Prisons: Overcrowding
Lord Bach Excerpts(9 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach (Lab)
My Lords, I thank the Minister for repeating his right honourable friend’s Answer but, as far as this side is concerned, it does not begin to deal with the questions that have been raised in the past few days. Last week, the highly respected Chief Inspector of Prisons voiced serious concerns over the impact on prisoners and staff of overcrowding in the prison estate. He referred to a rising trend of suicides and self-harm, of tension and violence, and of the inability to offer meaningful work or recreation. It was frankly astonishing to hear the Secretary of State for Justice airily dismiss these concerns on the “Today” programme, sounding like a political Dr Pangloss of whom Voltaire would have indeed been proud. He seemed to think it was only a matter of prisoners doubling up in their cells for a few weeks until the crisis passed, as if that was merely a trifling inconvenience for the prisoners and—as importantly if not more so—for those whose task it is to ensure good order and their safety.
When will the Government acknowledge and act on the facts that violence against prison staff has increased by 45% since 2010; that there has been a 60% rise in the number of times the prison riot squad has been called out; and that the use of Gold Command to deal with serious incidents has doubled in the past two years? It is time for the Secretary of State to stop playing to the gallery, to start listening to the chief inspector and to deal properly with the crisis in the service.
Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014
Lord Bach Excerpts(10 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach (Lab)
My Lords, even more than usual, thanks are owed to the noble Lord, Lord Pannick, for tabling this regret Motion, because these regulations are laid, as we have heard, under Section 2 of LASPO, which requires only a negative statutory instrument. This allows for the implementation of the regulation before Parliament has any opportunity to debate it. Indeed, Parliament would have had no such opportunity if not for the noble Lord himself. All those with an interest in the rule of law and access to justice—and that should be all of us—once again owe a debt of gratitude to the noble Lord.
Other experts argue with some force that the appropriate way for Her Majesty’s Government legitimately to bring forward such a major reform—with the likely consequence that in practice many poor citizens will not be able to exercise every citizen’s right to question executive power—is by primary legislation. If this, however, is asking too much, these experts argue that the regulations should have been laid under Section 9 of LASPO, which obliges the Government to get parliamentary approval before the regulation comes into place. Thankfully we are having a debate, and I make a few points in support of the Motion of the noble Lord, Lord Pannick.
I perhaps ought to declare an interest. I am probably the only speaker to take part in this debate who has been on the wrong side of a judicial review. The court found against the decision I had taken. However, that encourages me even more to make the points I intend to make.
In his initial attack on judicial review, the Lord Chancellor implied in rather a general, throwaway manner that judicial review was somehow becoming the tool of left-wing pressure groups egged on by left-wing lawyers. This sort of talk may of course satisfy the Daily Telegraph on a bad day, or the Daily Mail on any day, but it does not accord with reality. Judicial review is supposed to be open to all citizens who want to challenge the decisions of the executive: it should be for all of us. Examples of citizens, rich and poor alike, taking this course are legion. For me, a current example is close to home, and I mention it briefly. The self-described descendants of King Richard III, who obtained a judicial review of the Lord Chancellor’s decision, cannot, I suggest, be described as left-wing activists whose purpose is to destroy civilisation as we know it.
Criticism can and must be made of the Lord Chancellor himself. He often gives the impression, I am afraid, that he does not always appreciate important principles that lie at the heart of our legal system, or that he does not have much understanding of how it works in practice. Both are important: the principles, and how they work in practice. It is unfair—on balance—to say that it is because he is not a lawyer. There are many non-lawyers who have a deep understanding of how precious and important our legal system is. However, I make the point that all four of the Lord Chancellor’s current crop of junior Ministers are distinguished lawyers. One in particular is distinguished—I will not embarrass him by naming him tonight but I think he knows who he is. I ask this question of that Minister: is it not time that he and his lawyer colleagues, who, just as much as the Lord Chancellor, must have the interests of justice as their prime obligation, girded up their loins, if I may use that expression, and together pointed out to their boss that many of the changes being made in his name seem to have scant concern for the concept of the rule of law, or access to justice, or how these important principles are put into practice in a system that I hope is still—but only just—the envy of the world?
The regulations we are debating are, I argue, a good example. Everyone who has looked at the regulations comes to the irresistible conclusion that for the LAA not to be allowed to pay any legal aid in a case where permission is refused and for the Lord Chancellor to have an unclear and uncertain discretion if a case never reaches the permission stage will have a chilling effect. It will mean that lawyers will not be able to take judicial review cases where the claimant cannot afford to pay. The result is that a system of law which is open to all will inevitably have become closed to many, and in particular to those who most need the protection of judicial review against the power of the Executive.
As the Bar Council put it in paragraph 9 of its very well argued briefing note:
“A fundamental concern is that a particular group only (namely, legally aided claimants) would be subject to these provisions. Public authorities would face no particular adverse consequences when they resisted applications for permission for no good reason. The position of privately funded claimants would remain unchanged. Treating legally aided claimants differently would be unfair. It does not happen in relation to other areas of law. It would create an unprecedented imbalance between the parties to litigation and will lead to inequality of arms”.
That is a powerful statement. When the Minister comes to reply, will he say whether he agrees with it?
Of course, the point has been made that there are already filters in place: a merits test before legal aid can be granted and, in every case, there is a permission stage. As the same note from the Bar Council says in paragraph 11,
“the existence of the filter amply serves its intended purpose. It is wrong in principle to impose additional, specific disincentives to accessing the permission stage itself. That does not ‘rebalance’ judicial review; rather, it risks fatally undermining it”.
If one looks back to the passage of the LASPO Act through Parliament, the Government promised two safeguards. One was that exceptional cases would be a safety net for the area of social welfare law that was being taken out of scope. In its first year of operation, the exceptional cases point has turned out to be a miserable failure. The second safeguard—the noble Lord, Lord Pannick, spoke of this—was of course to be the continuation of legal aid for judicial review. As the Government argued in their own original Proposals for the Reform of Legal Aid in England and Wales in November 2010, judicial review represents,
“a crucial way of ensuring that state power is exercised responsibly”.
Throughout the lengthy debates in this House and in the other place, Ministers would use the existence of legal aid judicial review as a reason why it was safe to remove legal aid from social welfare law. Yet barely one year after Part 1 of that Act has come into force, the Government are introducing a regulation that is bound to have the effect of making it very unlikely that a poor or disabled person, or a citizen who needs legal aid, will be able to get justice by way of judicial review. The risk of not getting permission, and thus not getting any costs, is so great that providers simply cannot or will not be able to do it.
