Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I must begin by declaring some interests. I am an unpaid consultant with the firm of which I was senior partner for 30 years, in the course of which I engaged in legal aid work in the fields of personal injury law, family law and criminal law. I was also one of the founders of the citizens advice bureau in Wallsend, near the town in which I live, and I was instrumental in securing a law centre in Newcastle. I also have to declare a paternal interest, as my daughter practises in the field of housing and employment law at the Bar. I congratulate the noble Lord, Lord Pannick, and his co-signatories on tabling the amendment. I confess that I share some of the reservations expressed by other noble Lords about the qualification included in the amendment. I am tempted to say that if my noble and learned friend Lord Goldsmith is satisfied, I must be satisfied. In all events, I am open to persuasion by the noble Lord, Lord Pannick, whom, with his display of forensic skill and general persuasiveness, I have never heard without being utterly persuaded. I am sure that he will persuade me and others of your Lordships that the amendment is on the right lines. The reference to Part 1 is predicated upon changes that I think many of your Lordships would like to see to the scope of the Bill. The key issue for Parts 1 and 2 is that of access to justice, as fully explained by the noble Lord, Lord Pannick, in his brief opening remarks. There are two parts of the Bill with somewhat different purposes. Part 1 deals with legal aid, which is what we are dealing with today. Part 2 deals with litigation funding and is based on the recommendations of Lord Justice Jackson. Taken together, they mark a fundamental change in our system of justice. We will debate the Jackson proposals in Part 2 later. Many will see merit in many of his proposals. At this point, I should say that the noble Lord, Lord Faulks, is wrong to assume that we on these Benches want substantially to maintain the status quo in respect of Part 2. We have some reservations and we may have some amendments, but we are by no means dismissing Lord Justice Jackson’s recommendations. Of course, the Government are cherry-picking from Lord Jackson's recommendations and observations in the manner of George Washington, who, as your Lordships will recall, had to confess that he had chopped down the cherry tree. There are those of us who fear that the cherry tree of access to justice is in danger of exactly that treatment. Lord Justice Jackson, as the noble Lord, Lord Alton, reminded us, was explicit in saying that neither the scope of nor the eligibility for legal aid should be changed. We are presented with a Bill which will drastically reduce the scope of legal aid and impose a very large cut in its financing, so that 650,000 cases will no longer receive legal aid or advice and £280 million of the £350 million savings to be engendered as a result of the Government's proposal will come from civil legal aid. That approach flies in the face of the pronouncements of the noble and learned Lord, Lord Steyn, referred to by the noble Lord, Lord Elystan-Morgan, when he referred to unimpeded access to a court ranking as a constitutional right, which was cited in the Constitution Committee's report, as was Lord Bingham, who pronounced that, "““denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law””." Both those observations of those very distinguished judges should be reflected on in the light of the book of the noble and learned Lord, Lord Woolf, entitled The Pursuit of Justice, a pursuit of justice which will be made very much more difficult for so many—some 650,000 people. Therefore, while denying the allegation of the noble Lord, Lord Faulks, that we on these Benches seek to maintain the status quo in respect of Part 2, I make no apology for saying that we will do our best to maintain as much as possible of the status quo for those who are to be affected by Part 1—the most vulnerable people who most need legal help and advice, generally speaking, at the most difficult times of their lives. Of course, savings have to be made. The previous Government made some in controversial areas and, undoubtedly, we would have made more, perhaps concentrating on some aspects of criminal legal aid, but we would not have put legal aid and advice out of the reach of hundreds of thousands of people across a range of areas of law, from virtually the entirety of private family law to debt, housing, employment and welfare law nor, of course, to clinical negligence, to which others of your Lordships have referred. Nor would we have legislated to pass the buck for the ensuing problems of homelessness, debt, family breakdown, the impact of welfare cuts and so on to other government departments and agencies and their budgets, or created difficulties in the courts and tribunals systems—enhancing the costs of both systems by increasing the number of litigants in person, for that will undoubtedly be the effect. It is no wonder, then, that family law organisations which are not specifically legal organisations have vigorously opposed the proposed changes. The Children’s Commissioner, the National Federation of Women’s Institutes and Women’s Aid have all come out against the proposals. The Ministry of Justice’s own family justice report and the Civil Justice Council have equally criticised the proposals. At Second Reading, the Minister said that 95 per cent of cases with children as parties would be unaffected. However, there will be a saving of only about £6.5 million as a result of 35,000 such cases involving children being taken out of scope. Of course, 35,000 cases does not mean 35,000 children, as there will be cases involving more than one child. I do not know whether the Government have estimated the total but it is surely likely to be of the order of 50,000 or more. That is just one area in which these problems will become manifest. Who will be expected to fill the gap following the withdrawal of legal aid