Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Bach Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Bach]

My Lords, no one could have listened to the speeches made in your Lordships' House today without recognising that the Bill we are debating is of very great importance. All three parts of the Bill could be major Bills in their own right, and all three touch on fundamental issues of justice and the rule of law in our society, whether it be the new proposed offences, the replacement for IPP provisions in Part 3, or the radical changes to the conditional fee system in civil cases and the resulting shift in the balance of power between claimants and defendants in Part 2. Other issues include the fact that there is no replication in Part 1 of the duty of the Lord Chancellor in the Access to Justice Act, and Clause 12 and police stations, which the noble Lord, Lord Wigley, just spoke about.

The Government intend to cut legal aid by in effect decimating a system of social welfare law that over the past 40 years or so has cheaply and successfully helped many of the poorest people in our society to have access to justice and to resolve their legal problems. The Bill’s definition of domestic violence has been described by many noble Lords as absurdly narrow and one that will lead to many victims being deprived of vital assistance. Whether it relates to any of these concerns or all of them, the Bill goes directly to the issue of what kind of society we want to live in. The stakes could not be higher.

I of course congratulate all noble Lords who have spoken in today’s debate. This has been in many ways an astonishing debate, with a depth of knowledge and experience in this field that perhaps very few legislatures anywhere could match. However, it is surely no surprise that the vast majority of those who have spoken from all around the House are highly critical of the Bill and many of its proposals. Her Majesty’s Government must take note of this widespread sense that they have not got it right. They should be prepared to listen and, more importantly, to act on what has been argued so trenchantly and so often in the House today. We will listen with even more attention than usual to the Minister when he sums up to see whether real compromise is in the air. I hope that it is. If it is, the House will welcome it, but if it is not the House may well have to do its duty on some future occasion.

I forecast, perhaps unwisely, that there will be less disagreement around Part 3 than is usual when we discuss sentencing in this House. Of course, there will have to be considerable debate and close scrutiny as so much of Part 3 has been added so ridiculously late. Even now it is not clear that it has been sufficiently thought through. Clause 114, for example, with its mandatory indeterminate life sentence for a second listed offence, does not seem to be very different from the IPP system it is there to replace. A prisoner will still not know when he is to be released. It will still depend on the Parole Board, which will have the same information as it does for IPP prisoners now. An indeterminate sentence is an indeterminate sentence, whatever it is called, or does the clause find itself in the Bill solely to appease hard-line elements of the coalition, even though the numbers caught will be absolutely minimal? We will also want to look at bail provisions in the context of the tragic Jane Clough case and at the new Clause 130 offence of squatting in a residential building. That certainly deserves some discussion. The House will have taken special note of the speech of the noble Baroness, Lady Newlove, speaking as she did on behalf of victims.

On Part 2, my noble and learned friend Lord Davidson has told the House in clear terms what our position is. Whatever view we may take of Lord Justice Jackson's report, it is clearly a prodigious personal achievement. It reminds me of a kind of magisterial work of art, large and grand, produced by eminent Victorians. However, it is no use Her Majesty’s Government hiding behind Jackson because the whole world knows that they picked and mixed his conclusions as though they were choosing sweets. If there is one thing that Jackson was clear about—he was clear about a lot—it was that his proposals were a package to be taken as a whole or not at all. To many of us, as we have heard today, one of the key findings of Jackson was that there should be no reduction in civil legal aid. Noble Lords have quoted him, but my quotation is this:

“Legal aid is still available for some key areas of litigation, in particular clinical negligence, housing cases and judicial review. It is vital that legal aid remains in these areas”.

He goes on to talk about eligibility. That is pretty straightforward but it is actually rejected by the Government. I ask the Minister why the Government have rejected what Lord Justice Jackson said so clearly about clinical negligence and legal aid.

This is a critical point because the Government intend, as part of their £280 million cut in civil legal aid, to save £11 million or £10 million—I have a figure of £17 million but that may be out of date—by taking clinical negligence out of scope. The idea that conditional fee agreements alone are satisfactory for this type of law has been ridiculed by everyone in the House and outside. Many commentators believe that a number of victims, including children, will never be able to get access to justice. Is that the sort of society in which we want to live?

