Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, the Constitution Committee did us, as it always does, a good service in reminding us and stating emphatically that access to justice is a constitutional principle. The amendment that it proposed to Clause 1, which would say that the Lord Chancellor must secure that legal aid is made available in order to ensure effective access to justice, would be a humdinger of an amendment. It would reassert absolutely and emphatically the fundamental constitutional principle of equal access to justice for all our people. The amendment that the noble Lords, Lord Pannick and Lord Faulks, and others have tabled and placed before us is not the same as that amendment. They have chosen to qualify the requirement on the Lord Chancellor by including language about his obligation being only within the resources made available for the purpose. The noble Lord, Lord Pannick, also said that in his view the duty was not absolute, although a little later in his remarks he said that access to justice was a vital principle. I am not clear exactly what the degree of obligation on the Lord Chancellor would be. It certainly seems to me that if the legal aid budget is to be cut by £350 million, it may not be possible within the resources available to secure access to justice. I am beginning to wonder whether the noble Lord, Lord Pannick, and his very distinguished co-signatories, all of them lawyers, may find themselves in somewhat the same position as the revolutionary students in Paris in 1968, whose motto was ““Demand the impossible””. It is very exciting to demand the impossible but the prospects for your proposition are not necessarily very good. At all events, I am a little confused about exactly what their amendment would require of the system, and I wonder whether there is not some sort of internal conflict within the amendment. For my part, I believe that the duty on the Lord Chancellor and the Government should be absolute. If equal access to justice is a fundamental constitutional principle, then I believe that we, as citizens and taxpayers, should pay whatever it reasonably takes to secure it. The legal aid budget, running at some £2.2 billion, is a lot of money. On the other hand, as I mentioned at Second Reading, £2.2 billion is only around 1 per cent of the social security budget and the £350 million cut to the legal aid budget that is being proposed by the Government would, I think, be 0.2 per cent of the deficit, about which all of us are very properly exercised. I think it is disputable whether the existing legal aid budget is unaffordable. If we believe that it is a fundamental constitutional principle, we could afford to pay what it costs. Of course, costs must be disciplined and the previous Labour Government were severe on that matter. I was not entirely happy when the former Prime Minister, Mr Blair, spoke of his intention to, "““derail the gravy train of legal aid””," because I believe that a great many legal aid lawyers are working for pretty small remuneration and are not riding on any kind of a gravy train. Nor was I entirely in agreement with the tone and the sentiment of my right honourable friend Jack Straw when he spoke of, "““BMW-driving civil liberties lawyers””." Of course, it must be right—this is very much the intention that the Lord Chancellor declares in his article in the Guardian today—to attack lawyers who are drawing entirely excessive remuneration out of work that may be funded by legal aid. My noble and learned friend Lord Irvine of Lairg, when Lord Chancellor, mounted a vigorous attack on the cost of the legal aid system. He attacked the costs but he did not attack the principle. The Government are right, of course, to examine the costs. If it costs £120 million to run the Legal Services Commission, then that commission must be a candidate for economy. However, I am sure that noble Lords will agree here, as elsewhere, that we should not throw the baby out with the bathwater. We are speaking of a fundamental constitutional principle, of a fundamental entitlement for our citizens. Can we speak of a fundamental constitutional principle in the context of an unwritten constitution? I believe that we can, and so I think does the Constitution Committee of your Lordships' House because it quoted the noble and learned Lord, Lord Steyn, and Lord Bingham speaking very eloquently about the right to equal access to justice. Noble Lords will be very well aware of the Sir Henry Hodge Memorial Lecture, given by the noble and learned Baroness, Lady Hale, in June. I had the privilege and pleasure to listen to that lecture, in which she told us that the principle of equal access to justice is to be found in the Magna Carta: "““To no one will we sell, to no one deny or delay right or justice””." That is a principle that has been established cumulatively through our history. She told us that a statute of 1494, in the reign of Henry VII, provided for actions to be brought in forma pauperis, relieved from court fees and provided with lawyers acting pro bono. Then later in our history, there was the famous case of Ashby v White, the