Northern Ireland Protocol Bill

Lord Bach Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Bach (Lab)]

My Lords, I am a simple soul, and the argument put forward by the last few very eminent speakers is not one which persuades me. The reason that persuades me that this is a bad Bill which should never become law is that it will not only allow Ministers excessive powers—which have not yet been defended by anyone so far, so I look forward to what the Minister has to say about that—but also put us at serious risk of breaking the rule of law. And it is that, as a simple lawyer a long way back, that concerns me, and I have not heard an argument yet that says that that is a wrong argument.

Of course the other parts of the Bill are astonishing—the Henry VIII powers I have mentioned and the potential effects on human rights too—but, as far as the rule of law is concerned, I remind the House that this is the second time in less than six months that the Government have sought such powers. Noble Lords will remember perhaps how this House resisted on a number of occasions earlier this year that part of the Nationality and Borders Bill which also represented a breach of our obligations under the very well-established refugee convention to which we have always been signatories, and this too was an attack on the rule of law. At length, the Government got their way and the offending clause stayed in the Bill, which is now—shamefully, I would argue—an Act of Parliament. But as my noble friend Lady Chakrabarti said, as she moved for the last time her amendment, if the House of Lords does not defend the rule of law, what are we for? I think that issue arises again today.

And now we have been asked to do it again. The Government claim necessity in law, and the arguments that we have already heard in this debate have shattered that proposition in this particular case. Has there been enough thought, or any thought, by the Government of the difficulty to the reputation of our country and what it stands for, and has done for a long, long time? Does it matter to the Government that other countries will already be reluctant to take our word on anything if we can so callously breach obligations? Why should they listen to a word that we say?

Of course, we all hope for an agreement in the current negotiations, but to me it is essential that we must be firm: we must as a House tell His Majesty’s Government that this Bill is unacceptable. I want to quote—and I have warned him that I am going to—from the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who said on the occasion that I was just referring to, when that last Bill became an Act of Parliament:

“There are not many issues that it is worth going to the stake for, but surely the rule of law is one.”—[Official Report, 27/4/22; col. 299.]


Sometimes we just have to say no.

Social Welfare Law Cases: Legal Aid

Lord Bach Excerpts

Monday 16th May 2022 Lords Chamber

Asked by

[Lord Bach]

To ask Her Majesty’s Government what further steps they are taking to restore legal aid funding in the area of social welfare law.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, we are piloting the provision of early legal advice for debt, housing and welfare benefit matters. We will introduce legislation later this year to ensure better access to social welfare advice for people facing possession proceedings. We have reviewed the means test for legal aid and are currently consulting on plans to increase access to legal aid to an additional 2 million people for civil legal aid.

[Lord Bach (Lab)]

My Lords, I thank the Minister for his Answer. I acknowledge the work done in this field by the noble Lord, Lord Wolfson. Frankly, though, two small pilots over a two-year period hardly begin to tackle the scandal that a large number of our fellow citizens cannot get the legal advice that they need and are entitled to. The number of new cases that were helped last year was one-quarter of those helped in the year 2012-13, just before the ghastly LASPO Act came into effect—all that at a time of increasing living costs and families finding it difficult or impossible to cope. Does the Minister agree that much more must be done now to tackle this gross injustice that shames our country and goes to the very heart of access to justice?

[Lord Stewart of Dirleton (Con)]

My Lords, the noble Lord has acknowledged the work done by my noble friend Lord Wolfson of Tredegar. I in turn acknowledge his work in this important field, as part of the Bach commission, which he chairs. In relation to the matter of the priorities now, the Government consider it important that steps in this area be taken on the basis of the most robust data possible, which is why we are proceeding on the basis of pilot schemes that will in-gather the necessary data upon which we can base further actions.

Police, Crime, Sentencing and Courts Bill

Lord Bach Excerpts

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I support this whole group of amendments from my noble and learned friend and others. The reasons given by noble Lords are hugely compelling and, if anything, I think some noble Lords opposite are not enthusiastic enough. I hear the arguments about the public purse, but we would not be here if civil legal aid, in particular, had not been altogether obliterated and if there was not such a continuing injustice to bereaved families.

Frankly, I am not persuaded that there is something so awful about a greater equality of arms between hospital trusts and families who feel they have been sorely let down, or indeed between those families and a range of public authorities who can afford not competence but brilliance—they can afford the noble Lord, Lord Pannick, over there. I am not sure that “near competent” would be enough if you were faced with my friend the noble Lord, Lord Pannick. We need to have something like the intention behind this amendment; there should be some kind of equality of arms for these desperate people.

My heart broke when the noble Baroness, Lady Newlove, said that she has spoken to bereaved families who think of an inquest as an irritant. We should all be ashamed of that. Inquests, which are supposed to get to the bottom of things and be at least some kind of comfort to those families, should be the absolute opposite of an irritant.

I want to encourage my noble and learned friend not to let this go into the long grass, or to become an interesting probe that does not get anywhere because we are worried about the precise mechanism, because I am very concerned—we are still in the pandemic—about the coronavirus inquiry or inquiries that must come soon. There may not be another vehicle for amendments such as these, or legislation such as this, in time. It is incredibly important that, in a year or two, or whenever those inquiries happen, we have resolved this to some extent.

