Crime and Courts Bill [HL]

Debate between Baroness Butler-Sloss and Baroness Kennedy of Shaws

Wednesday 27th June 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I agree entirely with what has already been said but I wonder whether I might add another point. I refer to a situation where a Lord Chancellor is not a lawyer or a very senior person but perhaps wants to make his mark in the political world and is much more overtly political than the present Lord Chancellor, who is very distinguished in his own right in the law. I ask the Minister to visualise the meeting of the commission. The Lord Chancellor is a member of the commission. He has a role as the Secretary of State for Justice, but he is only a single member among a number of people. Either he is going to be very powerful and he is going to override what everybody else wants, or he is not going to be very powerful, and he is going to be very dissatisfied with not being able to carry the commission with him. Either way would be extraordinarily unsatisfactory for someone who is head of the administration of justice in running the courts and has some responsibility for the judiciary. It is yet another point that leads me to support the amendment of the noble Lord, Lord Pannick.

[Baroness Kennedy of The Shaws]

My Lords, I too wish to support the amendment of the noble Lord, Lord Pannick. I see this part of the Bill as being one of those ideas which starts with good intent but has risks attached to it: it is the law of unintended consequences. I can understand that those who have looked at the appointment of senior judiciary and have seen the absence of women, for example, have thought that perhaps if somebody—the Lord Chancellor—were sitting on that panel, he would be able to represent more vociferously public concerns about the way in which appointments are recreating the same people. I can see that that was the intention of giving a role to the Lord Chancellor in the current appointment procedures.

However, we must be very conscious of the risks. We should be concerned about the way in which this could be detrimental to our constitutional arrangements and could be the beginning of a much more politicised role for the Secretary of State as Lord Chancellor sitting on such committees. I say this because, regarding the slide to such things, we always say, “Oh, it could not happen here”. I have just heard the decision made in Europe today that the new judge to be appointed to the European Court of Human Rights will not be the preferred candidate coming forward from Britain. The person appointed was pushed by the Conservatives in Europe and supported by Russia and Serbia. The best candidate, Ben Emmerson, one of our most distinguished human rights lawyers, did not get that role because of politicking of the ugliest kind. He was considered to be too protective of human rights.

We should be ashamed of what has happened in that appointment process and we should be aware of what happens when politics enters the fray in judicial appointments and how it can often lead to unsatisfactory outcomes. I raise this as a warning because it happens all too easily. The best candidate has been lost to the European Court of Human Rights and it has happened because of an ugly form of politicking.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Butler-Sloss and Baroness Kennedy of Shaws

Tuesday 20th December 2011 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, my starting point was the same as that of my noble and learned friend Lord Goldsmith, in that I, too, felt very alarmed that this amendment seems to be too concessionary because it was acknowledging too much on the resource front. However, I acknowledge now that it pins down the question of whether there is a constitutional issue here. If there is, it has to cut across all the areas of law.

I was always battling the previous Government over their cuts to legal aid because of what they meant to quality. What concerns me about the Bill is that it takes whole sections of law out of the purview of legal aid so that medical negligence is not included, and nor are family matters unless there is domestic violence. It is the business of creating whole areas that are not covered by legal aid that is a source of alarm to me, and that is met by the amendment. If you are committed constitutionally to access to justice, you cannot create whole areas that are excised from legal aid. That is how I would read it now.

There are two things I want to say pre-emptively before the Minister stands up to reply. First, one of the things that is always said by the Minister responding on issues like this about legal aid is, “Look how many lawyers have spoken”, as though somehow or other we are the beneficiaries, we are all in this great trade union and we are basically protecting a closed shop. I say to the noble Lord, Lord McNally, known to us all as a decent and fair man, that it is not surprising that lawyers will by and large be the people who speak on this. We know from our work in the courts that it is the poor who will be disadvantaged. It has been my experience while acting in the courts that the disadvantaged will always be those with few resources. We have to make provision for them. That is what access to justice is all about; we know that from our experience. This is nothing to do with protecting the interests of lawyers.

Secondly, on looking for cuts, I have always said to the Government, and I said it to the previous one, that there are other areas where we can make savings. It has always been a source of amazement to me that when the Government need lawyers—for example, when Treasury Counsel sought representation for different government departments—they are not paid at legal aid rates; they are paid at commercial rates. They are paid the sort of money that the corporate sector pays its lawyers. If we want to save money, we should be making serious savings in what government departments pay lawyers for representation. It was always a source of amusement to me that when the Hutton inquiry took place and the Prime Minister at the time, Mr Blair, needed representation, it was to Mr Sumption that he turned—one of the most expensive barristers around. I do not think that it was Mr Blair’s own purse that paid the bill; it was the taxpayer. I would like to see the Government making cuts with regard to the lawyers that they choose to represent them and that pocket of money distributed to those who really need representation—the poorest in our society.

We are concerned that there is a constitutional issue here. Whole areas of law should not be taken out of the purview of legal aid.

[Baroness Butler-Sloss]

My Lords, I wonder whether I might make some brief comments, bearing in mind the time. I would like to add to what has been said. It has largely been lawyers who have spoken, and I very much hope that noble Lords will not give less weight to the names on this first amendment or to the lawyers who have supported it. That is, as the noble Baroness, Lady Kennedy, has just said, inevitable because we know what goes on on the ground. As a former judge, hearing mostly legal aid cases, I have clear knowledge of what happens on the ground.

The lawyers who have spoken are all very distinguished. They have done a great deal in the past and indeed are still doing it. What they have to say should resonate with all Members of this House because these are not party political issues. I very much hope that no noble Lord will make them party political issues. Seeing as people have spoken from all sides of the House, it would be good if no one spoke any longer in a party political way. This issue is too important for us to do so.

To recognise and accept the amendment would not drive a coach and horses through the Bill. On the contrary, it recognises financial restraints and in my view is very shrewdly phrased. I do not believe that it has the effect that the noble Lord, Lord Phillips of Sudbury, was suggesting. There is nothing to stop us dealing with other areas where we would say it is necessary to have legal aid and it would not be possible for the Government to say that such legal aid should not be forthcoming. However, one has to recognise reality. We have to recognise that not every aspect of the current legal aid bill can continue to be paid. There are areas highlighted by amendments—some of them my own and some from other noble Lords—which we have to look at and say that there should not be cuts. One example of that is private law.

This amendment sets out in simple language the right of citizens to have access to justice in general terms. It is an amendment that would be extremely difficult to oppose and I strongly support it.