To my mind, this represents a particularly low point for the Government. They have got controversial legislation through Parliament on a false basis and further demeaned our legal system. Where will it end?
Social Welfare Law
Lord Bach Excerpts(10 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach (Lab)
My Lords, I congratulate the noble Lord, Lord Low, on securing this important debate. As he said, he has attracted an impressive list of speakers, not least the right reverend Prelate the Bishop of Peterborough, whose maiden speech we are looking forward to hearing. I hope very much that the Minister can respond to the debate in a positive way.
In my view, the Low commission report is the first positive, the first piece of good news and the first chink of light, if I may call it that, that we have seen for some time in this field. Considerable congratulations are owed to the noble Lord himself and to his fellow commissioners on producing this excellent report and on perhaps cheering us all up a little bit. I hope that the House will forgive me if I pick out one of the noble Lord’s fellow commissioners. Steve Hynes, director of the Legal Action Group, played an important part in setting up the commission, and the leading role he has played in the field of social welfare law over many years has, in my opinion, been outstanding.
It is important to have some good news because for years now the position has looked bleak and depressing, getting worse month after month. The truth is that social welfare law has been decimated over the past four years. That is because the Government seem to have decided as a matter of policy that access to legal advice for some people—often the poor, often the disabled, often the acutely vulnerable—in order to deal with those areas of law that affect everyday life, such as housing, debt, welfare benefits, employment and immigration, is not even a necessity, let alone a priority. This government policy is seen most obviously in LASPO itself and its implementation since 1 April last year.
However, the decision to downgrade this part of our legal system was taken well before 1 April 2013. How else can the following information set out in paragraphs 1.10 and 1.11 of the report be explained? I quote:
“Eligibility levels and the number of cases in social welfare law then increased between 2007 and 2010. This was due to three factors—the recession, which meant more people were potentially eligible for legal aid; a decision by the government to bring more people into scope; and an increase in the budget to allow more civil law cases to be paid for by the legal aid scheme.
When Labour left office in 2010, social welfare law legal help cases had peaked at 485,664 for the year 2009/10. However, by last year, 2012/13, the numbers of social welfare law cases had fallen to 293,319, due to decisions made by the coalition government to reduce expenditure on civil legal aid”.
That is a drop of nearly 200,000 cases annually—around 40% of cases—and all before LASPO ever came into force.
Another example is public legal education, mentioned in the report and by the noble Lord, Lord Low, in his speech today. Following the general election, not only was the outstanding committee that had advised the Ministry of Justice on this vital subject summarily disposed of, but the budget for work on public legal education over the next number of years was suddenly no longer. Now, 11 months after LASPO came into force, the position is much worse and gets worse with every announcement of a closure of a not-for-profit provider, or of redundancies and closures having to be made by big players in this field, such as the CAB and Shelter.
A lot of income from very modest legal aid payments is resulting in a sharp decline in the number of providers of these crucial services. Many fewer people are receiving legal help than deserve to. We know, as the noble Lord has said, that a pathetic, miniscule number of exceptional cases have been allowed through, even though the Government—perhaps laughingly—claim the scheme is working effectively.
This week’s news sums it up. On Friday, RAD Deaf Law Centre, with offices in London and Newport, is closing its doors. Its chief executive has said:
“Funding cuts have had a profound effect on RAD”.
Have we really, as a country or as a society, come to this: that the law centre that helps deaf people in our country has to close because the Government have abolished the meagre legal aid that went to provide important funding so it could do its vital work?
Last Friday, a newspaper reported that the Government are thinking of charging people making appeals against DWP decisions to social security tribunals. Is this a serious proposition, I ask the Minister? How much in charges do the Government think they will get from these appellants? Will it be more than 1% or 10% of the administrative cost involved in setting up these charges, or is it—this is what it seems like to me—just a rather crude attempt to stop people appealing at all, bearing in mind that in recent months 58% of those who wanted to overturn DWP-sanctioned decisions in tribunals have been successful?
The position is grim indeed, and that is why the report is so timely and so welcome. The report does not call for a return to the system that has been wiped away; it looks forward and recommends a number of modest, practical measures that will make it possible once again for everyone to obtain the legal advice that they need, when they need it. The report argues convincingly that, by modest expenditure, by spending a bit of money, the state will save money as all the evidence shows that early intervention in the sorting out of legal problems saves costs, both in human and financial terms in the long term.
The report starts with the premise that access to justice for all has to be the starting point for any proper legal system. It challenges the political parties in this country to disagree. Surely, none of the political parties does. With a general election looming, that is why this report is so timely. It asks us in the political parties to take this issue seriously and develop policies accordingly. That is why we should all be grateful to the noble Lord, Lord Low, and his fellow commissioners. We must not let this opportunity go to waste. We would not be forgiven easily if we did.
Legal Aid
Lord Bach Excerpts(10 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the Government consider that the exceptional funding scheme is working effectively. We are monitoring its operation and will continue to do so.
Lord Bach (Lab)
My Lords, I thank the Minister for his Answer as far as it goes. Parliament and the public were told time after time to believe that Section 10 would act as a safety net for those cases where it was manifestly unfair that the citizen should not have access to civil legal aid. However, the application forms are impossible for a non-lawyer to complete and a lawyer will not get paid a penny if the claim for legal aid is unsuccessful. Even worse is the fact that only in 3% of claims has legal aid ever been granted. The noble Lord was a member of the JCHR which, along with the Low Commission and many others, has recently criticised the working of this provision. Now that he is a distinguished member of Her Majesty’s Government, will he act to make this vital provision fit for purpose?
Lord Faulks
The provisions contained in Section 10 of the LASPO Act make it perfectly clear that it is there for exceptional cases where, in the absence of legal aid, there would be a violation of Article 6 of the European Convention on Human Rights or possibly of the provisions of the European Union. It is not about whether a case may be deserving; it has to fall specifically within the confines of the section. As to the application form, it was consulted on regularly and in detail before it became part of the process. I am surprised that solicitors are having difficulty in filling it in. It is possible for someone to fill in the form on their own and they can then have a preliminary view given to them by the Legal Aid Agency as to the prospects of success. It is true that the number of applications has been much lower than expected and it is also true that very few have been granted, but we are satisfied that the system is working in accordance with the section.