That brings me to what many—and, I must be honest, I—consider the meanest and most wretched proposal of all: the decimation of social welfare law. The rest of my speech will be devoted to that part of Part 1. Whether you call it social welfare law or poverty law or the law of everyday life does not matter very much, but what matters hugely is that the Government are proposing that it should no longer be possible for a citizen who cannot afford it to get legal advice to deal with a legal problem, however complex, involving welfare benefit law. The same goes for employment law, which is completely out of scope. Much housing law will come out of scope, as will practically all debt law and some education law too. As the Bill stands today, that means that there will be no legal advice or representation, even at the Court of Appeal or the Supreme Court. Just to state that proposition shows how absurd it is.

The supposed savings are as follows: including immigration, £81 million; excluding immigration, £61 million. That means that in the social welfare area alone more than 350,000 people a year—it is much wider if you take the other parts of Part 1—will not be given the sort of legal advice that they receive today. Even where the law is still in scope, fixed fees, which are far from generous, have already been cut by 10 per cent. Anything left in scope, of course, will have to go through a mandatory phone gateway, including community care cases. One can hardly think of a sillier area of law to put through a mandatory phone gateway than community care.

Despite many progressive reforms by different Governments to simplify the legal system to make it easier for participants to access and understand, the reality remains that law and enforcement of the law is an often complex and stressful experience for many in our society. The legal aid system was created to address evident inequality in the legal system. We give legal aid contracts to law centres and CABs because they help those most in need. What is the point of legal rights if there is no ability to enforce them?

The value of the advice that is currently available is unchallenged. The respected academic Professor Dame Hazel Genn, in her seminal work Paths to Justice, pointed out that legal problems are not single ones, but come in clusters: it is not debt on its own, for example, but welfare benefits, debt and housing. If legal advice is given early and well, it can and does change lives. If that advice is not given, problems grow, become more difficult to resolve, and can end up in loss of job, loss of home, loss of family, social exclusion, of course, and sometimes descent into crime. All this costs everybody: the individual involved, the Government, and society too.

How can the Government justify this change to a system which—and I want to stress this point—up to now has been supported by all three main political parties in this country? The Conservative Party has a proud tradition of supporting law centres. The Liberal Democrat Party clearly does too, and I hope we do as well. This system has always been supported by the political parties. It has not worked faultlessly—of course not—but it has worked pretty well for many years.

This proposal is the exact opposite of any concept of the big society that one might want to consider. Who are the people who will lose out? We have heard about them throughout the afternoon. If there is no legal aid for welfare benefit advice, some of the biggest losers will be people with disabilities. These people often need legal advice to obtain the benefits they have a right to. The figure of 78,000 disabled people who will be denied specialist legal help for complicated welfare benefit problems is staggering. But the Government say, at the moment, “No, these people do not need legal advice. They can do it themselves. It is all general stuff. It is all comparatively easy”. Actually, the DWP guidance now runs to, as I understand it, 9,000 pages: a good deal more than the CPAG guidance that my noble friend first wrote. As the president of the Social Entitlement Chamber, Judge Robert Martin has said that where people have not had legal advice, about 10 per cent of hearing time at welfare benefit tribunals is spent just explaining what is going on. No wonder that the noble and learned Baroness, Lady Hale, said in her Henry Hodge Memorial Lecture:

“The idea that the law in some of these areas is simple and easy to understand is laughable”.

This is an example of judicial understatement if ever there was one. And yet her Majesty’s Government seem set on this course, all for an alleged saving in welfare benefits of £25 million per year. This is a Government who are prepared to pay out £250 million in order that people can have weekly rather than fortnightly bin collections and £125,000 per year to—is it 40 plus?—police commissioners around the country. This is not a sensible priority at all.

Children and young people will be losers too. As we have heard, they have civil justice problems that require advice. There is academic research to show that there is a relationship between civil legal problems not being solved and crime. This seems incredible in the year of the riots. To cut legal help for the young age group is absolutely crazy—perhaps as crazy as abolishing the successful Youth Justice Board. Both legal aid and the Youth Justice Board work as early-intervention measures to ensure that our young people have a future.

Of course we know that lawyers who work in this field are not fat cats. Many sacrifice a career in high-paid private practice because they consider that the work is so important. Their fees have been cut by 10 per cent. Further legal aid cuts will rip apart law centres, CABs and solicitors’ firms, which will have to close. I ask the noble Lord: where will people go then?

