FIFA
Lord Bach Excerpts(10 years, 1 month ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the Crown Prosecution Service does not conduct criminal investigations. The Serious Fraud Office has not opened a criminal investigation into allegations relating to FIFA. While the SFO has not opened such an investigation, it is actively reviewing material in its possession. It also stands ready to assist the US and Swiss authorities in their investigations, although, by international convention, the SFO would not comment on such matters.
Lord Bach (Lab)
My Lords, I thank the Minister for his Answer. Of course, by its nature this scandal is international and has been brewing for many years. We have excellent investigative and prosecuting authorities in this country. Does the Minister agree that this is the appropriate time for a thorough investigation of any possible British connection, whether through the banking system, British nationals or in any other way? Will Her Majesty’s Government ensure that sufficient resources are made available for any such investigation?
Lord Faulks
My Lords, this is a fast-unfolding story. I am sure we can be generous enough to acknowledge the major contribution the United States Department of Justice has made to this matter. In the mean time, we stand ready to assist. It is a fast-developing situation. The SFO has been aware of allegations relating to FIFA for some years. It is keeping the situation under review and is ready to assist in any way it can. We do not think there is a lack of resources. Although the SFO is involved in a number of high-profile and difficult cases, including the LIBOR manipulation, resources are not an issue in this case.
Access to Justice
Lord Bach Excerpts(10 years, 3 months ago)
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Lord Faulks
My noble friend is of course quite right to identify the potential injustice that can result from cuts in legal aid. That is something that any responsible Government will have close to their heart, and we will continue to consider any adverse effects.
Lord Bach (Lab)
My Lords, I do not know whether the Minister has had a chance to see last week’s report by the Justice Committee of the House of Commons, which criticised the LASPO Act in very strong terms indeed, particularly on the issue of exceptional funding. I do not think it is going too far to say that it suggested that, despite the promise that exceptional funding would be a way in which those who could not get legal aid any longer would be able to get legal aid in exceptional cases, there have actually been a tiny number of cases. It criticised the Government for their response as far as that is concerned. Does the Minister agree and what are the Government going to do about the fact that more than 325,000 people per year who used to be able to get legal help when they needed it no longer can because of the Legal Aid, Sentencing and Punishment of Offenders Act?
Lord Faulks
My Lords, the exceptional funding provisions in the LASPO Act were very specifically drawn to deal with potential violations of EU law or of the European Convention on Human Rights. We are satisfied that the Act is performing as Parliament passed it, although it is true that there have been fewer applications than we expected. We have done our best to make it easy for those people who think they come within the terms to make an application and have afforded the possibility of a preliminary view being offered by the Legal Aid Agency. The answer to the noble Lord’s other point is that some people are not getting legal aid who were previously. We have tried to concentrate on those at the bottom of society who need it most.
Criminal Bar: Funding
Lord Bach Excerpts(10 years, 6 months ago)
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Lord Bach (Lab)
My Lords, I congratulate my noble and learned friend Lord Morris of Aberavon on securing the debate. It is an important debate, made much more significant by the experience and status of those who have chosen to speak. These include two former Lord Chief Justices, one of whom, of course, was Master of the Rolls too, one former Supreme Court judge, one former Attorney-General—my noble and learned friend Lord Morris of Aberavon himself—and two distinguished and successful silks, if I may call them that, including the Minister. I practised as a member of the criminal Bar for many years and am proud to have done so. Slightly to my surprise, and certainly much more to other people’s surprise, I find myself now in the position of shadow Attorney-General.
The years I practised in just about covered what I describe as the golden years for the criminal Bar. They were pretty golden, I have to say. There was the emergence of the Crown Court; there was plenty of work; there were not many members of the criminal Bar around; it was pretty well paid; and it was effectively a monopoly for members of the Bar at that stage. I would argue that that state of affairs has now been over for many years; perhaps 20 or a few more than 20. The important point to remember is that those golden years are not coming back. Any politician of any party who says that they are, or hints that they might be, is to be viewed with a healthy degree of scepticism, at the very least—and the criminal Bar was always very good at being sceptical about pronouncements being made. Therefore, any discussion of the criminal Bar has to happen in the context of today rather than looking back too much at a time that has gone.
As my noble and learned friend Lord Morris pointed out, over a long period the rewards for criminal practitioners have without doubt declined sharply. That is due not just to cuts or long rises in fees, although, of course, they play an important part in what has happened. As Sir Bill Jeffrey, who has been quoted already in this debate, concludes in his report of May last year, crime is down, fewer cases reach the Crown Courts and there are more guilty pleas. He says:
“There is substantially less work for advocates to do. Its character is different, with more straightforward cases and fewer contested trials”.
Of course, there are many more solicitor advocates. Sir Bill goes on to say,
“There are now many more criminal advocates than there is work for them to do”.
