Civil Legal Aid

Baroness Kennedy of Shaws Excerpts

Thursday 19th May 2011 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, my noble friend Lord Haskel asked why these cuts were taking place. I want to quote to your Lordships something that Jonathan Djanogly, the justice department Minister in charge of legal aid, said at the Conservative Party conference last year. It shows an attitude to legal aid which is to misunderstand it. Mr Djanogly seemed to suggest that legal aid might be a good way of keeping busy women who wanted to return to work after maternity leave. He said:

“Legal aid can be a good filler for those lawyers out of work or women who want to get back into the legal job market after having children”.

Mr Djanogly spent 21 years in practice with the wealthy international commercial law firm SJ Berwin and earned sums which we associate with top bankers. It may well be that lawyers such as he have no understanding that someone would choose to do legal aid work not because they are looking to fill in, not because they have come back after having babies, as I did, but because they chose from the beginning to give voice to those who are usually voiceless within the system.

I have spent my life doing legal aid work and I have done it through choice. Chambers such as mine win the pro bono awards every year despite the fact that all of our lawyers are legal aid lawyers. Why do they win the prizes for pro bono? It is basically because their life experience in the courts gives them necessary expertise in these areas, so that when they come to do pro bono they are not filling in—or coming like a grandee to offer kindness and charity to the poor—but coming with expertise on welfare rights, employment and what it is like to be poor and on the margins. The starting point is wrong and misunderstands the purpose of legal aid. The purpose is set out in the 1949 legal aid Act: to ensure that no one will be financially unable to prosecute a just and a reasonable claim or defend a legal right.

As I have previously told the House, I chair Justice. We have a number of concerns with which I can deal briefly because most of the other contributors to the debate have pointed out the things that I wanted to say. I reinforce the view that the cuts to the scope of legal aid will be particularly damaging to social welfare law, employment, housing and education for the most disadvantaged. I am concerned about how that will impact on those with special needs, the mentally ill and so on.

We have to test and question some of these ideas in the House because legal aid will not be well defended by the public. Generally, if it is health or education, the public will rally, but they will not do so around legal aid because they think that it is about fat-cat lawyers. The reason for that is a malevolent combination between sometimes government Ministers and the media. It has never been my experience that fat-cat lawyers do legal aid; the vast majority who do are usually committed, decent, good people who are fairly slender and certainly not living high on the hog.

A number of the ideas are certainly worth exploring—for example, the idea of a call centre as the first point of access for the many people who do not know how to start finding a lawyer. However, it should be piloted first because there is a real concern that it will fail to deal with those who have low communication skills or complicated cases, as others have said.

I am also worried about the removal of legal aid from matrimonial cases because of the inequality of arms that it will create for women. So often in the courts already the male spouse is privately represented and the female spouse is legally aided and represented by a legal aid lawyer. She will be cut out and, as the noble Lord, Lord Thomas, said, this may well drive people to make allegations of domestic violence. Even where there has been some domestic violence it is usually not pursued for strategic reasons, because it would not be good for the children to hear rehearsed the details of what happened inside the relationship between the parents. That might lead to undesirable consequences.

I am also concerned about clinical negligence cases. Given the high initial cost of establishing liability, removing legal aid completely will mean that poor people who suffer terrible things within our hospitals will not be able to sue.

The proposals are rushed and, rather like the National Health Service proposals, they need to be given time. I ask for a little let-up and that we examine the proposals before rushing into a folly that will have serious consequences for the poor.