The honourable Member for Bradford East, the Liberal Democrat David Ward, made a brilliant speech on Report in another place on 2 November. I was privileged to see and hear it; I watched from our seats in the other place. He attacked these proposals with passion and good sense—and, with nine Liberal Democrat colleagues, including his Deputy Leader, voted against the Government. He made two important points. In the first, he stated:

“It is a very dangerous thing if we are going to use deficit reduction as a justification for almost everything we might do”.—[Official Report, Commons, 2/11/11; col. 976.]

His second point came in his final words. He said:

“Someone once told me that the world is divided into two groups of people. There are those who, when they see somebody walking down the street with a walking stick, believe in kicking the stick away because it will make that person stronger, and there are those who believe that if they kick away the stick, the person will just fall over. We are in grave danger of making some of those who are, by definition, the most vulnerable in our society fall over, and we will still have to be there to pick them up, at even greater cost to the public purse. It does not make sense; we should not do it”.—[Official Report, Commons, 2/11/11; col. 977.]

Then he sat down.

That is one way of putting it. Another way was expressed in the quote by the late Lord Bingham, which I will not repeat now. Both quotes, in different ways, make the point that equal access to justice is at the heart of our democracy, and that Governments should be very wary of tampering with that principle.

The Government’s proposals are deeply wrong in three distinct ways. First, they are—I choose the word carefully—immoral. They deliberately look only at the impact assessments that the Government themselves produced; and they deliberately pick on the poor and the vulnerable. Secondly, they represent a serious denial of access to justice, as the Constitution Committee powerfully argued. Thirdly, far from saving money, they will cost much, much more.

The Minister often uses the phrase, “To govern is to choose”. He is quite right. When in government we put forward proposals that would have saved much more than the cut in social welfare law that this Government propose. Our intention to cut back on the number of criminal solicitors with LSC contracts would have been very controversial—much too controversial for this Government, who chose instead to take on not powerful interests that might give them a hard time but the poor, the vulnerable and those who cannot represent themselves in court, let alone begin to fight the power of government.

I end by saying that noble Lords—I hope in a non-partisan spirit and across the House as a whole—should say that in this case the Government have made the wrong choice. If necessary the House must take up the fight and stand up for those who cannot stand up for themselves. The House has a tradition of looking after the interests of those in our society who have little power. In this of all cases, we must not let them down.

[Lord McNally]

My Lords, I hope that the House will understand that in a debate of 54 contributions, I am not going to be able to answer them all in detail this evening. Indeed, many of the questions will be better raised at Committee, with specific details of the Bill.

The noble Lord, Lord Rix, and the noble Baroness, Lady Massey, asked whether I would meet them on the specific issues they raised. Of course I would be delighted to do so. If they will contact me I shall fix something up. The noble Baroness, Lady Whitaker, asked whether the letter from Professor Ruggie could be put in the Library of the House. I will certainly arrange that. It is already on the internet. It might be interesting to the House to know that Professor Ruggie is no longer the UN special representative for business and human rights; he has joined a Boston law firm. Whether that is promotion, I do not know, but that is the fact.

The noble Lord, Lord Faulkner, came with his proposal about amendments to deal with metal theft and the dangers it poses. I cannot give him a definitive answer at the moment, other than that there is an inter-ministerial group looking at this issue as a matter of priority, and we will look at any proposals appropriate to the Bill. I have lost sight of him again—oh my God! Thank God we did not give the Speaker more powers; he would have named me by now.

It has been a very interesting and well-informed debate. Let me take to start—because he was quoted—my colleague from the other place, Mr Ward, who said that we must not let deficit reduction dominate everything that we do. Of course, unless we address the issue of deficit reduction, many of the things that we subsequently do—

[Lord Bach]

The noble Lord is quoting Mr Ward wrongly. Mr Ward said:

“It is a very dangerous thing if we are going to use deficit reduction as a justification for almost anything that we might do”.—[Official Report, Commons, 2/11/11; col. 976.]

[Lord McNally]

I stand by that quote, then. If we are going to take that attitude, and if we are going to avoid taking tough decisions, we will face far greater economic problems. This idea that somehow we can put things off until tomorrow is perhaps why we are where we are today, and why we have to take the decisions that we will take today.

I heard closely what the noble Lord, Lord Howarth, was saying. Of course, it was a wonderful speech. A number of the speeches made today were wonderful speeches, if we believe that there is no limit to the amount of money that we can spend on legal aid; that there was somehow a golden age when this was all available. However, we know well—