Bach Commission: The Right to Justice

Lord Bach Excerpts

Thursday 14th December 2017 Lords Chamber

Moved by

[Lord Bach]

To move that this House takes note of the report of the Bach Commission, The Right to Justice, published in September.

[Lord Bach (Lab)]

My Lords, I start by declaring an interest as the elected police and crime commissioner for Leicestershire and Rutland. I thank noble Lords who have agreed to speak in this debate. The last business on a Thursday afternoon in the middle of December is not always the most popular occasion, but I hope that the importance of the matters we are discussing will make it worth while. Certainly, the number and list of speakers is hugely impressive, from all sides of the House. My one regret is that noble Lords will have only five minutes to make their contributions; that seems too little time.

Why do I argue that these matters are important? First, I hope the House will not need persuading that the right to justice—The Right to Justice is the title of the report of the commission that I was privileged to chair—is a crucial element of the agreement or pact, unsaid, of course, between the state and its citizens, as a result of which the citizen agrees to live under and support the rule of law. Secondly, while the right to justice is not, of course, all encompassing, it must include some access to justice for every citizen. That right, in the words of the report, includes the,

“right for individuals to receive reasonable legal assistance without costs they cannot afford”.

The foreword to the report states:

“We live at a time when the rule of law is under attack. Too many powerful institutions pay lip service to the concept of access to justice without having sufficient regard for what it actually means. It is, after all, fairly simple: unless everybody can get some access to the legal system at the time in their lives when they need it, trust in our institutions and in the rule of law breaks down. When that happens, society breaks down”.


Thirdly, it is a commonly held view in legal circles and beyond that modern Governments—I include Governments of all political persuasions—sometimes find it just too easy and comfortable to forget those rights, particularly when they are inconvenient to the Government in question or affect large parts of the population who do not or cannot assert those rights. The country as a whole would rise up if there was no real commitment to a decent education for everyone or a health service for all on the part of government. Why should there not be the same response when something as important as access to justice is, in practice, denied to a considerable number of people?

The background to the commission is as follows. Taking a longer view, the decline in the number of our citizens now eligible for legal aid is startling: in 1950, it was 80%; in 1998, it was 53%; in 2007, it was 29%; and it has now been estimated at around 20%. In the short term, I would argue that taking large areas of the law, including housing, debt, employment, welfare benefits, immigration and the vast majority of private family law, out of the scope of legal aid over the last few years has given rise to the anxiety that it is often those with least who now have least access to justice.

The LASPO Act was how the coalition Government chose to cut back on civil legal aid, although other decisions outside that Act also played their part. The consequences have been frightening. As the Bar Council itself in its briefing for this debate says at paragraph 11,

“official statistics … show that the number of civil legal aid matters initiated has fallen by 84% from 933,815 in 2009-2010 to just 146,618 in 2016-2017 and the number of legal aid certificates granted for civil representation is down 36%”.

The way it was possible for any citizen to get some quality legal advice in the area of social welfare law at the time in their lives when they needed it—something that did not, incidentally, cost the public purse very much money—represented a sensible, pragmatic and workable system, very much in the British tradition. Above all, it gave everyone some access but, in practical terms, often meant that cases without merit did not go near a court and cases with merit could be sorted out promptly. Ironically, it saved a huge cost in human and financial terms. Indeed, paragraph 18 of the Bar Council briefing says that as,

“the Bach Commission has pointed out, £0.5 billion more was saved as a result of LASPO than was ever intended; and it is inexplicable that the Government has failed to take any account of both the evidence and the sheer logic that for every £1 spent on legal aid, far more is saved elsewhere”.

Because that system is now gone, the commission believes strongly that something should be done about it urgently, and I hope the House agrees.

As for the commission itself, I emphasise that when I was encouraged and asked by the leader of the Opposition to set it up, we were determined that those involved should be chosen for their expertise and not for their ideology. I am proud to say that the quality of the commissioners was extraordinarily high; they covered a range of legal experience across many fields of law. I pay special tribute to someone who is well known to many noble Lords speaking in the debate today—Sir Henry Brooke, who gave us our intellectual weight and phenomenal hard work, as well as years of experience at the Bar, the Court of Appeal and afterwards. Although I have not done so myself, I strongly recommend that noble Lords read the seven appendices he has attached to the report, which can be found online. They give a wonderful background to legal aid and to the commission and its reports.