Criminal Legal Aid (General) (Amendment) Regulations 2013
Lord Bach Excerpts(10 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Scotland of Asthal (Lab)
My Lords, I, too, bitterly regret the need for this debate. I say to the noble Lord, Lord Faulks, that I feel enormous sympathy for him and bitterly regret that he will have the arduous burden of responding on behalf of the Government. To turn our minds back only a few years, if we had asked any lawyer worth their salt whether it would be likely that any Government, of whatever political complexion, would bring forward regulations such as these, I think that such a suggestion would have been met with incredulity.
I totally endorse what has been said by every Member of the House who has spoken already, particularly the comments made in relation to children, women and the vulnerable. I emphasise the comments made recently by the noble Lord, Lord Ramsbotham, about the need to remember the backcloth against which these additional cuts must now be seen.
I shall take a moment to concentrate on the plight of women. Noble Lords will know that legal aid in family matters has been removed almost in its entirety, except in cases of domestic violence. Even there we are hearing reports from solicitors all over the country that access to legal aid for those women and individuals who are victims has been severely constrained. Some solicitors say that the drop has been 96% in some areas and 94% in others, and that there has been a real diminution right across the board. We know that women in our prisons are overrepresented in terms of vulnerability. Certainly it was my experience when I was Minister of State with responsibility for the criminal justice system. I was told in 2004 by the governor of Holloway prison—I have no reason to believe that this has changed—that 89% of women in prison had a history of domestic violence or sexual abuse prior to having offended. We have a highly vulnerable group whose rights already are constrained outside the prison estate and are having them further constrained within it. Two-thirds of children in youth offending institutions come from those same domestic violence homes. We all know that those who graduated from the youth justice estate are overrepresented in the male estate. We are dealing with the most vulnerable in our community.
I add my voice to those who have expressed a degree of shock that the Secretary of State for Justice feels able to phrase these issues in terms of ideology. I commend the Damascene-like conversion of the erstwhile Treasury devil for his change of mind and invite the noble Lord, Lord Faulks, to ask the Lord Chancellor to see the noble and learned Lord, Lord Brown, as an exemplar of what can be done when one really wishes to change, and to say that, from the Lord Chancellor and the Secretary of State for Justice, all of us expect more. I cannot but agree with the noble and learned Lord, Lord Brown, when he says that these provisions are mischievous and misguided.
Lord Bach (Lab)
My Lords, yet again this House appears united against the Government’s proposals for legal aid. Thanks are owed not just by those of us in the House but those outside, too, to the noble Lord, Lord Pannick, for moving his regret Motion and doing so in so powerful a way. Those who followed him must rank as one of the most impressive lists of dramatis personae of legal luminaries it would be possible to bring together, and we have not heard from my noble friend Lord Beecham yet.
I want to make a couple of fairly short points. At paragraph 161 on page 50 of the JCHR report, there is reference to reforms to the system of prison law that were carried out in July 2010. They were really the work of the previous Government. Indeed, they were from a time when I was privileged to be the Minister with responsibility for legal aid. What we did then was to make comparatively minor changes that we believed were appropriate. We implemented them and, dare I say, they appeared to work fairly satisfactorily. But now, yet again, our successors go much, much too far and take so much out of scope that the balance shifts. Instead of having a system that maintains the essential proposition that prisoners should have reasonable and proportionate access to legal advice and representation, we are now faced with a sort of brave new world where any legal rights prisoners enjoy are granted out of sufferance—the very bare minimum.
The approach is not what is fair and consistent with our legal traditions but rather, “What can we as the Government, the state, get away with?”. There is almost a pride in not taking a balanced view based on judgment and legal reputation. In one of his examples, the noble Lord, Lord Pannick, spoke about categorisation. The Ministry of Justice has decided to remove funding for pre-tariff reviews. He explained much better than I can the value of pre-tariff reviews for prisoners.
Recently, I spoke to a recently retired Parole Board member and a retired High Court judge who told me that not only are these reviews immensely significant in the course of a prisoner’s life but that there are huge advantages for the Parole Board and, thus, presumably for society, in having the best possible information about a prisoner so that the right judgment can be made. Such information is gained by the Parole Board having had the advice and representation before it that has been given to the prisoner. Can anything be more ridiculous than the decision to take pre-tariff reviews out of scope? As the JCHR report so rightly said:
“Categorisation engages common law rights to liberty, as it can affect the likelihood of a prisoner being released. There are also clear cost implications of a prisoner remaining in too high a category, which may mean that the Lord Chancellor’s cost-saving rationale may not be satisfied. We recommend that the Government look again at these proposals, and give full consideration to the potential for increased costs, which may affect the justification for its policy”.
Two newly appointed Ministers in the Ministry of Justice were on that JCHR, at least for a large part of its hearing into this matter, and we hope that both those Ministers will follow that paragraph and talk to their Secretary of State in those terms.
Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013
Lord Bach Excerpts(10 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach (Lab)
My Lords, I speak to my amendment to the second Motion that the Minister has just spoken to. My amendment would add,
“but that this House regrets that the draft Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2013 exclude some people from legal aid where their case turns on a point of law”.
Before setting out my arguments—I hope reasonably briefly—I will start by warmly welcoming the Minister on behalf of the whole House, and congratulating him on his new position as Minister of State in the Ministry of Justice. It is an appointment widely welcomed by noble Lords around the House. He is a widely admired senior lawyer with great experience both in the courts and in this House, where he has taken an important role in our debates on all justice matters, not least the LASPO Act and the orders flowing from it.
He has also served on the Joint Committee on Human Rights and, just over a month ago, we remember his important speech in the debate instigated by the noble Lord, Lord Carlile, on very high-cost cases in criminal trials. I have two final points on that. Our welcome today is more than just the usual good manners of this House. It is a genuine welcome from all around the House to him in his important new responsibilities. Secondly, we wish him good luck and well in his new job.
This brings me, perhaps not before time, to my Motion. Many of us believe that the Minister has rather courageously taken on his new responsibilities at a time when his department, and particularly the Ministers in it, have tended to indulge in a series of attacks on many of the best and most important features of our legal system, in the field of civil and criminal law. The consequence of the removal of legal aid from social welfare law, the over-the-top attack on criminal fees, the proposals on judicial review, or the proposed residence test, has been to lessen the reputation of our legal system in a number of ways. Most importantly—I think this is felt around the House to a greater or lesser degree—these measures attack the overriding principle that all those who live under the rule of law should have at least some access to quality justice when they need it in the course of their lives.
