has been calculated at some £400 million per year. I remind the House that since LASPO was first thought of the Ministry of Justice, which planned to save around £400 million a year, has in fact saved £900 million a year from the legal aid budget. So the money is there—the question is: is the political will?

I believe we are debating an issue of great importance, which goes to the type of country that we want to live in. At its real heart, the report argues that there is no point in having the theoretical right of access to justice if, in practice—whether because of government policy or otherwise—it is denied to you as a citizen. As a country that enjoys a justice system that is very much admired throughout the world, surely we can do better than this. I beg to move.

Photo of Lord Faulks Lord Faulks Conservative 3:24 pm, 14th December 2017

I congratulate the noble Lord, Lord Bach, on producing this report and on securing this debate, so that we can discuss in the limited time available some of the recommendations that it makes. During the debate on the Queen’s Speech, I said that I hoped that when the Government looked at LASPO, they would take into account what was said by the Bach commission, and I reiterate that today.

The availability of legal aid was part of the post-war settlement. It enabled many people to have access to legal advice and representation that they had never had before. But successive Governments, of all colours, became alarmed at the growth and level of expenditure. Modest reforms by my noble and learned friend Lord Mackay of Clashfern were followed by the Access to Justice Act 1999. It was brought in by the Labour Government and created, probably inadvertently, a veritable bonanza for litigators and various parasitic organisations, causing a real imbalance in litigation. Somehow legal aid got lost along the way.

The LASPO Bill, introduced by the coalition Government, took heavy fire in Parliament, particularly in your Lordships’ House. I was on the Back Benches and was far from happy with Part 1, which concerned the scope of legal aid. Indeed, it is the only area in which I have voted against the Government in my time in your Lordships’ House. Part 2, on the other hand, was a considerable success, reflecting the Jackson reforms.

There is a great deal to recommend in this report. The provision for exceptional case funding never seemed to make a great deal of sense. I think it was designed to fend off possible attack in Strasbourg. I attempted to probe the scope of that provision in Committee but never got a very satisfactory answer. I also very much agree with the recommendation on early legal help. There used to be a green form scheme, which allowed initial advice to be given at modest rates. So many disputes could be avoided by sensible advice given at an early juncture. It can point people in the right direction, not always—in fact, rarely—towards full-scale litigation but to alternative routes to solving problems. There are also some good points about the proper way to calculate eligibility for legal aid and some powerful points about scope.

However, the report acknowledges—the noble Lord, Lord Bach, referred to this—that the recommendations will cost money. The estimate is £400 million, but of course it will cost a great deal more in due course. I part company with the recommendations at this point. In my view, Parliament and the Government ought to be responsible for spending on legal aid. I appreciate the reference to the desirability of some cross-party consensus on this issue—it somewhat echoes what many people say about the NHS—but these proposals seem significantly to subcontract the whole question of legal aid to a quango, however eminent the members of that quango might be. The commission would have significant powers to ensure the so-called right to justice, including how it is understood; to intervene and assist in individual cases; and to enforce that so-called right to justice. It could effectively tell the Government what to do in a number of areas. Judges, too, would have a power to adjourn proceedings, to issue a certificate stating that legal aid should be made available, and to review the lack of legal aid on the basis that the right to justice has been infringed. The justice commission would challenge government decisions and intervene in individual litigation. In short, it would have very considerable powers.

When it comes to legal aid, the Government—any Government—are subject to scrutiny from all professional bodies, parliamentary committees and, of course, the Opposition. I saw how effective that can be during the progress of the LASPO Bill through Parliament, when many amendments were made. I therefore do not share the view of the noble Lord and his commission that a right to justice or a justice commission would be a substitute for the way the lines of accountability currently work.

There is much to recommend in this report but there are also parts that seem undesirable—they could give undue power to a quango and risk politicising judges. We can make changes to the legal aid system without doing either of those things.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Labour 3:29 pm, 14th December 2017

My Lords, I declare my interests: first, I gave evidence to the Bach commission; and, secondly, I made a financial contribution to the work of that commission. I pay tribute to my noble friend Lord Bach, who has driven the Bach commission. I also pay tribute to all the members of that commission who have expertise and experience in the provision of legal aid and access to justice. I invite noble Lords to look at page 2 of the draft report to appreciate the quality of the people engaged on the commission. I join my noble friend Lord Bach in paying particular tribute to Sir Henry Brooke, whose insight, energy and sympathy are evident in every word of the report.

The report accurately refers to a crisis in relation to access to justice. The evidence is marshalled brilliantly in the report. The effect of the crisis can be seen in many areas, of which I will mention just a few. The rights that we give to people are worthless if they cannot enforce them. I refer to three areas in this regard. First, the laws on welfare are so complicated that you need a lawyer to get through them to access welfare benefits. However, you cannot get access to a lawyer or to a tribunal to correct a decision: 61% of cases brought to any sort of appeal on a welfare officer’s decision are overturned. That figure accounts only for those cases taken to an appeal. The number of wrong decisions is unimaginable. That is an example of there being no access to justice.

Secondly, as regards equality rights, as a country we pride ourselves on having taken steps to ensure that, for example, there is a right to equal pay. To enforce that right you have to go to a tribunal. As a result of this Government’s conduct in relation to the charges for going to a tribunal, the last four or five years have meant, as the court found in the UNISON case, that that right was inaccessible to large numbers of people.

Thirdly, as regards employment rights, over decades we have given people the right to be treated fairly and properly at work. Those rights are ultimately enforced by going to an employment tribunal. If you do not understand the rights because they are too complex or the fees to go to an employment tribunal are too large, you do not have access to justice in that regard.

Those are three examples of the consequences of there not being proper access to justice, but it goes much further than that. If people cannot hold the Government to the law by means of judicial review—which they cannot unless they can afford it and unless in practice they can get a lawyer to do it for them in most cases—the Government are, in effect, free not to comply with the law. Many events happen to people who are completely blameless, where we have sought to give protection through the law.

I will give two examples, the first of which concerns bereavement caused by an act of the state. Inquests are designed to get to the truth. It is incredibly important for an individual’s sense of what happened that they get to the truth, and it is incredibly important to ensure that it will not happen again. If, as a family member involved in one of these cases, you cannot have legal assistance and you are faced with a battery of lawyers from the police, the fire service, the ambulance service, the local authority and the contractor, you do not have a hope of getting to the truth. At present, you cannot get reasonable legal assistance in most inquest cases.

Secondly, if your relationship with your partner breaks up—for example, you have been a victim of bullying by your partner over years—one of the things LASPO did was to take away the right to legal aid in practically every single private law case; that is, cases where husbands and wives or partners splitting up row about particular issues. That led to institutionalising the ability to bully one party if that had been going on before.

The standards of our life drop if people cannot go to court and the burden on the Exchequer goes up if you cannot help people reach reasonable solutions. Immediate change is required. The report identifies 25 specific things that need to be done to address the immediate crisis, but much more is required on an institutional basis. At present, for there to be proper access to justice we depend on cases that are brought before the court once in a blue moon, charging that there has been no access to justice, as a result of the work of pressure groups and lawyers, the statements of judges and the work of the Lord Chancellor behind the scenes. Obviously, that is not enough. That we have ended up in this crisis situation—again, I say that “crisis” is not an overworked word—indicates that the institutional safeguards to ensure that people have access to justice are not working. There needs to be something more, just as in relation to the health service and education.

The proposal in the report—the right to justice Act—will ensure that each individual has a right to,

“reasonable legal assistance without costs they cannot afford”.

That does not mean a right to be given legal aid in every single case; it means that where it is necessary to satisfy the minimum requirement of access to justice, it will be provided. It is not for politicians to decide when that is required, but an independent body. That body should be able to intervene to ensure that that happens and to fulfil the need for access to justice.

I commend the detail of this report to the House. I very much hope that the Government will look at it and consider acting on it, because, if they do not, the crisis will continue.

Photo of Lord Dholakia Lord Dholakia Co-Deputy Leader of the Liberal Democrat Peers 3:35 pm, 14th December 2017

My Lords, the rule of law is at the heart of our democracy. We are the envy of the world for the quality of our justice system. The right to justice is fundamental to our process of law. We cannot be at ease with ourselves if the system excludes anyone from this process because of restrictions on the provision of legal aid.

I thank the noble Lord, Lord Bach, for his report. The commission’s report is a cogent and detailed review of the impact of the current restrictions on the funding of legal aid. The report’s central proposals for a statutory right for individuals to receive reasonable legal assistance without unaffordable costs and for this right to be monitored and enforced by a new justice commission deserve support from everyone who believes that no one should be debarred from receiving justice simply because of their means.

I would like to concentrate my remarks on the impact of legal aid restrictions on one particularly vulnerable group—namely, prisoners. The subject is often ignored but it cannot be avoided because of the state of our penal institutions at present. At this stage I declare my interest as president of the National Association for the Care and Resettlement of Offenders.

People who are imprisoned are particularly disadvantaged if they are unable to mount an effective challenge to abuses because they are unable to secure legal assistance and representation. While prisoners are allowed legal aid in cases that directly affect their liberty, in practice they have been unable to secure legal assistance on issues that have a clear relevance to the length of time they will stay in custody. For example, prisoners have been allowed representation at parole hearings where their release is a possibility, but often they have not been allowed legal aid for representation at pre-tariff parole hearings which cannot direct their release but where the Parole Board can recommend that the prisoner moves to an open prison.

If the Parole Board makes no recommendation for open conditions, this will greatly reduce the prisoner’s chances of release when they reach their parole eligibility date. In most cases, the Parole Board is unwilling to direct the release of a life sentence or IPP prisoner unless they have first been tested successfully in open conditions, so the decisions at these pre-tariff hearings are absolutely crucial to the prisoner’s chances of release in the near future. In April, in a case brought by the Howard League for Penal Reform and the Prisoners’ Advice Service, the Court of Appeal ruled that the unavailability of legal aid for pre-tariff hearings was unlawful. It took the same view of the lack of availability of legal aid for reviews of prisoners’ category A status and for decisions on placing prisoners in close supervision centres.