He goes on to make proposals for the future, all of which are well thought out, very interesting and should be considered carefully. My first question to the Minister is this: What can he tell us today about Her Majesty’s Government’s response to the Jeffrey report, both in general terms and, if possible, in more detail?
Sir Bill talks about the future of the Bar being less clear. He says that there are signs that, away from the self-employed Bar, the tide may be turning, but he fears that the Bar’s lack of confidence in the future of criminal work, or its unwillingness to adjust to compete for it, may become a self-fulfilling prophecy. I think that the following passage was referred to by the noble and learned Lord, Lord Brown. It is worth quoting. It states:
“This matters, because the particular strengths of the English and Welsh criminal Bar are a substantial national asset, which could not easily be replicated. There is also a distinct national interest in having sufficient top-end advocates to undertake the most complex and serious trials, and senior judges with deep criminal experience”.
It is very hard for anyone to argue with that view. When Her Majesty’s Government did their deal, if I may call it that, with the Bar last spring—agreeing a VHCC cut and leaving until after the election a cut in the graduated fee, with an agreement to discuss the future of both those causes to be continued until the summer of 2015—they were following a well trodden path in two respects. First, some issues were put into what might crudely be called the long grass to escape criticism for actually taking action; and secondly—and more importantly—they actually split the legal profession. The solicitor criminal practitioners were offered no equivalent agreement and some would argue that they were left hanging out to dry. Cuts have been implemented in that field and the imposition of a new and controversial system of criminal legal aid is being attempted. Instead of talks to determine the future, therefore, we actually have, as we speak this afternoon, solicitor practitioners and the Law Society itself traditionally reviewing the Ministry of Justice in court. To put it mildly, this is a deeply unsatisfactory position for our criminal justice system. To set one branch of the legal profession against another is wrong both in principle and in practice, and it does not help either branch or, indeed, the criminal justice system itself.
If my party wins the general election, we will set in train a review of the criminal justice system, concerning not just funding but the way the system works for victims, defendants, the general public and, of course, practitioners. Obviously, we are not making any promises about funding but one thing is clear: there is no future for the Criminal Bar, the criminal solicitors’ profession or even the criminal justice system itself if the Government of the day play off one branch against another. There are obviously going to be natural tensions between the various branches and the Government of the day; that will always happen. But no system will work unless all parties, including the Government, work together.
Legal Aid: Social Welfare Law
Lord Bach Excerpts(11 years ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, we have made hard choices in reforming legal aid. However, we have retained it for the highest priority social welfare cases and we continue to spend an estimated £50 million per year on this area. Although the Act is relatively new, the reduction in legal aid for social welfare matters is broadly in line with expectations. We are monitoring the impact of legal aid reform and will conduct a post-implementation review within five years of implementation.
Lord Bach (Lab)
My Lords, I thank the noble Lord for his Answer but he and the Government know that the effect on social welfare law advice has been devastating. In the year 2013-14 alone—this is from the Government’s own figures—there was an 80% fall in the number of social welfare law cases, including a figure of 45% in housing cases. These cuts affect the poorest and most vulnerable, including many disabled people, in our society. Are the Government to some extent ashamed of the removal of access to justice from hundreds of thousands of our fellow citizens, all caused by deliberate coalition government policy?
Lord Faulks
The noble Lord mentioned housing. In fact, legal aid remains available for eviction and possession cases, housing disrepairs, where there is a serious risk to health or safety, homelessness assistance and all debt matters which may represent a threat to somebody’s home. As to the cuts in legal aid, they are concentrated on matters where the Government, after careful consideration, have decided that having a lawyer is not always the answer.
Criminal Justice and Courts Bill
Lord Bach Excerpts(11 years ago)
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Lord Bach (Lab)
My Lords, my remarks will be directed to Part 4 of the Bill. However, I cannot resist noting how it was exactly this type of Bill—perhaps best described as a Christmas tree Bill which is also introducing new offences—which was the subject of so much stern criticism from the then Opposition in the previous Parliament. Now, of course, the present Government commend the good sense of putting so many disparate elements—I doubt we have had them all yet—into one Bill and then, conveniently, adding more and more offences to the list. One perhaps should not be surprised by this change of heart, but the contrast in attitude is striking.
As to Part 4 and its attack on judicial review, we should not be surprised at all. It is no use claiming, as the Minister did, that these proposals are technical—he did not use the expression de minimis, a mere tidying-up operation, but that is what he perhaps meant—and should be seen just for themselves. Even if they stood alone, they are much more serious than that.
However, the provisions do not stand alone. They are the latest instalment in a series of provisions that are consciously and deliberately undermining our precious system of civil justice and, thus, every citizen’s right to access justice. I agree with what the right reverend Prelate the Bishop of Oxford said in his remarks.