Unfortunately, this order fits that pattern only too well. Since it was proposed in Transforming Legal Aid: Next Steps, it has been criticised almost universally and condemned by a very wide variety of expert opinion, from judges to practitioners to academic lawyers and, of course, by the Joint Committee on Human Rights itself. Alas, in spite of this hostility, the Government have decided to go on regardless, and this order will take effect in one week’s time on 27 January.
Why has there been this criticism? Apart from serious doubts about the Government’s assertion that it will affect 100 cases and save £1 million per year—the doubts are on the basis that the Government have provided no evidence at all for that conclusion—practitioners sensibly argue that both in terms of possible litigants in person and extra adjudication appeals that may be necessary if the order is implemented, the savings may be nonexistent.
The crucial reason that this is such a damaging step can be found in the measured words of this House’s Secondary Legislation Scrutiny Committee in its 21st report of Session 2013-14, which states that,
“the House may wish to consider whether it is appropriate to exclude someone from legal aid where the issue turns on a disputed point of law, circumstances in which the advice of a skilled lawyer is most necessary. The definition of ‘borderline’ has not changed from the previous Regulations but the use to which it is being put has. Previously dispute over law or expert evidence was grounds for including a weaker case in the scope of legal aid and enabling someone to obtain better advice, now such cases are to be excluded from support”.
Or, as the Bar Council put it in its submission:
“Removing funding of cases assessed as having a ‘borderline’ possibility of success will see funding removed for cases critical both to individuals and areas of public policy. Many important cases will have been assessed as borderline but nevertheless have gone on to win. Others will have been lost. That fact does not do any damage to public confidence in legal aid. Such cases will have ensured access to justice where something really important was at stake”.
Practitioners have included examples from many branches of civil law where, without the grant of legal aid, cases that have changed the common law would never even have been before the courts. Not only would injustice have been done to an individual citizen—not an unimportant consideration—but the law as it was thought to be would have remained frozen in time, even though it was decided it was wrong.
Many examples have been given. Bindmans, the leading solicitors, argued in its response to the consultation:
“‘Borderline cases’ often constitute seminal test cases in which the courts have clarified some of the most difficult issues, for example the right to die with dignity, the ban on gay people serving in the army, systemic abuse by armed forces, and whether soldiers serving overseas should be protected by the Human Rights Act”.
It went on:
“In a jurisdiction without a written Constitution or codified laws, and in which law is thus based on and developed through case law, such test cases are an essential part of the legal system”.
There are many examples; housing law is perhaps one of the best. There was a series of three successive cases, all financed by legal aid, which followed the vexed question of the balance and the legal conflicts between human rights, respect for a person’s home and the rights of property. I venture to think that there may be some noble and learned Lords in the Chamber this evening who will remember these cases quite intimately. These cases led in the end to the Supreme Court coming to a view in 2011, in the Manchester City Council v Pinnock case, which effectively changed the law.
This series of cases on a matter of great public importance was possible because of legal aid. I suggest that if these regulations had been in force then, it is unlikely that those cases, which have both clarified and moved the law on, would ever have reached the courts. As the organisation Justice has said, “borderline” does not mean without merit. These are not unclear cases which we are talking about, where further information is necessary before the success criteria of the means test can be determined. These are cases where there is a different legal opinion about issues of importance—and any legal system, I argue, that does not allow them to be determined is surely defective.
Richard Drabble QC, a practitioner of vast experience in this field—and who, significantly, has appeared for successive Administrations on the one side as well as for claimants on the other—argues strongly against this regulation. He points out that in the case of Anufrijeva against the Secretary of State, which was a benefits case, the result of which affected large numbers of claimants, the lower courts and the Department for Work and Pensions had become wedded to a view of law which the majority of the Lords—the Law Lords, he means—ultimately held to be constitutionally improper. He makes the point that not only did the Executive have the freedom to test the law, which they will of course continue to do under these regulations, but that surely so should claimants, too. He warns:
“The system will or may become institutionally ‘pro-executive’”.
In its response to this consultation, the Council of Her Majesty’s Circuit Judges stated its disagreement with the proposal in what I can only describe as broad terms. It stated:
“The regulations which the proposal would amend were made in 2013 after a consultation. We take the view that no compelling case has been made … to alter them now … We must express our great concern that access to justice will be denied to individuals who may well have a completely valid claim”.
It went on:
“The law would become fossilised if ‘borderline’ cases were not supported by public funds. The role of legal aid in past cases in refining and clarifying common law and statute should not be underestimated”.
I end by arguing that the case for this regulation has just not been made by the Government, whether on cost grounds on the one hand or grounds of principle and practicality on the other. The Government should have listened to the many serious and informed voices criticising this measure. Alas, up to now, they have refused; and continue to bring in measures that are gradually, step by step, tending to weaken our legal system. This measure, I believe, is one of them. That is why I thought it right to put down my amendment to the Motion, so that at least a debate can take place before the Government move forward.
Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2013
Lord Bach Excerpts(10 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
My Lords, first, I thank the Minister for his response to the debate tonight. It had the great advantage of being clear, straightforward and answering many of the points that had been made in the debate. It was very refreshing to hear a Minister speaking in those terms. I thank him very much for that. I also thank all other noble and noble and learned Lords for their contributions and support for my Motion on this order. I am very grateful for what they had to say, but even more so for having stayed as late as they have on what is commonly called, as I understand it, Blue Monday, which is that day in the year when, following the Christmas and New Year excess, people are at their lowest and most depressed. So, although I was pleased by what the Minister had to say, it has not really moved me out of my Blue Monday feeling about this particular regulation. When he says that the Government have a consistent policy on legal aid reform, I say to him: I think that that is the problem. To be fair to the Minister, the regulation was brought forward by his department well before he took over his new position—which was, I believe, only a few hours ago. He can hardly be held to be completely at fault for it.
I agree with the noble Lord who said earlier that he did not feel that the Minister’s heart was absolutely in this. I think that that is probably true, in spite of the powerful arguments that he managed to employ in his final speech. On 11 December the Joint Committee made its view quite clear when it stated:
“In view of the significance of the cases likely to be affected by the proposal”—
because, after all, the Government had conceded that many of these cases deal with human rights issues—
“we recommend retaining the Legal Aid Agency’s discretion in these cases, or, if it must be changed, tightening the requirements rather than removing the possibility of such funding altogether”.
The Minister will remember those words. I hope that, even if the regulation cannot be changed, when he gets to his department tomorrow he will at least consider tightening the requirements rather than removing the possibility of such funding altogether.
In more general terms, I very much hope that, from now on, his right honourable friend the Lord Chancellor will have the good sense to listen to his advice on this and other matters that affect so much the course of justice in this country. I shall not move my amendment.
Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013
Lord Bach Excerpts(10 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach (Lab)
My Lords, I declare an interest, rather an old one, in having been a junior member of the Bar doing criminal law, pretty uniquely, for many years. I was calculating a few minutes ago that the last time that I practised was some 14 years ago. I am not a Queen’s Counsel, although once or twice in this House I have been called that inadvertently—and much worse besides—and I have never sat. If anything, I speak as someone who was once a junior criminal barrister.
The House owes a huge debt to the noble Lord, Lord Carlile of Berriew, for tabling these two Motions. His speech and the speeches of noble Lords who have spoken have attacked these proposals with passion and in trenchant terms. I regret only that this important debate is being held effectively at dead of night, when the points made demand a greater audience at a better time of day, because the principles that they concern are of huge importance. All that I can say is thank goodness for Hansard.
My position on these regulations is fairly simple. Some cuts to criminal legal aid are justified; some cuts to VHCC costs are also justified. I had to make such cuts some years ago in criminal legal aid and VHCC rates. I do not resile from having to do that—any Government would have to do that at a time of economic difficulty. But frankly the percentage of cuts that is being proposed—the crude and absurd figure of 30%—seems to be much higher than any figure for which I was responsible and which can possibly be justified. I say “absurd”, because quite a lot of the burden of this will not necessarily fall just on eminent Queen’s Counsel who lead in these cases, but on junior barristers, either those being led or who sometimes in these cases are the sole advocates for a defendant. It will fall too on solicitors, which has not been mentioned: that is, solicitor advocates in court and solicitors who have to do the preparation for these very long cases. The damage that will be done to them has been described extremely eloquently already.
If my speech now becomes slightly less generous to the Ministry than others have been, I hope the House will forgive me, but one is left with a fairly strong impression that the Government really do not care very much any more whether there is a credible, high-quality legal profession practising criminal law, either now or, more importantly perhaps, in the future. We should not be surprised by what I call this recklessness. One must see it in context.
Anyone who has followed the Government’s approach to legal aid from almost the day they came into office—a point made by the noble Lord, Lord Carlile—will know that almost immediately they removed the Legal Services Commission’s grants for young trainee lawyers in social welfare law firms and advice centres. Anyone who has followed this approach will know that the Government do not care very much about the consequences of their actions, culminating in the tragedy—my word—that is Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act, which has already come close to destroying access to justice for hundreds and thousands of our fellow citizens.
To remove legal aid from social welfare law was tantamount to an attempt to kill it off. Was it ideological? It seems that way. Why would any Government have done something so ridiculous in financial terms and so monstrous in social terms, destroying a system of law that gave some access to justice, often in the form of fairly cheap legal advice, to poor people at the point in their lives when they needed it and in order that their lives could be put back on track? In exactly the same way that many noble Lords and noble and learned Lords have spoken tonight about how criminal law affects people’s lives, we must not forget how those acts of legal advice on housing or welfare benefits that have been given to people on legal aid also affected their lives in very important ways, often so that their lives could be put back on track.
It was a policy of supreme ignorance as well as utter recklessness. Now we see that Act in practice, this hard-nosed, ignorant approach to our law continues—all of it forecast in the debates that took many hours in your Lordships’ House some time ago. Law centres have been allowed to close. The exceptional cases provisions of the Act are now so rarely allowed that they might as well not exist. The anecdotes and evidence as far as domestic violence is concerned are something that this House will really have to consider at some stage in the future—all the net results of this Government’s approach to legal aid from the moment they were elected.
Here we are again. Anyone in legal circles, practising lawyers who thought that they could just keep quiet while the first stage of legal aid cuts was taking place, because all that was about was a few solicitors who did this kind of work or advice centres that advised in civil law, and that criminal law legal aid would be seriously touched, could not have been more mistaken. At least the Bar Council and the Law Society were very much part of the fight against the LASPO Bill and they should be commended for that. However, we are in this position now with this only the first of a number of orders that the House is likely to have to consider. The Government are not satisfied with the havoc—again, I chose my word carefully—they have already caused and are causing day by day and have turned their attention in a very real way to criminal legal aid and then potentially to destroying a great deal of the principles behind judicial review. All of which, no doubt, will come before us in due course.
These are all to be put into effect, at best, by statutory instrument. There is no primary legislation involved here, so the Government tell us. We have these big changes taking place with all the restrictions that statutory instrument legislation has for Parliament. All the while, this country’s deserved and historic reputation for having a legal system that protected everyone in its own way and allowed everyone some access to justice is seriously threatened by a Government who—and I do not like having to say this—seem to have so little idea of what is actually important. Instead of treasuring our legal system they are in serious danger of demeaning it.
Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013
Lord Bach Excerpts(10 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
That this House regrets that the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, laid before the House on 7 March, will result in a substantial number of vulnerable people not being eligible for legal aid because of the capital in their house. (SI 2013/480)
Lord Bach
My Lords, one way of cutting legal aid is to take areas of law out of scope, which is something that this Government have done with a vengeance. As this House knows very well, social welfare law has been potentially destroyed by Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. However, there is another way to do the same thing, and that is to cut the number of people who can obtain legal aid in those areas of civil law—and there are precious few of them—which are still in scope; for example, mortgage possession and eviction cases, community care cases, mental capacity cases and some domestic violence cases as well. By these regulations that we are debating tonight, which my regret Motion deals with, Her Majesty’s Government have excluded many who could claim legal aid previously. Is that a fair or just thing to do, particularly at a time of hardship and austerity for so many people? That is my point.
Before 1 April, any person in receipt of means-tested welfare benefits—for example, income support or guaranteed state pension credit—would qualify for legal aid on both income and capital. They were described as being passported. A quick decision could be made, which was easy to administer for the Legal Services Commission as was, the providers of that legal advice and the clients themselves.
Now the Government have put into place radical changes. The regulations require a capital test as well as an income means test: if a person has more than £8,000 capital, they are denied legal aid. Interestingly, under welfare benefit law, that sum is £16,000 and if they have anything less than £16,000, they would still qualify. My first question to the Minister is: why the difference? The welfare benefit system also ignores the value of a person’s main dwelling but in these regulations the value of their main dwelling is taken into account. Therefore, my second question is: why is it taken into account under these regulations but not under welfare benefit regulations?