If a prisoner is categorised as category A— in other words, as someone who needs the highest level of security in the prison system—their chances of a timely progression through the system to a lower security level and to eventual release are greatly reduced. If a prisoner is placed in a close supervision centre, their opportunities to access rehabilitation programmes, work experience and other opportunities to demonstrate their suitability for progression towards release are severely limited. Despite the Court of Appeal’s ruling in April, nothing has changed for several months as the Ministry of Justice said that it would appeal to the Supreme Court to reverse the ruling. I am pleased to hear that the Government have very recently decided not to pursue an appeal. I hope that the Minister will now be able to tell us when and how legal aid will be reinstated in these areas.

There are other key areas that are strongly relevant to prisoners’ opportunities for progression towards release where legal aid is also unavailable. One area is disputes over access to courses such as sex offender treatment programmes, courses to address violent offending, domestic violence programmes, thinking skills programmes and other programmes that can reduce an offender’s risks of reoffending. If prisoners are denied access to such courses because they are assessed as unsuitable, or if the waiting times for programmes are so long that prisoners cannot get on to them for many months or even years, they are denied a chance to demonstrate to the Parole Board that they have reduced their risk and are now a good prospect for release on licence.

Legal aid is unavailable for appeals against findings of guilt for disciplinary offences in prison. If a prisoner is unfairly found guilty of a disciplinary offence and cannot access legal aid to appeal against the finding, it can adversely affect the likelihood of their progression to an open prison or being a good prospect for release. I therefore strongly support the commission’s recommendation that legal advice should be available for issues relating to prisoners’ progress, access to resettlement and unlawful treatment in prison.

Legal aid should also be available for representation for the families of prisoners who have died in custody. Frequently at inquests in these cases the Government fund legal representation for state agencies but not for the relatives of the deceased. The chief coroner wrote in his annual report for 2015-16:

“In some cases one or more agencies of the state such as the police, the prison service and ambulance service, may be separately represented. Individual agents of the state such as police officers or prison officers may also be separately represented in the same case. While all of these individuals and agencies may be legally represented with funding from the state, the state may provide no funding for representation for the family”.

Other noble Lords have highlighted—and will highlight—many areas in which the severe limitations on legal aid cause hardship and injustice to many deprived and disadvantaged members of society.

In conclusion, it is important that, in any review of the availability of legal aid, we include the impact on members of one group who are particularly vulnerable to injustice because they are detained behind prison walls.

Photo of Lord Phillips of Worth Matravers Lord Phillips of Worth Matravers Judge 3:42 pm, 14th December 2017

My Lords, the impressive report of the noble Lord, Lord Bach, to which Sir Henry Brooke so notably contributed, accurately depicts the lamentable effect that the withdrawal of legal aid by LASPO has had on access to justice in so many areas. It raises a fundamental question, which I propose to address: can this country still afford the adversarial system of justice?

Since 1949, when legal aid was first introduced, the demands on the justice system have increased exponentially, for reasons to which I shall return. But first, I observe that this is true of other areas of national expenditure. Advances in medical science and the demands of a population that is living much longer pose challenges to the health service that seem likely to prove beyond its means. In education, the cost of the increase in the number of schoolchildren going on to university has ostensibly been met by a student loan scheme that may well prove unviable. Technical advances in weaponry have made the cost of maintaining a credible defence force prohibitive, and if we are to go on earning our keep, heavy expenditure must be devoted to our infrastructure. In this situation, the Government have to make hard choices. One cannot treat it as axiomatic that access to justice in its present form must survive at the expense of other demands.

Why has our justice system become so expensive over the last 50 years? So far as the criminal justice system is concerned, it is because we are sending more people to prison for longer. So far as the civil system is concerned, one reason is because there are now so many more areas of intervention by the state that create demands on the justice system. The report details some of these: children, family law, immigration, inquests, judicial review—a massive growth area; there was almost none 50 years ago—and, of course, human rights.

The report states:

The UK justice system is commonly praised as being one of the best in the world”.

I believe it is, but at a cost. Under our adversarial system, it is the task of lawyers to investigate both the facts and the law, which are then presented to the judge to assist him or her in reaching the right decision, in court hearings that are oral and can last for days. The lawyers do most of the work. This contrasts with the civil inquisitorial system, where the judges and court experts carry out factual investigations and research the law.

The input of lawyers, assisting each other and the judge, is critical to the working of our common law system, but it is very expensive. The reality is that today only a minute proportion of the populace could contemplate funding lawyers to act for them in judicial proceedings. The steady withdrawal of legal aid, of which LASPO was only a last giant stride, is having the effect of turning our adversarial system into an inquisitorial one. Litigants are appearing in person, and the judges are having to do the work that was done by the lawyers.

The report of the noble Lord, Lord Bach, recommends reversing the cuts to legal aid made by LASPO, but I fear that this would be little more than the application of sticking plaster to a system of justice that has come apart at the seams. Long before LASPO, civil justice was beyond the reach of a large proportion of the populace. We need a commission to look at the entire justice system, criminal and civil, to advise how to deploy our limited resources to best advantage.

Photo of Lord Goldsmith Lord Goldsmith Labour 3:46 pm, 14th December 2017

My Lords, when my noble friend Lord Bach started this debate, he reminded us that access to justice needs to be effective for it to achieve what it is supposed to achieve. Although we all believe in it, as with the rule of law there is a real danger of not doing what is necessary to make it happen. I pay tribute to my noble friend, the other members of the commission and all who assisted him with this report. Here we have some practical solutions.

I want to identify and focus on the problems that real people experience as a result of the lack of access to justice. I do that by drawing attention not to what the effect of the cuts to legal aid has been on the legal profession but to the effect on the voluntary agencies that provide so much advice to people who desperately need it.

Let me give noble Lords one example. The House will recall, I hope, that one consequence of LASPO has been not just to cut the earnings of lawyers in private practice but to reduce the revenue available to law centres and legal advice centres. One such law centre is the Haringey Law Centre, with which my firm partners—I disclose that interest. Following LASPO, its staff numbers were reduced from 15 to five, yet it still supported almost 3,000 Haringey residents a year, of whom, not surprisingly, a large proportion are BME, unemployed or disabled. Further cuts in 2016 meant that Haringey was nearly forced to close. It stayed open only because several key staff members continued to work without pay. That is only one example. The Law Centres Network has reported that law centres suffered a 60% loss in legal aid revenue due to LASPO. That is producing a situation in which people cannot get the assistance that they desperately need, not in grand public law cases or private litigation, but in areas of everyday life—employment, benefits, housing—which matter enormously to the people in this country.

I declare an interest as the chairman of the Access to Justice Foundation, an organisation supported and set up by all elements of the legal profession to collect money and fund through grants law centres, legal advice centres and those agencies and people that provide legal services pro bono. But there is a desert of legal advice. The Law Society has identified that almost one-third of legal aid areas have just one, and in some cases not even one, law firms that provide housing advice.

The recommendation of my noble friend’s commission for a right to justice Act is to be commended, and I support him in that. However, it should not detract from the other practical recommendations that his report makes; those can be got on with straightaway. Like others in this House, I look forward to hearing the Minister and others indicate what is going to be done about this in practical terms.

Supported though it is by four former Lords Chief Justice—if that is the correct plural—this debate must not become an end-of-term, teatime debate. It needs to drive forward real reform. Last year, almost 1 million people were not helped by legal aid who would have been helped in 2013. That illustrates the extent of the demand. While it may be possible to make many important changes to our justice system to make it more effective, efficient or cheaper, none of that should delay the need for assistance for the people towards whom my noble friend’s report is directed. I commend the report and look forward to hearing what the Minister has to say about what the Government intend to do to deal with it.

Photo of Lord Woolf Lord Woolf Crossbench 3:51 pm, 14th December 2017

My Lords, I also commend the noble Lord, Lord Bach, for the excellent report that has been produced and is the subject matter of this debate, and for securing the debate. There is so much that is worth while in the report that in the time available it is possible to focus only on one issue. I will focus on the suggestion that there should be established a justice commission; a matter already mentioned in the course of his powerful speech by the noble and learned Lord, Lord Phillips.

It will be known to certain of the lawyers here that in the course of my legal career I was responsible for producing a report on this subject, in the long and distant past of 20 years ago. The noble and learned Lord, Lord Mackay of Clashfern, who was in his place, was the Minister responsible for asking me to make that report. If you are going to make a report, you are usually very dependent on the Minister who commissions you to do so. I could not have been more fortunate than to have the noble and learned Lord, Lord Mackay, as my source of authority. I welcome the opportunity to say that he not only supported me during the course of the inquiry but supported me magnificently in helping get some of my reforms implemented.

But the civil justice system in this jurisdiction does not stand still; it continuously evolves. It does so because it is basically a common law system, one of the virtues of which is that it continuously evolves. Whatever the virtues of a civil justice system, it does not have that benefit.

Whatever the report says, it will need to be continuously reviewed to bring it up to date. That is why a justice commission is so important. One consequence of LASPO was attempts by the Government to alleviate its worst effects. However, they did not work as well as the Government thought they would. As a result, the Government were in the unfortunate position of putting aside money to help with special cases but, lo and behold, that money did not get to the special cases that needed it. I remember hearing debates in this House where that fact was deplored, and the Government went on to try to find better ways of doing it. No matter how many reports you have, better ways of doing things will be found, and we must focus on this.

Mention has been made of the quality of our legal system, which has rightly been commended. But, as the noble and learned Lord, Lord Phillips, indicated, it is an expensive system. One of things I achieved—but failed to do—was to ensure that in big cases, where all the people involved were wealthy, they should be able to use all the Rolls-Royce assistance the system could apply; but if you had the misfortune to be a small person in a small case, you should be able to use a bicycle to achieve what was needed in the justice system. I still believe we provide the Rolls-Royce in our system but we do not provide the bicycle—and that is one of the issues upon which we should focus. I urge that we find ways of making that happen—and I can think of no better way of doing so than by establishing the commission the report recommends.

I have had the good fortune of being gainfully employed abroad since I retired as a judge in this jurisdiction. I received that benefit because of the reputation of our system. However, I have always been rather nervous that it might be pointed out to me that our judges may be very good but, unfortunately, the system is far too expensive.