Aylesbury election case in 1703, when Lord Chief Justice Holt, in his judgment said: "““If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of a right and want of a remedy are reciprocal””." Some noble Lords may have read an excellent and informative article in the London Review of Books, on 20 October, by Joanna Biggs, who traced some of the history of the establishment of the right of equal access to justice. She describes how, in 1944, Henry Betterton, who, like the right honourable Kenneth Clarke, the Lord Chancellor, was a barrister and indeed a Conservative Member of Parliament for Rushcliffe, was appointed to chair a special committee on legal aid and legal advice. In his report in 1945 he said: "““The great increase in legislation and the growing complexity of modern life have created a situation in which increasing numbers of people must have recourse to professional legal assistance””." The free legal aid that was at that stage available was, he said, at best somewhat patchy and totally inadequate. He recommended that in the future legal aid should be available not just for the poor but for people of small or moderate means. People who could afford to do so should contribute to their legal costs. Barristers and solicitors were to be paid adequately. There should be legal aid centres across the country. That was the vision that underlay the Legal Aid and Advice Act 1949. That legislation was widely recognised as being part of the structure of the new welfare state that was being created by that Labour Government. The case was made that to provide legal aid was a particular and inescapable responsibility of the state. In the construction of the welfare state, the Government sought to construct defences and remedies against the five giants—want, disease, ignorance, squalor and idleness —but it was recognised that Governments had only some limited responsibility for the depredations of those five giants. On the other hand, it is Governments who make the law and, correspondingly, Governments inescapably should have responsibility for ensuring that there is legal remedy. That, I believe, became orthodoxy. By 1979, 79 per cent of the population qualified for legal aid. As the noble Lord, Lord Faulks, reminded us, there was at the same time Article 6(1) of the European Convention on Human Rights, which stated: "““In the determination of his civil rights and liabilities or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an impartial tribunal established by law””." The noble and learned Baroness, Lady Hale, points out that access to a court is not much use without access to lawyers. Therefore, it seems to me that the provision of legal aid is implicit in Article 6(1) of the ECHR. Our constitution is uncodified but the evolution of our political and legislative history has brought us to a point where equal access to the law is deeply entrenched in the national sense that our citizens have of constitutional entitlement and political propriety. This Bill is, I am afraid to say, one more instance of the coalition Government playing fast and lose with our constitution and with cherished constitutional principles. The noble and learned Baroness, Lady Hale, told those who were listening to her that the text of Magna Carta is engraved on the glass doors of the library of the Supreme Court. She said that that library contains a collection of statutes, of decided cases and legal writings from which the judges discover the law. In her words, "““Our library shows the world that we are not making it up as we go along””." Equally, I would maintain that politicians are not entitled to make up the law as they go along. That, I believe, is the Diceyan heresy. The sovereignty of Parliament, the omnicompetence of statute, should not be a charter for legislative caprice, for ethical anarchy. It is not for politicians to make up statute as they go along or to jettison principles of law as they go along. Governments and Parliament should respect the widely accepted, cherished principles of our constitution, felt and known to be such by our citizens even if they do not articulate them to themselves in clear words. They are an inherited and shared concept of just institutions, reflecting the British sense of fairness. We should not casually throw over the heritage of legal principles to which the judges have such necessary and profound regard. I am struck that the Conservative Party demands insistently that the European Union should respect our national identity. Intrinsic to our national identity is the common law and access to justice with support through legal aid. And yet the Conservative Party seems willing to disrespect that national identity in the measures that it brings forward for us at home. Justice and fairness are elusive concepts that are difficult to articulate. For that very reason it is all the more necessary not to introduce radical change to the justice system without national debate and national consensus. The Government may reply that there is a national debate and that they produced a consultative Green Paper to which there were 5,000 responses. I would reply—