and advice? It might be thought that the vanguard in the big society, the much praised citizens advice bureaux and law centres, would be expected to do so, but they are sustaining severe cuts in both government and local authority funding. Law centres face cuts of 85 per cent of their funding, leading, they say, to a 90 per cent cut in legal help cases, which amount to some 33,000. The Lord Chancellor, in his article in today’s Guardian, appears to threaten their role, for in that piece he says: "““We are … rethinking the trend … for voluntary sector advice providers to take on more … strictly legal work””." Therefore, legal aid goes and the voluntary sector, which might have been able to take up some of the slack, is not only to suffer cuts in funding but is to be deliberately steered away from replacing what would otherwise have been available from the ordinary legal aid system. In addition, there are serious questions about the impact of these proposals and the robustness of the financial savings which it is suggested they will lead to. The impact assessment on legal aid, which many of your Lordships will no doubt have read, makes very interesting reading. Paragraph 6 says: "““Legal aid may be regarded as a redistributive transfer of resources from taxpayers to those who are most needy, in relation to both the nature and merits of their case and also to their financial position. The proposals … involve reducing the scale of these redistributive transfers. This will help the Government secure the wider macroeconomic benefits associated with reducing the fiscal deficit””—" at the expense, as the analysis makes clear, of the most needy. Paragraph 9 goes on to say that, "““it is possible that these behavioural changes might be associated with losses in economic efficiency. For example, for people no longer in receipt of legal aid less resource may be devoted to resolving their dispute, delivering a resource saving. But if dispute outcomes were much less fair then … these resource gains might ""be more than outweighed by the total economic costs. … This would include the wider social and economic costs, both tangible and intangible””." The analysis goes on in paragraph 44 to say that the proposals will, "““reduce the number of 2009/10 Legal Representation closed cases by 38% and legal help cases by 66%””." It also says, very significantly that, "““Of the legal representation cases removed, it is estimated that nearly 80% relate to individuals within the bottom income quintile””—" that is, within the bottom 20 per cent. A more aggressive analysis would be hard to imagine. The report also goes on to look at the considerable reduction in case volumes across a whole range of services: 84 per cent of total family private cases, 99 per cent of consumer cases, 95 per cent of employment cases, and so on, would be out of scope. In terms of both legal help and representation, huge reductions would occur in available assistance. The Minister will no doubt refer, as I think he did at Second Reading, to the fact that exceptional funding would perhaps be provided for a new scheme for excluded cases. However, again if one looks at the impact analysis, one sees that this will be minimal. In some cases, there will be, "““Up to 5% for some proceedings””," and in roughly half the cases ““Negligible”” assistance will be provided. The Ministry of Justice was very dismissive of the Law Society’s proposed savings. There were two sets of proposals. One included what I considered to be the very sensible provision of a 1 per cent increase in the duty on alcohol, although I accept that that is not quite within the province of civil justice reform. The revised version had other suggestions, yet the ministry, which appears to have dismissed the Law Society’s suggestions out of hand, does not have evidence to support its own proposals. In 15 separate statements in the impact assessment there are 30 admissions that it is speculating on the likely effect of those proposals. The ministry told the Justice Select Committee that, "““it is not possible to quantify accurately these wider costs””," in respect of other government departments. The Government should accept this amendment. They should sit down and work with the Law Society and third-sector providers to examine alternative savings, including looking at the costs of the justice system, such as the delays and the administrative problems and the costs of the Legal Services Commission, which have already been referred to by the noble Lord, Lord Alton. They should obtain an independent assessment, perhaps by the National Audit Office, of the impact of the revised proposals on access to justice and in costs to other departments and public services. The Lord Chancellor, who is one of those John Lewis-style politicians—never knowingly understated—says in the Guardian that the debate in your Lordships’ House should focus on, "““reconciling the reduced but generous funding that fiscal reality requires, with the protection of fundamental rights of access to justice for critical issues that no civilised society can do without””. " The problem is that his list of critical issues is very short. It refers to loss of life and liberty and loss of home, but it leaves aside a range of issues which most of us would regard as critical, especially if we had to confront them in our daily lives, as very many of our fellow citizens do. If those critical issues do not relate to those very widespread problems, we will have a system in which, if you have the means, the doors to justice will be open but, if not, they will be locked and barred for too many people in our society. It is this fundamental dichotomy that this Committee must address and to which the Government must offer redress. I hope that the widespread support expressed for the thrust of the amendment will be reflected by the time we get to Report in substantial government amendments and with an accommodation that will minimise the damage which the Bill threatens to inflict on too many people in our country.