Let us begin with the Government’s first step, taken days after they came to power, to administratively cut back the number of cases in which civil legal advice was available. The numbers declined in the first three years from 485,000 to 293,000. Then, of course, came legislation in the form of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act, LASPO. This removed legal aid from the majority of social welfare law advice and, since its implementation exactly 15 months ago tomorrow, the results, frankly, have been devastating—as the Ministry of Justice’s own recently published Legal Aid Statistics in England and Wales 2013-2014 show in painful detail.
It is ironic in the extreme today that, looking back, the underlying message from government Ministers while LASPO was being debated was that Parliament should pass those provisions because there were two safeguards that would protect the poor claimant. One was exceptional cases funding. Noble Lords know now that that is a farce. Of 1,320 non-inquest applications for exceptional funding last year, how many were granted? Sixteen—not one in the field of welfare benefit; not one in the field of housing. Those statistics come from the document to which I referred a moment ago.
The other safeguard, we were regularly told, was judicial review, which was safe in the Government’s hands. Even if there was no legal aid funding any more for benefit, debt or employment advice, there was always judicial review available to all when appropriate and when needed. This House voted down Part 1 many times. It did not like what the Government were doing but eventually it allowed the Government their way. Is it too fanciful to think that one of the reasons it did this was because of the promise of Ministers relating to judicial review?
As the right reverend Prelate the Bishop of Oxford said, eight days after Royal Assent the first judicial review consultation was announced. Of course, LASPO regulations have been debated in your Lordships’ House over the months. The Government were defeated on one but did absolutely nothing about it. Of course, the inevitable attack on judicial review has begun and is now well under way.
The Lord Chancellor’s accusation that judicial reviews are the preserve of left-wing pressure groups, and other such nonsense, has set the background for the scene. Then came the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014, which by negative resolution, unbelievably, radically altered the long-standing principle by saying that unless permission is given, legal aid practitioners will not be paid—unless of course the legal aid authority agreed, which was not likely to happen.
With this one move, as was strongly argued in this House by Peers from across the Chamber on 7 May last in debating the regret Motion of the noble Lord, Lord Pannick, the Government have just changed the nature of judicial review. It will without doubt mean that some claimants, often poor and sometimes disabled, who have a good claim will not be able to find a lawyer to represent them. As the Joint Committee on Human Rights put it,
“the uncertainty and financial risk for legal aid practitioners would affect both the number of practitioners willing to carry out public law work and the kinds of cases they would be willing to take on in future”.
Our own House of Lords Secondary Legislation Scrutiny Committee was critical, not least of the level of uncertainty.
That brings us to Part 4 of the Bill. The proposals in Part 4 cannot just be viewed in isolation; they are part of a process that began when this Government came to office and will reach its nadir when the appalling residence test regulations are debated shortly in both Houses. Why have the Government done this? It was not in the manifestos, nor was it part of the coalition agreement, that our system of civil justice should be dismantled so that instead of remaining a gem in our legal crown, it is something which we may soon become ashamed of.
Many noble Lords have linked the judicial review proposals in this Bill with the earlier legal aid proposals: my noble friend Lord Beecham did so in his excellent speech, as did the noble and learned Lord, Lord Woolf, the noble Baroness, Lady Campbell of Surbiton, the right reverend Prelate and the noble Lord, Lord Low. They all linked judicial proposals with earlier legal aid proposals, as did the Bingham Centre in a very telling paragraph. It said:
“The relationship between the judicial review and legal aid proposals is important because it goes to the right of access to justice, which is a key element of the rule of law and which is acknowledged both at common law, as a constitutional right, and by the European Convention on Human Rights. It is well-recognised that the right of access to justice is capable of being curtailed or infringed not only directly, but also by placing recourse to litigation beyond individuals’ financial means. It is equally axiomatic that whatever other valuable mechanisms may exist for protecting the rights and interests of individuals, it is independent courts of law, in a democracy founded upon the rule of law, that stand as the ultimate guarantors of basic legal rights”.
As for judicial review itself, it is worth quoting the noble and learned Lord, Lord Neuberger, President of the Supreme Court. In his 2013 Justice annual lecture, he said on that occasion:
“The courts have no more important function than that of protecting citizens from the abuses and excesses of the executive—central government, local government, or other public bodies”.
He went on:
“While the Government is entitled to look at the way that”,
judicial review,
“is operating and to propose improvements, we must look at any proposed changes with particular care, because of the importance of maintaining JR, and also bearing in mind that the proposed changes come from the very body which is at the receiving end of JR”.
Frankly, there is no serious commentator who supports the Government’s proposals for judicial review. Judicial review is a part of our law well worth defending and it falls on this House to do so.
Prisons: Overcrowding
Lord Bach Excerpts(11 years ago)
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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(11 years, 2 months ago)
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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(11 years, 4 months ago)
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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(11 years, 5 months ago)
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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(11 years, 5 months ago)
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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.