Perhaps we should, and perhaps I will encourage my hon. Friend to join me in doing so.
Litigants in person are a real pressure on the totality of the court system, because if courts are being clogged up by cases that are being slowly presented—where the judge has to hold the litigant by the hand to take them through steadily and ensure that there is no miscarriage of justice—that uses up the time of the court building and the court ushers. It puts pressure upon listing, and means delays in other cases coming on. There are more likely to be adjournments because people will not have prepared the bundles properly or got their evidence together. That is all wasted cost in the system, which some early investment would save.
Those are key areas where more could be done. We perhaps need to look, too, at some areas in relation to tribunals—an increasingly important area of jurisdiction. Not all tribunal cases, of course, need legal representation, but they increasingly deal with more complex matters and more complex areas of law and of fact where it makes sense, for exactly the same reasons, to have proper legal advice.
Joining those thoughts together, I commend to the House the Justice Committee’s reports on access to justice, and on courts and tribunal fees. Although fees are separate from the legal aid regime, the unintended consequence of some of those changes was remarkably similar in making access to justice for deserving—that is the key bit—claimants more difficult. Finally, we recently wrote a report on criminal legal aid. I will end on that—it may be the subject on which I have spent most of my life.
We cannot have a situation where it is extremely difficult to get high-quality young lawyers to go into criminal work. The integrity of our system, to which my hon. Friend the Member for Cheltenham (Alex Chalk) referred, is seen most visibly in the way in which we deal with criminal cases. If the state, no doubt for good reasons, thinks it necessary to bring charges against an individual to be tested in our courts, it is only right and proper that that individual, having had the resource and power of the state brought against them, has as a matter of equality of arms and basic fairness the ability to defend themselves. To do that properly, they must be able to access lawyers who are as good, as well trained, and as competent as those who prosecute.
To do that, we have to be prepared to remunerate people. We cannot have a situation where criminal barristers are worse off, as they are under some aspects of the advocates’ graduated fee scheme at the moment, if they take on a complex and demanding case—for example, a multi-handed rape—as opposed to a single-handed offence of the same kind, because the extra work is simply not reflected in the fee. Those are precisely the cases— I did many of them myself—where experienced and sensitive advocates on both sides are critical. We are in danger of damaging the supply chain, as far as that is concerned.
It also cannot be right that the system does not remunerate defence lawyers for looking at the unused material in cases. Some of the main cases where miscarriages of justice have occurred, as you will know, Sir Henry, from your experience in these matters, are where there has been a failure in disclosure. Usually it is, as is often the case here, a result of unintended error. Although I have come across one or two cases where I could not say that that was the case, things genuinely go wrong, and it must be possible, in terms of the fairness of a trial, for the defence lawyers to be able to look through the unused disclosed material to ensure that there is nothing that might be exculpatory to their client.
That is only right and proper, and prosecutions have collapsed in high-profile cases because that was not properly done. People have been saved by the integrity of members of the independent Bar, on both sides, who took the opportunity, even though they were not going to be paid for the hours, to go through the unused material and highlight matters that meant that the prosecution could not safely proceed. It seems only right and just that the solicitors and barristers who were on legal aid on those matters should be paid for doing that, because we want to ensure that it is done properly. Let us face it: as those cases highlighted, the sooner it is done the fewer wasted hearings and adjournments, which have bedevilled some of those high-profile cases, there will be. It is not only the right thing but the common-sense thing to do.
We also need to recognise that early advice from solicitors at the police station is critical in criminal cases. Striking evidence was given to the Justice Committee inquiry that the average age of a police station duty solicitor is 47. Young people are not coming into the role because it is simply not remunerated well enough.
That all leads me to the conclusion that Lord Kerr got it right in his Supreme Court judgment on the Unison case. His view, to which I am driven by the evidence, was that regrettably, however good the intentions, the current arrangements under LASPO have adopted
too transactional an approach to justice. He said that litigation is not merely a private transaction between parties; it also involves a greater public good. In that case, which was about employment tribunals, it involved the exposure of bad working practices and improvements that might stem from it, but the principle applies to any type of litigation. There is a public good in access to the courts that goes beyond the right—itself important—of the parties themselves to have access to justice. It is a bigger thing—a point that takes us back to our commitment to the rule of law, which my hon. Friend the Member for Cheltenham referred to.
I therefore urge a Keynesian approach on the Minister. Keynes was not always wrong, and he was certainly right about this. If we believe in following the evidence, as we all do in any legal process, and if the evidence indicates that things have gone too far the other way and we have the chance to change them, there is no shame in admitting that. It would be honest politics, good government and entirely consistent with the spirit that the Minister and her ministerial colleagues seek to bring to our approach. Where we can put things right, it is better to accept the position, act on the evidence and ensure that we have a better basis for legal funding and access to justice.
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