Photo of Lord Wigley Lord Wigley Plaid Cymru 3:56 pm, 14th December 2017

My Lords, I am hesitant to intervene in this debate with so many noble Lords distinguished in legal matters participating. However, I am glad to have the opportunity to contribute as the LASPO Bill was the first for me to address when I re-entered Parliament in this Chamber in 2011. I join others in warmly welcoming the work of the noble Lord, Lord Bach, and his colleagues. I hope that the recommendations of this report will be adopted by the Government when their own review has been concluded.

I shall refer briefly to our experience in Wales following the application of the 2012 Act. Wales has seen the largest decline in legal aid providers over the past five years—a decrease of 29%. Of course, Wales is not the only area hard hit; there have been decreases of 28% in south-west England and 27% in north-west England. Legal aid in the housing sector has been particularly hard hit as the rates paid for housing legal aid, set by the Government, are particularly low and so there is no incentive for providers.

When the UK Government held a consultation on legal aid in 2011 before implementing the cuts, my colleague, Elfyn Llwyd MP, who has now returned to his legal work, in his evidence warned that the cuts would hit the most vulnerable in our society—in particular children caught up in divorce cases—and would lead to overreliance on advice agencies and an increase in self-representation in courts. That is exactly what has happened, as the noble Lord, Lord Bach, emphasised earlier.

The Law Society published evidence in June indicating that many people are now facing court, unrepresented, in cases where lawyers would have resolved the issues without involving the court through mediation and negotiation. On the occasions of his recent retirement, one of the most senior Family Court judges, Mr Justice Bodey, told colleagues how more and more people were having to represent themselves at hearings and how he had at first hand felt their frustration. Sometimes he had to act as their counsel and to ask questions on their behalf. He added:

“I find it shaming that in this country, with its fine record of justice and fairness, that I should be presiding over such cases”.

In its evidence to the Justice Select Committee in October, the Ministry of Justice published figures which revealed that legal aid cuts had triggered a 99% collapse in the numbers receiving state help in welfare cases. Just 440 claimants were given assistance in the last financial year, down from 83,000 in 2012-13. This is particularly punitive for disabled people, about whom I am most concerned. The Bar Council has commented:

“This is not to say that the resources allocated to justice should be limitless. But it does mean that justice should be properly resourced to avoid a denial of justice”.

As was stated in another place by Elfyn Llwyd’s successor, Liz Saville Roberts MP, this is an, “appalling indictment of how this Government has denied access to justice to the poorest people in society. Denial of legal advice is a denial of justice”. These cuts also impact on people facing vexatious court claims brought against them by the victims of abuse. Liz Saville Roberts currently has a Private Member’s Bill in the other place addressing this serious issue.

The interim Bach report identified six key areas of concern with the current system for accessing justice—concern that we should note:

“Fewer people can access financial support for a legal case … Exceptional case funding has failed to deliver for those in need … Public legal education and legal advice are inadequate and disjointed … High court and tribunal fees are preventing people pursuing legal claims … Bureaucracy in the Legal Aid Agency is costly and time-consuming … Out of date technologies keep the justice system wedded to the past”.

The coalition Government had originally estimated that the new Act would lead to savings of £450 million a year, but in 2016 legal aid spending was £950 million less than in 2010, indicating that the cuts have been far too brutal. The Bach commission estimated that the cost of the proposals in its report would initially total less than this underspend, at an estimated cost of £400 million per year.

The recommendations set out in the final report include—I believe that it is right to stress this—

“a new Right to Justice Act. This Act will … Codify our existing rights to justice and establish a new right for individuals to receive reasonable legal assistance without costs they cannot afford … Legal aid eligibility rules must be reformed, so that the people currently unable either to access legal aid or to pay for private legal help can exercise their right to justice … The scope of civil legal aid, which has been radically reduced, must be reviewed and extended … The operation of the legal aid system needs reform … Public legal capability must be improved”.

I hope very much that the Government will give serious thought to these constructive recommendations and that they will take the necessary steps to reverse the adverse effects of the 2012 Act.

Photo of Lord Wasserman Lord Wasserman Conservative 4:02 pm, 14th December 2017

My Lords, I begin by drawing attention to my interests as set out in the register, in particular my membership of the board of trustees of the Centre for Justice Innovation.

It is a great pleasure to participate in a debate introduced by the noble Lord, Lord Bach, the police and crime commissioner for Leicester, Leicestershire and Rutland. The noble Lord is the first Member of your Lordships’ House to have been elected as a PCC, and I look forward to the day when many more noble Lords will feel moved to follow his example and serve their communities in this important way. I join with many others who have congratulated the noble Lord on securing time for this debate and who have commended him for producing such a comprehensive and readable report, and more importantly, for producing an agreed set of practical proposals for action.

As a non-lawyer who has spent most of his professional life concerned with the criminal side of our justice system, I had serious doubts about whether it would be sensible for me to speak in today’s debate. I certainly do not feel qualified to comment on most of the report’s recommendations, and I do not intend to do so. However, I want to express my strong support for two recommendations discussed in the chapter entitled “Education, information and advice”. In particular, I enthusiastically endorse the proposal that public legal education in schools should be improved, and I welcome the idea of,

“a centrally branded and easily navigable portal for online information and advice”.

I am especially keen on these recommendations because I believe that they would also have important benefits for the criminal justice system, and would therefore like to see them become the subject of more public debate and public funding.

Indeed, I would go further and say that the need for better information and more support is even greater in relation to the criminal justice system than it is on the civil side, especially when we consider the needs of our black, Asian and minority ethnic citizens. I shall quote from a recent excellent report from the Centre for Justice Innovation of which, as I say, I am proud to be a trustee. It is entitled Building Trust: How our Courts can Improve the Criminal Court Experience for Black, Asian and Minority Ethnic Defendants. It states:

“while the British judicial system has a reputation as one of the fairest in the world, our criminal justice system does not command the trust of our Black, Asian, and Minority Ethnic (BAME) citizens. A majority (51%) of British-born BAME people believe that the criminal justice system discriminates against particular groups and individuals, compared to only 35% of the British-born white population”.

I am sure that I do not have to spell out in detail the negative consequences of this situation for both the BAME community and our society as a whole. Suffice it to say that, for the BAME community, the perception of racial disparity in their treatment by the criminal justice system may lead to defendants receiving more severe sentences by making them less likely to plead guilty and thus not benefit from the one-third reduction in their sentence that is available to those who plead guilty at the first opportunity. In fact, adult BAME men and women who are tried in Crown Courts are respectively 52% and 35% more likely to plead not guilty, compared with similar white men and women.

For society as a whole, the consequences are even more serious, because there are reasons to believe that perceptions of unfair treatment in the criminal justice system are likely to increase the chances of BAME offenders going on to reoffend and thus threaten the safety of their communities and beyond. The Centre for Justice Innovation report makes a number of important recommendations for tackling these issues. There is not enough time for me to mention them all, but let me just say that none of the recommendations would have been out of place in the Bach report. Of course, this should come as no surprise. Although the Bach report does not mention the special needs of BAME people explicitly, there is no doubt that they exist in relation to the civil justice system too.

Although it has not attracted nearly as much attention in the media, it seems that there is a “trust deficit”—to use David Lammy MP’s words—on the civil side of our justice system, just as there is on the criminal side. That loss of trust in our justice arrangements is not something that can be ignored until after the Brexit issue has been settled. As the noble Lord, Lord Bach, said in his admirable foreword to the report—speaking of the institutions of our justice system—when,

“trust in our institutions and in the rule of law breaks down … society breaks down”.

My right honourable friend the Prime Minster has said that she wants to create a country that works for everyone. It is clear from the Bach commission’s findings, which we have discussed today, and the work of the Centre for Justice Innovation and others, that as far as both our civil and criminal justice systems are concerned—institutions that lie at the very heart of a free democratic society—this country does not yet work for everyone. I urge my noble friend the Minster to take this important message back to his ministerial colleagues.

Photo of Baroness Lawrence of Clarendon Baroness Lawrence of Clarendon Labour 4:07 pm, 14th December 2017

My Lords, I thank my noble friend Lord Bach for securing the debate. I am pleased that we are debating the very important issues of the justice legal system and I welcome the findings and recommendations of the final Bach commission report. As part of my ongoing work on human rights, I am pleased to see that the commission has raised concerns over the current state of legal aid in this country, highlighting that it has been radically reduced and how it needs to be reviewed and extended.

It is over 60 years since legal aid was launched in the United Kingdom, giving a route for the ordinary people of this country to have access to law in times of crisis. Legal aid has helped to meet the costs of legal advice, family mediation and representation in a court or tribunal. However, in recent years, government cuts have meant that legal aid cannot be represented in many forms of law. This has created what are called “legal aid deserts”—pockets of England and Wales with no local legal aid providers at all, according to the Law Society.

One of the clearest and most highly complex areas where legal aid is used the most is divorce. Families now have to provide funding, unless a case concerns domestic violence. However, given the sensitivities of most divorce cases, including children, legal aid is now totally excluded. Other important areas such as immigration, debt, some aspects of housing and benefits issues qualify only if they meet certain criteria. Law firms can no longer afford to offer these services. The alarming factor here is the increased risk of miscarriages of justice.

Another major area that now lacks legal aid is the employment sector. It has always been an area of real concern for individuals facing harassment and wrongful dismissal that employees are not being represented properly as they do not have the financial capacity to state their case. This has a statistical impact on tribunal cases and dismissals across the UK.

Legal aid is an important part of one’s human rights. If someone cannot afford legal representation it could undermine their right to a fair trial. Some rights are protected under Article 6 of the Human Rights Act. There is still so much to be addressed on access to legal aid for the most sidelined groups in our society.

I am very concerned about this and, as I mentioned, I welcome the fact that the Bach report addresses the issue that people are being denied access to justice because the scope of legal aid has been dramatically reduced and eligibility requirements have been made unreasonably rigorous. Most problems have now become apparent through the justice system, from insufficient public legal education and a declining information and advice sector that includes the failures of the intricate bureaucratic system and the uncertainty of the future of legal aid lawyers.