Of course, there is a disregard of £100,000 for any equity and £100,000 for any mortgage. Do the Government deny that many people who own homes with mortgages and some equity will not qualify for legal aid? The state has recognised in the benefits system that these people cannot easily, or at all, access their capital because it is tied up in the property that they have. Why will that not apply in these cases too? My case is that this will affect a large number of people’s access to some sort of justice. Her Majesty’s Government estimate 4,000 people will be affected. The belief of many outside is that that is an unbelievably small figure and that there will be many more in practice. This is simply unfair.
There is also a need for a general discretion to disregard income and/or capital where it was or is equitable in all the circumstances. In the 2000 regulations, there was a general discretion to disregard where it was equitable in all the circumstances. There has been no evidence of abuse of those regulations in that way. Why is it not in these regulations? We all know cases, perhaps involving mental capacity or disability, where justice demands legal help by way of legal aid. But because of the inflexibility of these regulations there is, to coin a phrase, no way out. There is certainly no way out with the exceptional funding scheme, which perhaps now should be called the very rarely exceptional funding scheme because it is not relevant to cases that are still in scope. Section 10 of LASPO is there for areas of law now out of scope. I fear the fact that there is no flexibility, and that the £8,000 capital is such a ridiculously low figure, shows that the purpose of these regulations is not to advance justice but to restrict it—not to help people sort out their legal problems but to make absolutely certain that they cannot.
In 2009, when austerity had already begun, the Labour Government did not reduce eligibility for legal aid in social welfare law; they increased it by 5%. We recognised that at a time of economic difficulties, it is crucial to ensure that people get quality and inexpensive legal advice to sort out their legal problems rather than go without any access, with the consequences that everyone knows; namely, that problems multiply and magnify until often in the end the state has to pick up the pieces arising out of problems with debt, welfare benefit mistakes and loss of employment. That decision by that Government was not a soft-hearted decision: it was based on a realisation that not only is access to justice right in principle; in this instance it saves the state money. It is not rocket science; it is just something that this Government do not get.
I look forward to the contributions of other noble Lords in this debate and to the Minister’s reply. I ask him on this occasion please to address the debate itself. When I was a Minister, like him, I had to undergo from time to time debates where the government policies that I was trying to defend were attacked from start to finish by practically everyone who spoke. It is not a comfortable position but I would argue that there is still a duty on Ministers to answer the debate being heard at that time. I do not think that the Minister did himself justice last Thursday in the debate that the noble Baroness, Lady Deech, began, but I know that he can. Anyone who heard him at Question Time today dealing with the noble Lord, Lord Tebbit, and others will know that he is an experienced and skilful performer in this House. Therefore, I ask him to deal with the issues that are raised in this debate and not just read out his speech.
There are already cases of people not getting legal aid when they should. That is a consequence of so much social welfare law being taken out of scope. There are also cases of people who have legal problems in areas that are still in scope but as a result of the regulations that we are debating tonight they are not able to access justice. That is a bit of a scandal. The Government should think again about these regulations and I hope that the House will agree with me that they are, at the very least, to be regretted. I beg to move.
Lord Pannick
My Lords, I thank the noble Lord, Lord Bach, for moving this Motion. Over the past three years he has played an essential role in identifying with forensic skill and great eloquence the defects in the series of measures that this Government have brought forward to limit legal aid in our society. The noble Lord has repeatedly pointed out, accurately and with some degree of force, that legal aid is a vital cement in our civil society. There is no point whatever in this place conferring rights unless people have the opportunity to vindicate them. It would be a great shame if there were further reductions in the ability of persons other than the wealthy to vindicate their rights by legal process.
The essential defect in these regulations is their treatment of the capital sums owned by persons who are otherwise eligible for legal aid. I cannot understand why the regulations apply different criteria to capital from the criteria that are applicable in welfare law. Regulation 8(2) provides that any person with more than £8,000 in capital will be denied legal aid, even though welfare benefits law provides that persons qualify for means-tested benefits even though they have up to £16,000 of capital.
There is a further discrepancy in that the welfare benefits system ignores the value of a person’s home. These legal aid regulations will disregard only £100,000 of equity in property, under Regulation 39; and £100,000 of any mortgage, under Regulation 37. The inevitable result is that many people who own their own homes will be excluded from legal aid, even though they cannot in practice access the capital.
All this is very unfortunate, given that the Legal Aid, Sentencing and Punishment of Offenders Act has already reduced the scope of legal aid so that it is now skeletal. I am very concerned that even within the much reduced scope of legal aid under that Act, people who have no income and who are therefore eligible for welfare benefits will be unable to obtain legal advice and assistance. As the noble Lord, Lord Bach, said, there is a vital need in the regulations for more flexibility.
The Minister will no doubt tell us, as he usually does, that funds are limited and that economies are needed, but to adopt criteria, as the regulations do, which are more onerous than the criteria applied to welfare benefits is simply irrational and fails to understand the vital function of legal aid itself as a welfare benefit for the needy in our society. My essential question for the Minister is this: why are the criteria for capital in these regulations different from, and more onerous than, the criteria for welfare benefit law?
The Minister of State, Ministry of Justice (Lord McNally)
I think there is a line in TS Eliot that says, “Woe unto me when all men praise me”.
This debate gives me the opportunity to clarify the position in the regulations laid before the House on 7 March concerning the issue of capital in relation to financial eligibility for civil legal aid. I will certainly respond to the debate, as I did last Thursday. In fact, I reread the debate and my reply. I think that I covered most of the points raised by the 14 lawyers and two others who contributed to that debate.
The Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 set out the rules that the director must apply to determine whether an applicant’s financial resources are such that the applicant is financially eligible for civil legal services under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. These regulations broadly replicate the effects of Parts 1 and 2 of the Community Legal Service (Financial) Regulations, which were made under the Access to Justice Act 1999. Indeed, a number of the points that were raised tonight were in complaint of parts that replicated that Act.
However, as part of the Government’s consultation in 2010, entitled Reform of Legal Aid in England and Wales, the Government proposed several changes to the rules concerning financial eligibility and contributions for civil legal aid. One of these changes was the removal of capital passporting. Two others were to cap the subject matter of the dispute disregard at £100,000 for all forms of civil legal services, and to increase the levels of income-based contributions to a maximum of 30% of monthly disposable income. Before 1 April, someone receiving certain income-based benefits, such as income support, could have up to £16,000 disposable capital but be automatically passported through the means test and be deemed eligible for legal aid. However, a person not receiving a passporting benefit, and who had more than £8,000 in disposable capital, would be ineligible for legal aid.