Of course, we all felt strongly about the state’s obligation towards its citizens in this area, but we were not all of one or any political persuasion, and we agreed early that consensus in this field was much to be desired. I hope all noble Lords will agree that our system of legal aid and access to justice has always worked best when political parties agree on general principles and disagreements are at the margins. Indeed, a major purpose of the report is to argue that the changes we need can be effected only by broad agreement between the major political parties.

The report itself is in two parts. Our major conclusion, which owes a lot to the advice of my noble and learned friend Lord Falconer of Thoroton, who I am delighted is speaking this afternoon, is that the time has come for there to be statutory recognition of the right to justice by way of an Act of Parliament for these purposes, named the “Right to Justice Act”. As part of that Act, a justice commission would be created, independent of government and led by a senior judge, whose job it would be to enforce, monitor and advise. If we are right about the somewhat careless—to put it rather gently—attitude that modern Governments have and take towards access to justice, something surely needs to be done to force or oblige government to put this right into practice as a matter of course. Judges who for a number of years have, with great skill and bravery, protected our constitutional rights, forcefully and to good effect, would be assisted by statutory backing.

Some might argue that there is no need for legislation, and that judges have shown themselves more than able to protect access to justice. Our argument in response is that it is not right to put this burden wholly on the judiciary and, more pertinently, that government must be shocked out of its complacent attitude towards this issue. I repeat that by “government” I am not referring to the present Government particularly, but to modern government over a large number of years. We accept that this major proposal needs to be debated by lawyers and the general public. We do not pretend to have come up with a detailed scheme—that is for later. What is important is that the principle is accepted. Up to now, we have enjoyed a wide degree of support for this proposal, since the commission’s report was published by the Fabian Society. I look forward very much to hearing noble Lords’ comments about that matter in this debate.

The second part of the report makes a case for urgent action to put right some of the blatant injustices that we thought had been caused by the LASPO Act and other government decisions. I am delighted that the Government’s own review of LASPO is now under way. We hope that a number of our 25 proposals will be accepted. Our recommendations include widening the scope of legal aid and restoring it for social welfare law. We argue that all matters concerning support for children should be brought into scope, as should a number of private family law cases. We also argue that inquests should be within scope, if the state is funding other parties. Reform of the exceptional case funding scheme is urgently needed, and we recommend a boost in public legal education. The truth is that our country is desperately poorly educated in knowledge of the law. We believe that the decline in the number of social welfare lawyers as a result of cutbacks and the closing of many offices and advice centres that practise in this field must be looked at and acted on as well.

If I were to emphasise one thing only as to where we think urgent action is needed, it would be our belief that early advice—whether in social welfare or, more particularly perhaps, in private family law—is absolutely essential, both in the interests of justice and in practical terms, to cut back the number of unrepresented litigants who end up before tribunals or family courts and who clog up the system entirely. The noble Lord, Lord Low, who I am delighted will speak in this debate, made this point very forcefully, and is quoted in our report.

I was of course proud to chair the commission, which I believe has produced a sensible, practical, grown-up report. The Government should, at the very least, examine it extremely carefully and, I hope, act on it.

The cost of our recommendations has been calculated at some £400 million per year. I remind the House that since LASPO was first thought of the Ministry of Justice, which planned to save around £400 million a year, has in fact saved £900 million a year from the legal aid budget. So the money is there—the question is: is the political will?

I believe we are debating an issue of great importance, which goes to the type of country that we want to live in. At its real heart, the report argues that there is no point in having the theoretical right of access to justice if, in practice—whether because of government policy or otherwise—it is denied to you as a citizen. As a country that enjoys a justice system that is very much admired throughout the world, surely we can do better than this. I beg to move.

--- Later in debate ---

[Lord Bach]

My Lords, I have extremely limited time. I thank the Minister, whom I always describe as an exceptional Scottish lawyer, for his remarks and for the trouble he has taken to answer the debate. Of course, I thank all other noble Lords who have spoken in the debate. It has been an important and significant event—it could hardly have been otherwise, given the cast list—and I thank everyone who has been good enough to attend and speak today.

As a brief aside, it is immensely flattering for the report to be described as mine; it is not false modesty to emphasise that it is certainly not mine. I chaired the commission and am proud to have done so, but all commissioners played an important role in reaching our conclusions.

A rather more serious point on which to end is that the generous and supportive remarks made around the House in response to the commission’s report are, I believe, of some significance for the future of our recommendations but also, I certainly hope, to the Government’s review of LASPO.

Motion agreed.