As the commission has established, there is a real need for a new legally enforceable right to justice. I am grateful the commission’s report on the right to justice has come up with 25 new recommendations, which, most importantly, include ways to codify our existing right to justice and establish a new right for individuals to receive reasonable legal assistance without unaffordable costs. I am also content to see that a new body called the justice commission would be set up to monitor and enforce this new right.

We need to endorse and take action on this report for the thousands of individuals struggling to be represented in the UK, who suffer the anguishes that they face in their own struggles in life by not having access to what is a human right. No matter how much data is provided, there are thousands of real people who can no longer afford legal aid for sensitive areas such as family break-ups, and jobs and debt issues. Vulnerable people should be provided with such services in the interests of justice. Without legal aid and pro bono, I would not have had the result I received almost 20 years after my son’s murder.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench 4:14 pm, 14th December 2017

My Lords, I congratulate the noble Lord, Lord Bach, not only on securing the debate but on the excellent report that he has produced with his commission. So far as interests are concerned, the noble and learned Lord, Lord Falconer, reminded me that I, too, gave evidence to the noble Lord’s commission. It is an outstanding report. With its recommendations of a right to justice, a new right to justice Act, a justice commission, a national public legal educational advice strategy and a host of detailed recommendations for kick-starting the process of making the right to justice a reality, the report is both radical and principled. Lawyers tend to get rather a bad rap for the self-serving way in which they hold the public to ransom and tie things up in process, but this report, in showing that lawyers do have a social conscience and that a concern for social justice is at the heart of the law, exemplifies the law at its best.

Noble Lords may recall that I chaired a commission tasked with developing a strategy for advice and legal support on social welfare law in the wake of the cuts introduced by LASPO. We sat between the end of 2012 and 2016 and produced a number of reports which are generously referenced by the Bach commission—that shows that we are very much on the same page. We identified a continuum of provision, including public legal education, informal and formal information and general advice, specialist advice, legal help and legal representation. With cuts of the order of £100 million in legal aid, it seemed clear to us that the advice end of the spectrum would need to take more of the strain. Given this perception, we focused increasingly on what needs to be done to strengthen local advice services. I am delighted that the noble Lord, Lord Bach, laid some stress on this today, and it is to this matter that I wish to devote the rest of my remarks.

In this connection, Bach and Low are very much on the same page. Bach draws attention to a shrinking information and advice sector. Our key recommendation was for a national advice strategy supporting local advice and legal support plans produced by local authorities with the local not-for-profit sector and commercial advice agencies. So it will come as no surprise that I was particularly pleased to see recommendation 25 of the Bach report, which states:

“The government should create a new, ring-fenced fund for advice providers who are able to evidence the effectiveness of their approach to delivering advice to people within their communities”.

A couple of years ago there was interest in something such as this at the top of government and a recognition of the contribution made to society by the advice sector. We had very positive meetings with Oliver Letwin, Michael Gove and the noble Lord, Lord Heseltine.

We were able to show that money is not really the issue: there is no shortage of potential funding streams, either from the Government, the lottery or the Government through the lottery. We estimated that a topslice of just 1% of all these funds would yield the £50 million a year needed to fund the Government’s contribution to the national advice and legal support fund we were proposing. The rest would be for local authorities to match-fund from a range of sources that we identified. What is needed is strategic co-ordination of these funding streams, with provision of advice services as a central strategic aim. We put a paper developing this approach to the Cabinet social justice committee, but I fear that it got lost in the works and the whole thing has simply gone off the boil. I hope that, with the renewed stimulus of the Bach report, the Government may be induced to revive their interest in advice services. They have great strategic importance.

Both Low and Bach stressed the value of early intervention for preventing problems escalating further down the track. There is a great deal of evidence that early legal advice saves the state money. Advice has a triple strategic value. Not only is it valuable for assisting people with their immediate problem, it helps to make them more resilient generally in dealing with life’s challenges across the board. Moreover, helping people to be more resilient reduces the burden on public services and public expenditure further down the line. This is a case which it is in the Government’s own interest to take very seriously. In fact, they cannot really afford to ignore it.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour 4:20 pm, 14th December 2017

My Lords, I live in Norfolk. The Norfolk Community Law Service—NCLS—is staffed by people who believe deeply in the right to justice. A small paid staff are supplemented by volunteers: 65 experienced solicitors and barristers and a team of 45 law students from the University of East Anglia. With their moral energy and practical resourcefulness, the people at NCLS provide services across a wide range of legal advice needs. The most severe problem areas are family issues, debt, welfare benefits and housing. NCLS says there is a perfect storm created by austerity, legal aid cuts, reductions in public funding for advice services, welfare reform and falling incomes.

The case load of NCLS has increased year on year since LASPO. In the current year, it is projecting a 21% increase. Increasing personal debt is being driven by stagnant incomes, zero-hours contracts and the benefits cap. Welfare benefits cases, after increasing by 19% in 2016-17, are on course to increase by 65% in the current year. With the assistance of the UEA students, NCLS is winning no fewer than 83% of appeal cases that go to tribunal, which shows there is something seriously wrong with DWP decision-making.

With the loss of legal aid, demand for the family court support service of NCLS has soared, increasing six times between 2015-16 and 2016-17. Nine volunteer family court supporters at NCLS help clients to gain a realistic view of their prospect in court. They attend hearings with them and help them to complete court forms and draft complex statements. Clients also get legal advice from the domestic abuse service of NCLS. The situation in Norfolk is made worse by the lack of solicitors doing legal aid work for domestic abuse, so even where the client would be eligible for legal aid, no one is available to take on their case because of the reduction in funding by the Government. Volunteers, however, cannot represent clients in court: they can provide only practical support during the very stressful experience of appearing as a litigant in person. Organisations such as NCLS can limit damage but they cannot substitute for professional legal advice and a properly funded justice system.How right my noble friend Lord Bach’s commission is to recommend that the Government bring legal aid back into scope for all matters concerning children and widen the scope of legal aid for certain family cases. It is profoundly depressing that Ministers could ever have taken legal aid away from people with few resources in such unhappy situations.

In a debate in Westminster Hall on 29 November, the Minister of State for Courts and Justice, Mr Dominic Raab, was, however, unrepentant. He intoned:

“The Government have a responsibility to make sure that those in the greatest hardship, at the times of greatest need, can secure access to justice, that the most vulnerable are catered for, and that the resources are made available to do that. That is a responsibility that we take very seriously”.

These are fine-sounding words but a world away from the reality the Government have created. The report by Amnesty International, Cuts that Hurt, describes how homeless people and those with mental health difficulties, learning disabilities, low numeracy and literacy levels, language problems, alcohol and drug dependency and even terminal illness are now without entitlement to legal aid as they attempt to engage in legal processes.

Why, anyway, should the responsibility of government be confined to those in the greatest hardship? We cannot claim to be a society that lives under the rule of law if swathes of the population cannot in reality avail themselves of legal remedy. It would appear that the Minister had not read the judgment of the Supreme Court in Unison v The Lord Chancellor.

Mr Raab then observed that post-LASPO spending on legal aid per person in England and Wales was the highest of all Council of Europe members. This argument is disingenuous. Our legal system, adversarial rather than inquisitorial, cannot be compared in this way to systems in other Council of Europe countries. The noble and learned Lord, Lord Phillips of Worth Matravers, made some very interesting observations in that regard. Anyway, what other countries choose to do should be neither here nor there. We can still do what is right according to our proper constitutional tradition, as developed in the Legal Aid and Advice Act 1949 and the expansion of legal aid in the 40 years that followed.

Mr Raab’s third defence was that,

“the financial pressures in which the LASPO reforms were introduced remain with us today … We in the Government have the responsibility to ensure that taxpayers get the best value for money”.—[Official Report, Commons, 29/11/17; cols. 168-71WH.]

I do not question the need to reduce the deficit but I absolutely reject the appropriateness of doing it by undermining the rule of law. I do not question the need to achieve efficiencies in the justice system, provided they are well judged, but too many have not been. Nor do I question the desirability of discouraging unnecessary and adversarial litigation but the reduction in the number of solicitors holding a legal aid contract has led to a fall, not an increase, in the use of mediation. The principle of access to justice for all should have been non-negotiable. The purported saving, a fall in spending on legal aid of £600 million since LASPO, though large enough to have wreaked havoc on access to justice, is trivial in the context of total public spending of £814 billion. The cost of the justice system is not to be compared with the costs of health or defence.

As for value for money, the saving has been overstated if not illusory. The commission of the noble Lord, Lord Low, the National Audit Office, the Law Society and many others have demonstrated how the removal of funding for early advice has led not just to increases in human misery but to new costs for the Exchequer. We shall see whether the MoJ’s post-implementation review of LASPO, now promised for next summer, makes an honest assessment of this.

I hope that today, the Minister will not use the stale and discredited arguments paraded by his ministerial colleague in Westminster Hall. I endorse the analysis in the report of the Bach Commission, The Right to Justice. Its proposals for reform deserve serious and urgent consideration.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Judge 4:26 pm, 14th December 2017

I too welcome and commend the report of the noble Lord, Lord Bach, and his commission, and in particular the detailed appendices produced by Sir Henry Brooke, which will well repay detailed analysis by Her Majesty’s Government. However, I must declare an interest in doing so as I am chairing a commission on justice in Wales, where one sees typical examples of social deprivation in industrial and agricultural societies, and serious problems with legal aid. I therefore warmly welcome the report and the ideas contained in it.

It is only fair, as the commission itself acknowledges, to acknowledge what the Government have done in their investment in digital technology. There is no doubt at all that we need continued and strong investment because artificial intelligence and the proper use of digitalisation in the courts can make an enormous difference. Sir Henry has seen this at first hand. It is also important to acknowledge that that investment must go forward because without it, I do not see how the finances will permit the investment in legal aid and advice that is absolutely essential. I therefore very much hope that the Government will bring forward the Bill on the courts, which was lost at the last election. The Bill is vital, and it is very disappointing that it has been delayed so long.