It is inequitable that applicants with similar levels of capital may or may not be eligible for legal aid depending on the source of their income. To achieve greater internal alignment and fairness to all applicants for legal aid, the Government proposed that in future people in receipt of passporting benefits should have their capital assessed in the same way as it is assessed for others, although they would still be passported through the income side of the test.
The Government’s response to that consultation in June 2011 confirmed that they would take forward the proposal, and this is reflected in these new regulations. Therefore, under the new rules, all applicants for civil legal aid are subject to the same capital eligibility test. This means that any applicant with disposable capital above £8,000 will be ineligible for civil legal aid, regardless of whether they are in receipt of benefits. If the applicant’s disposable capital is more than £3,000 but does not exceed £8,000, they will be required to make a contribution from that capital towards the costs of the legally aided services.
Ensuring that the capital assets of all applicants are subject to the same eligibility test helps to focus limited public legal aid funds on the most financially vulnerable clients and means that those who can afford to pay, or can contribute towards the costs, do so. It is estimated that assessing all applicants’ disposable capital will result in approximately £10 million a year of savings in steady state. This is not insignificant against a backdrop of continuing pressure on public finances, where we need to continue to bear down on the cost of legal aid to ensure we are getting the best deal for the taxpayer. Disposable capital comprises all capital assets, including equity in land and buildings, money held in a bank, investments, stocks, shares and the monetary value of valuable items. However, there are certain disregards in calculating the amount of an individual’s disposable capital, including for mortgages and for equity in an individual’s home.
It may be helpful if I explain what these are. If an applicant is contesting property with their partner, their share of capital is assessed individually. Any outstanding mortgage, up to the value of £100,000, is subtracted from the value of the property. Where assets are in joint names, they will generally be treated as owned in equal shares. Thus the remaining equity is divided equally between the parties. The first £100,000 of the applicant’s equity is then disregarded under the subject matter of the dispute rule. The applicant then receives a further £100,000 equity disregard if the property is their main dwelling. If the remaining equity exceeds the £8,000 capital limit, the applicant will be financially ineligible for legal aid.
In practice, this means that only those applicants who are contesting large amounts of capital, or homes registered in joint names that are valued in excess of £500,000, and where there is a mortgage of at least £100,000, are excluded on capital grounds. We do not think it unfair or unreasonable that people who are disputing substantial assets fall outside eligibility for civil legal aid.
Where a property is not the subject matter of the dispute, is in an applicant’s sole name and worth more than £208,000, that applicant would not normally be eligible for legal aid. However, a further disregard of up to £100,000 would apply if the applicant was aged 60 or over and had monthly disposable income of less than £315. The financial eligibility criteria for civil legal aid are designed to focus our limited resources on those of moderate means and with moderate amounts of capital. This helps to ensure that we can continue to provide services for vulnerable persons, such as victims of domestic violence, children at risk and those with mental health problems.
For domestic violence and forced marriage cases where the applicant seeks an injunction or other order for protection from harm to the person, or seeks committal for breach of any such order, there is a power to disregard the eligibility limits. In this way, we extend eligibility to legal aid for victims of domestic violence irrespective of the value of any property that the individual may own. A contribution may be required from income or capital.
The eligibility waiver for victims of domestic violence seeking protection from harm is a significant concession. This measure improves access to legal aid for domestic violence victims by extending eligibility beyond the original limit. It means that immediate legal advice and representation is available for those who need it and who otherwise would not qualify under the normal eligibility regulations. For those applicants required to pay a contribution, as legally aided clients they will benefit from the reduced cost of representation under legal aid rates as opposed to private rates.
There is a concession for pensioners who are in receipt of an income of £315 a month or below. Disregards of between £10,000 and £100,000 can be applied to any capital assets that they hold, including both property and savings, depending on the level of their income. For example, a monthly income of £76 to £100 attracts a capital disregard of £70,000. This is in addition to the allowances that normally apply, such as the equity disregard. Pensioners who receive a passporting benefit are entitled to the maximum disregard of £100,000.
The financial eligibility criteria for civil legal aid are designed to focus our limited resources on the poorest people. Bringing the capital rules for those receiving benefit into line with the rules for those who are not will help to do that, and will improve the fairness of the system. The substantial provision for disregards that I have outlined will ensure that an appropriate degree of sensitivity to individual circumstances is maintained, in particular as regards capital in the form of equity in the home. This is a sensible and reasonable measure.
The noble Lord, Lord Bach, made a number of points about the difference in the capital tests. Legal aid is not a welfare benefit and should not necessarily be treated in exactly the same way as universal credit, which is a working-age benefit. This is reflected in the different functions of income support and legal aid. The former is intended to lift people out of poverty over the long term while not penalising people for saving, while the latter is for people required to deal with a short-term legal issue and the associated expense.
The noble Lord, Lord Pannick, said that our LASPO reforms have reduced legal aid to skeletal proportions. I remind the House that we are talking about an exercise that has brought legal aid down from £2.1 billion to £1.5 billion. Neither the noble Lord, Lord Bach, nor the noble Lord, Lord Pannick, do their case any good by pretending that a system that will still spend something like £50 million on welfare legal aid and £1.5 billion in total can be described as “skeletal”. The noble Lord, Lord Bach, said how generous the Labour Government were in 2009. In 2010, we had to take some very tough decisions. Again, I question whether the noble Lord, Lord Bach, has any authority to encourage us to believe that in 2015 a Labour Government would try to restore any of these changes to legal aid.
I hear what was said by the right reverend Prelate and the noble Baroness, Lady Deech. However, they do not do the cause that they espouse—desiring to help the poorest and most vulnerable in our society—any good by arguing that these changes, which will affect people with quite substantial assets behind them, are not the right priority in the circumstances in which we find ourselves. The noble Baroness, Lady Deech, mentioned litigants in person. We are monitoring the impact of litigants in person. However, as I pointed out to the noble Lord, Lord Bach, in a more recent exchange we had, LASPO has been in practice for just over 100 days. He has been forecasting perfect storms and disaster for at least a year. We are keeping a close eye on these things and will monitor these various issues. However, the constant argument of disaster does not serve anybody. The very first Statement I made from this Dispatch Box was to the effect that if a part of your spending is directed at the vulnerable and the needy and you cut it, of course you will affect the vulnerable and needy. In those circumstances we have tried to make sure that we concentrate the money we have available where it is most needed. I will have a look at the Social Fund disregard and will write to the noble Lord—unless it was in that bit of paper that was passed to me. Even if it was, I will write to him.