I wanted to acknowledge that contribution before saying that it is obvious what effects, which many have not made clear, the cuts on legal aid have had—not only on the disadvantage of which the noble Lord, Lord Low, has spoken but in the effect on the courts in the longer time that cases take. As my noble and learned friend Lord Phillips said, there is a huge recourse to judges becoming those expert in an inquisitorial rather than adversarial system. There are also the delays that have occurred right across the court system, up to the Court of Appeal. There is a serious problem that has to be grappled with.

The commission itself is a good idea but I agree with the noble Lord, Lord Faulks, that there is a political issue behind this because judges cannot become involved in the financing of the court system. It is very important that we address that fundamental problem. As was apparent from the questions this morning in the debate on issues relating to the probation service and the huge overcrowding of our prisons, justice has an integral budget. Certainly in the time that I was a judge and responsible for aspects of the administration of justice, financial pressures in another part of the justice Ministry always had a serious effect on other parts. I respectfully urge that we address the whole question of financing the justice system. How much should litigants pay and how much should the state pay? That question goes right across it and cannot be left to judges. Subject to that political issue being resolved where it should be, which is in this House, I warmly commend the proposals made. I very much hope that they can be taken forward and that we can have a proper integrated look at the whole of the justice system.

Photo of Baroness Whitaker Baroness Whitaker Labour 4:30 pm, 14th December 2017

My Lords, I declare an interest in that my daughter is a practising barrister, sometimes funded by legal aid. The rights we have declared since our earliest times as a society are nothing without access, as almost all speakers have said this afternoon. A right to justice Act would therefore be a necessary complement to the Human Rights Act 1998, one of our most important state achievements. My noble friend’s report is of signal importance, and, incidentally, is the best go yet at creating some sort of national legal service which neither incentivises litigation unnecessarily nor does this at exorbitant cost.

The British Institute of Human Rights—I declare an interest as an advisory board member—has many examples of rights denied because of lack of legal aid; that is to say, lack of capacity to challenge wrongful welfare or health or care decisions. The right to a fair trial or, indeed, to any trial at all is clearly dependent on access. One could go on through all the rights we have codified in the Human Rights Act.

When we look at funding arrangements, I draw on my experience as a member of employment tribunals, so often asymmetrically argued because the employer hired a lawyer which the complainant could not afford, with obvious disadvantages which the tribunal had to try to cut through. It took a long time. In some cases of discrimination, which are often very hard to prove, I think it is right to say that without that proper representation justice was not always done and, of course, the position is infinitely worse since the LASPO Act of 2012.

The Law Society has ample information about the cost to the public purse—£3.4 million—the delays and the injustices ensuing from the lack of legal aid-funded early advice, which was referred to by my noble friend Lord Bach in his powerful introduction. Even mediation in family law, the government’s fig leaf of justification aimed at deterring litigation, has declined by 38%.

Some of your Lordships will be aware of the severe disadvantages faced by the Gypsy and Traveller communities in trying to find sites to live on. The LASPO Act seriously curtailed their ability to obtain advice and assistance. Those Gypsies and Travellers living on local authority sites who had at last obtained security of tenure in the mobile homes legislation of 2011 found that they were denied any legal aid for advice and representation in respect of the rights conferred by that legislation, apart from possession actions and cases of very serious disrepair. Curtailment of legal aid for judicial reviews makes it increasingly difficult for Gypsies and Travellers faced with unlawful actions or decisions by public authorities to find any solicitor willing to take on their case because they might not be paid. Exceptional case funding under Section 10 of the LASPO Act, which was referred to by the noble Lord, Lord Faulks, does not really provide a practicable alternative route because of the time it takes to make an application and the extraordinarily low success rate, the consequence being that many solicitors will not contemplate such an application.

The Bach recommendations would put these injustices right. They could usefully add a recommendation that the exclusion of so-called trespassers from loss-of-home actions should be withdrawn, since the right to representation for Gypsies and Travellers who have been unlawfully moved on has also been withdrawn. The very estimable proposals for online access ought to be complemented by face-to-face advice for those who are not online.

Like others, I particularly value the recommendation for legal education in schools. We lack a written constitution which, among other benefits, would ensure that rights and responsibilities were taught. Think of how a British equivalent of the Gettysburg address might help our sense of national identity. Legal education could at least enable the guiding principles of justice to be communicated.

In conclusion, the recommendations in this invaluable report would go far to produce an effective system of public justice that we could be proud of and which, most of all, actually delivered justice to those most in need of it.

Photo of Lord Judge Lord Judge Judge 4:36 pm, 14th December 2017

My Lords, the provisions of LASPO in relation to legal aid were not wise. In truth, as the Public Accounts Committee discovered in 2015, they were ill considered. I will make just a few observations, having listened to the debate thus far.

Underpinning the invaluable report by the noble Lord, Lord Bach, a former colleague of mine on the Midlands circuit—we practised together and did cases against each other—and underpinning every single contribution by all noble Lords who have spoken is this: there are litigants with a genuine claim which merits the attention of a court but who cannot afford to litigate it, and there are litigants with a serious defence in law to a claim brought against them, which they cannot afford to litigate. If they do not or cannot afford to go to court to enforce their rights or to protect themselves, their choices are very stark, and they do nothing. They are uncounted, unknown victims of miscarriages of justice. Nobody knows how many there are because they do not turn up to be counted.

Alternatively, and with great courage, they bring or defend their own cases as litigants in person. I want to touch on one aspect that, although it has been addressed by some of your Lordships, has not been fully addressed: the impact of litigants in person on the administration of justice throughout the country, particularly in the county courts, where district judges do invaluable, hard work dealing with the day-to-day concerns of the ordinary citizen. They have to deal with many cases, but the problem of litigants in person goes all the way up to the Court of Appeal, where Lord and Lady Justices of Appeal are considering applications for leave to appeal by litigants in person.

These judges have to deal with such cases. No judge can possibly hope to ascertain the facts presented to him by a litigant in person without having to delve through mounds of uncounted and unnumbered papers, sometimes in confused or non-date order. This is not though any want of effort—often they are presented to you in beautiful files—but for want of expertise. They are presented by the litigant in person in an emotionally charged situation. This man or woman is in a place where he or she does not wish to be, and is frightened by the processes, even if helped by organisations such as Citizens Advice or the personal support units there are in many courts. It is emotionally charged for that reason, and because he or she feels that an injustice has been done or that justice is required. Trying to help that litigant in person to do the best for his or her case leaves the judge in a very difficult position, because the judge has to avoid the danger that the litigant on the other side will think, “Why is the judge helping my opponent? Why is the judge helping the person bringing the claim against me?”. So the judge is faced with an exceptionally tricky and delicate course. He has to remain neutral and be perceived to be neutral. Sometimes there are litigants in person on both sides, with the same vast bundle of papers, only in a completely different order because there has been no organisation by lawyers beforehand to present the judge with the few papers, the few documents, which actually matter.

Then off the judge goes, trying to find out what the law is. This is too serious a subject for jest, but I must allow myself this. In the Garden of Eden, there was one law: “Don’t eat the fruit of that apple tree”. Then we had 10 commandments. We produce 12,000 pages of laws every year—every year. The judge has to try to find out which bits of the law matter, because no judge anywhere in the world knows all the law. He has a qualified lawyer on both sides. He can say, “Mr so and so, where do I go now?”. “Section 22 of the Landlord and Tenant Act”. “Mr so and so, where do I go then?”. “My Lord, it is in the Social Security Act”.

What are the consequences—because there is a consequence beyond that of the unknown victim? The consequence is this. Cases take much longer that they did, at every level of the court. You may say that that does not matter, but it is a very strange economy: the judges are working harder but getting through fewer cases. The consequence to the administration of justice is this: lists of cases are reduced. A judge who could do 25 cases in the county court every day can now do only 15. You see the concertina effect. Gradually, more and more delays are being built into the system.

It is not just about the man or woman with a good case—although they are the prime victims—it is about every other litigant who suffers in consequence of this unwise legislation.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Labour 4:42 pm, 14th December 2017

My Lords, first, I declare an interest: I sit as a magistrate in London. I congratulate my noble friend on his report. I will concentrate primarily on part 2 but will say just a word or two about part 1 and the proposed right to justice Act. If it works, I am in favour of it. My only observation, as someone who sits at the bottom of the judicial pile, is that I regularly see defendants and victims who have difficulty accessing justice. They lack advice, they are confused by the procedures they are dealing with and they have no assistance to better understand the position they are in.

Magistrates’ courts deal with 95% of all criminal cases in England and Wales, so it follows that for the vast majority of individuals who come into contact with the criminal justice system, it is their experience in magistrates’ courts which will give them their faith—or otherwise—in the country’s criminal justice system. There are many wider questions about access to justice. The noble and learned Lord, Lord Thomas, talked about moving to online justice and how there are ever fewer magistrates’ courts in the country, but I shall not talk about that now. For today’s debate, I shall talk about part 2 and the urgent policy changes advocated by my noble friend.

As my noble friend’s report says, the greatest change in civil legal aid brought about by LASPO was the change in support for family law. When I started as a lay family magistrate about five years ago, about half of my sittings were on public law matters and about half on private law matters. Now, it is about 20% public law and 80% private law. Of the private law applications I see, a very large proportion are from litigants in person. All the cases I see would have been considered for mediation. That mediation may have been deemed unsuitable, usually because there are allegations of domestic violence. It is very common to see allegations of and convictions for domestic abuse in the courts in which I sit and if so, there is an availability of legal advice, although the parties sitting in court may not necessarily be aware of that. It is quite common for them to turn up not knowing that they are entitled to legal advice. It is also very common for drugs and alcohol to have played a part in the couple’s relationship, although this factor in itself would not entitle either party to legal aid. A further factor that is very common is mental capacity—either historic or current—in its widest sense. Again, this is not an issue that would entitle either party to legal aid, although it plays a central role in the sorts of cases I hear.

In court appearances there is the applicant and the respondent, and a variety of possible representation. For example, there is the litigant in person, whom the noble and learned Lord, Lord Judge, spoke about. Applicants and respondents may be represented by a lawyer, either privately funded or legally aided. They may be accompanied by a McKenzie friend; we do not know how expert that McKenzie friend is. They may be accompanied by a friend or a family member just to give them moral support. They may be represented by a student lawyer—student lawyers do have a right to speak; in my experience, they are often very good—or they may be accompanied by a volunteer from a personal support unit, if available. This is just in London, where there is a patchwork of provision. It is uneven. I have a list of six possible people who could sit in court with either the applicant or the respondent.

When we sit in court as magistrates—this is echoing the point made by the noble and learned Lord, Lord Judge—we do not know the advice that the parties have received. Sometimes I feel moved to ask them what advice they have been given. I have to say that I am reluctant to do this because it is very easy to give a perception of bias to one party over the other. On the other hand, if one party is completely unaware of the advice that is available—if they were to go to the personal support unit, or something—it would be an unfair outcome anyway. This puts the magistrates—in my case—in a difficult and sensitive position in trying to resolve these cases.

My noble friend has made six specific recommendations and I want to concentrate briefly on one of them: to have the funding of expertise in court. Expertise in private family matters is often the key to resolving the issue. A common scenario is where there is a history of drug and alcohol abuse, where the mother would be happy for the father to have access to his children if she could be persuaded that her concerns about drug and alcohol use could be allayed. Of course, this is not legally aided, so very often these issues are not resolved and there is no court order giving the children access to their father in the example that I am giving here.

This is an unsatisfactory situation and one in which the court is failing the children who are at the heart of the family system. I very much hope that the Minister will respond to some of the specific recommendations made by my noble friend.

Photo of Lord Trevethin and Oaksey Lord Trevethin and Oaksey Crossbench 4:49 pm, 14th December 2017

I, too, add my tribute to the work of the commission and will, in the time available, add a few short observations from the perspective of a practising barrister—I declare an interest in that respect.

I will start by adding a respectful coda to what the noble and learned Lord, Lord Judge, had to say about the problems posed by litigants in person. I have asked juniors in my chambers, and my son and his friends, who are starting out at the Bar, about their day-to-day experience at the Bar, and I hear one theme again and again. They say, “Well, it’s all right, I’m enjoying it and there’s a fair amount of work, but I’m against litigants in person 70% or 80% of the time”. Practising lawyers and judges all know what that means. It creates major problems. First, there is an honourable tradition at the Bar that, if you are against a litigant in person, you behave yourself, if I may put it that way; you give proper assistance, as you should anyway, to the court in relation to the relevant principles and facts, which is important.

The unfortunate side-effect in some cases is that your client begins to wonder whose side you are on, and that creates difficulties. Then the judge is placed in a difficult position, as the noble and learned Lord, Lord Judge, said, because the judge will find that he or she has to intervene in the cross-examination of witnesses and at other times in a way that gives rise to a perception of bias—and litigants are very swift to perceive bias, even when it is not there. My sources tell me that the consequence is that cases take two, three or four times as long as they should and that often they are being fought when they would not have been fought if access to legal advice had been provided to both sides at the outset. So that is a major problem with major, substantial, uncounted costs flowing from it, which has been greatly exacerbated by the reforms with which this debate is concerned.

I will just mention the criminal justice system, which has not received very much air time today. I talked to the ex-chairman of the Criminal Bar Association about the current position. He made many points to me, but I do not have time to relay them to the House. He made one point that was very striking and which chimes with something said by Sir Henry Brooke in one of his very readable and compelling appendices. He said that the junior Bar is shrinking—it has shrunk by something like 25% or 30% over the past five years—because publicly funded work is becoming very difficult to carry out in any satisfactory way.

The line in the report that caught my eye in that respect was an observation that the age profile, as Sir Henry put it, of criminal practitioners, is rising fast—that is, those doing crime on the solicitors’ side of the profession are getting older and older. The consequence is going to be that, in 15 or 20 years’ time, there will be a dearth of candidates to sit on the Crown Court bench, and the very high quality of Crown Court judges who dispose of criminal cases up and down the land will be diminished as a result of the shrinking of the publicly funded profession, in the way that I have mentioned, and which we all recognise is taking place.

I shall seek to put some flesh on the real problem about access to justice that now exists by mentioning three or four cases that I have come across in one way or another. I take first a case that a friend of my son mentioned to me. He was working for the Free Representation Unit and he came across the case of an employee who had been cynically short-changed by his employer over a number of months to the tune of about £500—a sum that he badly needed. His employment came to an end and he wanted to get that sum back. He had a clear right to get it back under the relevant legislation but, as a result of changes that were recently declared unlawful by the Supreme Court but which were operative at the time, he would have had to pay £900 to bring the proceedings that technically he was legally entitled to bring. That change to the fee system in the employment tribunals converted a real right into a pseudo-right or non-right, and it has now been declared unlawful—although the Minister’s response to the Supreme Court decision did not appear to me to recognise how serious the error that had been made was.

Secondly, I will cite a case in which a father was seeking access to his children and was accused of the sexual abuse of one of them. He was unable to afford representation. The Court of Appeal held that the judge had no power to direct that the state provide representation but recommended statutory change in May 2015—which statutory change has not yet occurred.

Thirdly—and finally, before time runs out—I will cite a case mentioned on page 59 of appendix 5, written by Sir Henry Brooke, which is very well worth reading. The case concerns the death of a child called Zane as a result of either carbon monoxide poisoning or of cyanide poisoning from a local landfill site. The child’s family appeared at the inquest against three QCs representing the Environment Agency, the local council and some other interested party, but they could not get legal aid and therefore had to resort to crowd funding to afford representation. These are very substantial problems.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice) 4:55 pm, 14th December 2017

My Lords, I join other noble Lords in congratulating the noble Lord, Lord Bach, on securing this debate, on the initiative he took to secure the appointment of his commission, on the thorough work that he and the commission undertook and on the end result, which is the report that has commanded such widespread support in this debate.

From these Benches, I endorse the central conclusions: first, the time has now come, after years of decline in legal aid and the failure of successive Governments to support it, to have a new legally enforceable right to justice which involves a right to reasonable legal assistance without unaffordable costs; and, secondly, there should be a justice commission tasked with advising on monitoring and helping to ensure that the right to justice is delivered in practice. We see the advice role of a justice commission as particularly important. I agree, of course, with the point made by the noble Lord, Lord Faulks, and echoed by the noble and learned Lord, Lord Thomas, that ultimately there is a political decision to be made about the overall budget for legal aid and that it is a matter, in the final analysis, for Parliament. Nevertheless, I completely agree with the observation of the noble and learned Lord, Lord Woolf, that there is a very important role for a justice commission in keeping the working of the legal aid system under continuous review.

The principles behind the Legal Aid and Advice Act 1949 are well known. It was introduced as an important part of the welfare state, constructed on the basis that all citizens should have access to justice; that rights in law were of value only if they were matched by remedies that could be accessed and that defences in law were of value only if they could be effectively granted; and that those ends could be achieved only if those who could not afford legal advice and representation were able to secure it through public funds.

Access to justice is also a public benefit. It enables our law to develop, enables citizens to have confidence that the law will be enforced and has the effect of enabling the law to be enforced in practice. The UNISON case was about employment tribunal fees. The introduction of very high fees had led to a 75% reduction in the number of employment tribunal cases started. That, in turn, led to employers feeling more confident in denying their employees the rights to which they were entitled. Similarly, the imposition of very high court fees is deterring case starts where creditors are nervous about pursuing debts in the courts because of the level of up-front fees involved, which encourages debtors not to meet their obligations. It is also clear, I suggest, that making citizens’ ability to resort to law dependent on the capacity to pay for their lawyers also permits others to ignore their legal obligations.

Many noble Lords have mentioned the UNISON case and the judgment of the Supreme Court. As it has not been quoted before in today’s debate, I hope that I will be forgiven for quoting from the eloquent and timeless statement of the principles underpinning access to justice, in paragraphs 66 and 68 of Lord Reed’s judgment. He said, in paragraph 66:

“The constitutional right of access to the courts is inherent in the rule of law. The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the ‘users’ who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings”.

Paragraph 68 states:

“At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other”.

The background to this debate is, of course, the LASPO Act, which severely restricted the scope of legal aid, failed to honour the principles on which legal aid had been conceived, and undoubtedly caused much injustice. The coalition Government were led by the need to control the public purse but it is now quite clear that they underestimated the effects that the Act would have on access to justice and the extent of the costs that would be saved as they estimated a sum of £450 million when, in fact, the reduction in costs has been £950 million. Happily, the Act contained provision for review and permitted areas of law to be brought back into scope. The review is now taking place, although later than we hoped. It is too early to speculate on what its outcomes might be. I regard it as a shame that the review is being conducted as an internal review within the Ministry of Justice rather than by an independent reviewing body, which might have inspired more confidence. We on these Benches recognise, as we did in the coalition Government, that there can be no open chequebook, that there have to be limits to the availability of legal aid, and that expenditure on legal aid has to be subject to some controls.

However, the fundamental issue that has exercised many speakers today is that of scope. I suggest that if there is to be a justice commission, it should be charged with keeping the scope of legal aid under review. Noble Lords have mentioned social welfare, debt, housing, family law, in particular law relating to children, and domestic violence, where the Government have made some limited reforms on the evidential requirements. However, I suggest that they ought to consider the recommendations of many that solicitors themselves ought to be able to certify the eligibility of their clients for legal aid. The financial eligibility rules need review as to both capital and disposable income. The present rules appear to proceed on the basis that people’s litigation is the only call on their finances apart from their immediate needs. My noble friend Lord Dholakia referred to the difficulties facing prisoners in securing legal aid. I also suggest that exceptional case funding, where the take-up has been extremely low—it has improved slightly, but it is not nearly good enough—is another area where solicitor certification may have a role. We place too much reliance on solicitors and barristers accepting pro bono work, which introduces an unacceptable level of arbitrary selection and evades, frankly, a responsibility of government.

The noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Howarth, made points about the effect of the cuts on the voluntary sector and on smaller providers—law centres and, in the case of the noble Lord, Lord Howarth, the NCLS.

The noble and learned Lord, Lord Judge, made an important and significant speech on the effect of more litigants in person: delays, points missed, judges being faced with the difficulty of getting to the heart of cases quickly, and the general effect on litigation of cases taking longer. Those points were developed by the noble Lord, Lord Wigley, and the noble Lord, Lord Trevethin and Oaksey.