This has been an interesting debate. The modest changes that we have made to the financial eligibility rules for civil legal aid are consistent with the fundamental objective of our reforms. We need to continue to think carefully about how taxpayer-funded money is spent and focus legal aid on the highest-priority cases and those most in need, while delivering the savings needed to address the national financial deficit. I hope that I have covered most of the questions raised in the debate, and I hope that the noble Lord, Lord Bach, will agree to withdraw his Motion.
Lord Bach
My Lords, I thank all noble Lords who have spoken in this debate, in particular the Minister for the trouble he has taken to respond to the debate. I am grateful to all noble Lords, particularly the noble Lord, Lord Pannick, for his extraordinarily flattering remarks, which were somewhat exaggerated. However, it was very good also to hear from the noble Baroness, Lady Deech, and from the right reverend Prelate the Bishop of Norwich; the Government should listen with some care to the remarks that he made. I am grateful, too, as always, to my noble friend Lord Beecham for summing up the Opposition’s view so clearly and crisply.
We should remember that we are discussing areas of law where the Government decided that legal aid should continue, not those areas of law where they thought that legal aid was completely meaningless or was not legal or appropriate. These are areas where people’s need for legal aid is acute: for instance, housing repossession, domestic violence or community care. With these regulations the Government have said on the one hand, “These are the areas where legal aid is appropriate”, but on the other, “Those of you who may be poor in income terms but have a small amount of capital cannot take advantage of where we are keeping legal aid in scope”.
That is not a satisfactory position for the Government to take. To say that what has been taken out of legal aid—particularly out of social welfare law—is skeletal seems to be an overstatement rather than an understatement when we look at what is left in scope compared with what has been taken out, which includes all welfare benefit social welfare law, all employment social welfare law, the vast majority of housing social welfare law and nearly all debt social welfare law. The word “skeletal” is not wrong at all.
Legal aid is part of our welfare system and should be so. It is part of our social security system and a protection for all our citizens, or so it ought to be. That was the idea when it was first formulated—an idea that has grown up with Governments of all persuasions over the past 60 years. It is a great shame to hear the Minister say that it can be completely divorced, as it were, from the rest of the social security system. It cannot be: it remains a protection for all of us.
These regulations make the position more complicated, more costly, more unfair and more inflexible. That is not satisfactory. Of course, I am tempted—as I always am—to divide the House on the issue. Noble Lords have spoken in pretty clear terms of what is felt around the House. However, the House has probably voted quite sufficiently in the early part of this evening. We have had the debate and will be able to read it in Hansard. I have no doubt—I know that the Minister will look forward to this—that we will come back to these issues in due course, but probably after the summer rather than before. I beg leave to withdraw my Motion.
Legal Aid
Lord Bach Excerpts(10 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bach
My Lords, not for the first time the House owes a debt of gratitude to the noble Baroness, Lady Deech. By securing this important debate, she has not only obliged the Government to defend their past conduct and current proposals in Parliament, something that I suspect they are not overkeen on doing, but she has attracted a stellar cast of speakers, and not just great lawyers and judges. I pay special tribute to the noble and learned Lord, Lord Hope, whom it is great to see back in his place in this House again. There are others here who are not lawyers who recognise just how important these matters are to our whole way of life and our status as a civilised country.
The debate takes place in the middle of a lovely summer afternoon, and many who are outside will be more interested in getting some sunshine or finding out how the Ashes are going. But we would be foolish to underrate how many out there are listening one way or another to what we are saying and, in particular, to what the Minister will say in due course. There is a lot at stake here.
The Government’s latest proposals, following on frighteningly fast from the implementation of part 1 of LASPO, have been the subject of sustained and deadly attack during this debate. For example, my noble and learned friend Lord Irvine effectively pulled apart the proposals for judicial review, particularly the residence test, revealing it as a tawdry ideological assault on the rule of law and the Lord Chancellor’s duty to uphold it.
The Lord Chancellor himself let it slip, in his session at the House of Commons Justice Committee last week, that it was not cost savings that underlay these proposals, it was “ideological”: that word was used. Does the Minister agree? Is it part of his ideology too that if there was a case in the future like, for example, the Baba Mousa one, it should be outside the scope of legal aid? Or does the Minister still stick to the line that it is the costs that justify these proposals, though the Dr Armstrong paper referred to earlier demolishes the costs argument pretty conclusively as far as JR is concerned?
Is it the philosophy that the right to legal aid—and thus the ability to make a claim against a state—should be based on the status of the claimant? Is our system, with its grand tradition of protecting the rights of all, to become so diminished that it will not allow justice, where it is necessary, for all those who need it? As far as I am concerned, these proposals are much more dog-whistle politics than they are thought-out legal proposals. The Government sometimes give the impression that they are careless about the importance of ensuring access to justice. They would, perhaps, like us to forget what has already been done in the name of cost-savings or ideology or both.
We are three months into LASPO and the Government intend to have post-legislative scrutiny within three to five years of Royal Assent. What will they find? If the first three months are anything to do with it—and they should have been the easiest months—there will be practically nothing left apart from, perhaps, a few providers dotted around the country with vast deserts of no social welfare law provision at all: a sort of wasteland. Let us look briefly at the evidence. Birmingham Law Centre has closed down and advice is not being given on 2,000 cases of social welfare law each year. Will the Government consider saving Birmingham Law Centre in the same way as the Government of whom I was proud to be a member saved South West London Law Centre when it was in difficulties?
The Mary Ward Centre, which has given 100 years of service to the poor in London, is now turning away 15 people each week. It has no contracts in benefit cases because that is out of scope. It has four debt cases where there were 400 this time last year. What are poor Londoners going to do when the Mary Ward Centre cannot look after them? The Government cannot hide their eyes from this. Social welfare law helped hundreds of thousands of people who were given quality advice on legal issues that affected their everyday lives, for less than one tenth of the whole cost of legal aid. Lawyers did not get rich on it, but poor people got some access to justice.
George Orwell wrote:
“Whether the British ruling class is wicked or merely stupid is one of the most difficult questions of our time”.
Perhaps only an old Etonian could have put it in those terms. Of course Ministers are not wicked—indeed, in my experience, they are pretty nice people who mean well. But Part 1 of LASPO, taking away the possibility of many of our poorest citizens getting some access to justice, is pretty close to the second word that he used.
Ministers should think again before it is too late. I do not hesitate to use the quotation which was used many times in the LASPO argument. It is from the late Lord Bingham who said that,
“the denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law”.
That is what this debate has been arguing.