We heard from the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Howarth, of the advice deserts. I also mention the point that of course one provider in a town or area is not enough in the case of a contentious piece of work, which requires lawyers for both sides.

The point was made that money spent on legal aid saves money spent elsewhere. I sometimes despair at the inability of the Treasury to understand spend to save across departments. I hope that the Ministry of Justice will start to pioneer saving across departments.

I fully endorse the points made about early assistance, more access to advice online, and the reference to the commission of the noble Lord, Lord Low. I am not entirely with the point made by the noble and learned Lord, Lord Phillips of Worth Matravers, on the inquisitorial system. I accept that much more inquisitorial justice in simpler cases is important, but to develop the particularly attractive analogy of the noble and learned Lord, Lord Woolf, about the bicycles and the Rolls-Royce, we need to preserve the Rolls-Royce even though we need a great many more bicycles.

We have had a powerful debate. However, the central issue is not only access to justice but the interdependent issues of the rule of law and the quality of our justice system.

Photo of Baroness Chakrabarti Baroness Chakrabarti Shadow Attorney General 5:06 pm, 14th December 2017

My Lords, I thank your Lordships for one of the most important, thoughtful, expert, evidence-based, compassionate, passionate and yet restrained and consensual debates I have had the privilege of listening to in your Lordships’ House. It is invidious to single out contributions, because there have been so many that I learned so much from. However, I cannot do much better on the principles than by following and agreeing with the noble Lord, Lord Marks, or much better on the practical crisis we face in legal aid than the noble and learned Lord, Lord Judge.

By way of declaring my interests, I have been a lawyer all my adult life. I no longer make self-deprecating jokes about that, because politicians of both persuasions have done that to all of us for long enough. I am a member of 39 Essex Chambers and, like, I believe, the noble and learned Lord opposite, I have been a bencher of the Middle Temple since 2006. I particularly thank my noble friend Lord Bach for the work he undertook and the cross-party, non-party way in which he undertook it. Surely, the rule of law and access to justice can and must be non-negotiable. I have often thought that party politics should be about tax and spend and, to some extent, about implementing social and economic rights. However, civil and political rights ought to be agreed on by all democrats, and it is self-evident that the rule of law is essential to civilised society, let alone democracy.

The poorest and most vulnerable always suffer most from abuses of power and therefore need the law most of all to protect and empower them. In my legal career I have never been in the Rolls-Royce; I have always litigated for and against the Government and, as I say, I have always been on the bicycle, acting in the public interest for Governments of both persuasions and for those whose most important legal relationships are with local and central government.

What would it feel like to face losing your children, income, job or anything of huge importance to you without any comprehension of whether the law protects you, let alone without advice and representation to allow you to argue your case? As the noble Lord, Lord Marks, said, this is a revising Chamber where noble Lords devote hours, days and weeks of their time to getting the law just right. But that legislative scrutiny remains a dead letter in a sealed book without advice and representation for the people we come here to serve. Unfortunately, the cuts to legal aid in recent decades, and in particular the last four years, have made this lack of access to justice a reality for too many in our society.

Schools and hospitals are seen rightly as vital pillars of the welfare state, but legal advice and representation does not seem important until you are really in trouble. Like joy and grief, the law can be a great leveller, but there is no longer a level playing field in legal services. After decades of cuts, the poorest and most vulnerable are often shut out altogether from a legal system that we were once so proud of. Entitlement to legal aid is not another service; it is a fundamental human right. We on these Benches are clear that we will support and defend the principle of legal aid and reverse the alarming trend towards a fundamental denial of justice. As we have heard from so many noble Lords today, including my noble friend Lord Bach and my noble and learned friends Lord Falconer and Lord Goldsmith, in the wake of the changes wrought by LASPO, we are in a world where access to justice is a reality for too few. It is in this context that we must consider the findings of the Bach commission.

I listened carefully to the points made by the noble Lord, Lord Faulks, about the responsibility of government when it comes to funding legal aid. However, I am conscious also of the way in which legal aid can be annoying and irritating to Governments of either persuasion because, in part, legal aid is about holding Governments to account. Therefore, there may be some role for independence after the basic political decisions of funding in the round have been made.

I have various words to describe LASPO, but I will instead go back to the exquisite restraint and understatement of the noble and learned Lord, Lord Judge: LASPO was “not wise”. It has been widely criticised by expert stakeholders including the Bar Council, the Justice Committee and the Law Society. The Public Accounts Committee made it clear that in bringing in this legislation, the Ministry of Justice had not properly assessed the full impact of the reforms. That impact has proved devastating for too many.

The primary recommendation of the Bach report—a new statutory right to justice under which people have a right to reasonable legal assistance which they can afford—sends an important message. We need to fight against the erosion of rights and demonstrate commitment to the importance of legal representation.

It is important to understand the context of that recommendation. As we have heard, the number of civil legal aid matters initiated has fallen by 84% between 2009-10 and 2016-17. The number of legal aid certificates granted for civil representation is down by 36%. In November 2017, the Government stated in response to a Written Parliamentary Question that the MoJ projected departmental spending limit would be £5.6 billion in 2019-20, a cumulative real-terms reduction of 40% on the £9.3 billion limit in 2010-11. To repeat, that is a 40% cut in the space of nine years; hence the crisis in our prisons, the crumbling of our courts and the hollowing-out of legal aid. According to Amnesty, the year after LASPO came into force, assistance was given in under 500,000 cases, which was a drop of 46%.

One example of the problem is in the First-tier Tribunal asylum appeals system. Data obtained by a freedom of information request by the BBC has revealed that asylum seekers—some of the most vulnerable people in our society—are facing a lottery, depending on where their appeal is heard.

The problems caused by the new system are many and varied, and we have been given a flavour of some of the terrible problems today. I cannot address them all—and I do not intend to repeat them all—but the noble Lord, Lord Faulks, was right to single out that the exceptional case funding plainly is not working. The Government originally suggested that around 847 children and 4,888 young adults would be granted that kind of funding each year, and yet up to June 2015 only eight children and 28 young adults were granted legal aid under the scheme. The cuts, therefore, have been much deeper than anticipated by the coalition Government. It is a reason for all sides of your Lordships’ House to think again.

The pressing issue, which has been mentioned by many noble Lords today, is the abandonment of funding for most forms of early legal advice. In whatever detailed system we imagine and create in the future, we surely need to front-end the advice. We need early intervention and advice to mitigate pain, anguish, costs, court costs, litigation in person and so on. I do not need to repeat the problems that we have without early legal advice. Mediation is a great idea in principle but not if you do not have the advice to help you take forward sensible mediation. If you do, there is no inequality of arms.

The mass closure of legal aid firms is also a problem. That may not be the most popular position to take in Britain in 2017 but legal aid lawyers have been denigrated. Most are loyal public servants who could have chosen the Rolls-Royce and more lucrative careers elsewhere.

In setting out these challenges, noble Lords and the Government have an opportunity to reflect on the problems we face. However, there are also opportunities for cross-party reflection and co-operation on such a vital issue into the future. I am grateful that the Government have finally announced a review of Part 1 of LASPO. We have been promised that this will be concluded before the start of the Summer Recess. LASPO has been in place since 2012 and, to repeat the noble and learned Lord, Lord Judge, it has not proved wise. Let us all co-operate with the Government, look to reviewing it quickly and doing better for everyone in our country and for the rule of law in the future.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice) 5:17 pm, 14th December 2017

My Lords, I, too, thank the noble Lord, Lord Bach, for securing this debate. The ability of individuals to secure access to justice is of paramount importance to society and to the rule of law. Ensuring access to justice is a responsibility that every Government take seriously. I thank the noble Lord and his fellow commissioners and advisers for the work of the commission, including the final report, and for his comments in the House today. I am also grateful to other noble Lords who have contributed to the debate for their considered and diligent scrutiny of government policy on access to justice.

This Government fully agree on the importance of access to justice, to which legal aid makes a valuable contribution, and our commitment to the principle of legal aid is unwavering. Yet it is important to remember that it is only one element of access to justice. In addition to the £1.6 billion we currently spend on legal aid, which is more than a fifth of the department’s budget, we are looking to the future by investing more than £1 billion to reform our courts and tribunals. That, too, is important to ensure that access to justice remains robust and at the centre of our modern justice system. The noble and learned Lord, Lord Thomas, referred to the courts Bill. It is certainly the intention of the department that that Bill should be brought forward in order to implement these important changes.

We have also invested some £5 million to support litigants in person and we have committed to changing the Lord Chancellor’s guidance on inquests to make the inquest process easier for bereaved families by seeking to make the process less adversarial. We have announced changes that will make it easier for the victims of domestic violence to apply for legal aid, something that the noble Lord, Lord Marks, referred to in his observations. On that point, I shall pause to say that while there is a suggestion that solicitors might certify such cases, concern has been expressed in some quarters that this could give rise to a perception at least of conflict of interest. It is a matter that has to be approached with some considerable care.

As the noble Baroness, Lady Chakrabarti, mentioned, the Lord Chancellor has announced the start of the post-implementation review of the LASPO Act, thereby fulfilling the commitment made by Ministers during the Bill’s passage through Parliament in 2012. I hope that noble Lords will recognise that a modern justice system demands that all of these elements, not only legal aid, have to be brought together; essentially, what we are looking at is a jigsaw. When put together, it does seek to ensure access to justice.

The most recent reforms made to legal aid under and since LASPO were founded on the principle of ensuring that legal aid continues to be available for the highest-priority cases. It was important to take a balanced approach to legal aid, which is why the reforms within LASPO were founded on delivering better value for money for taxpayers by reducing the cost of the scheme and discouraging unnecessary adversarial litigation. It was important that some cases were removed from the scope of funding where alternative routes of resolution were or were to become available. It was also important that legal aid was focused on those in our society least able to pay for their representation.

The changes were of course subject to a significant amount of scrutiny during the passage of the LASPO Bill and they were debated extensively, with amendments being made, before they were approved by Parliament. Now, several years since the implementation of those landmark reforms, we are fulfilling our commitment to Parliament to conduct a review of the changes to legal aid. That is why we recently laid before Parliament a detailed post-legislative memorandum summarising how LASPO was implemented and making a preliminary assessment of its impact. In addition, the Lord Chancellor’s detailed post-implementation review of these changes will cover each issue that has been subject to a previous parliamentary commitment by Ministers. In that respect, we are listening to interested parties. Moreover, as indicated by the noble Baroness, we hope to publish our findings by the 2018 Summer Recess.

The noble Lord, Lord Bach, both in his commission’s report and in his remarks today, has raised the idea of a right to justice. A constitutional right to justice is, of course, not a new concept. The noble Lord, Lord Marks, referred to the speech of Lord Reed in the recent Supreme Court judgment in the UNISON case. I shall quote only a short passage, which says that,

“the right of access to justice … has long been deeply embedded in our constitutional law”.

We would all acknowledge that. Sometimes it takes an exceptional Scottish lawyer to explain to the English the scope and impact of the English common law, and Lord Reed has done that yet again. The essence of the issue and our focus should not be to mull over a right which already exists, but rather how this right of access to justice manifests itself in a modern justice system, a point touched on by the noble and learned Lord, Lord Thomas. We are focused on ensuring that it is correctly supported by an effective framework of legal aid, a well-funded, modern court system, and alternative methods of dispute resolution, which were alluded to by several noble Lords. We want to give individuals the power to address their legal issues in a way that is right for them.

Ensuring that access to justice is supported by an effective framework of legal aid guided our latest step to protect and support victims of domestic abuse. I note the point that was made about ensuring that parties are aware of their rights and their ability to secure legal advice in such cases. I am sure that that will be looked at in the LASPO review. It is not enough to have the rights—we must ensure that people are aware of the existence of those rights and of how they can be accessed. We have laid a statutory instrument enabling victims of domestic violence to secure more support in taking an abusive former partner to court. In that context, the current five-year time limit on abuse evidence in the family courts will be scrapped, while the range of documents accepted as evidence of abuse will be widened. However, as I indicated to the noble Lord, Lord Marks, we have some reservations about the idea of certification by the solicitor involved in the case. That is an area where we have worked other parties—including Rights of Women, Resolution, Women’s Aid and the Law Society—to ensure that we are doing all that we can to protect and support victims. I am grateful for the discussions on this point today, and I share the views and passion of your Lordships’ House for ensuring that victims have access to justice.

Another point that was touched on was the importance of early legal advice and being able to engage with people at a point in time when it may be feasible to resolve a dispute or issue without resorting to litigation. We talk about individuals exercising their right of access to justice, but it is important to remember that the court is not always the right solution. It is not just a financial consideration; there are other reasons why early legal advice may be appropriate. Access to such advice or information can help individuals to understand their options and it may dissuade them from pursuing court proceedings in circumstances where it is not the appropriate step to take to resolve their issues. That is why we have protected legal help in many cases and why we spent almost £100 million on legal help last year.

Where an alternative route is more appropriate, people should be empowered to pursue it without having to find a lawyer at a great cost to them or to the state. For instance, in cases involving separating couples, mediation or other forms of out-of-court dispute resolution can be less stressful and quicker than going to court—and it is certainly often cheaper than employing lawyers. It can help to reduce conflict after separation, which we know can lead to poor outcomes for children. So we continue to aim for greater use of alternative dispute resolution in such cases, such as when separating parents wish to resolve issues of child arrangements or finances. I note the observations made about where some difficulties may be encountered because, for example, there may be issues with the availability of expert evidence.

We have recently launched an online child arrangement information tool, which is intended to provide clear and concise information on the dispute resolution services that can help parents agree child arrangements, including mediation. I fully accept the importance of ensuring that such services are made available and that people become aware of them. We have also introduced a telephone helpline to provide legal advice in certain categories of law. Last year, there were more than 20,000 instances of advice being provided by that means. In addition, and in reflection of today’s society, we have also developed a user-friendly digital tool that makes it clear to people when legal aid is available to them. For people who are not eligible, the tool signposts them to alternative sources of free or commercial advice.

The matter of litigants in person was touched on and I appreciate the points that were made about their impact, or potential impact, on the court process. Since 2015, the Government have invested £5 million of funding to support litigants in person through the litigants in person support strategy—although I accept that that will not necessarily lead to the production of a single bundle, as alluded to by the noble and learned Lord, Lord Judge. However, it will hopefully improve the ability of litigants in person to pursue matters, particularly in the higher courts.

In some circumstances where publicly funded representation is clearly necessary but matters are generally out of scope of LASPO, funding can be provided through the exceptional case funding scheme. I hear the criticisms that have been made of that scheme, but I will make one point about it in so far as it relates to inquests, where more than half of the applications made in the last two years have been granted. The inquest process is of course important. It can be incredibly traumatic for those involved and it is important that we give as much assistance as we can where the bereaved have to consider the circumstances of the death of a relative. There again, early legal advice can be helpful in allowing families to understand what the process is and will be.

There are additional issues concerning deaths in custody. Noble Lords may be aware of the recent report on deaths in custody by Dame Elish Angiolini, which highlighted some of the issues regarding public participation at inquests in cases of that kind. We are working closely with the joint Ministerial Council on Deaths in Custody, and we have committed to update the Lord Chancellor’s guidance for these cases by the end of the year because they are clearly important.

I appreciate that this is an important debate, no matter when it comes in the House’s calendar, and I am glad of the opportunity to address this matter. As we go forward, I reaffirm our commitment to the post-implementation review of LASPO that is now under way and which I hope will address many of the questions raised in your Lordships’ House.

We are committed to looking forward to ensure access to justice for future generations. We are continuing to ensure that legal aid is made available to the most vulnerable. We are investing more than £1 billion to transform our courts and tribunals, and we are committed to delivering a modern justice system, today and into the future, that maintains its standing in the world.

I will very briefly touch on one or two of the particular points raised during the debate. The noble Lord, Lord Bach, raised early advice as an essential element in any legal assistance process. We accept that. Indeed, we have been seeking to develop mediation and advice as being appropriate in this context.

Regarding statutory recognition of a right to justice, we suggest that that is already embedded into our common law. We have reservations about whether such statutory recognition could improve matters. Therefore, I express reservations about that.

My noble friend Lord Faulks indicated that it perhaps would not be appropriate—I believe this reflected observations by the noble and learned Lord, Lord Thomas—to take the matter of spending for legal aid away from Parliament and government and essentially to subcontract it to a quango. There are very real political issues about these matters. They should ultimately rest with Parliament and government.

The noble and learned Lord, Lord Falconer of Thoroton, referred to the need for an agency, an independent body, that was not subject to ministerial interference in the context of legal aid. I observe that the Legal Aid Agency operates free from ministerial interference. Indeed, there is a statutory prohibition on Ministers interfering in respect of any legal aid application. Therefore, there is that degree of independence already in the system.

The noble Lord, Lord Dholakia, alluded to the issue of those in custody and prisoners. I indicate first of all that spending in respect of legal aid for those in custody has increased recently. On the particular point he raised in the context of the recent Court of Appeal judgment, an amending statutory instrument is being drafted to reinstate legal aid in the three categories of cases highlighted in that judgment. Indeed, I reassure him that we hope to have that statutory instrument going forward in the near future.

The noble and learned Lord, Lord Phillips of Worth Matravers, raised the interesting point that we have to address not just the issues of legal aid and access to justice but the issue of how we provide justice in this country. It may be that in some areas—inquests are a particular example—we will see further moves towards a more rigid, inquisitorial system that would benefit parties going forward. After all, the inquest was originally intended to be an inquisition, an inquisitorial system, and over the years it has rather grown arms and legs. I am certainly not suggesting a movement towards a civilian code or anything of that kind, but I do believe that the noble and learned Lord’s contribution underlines the fact that we are dealing with a rather broad and delicate ecosystem. We cannot just take legal aid out and put it back in; we have to look at the overall system to see how it is going to work.

If I do not mention noble Lords specifically, it is not because I am unconscious of their contributions but because I am slightly more conscious of the time, and of the fact that I hope I have addressed some of their points already. The noble and learned Lord, Lord Woolf, spoke of the distinction between the Rolls-Royce and the bicycle. Clearly, there are those who require the Rolls-Royce, but most of us are content with a bicycle and have been during our professional careers.

The noble Lord, Lord Wigley, raised certain issues about the provision of legal aid in Wales. I understand that there is intended to be a commission in Wales looking at the provision of justice—albeit we are talking about a single jurisdiction between England and Wales, there are certain specialities that are developing, particularly from statutory law.

I hope that I have covered the majority of the points that noble Lords raised. A number of noble Lords raised questions about early intervention, the question of advice centres and the ability to seek advice before the need for court litigation. The noble Lord, Lord Howarth, alluded to observations made in Westminster Hall by a fellow Minister. I note the observations that were made in that regard. Of course, the Ministry of Justice is undertaking a review of LASPO, and we will take into account all the interested parties’ submissions on that matter.

I hope that I have been able to address some of the points raised in what I acknowledge is an important debate, which had as its foundation the report of the commission undertaken by the noble Lord, Lord Bach, and which we will take away and give consideration to. I am obliged to noble Lords.

Photo of Lord Bach Lord Bach Labour 5:37 pm, 14th December 2017

My Lords, I have extremely limited time. I thank the Minister, whom I always describe as an exceptional Scottish lawyer, for his remarks and for the trouble he has taken to answer the debate. Of course, I thank all other noble Lords who have spoken in the debate. It has been an important and significant event—it could hardly have been otherwise, given the cast list—and I thank everyone who has been good enough to attend and speak today.

As a brief aside, it is immensely flattering for the report to be described as mine; it is not false modesty to emphasise that it is certainly not mine. I chaired the commission and am proud to have done so, but all commissioners played an important role in reaching our conclusions.

A rather more serious point on which to end is that the generous and supportive remarks made around the House in response to the commission’s report are, I believe, of some significance for the future of our recommendations but also, I certainly hope, to the Government’s review of LASPO.

Motion agreed.

House adjourned at 5.39 pm.