I fear we will not have resolved the general, dismal picture when it comes to civil legal aid, but at least we can come up with some kind of fix, however imperfect, to redress the balance of advice and representation for bereaved families. There will be a lot of very impoverished, vulnerable, bereaved families who will have nowhere near the access to private or public money. To be honest, whatever your ideological position, even the inequality between private corporations and bereaved families is bad enough, but surely, with public authorities and public money, there can be no excuse for such an imbalance in the use of that public money if we are really interested in the pursuit of justice.

[Lord Bach (Lab)]

My Lords, I also agree absolutely with the principles behind these amendments. It seems as though the Committee has been unanimously supportive up till now.

My question to the Minister is: why have we waited so long for something to happen in the area of inquests? I had hoped that there might be something in what has been rightly described as a Christmas tree Bill to help us along the way, but there is not. It has needed the amendments from my noble and learned friend Lord Falconer and others, including the noble Baroness, Lady Bennett, to raise this issue. I was privileged enough to chair a Fabian commission on legal aid, which reported more than four years ago. We considered this urgent—as I think the world did—then and for many years before. At one stage, Hillsborough was a classic example which aroused public interest in this issue.

Is there work being done at the moment within the Minister’s department to look urgently at this issue to see whether some solution cannot be found? Never mind the rest of civil legal aid—though my noble friend Lady Chakrabarti knows I agree with her absolutely on that—is there not something that can be done in this area as a matter of some urgency?

[Lord Stewart of Dirleton (Con)]

My Lords, I hope that the Committee will accept my words when I say that the Government are sympathetic to the difficulties facing all bereaved families. At an earlier stage in the consideration of this Bill, my colleague, my noble friend Lord Wolfson of Tredegar who has ministerial responsibility for this matter, referred to the powerful feelings he had, as a resident of Liverpool, as the Hillsborough tragedy unfolded. For my part, I speak as one who has acted for a relative of someone killed in an accident which was sufficient to warrant the convening of a fatal accident inquiry in relation to the helicopter crash at the Clutha Vaults public house in Glasgow. I was funded by legal aid, and I hope that means I was at least competent, while at all times striving towards the excellence of the noble Lord, Lord Pannick. The Government believe that bereaved and otherwise affected families should be at the heart of any inquest and inquiry process that follows a disaster.

Amendments 269 to 274 seek to establish an independent public advocate. This is a call to which the Government have been sympathetic, but I echo the reservations expressed, I think by the noble Lord, Lord Pannick, as to whether the superstructure envisaged by the noble and learned Lord’s amendment is the appropriate way forward.

--- Later in debate ---

[Baroness Harris of Richmond (LD) [V]]

My Lords, I have added my name to these amendments, which are indeed timely. Back in May 2011, during the passage of the Police Reform and Social Responsibility Bill, I tabled an amendment which effectively scuppered the then Government’s wish to bring in police and crime commissioners. It was a pyrrhic victory, of course, because when the Bill went back to the other place, almost everything that the Government wanted was reinstated. They got their police and crime commissioners. However, it was very much a cross-party effort to bring forward hundreds of amendments, as the noble Lord, Lord Hunt of Kings Heath, will recall.

Looking back on those amendments, it is quite clear that we were right in our condemnation of moving from police authorities, which had 17 or 19 members, to a stand-alone police and crime commissioner. I declare my interest as a former chair of a police authority and as a vice-chair of the former Association of Police Authorities. Much of what we warned has come to pass. Commissioners are political creatures. Hardly any have been independent, which was the wish of the former Prime Minister, David Cameron. We said that this would happen, and it did. We also said that there would be some good commissioners, which there have been, and others varying from not so good to downright terrible.

This has been borne out in my own area of North Yorkshire. Allegations of bullying brought against our first PCC, among other strange decisions that she made, lost her the support of her political allies, so they got rid of her. We had another expensive by-election, which was of course won by the Conservative candidate. Within a very short time, public opinion hounded him out of office because he made incredibly damaging and insensitive remarks following the murder of Sarah Everard. We are shortly to find out who will succeed him, as we have yet another election, the third in 10 years. Up and down the country, PCCs have been found wanting, which I simply do not recall happening in the days of the old police authorities, when checks and balances were shared by having local councillors—elected representatives from different parties—magistrates and lay people to help in the governance of their local police force.

Most Members of your Lordships’ House recognise the dangers inherent in politicising the police. Amendment 278, which proposes a referendum on the abolition of PCCs, or having local councillors to hold the police to account, as was the case for many years before the PRSR Bill came into being, will allow for the governance of policing to be brought back into greater local accountability, as the noble Baroness, Lady Jones of Moulsecoomb, has said. Amendment 279 would remove the need for an election deposit of £5,000 for PCCs, thus enabling a wider selection of people to apply to become commissioners. Amendment 292D is also timely, as we have at present at least one PCC who has been convicted of a crime.

This experiment has not been the success that it was promised to be. As we have heard, most people still have no idea who their police and crime commissioner is, or what the cost is of running a dedicated office. Certainly, I managed with an office of three personnel. Different PCCs run many more than this, although I am happy that the former Association of Police Authorities has come through the changes with relative ease and just a slight change of name. The work that it did for us was phenomenal and I am sure that its successor organisation is equally excellent, but it has its work cut out with some of its members. This is the first time in 10 years that we have had the opportunity to return to a better system of police governance. I hope that we will take it.

[Lord Bach (Lab)]

My Lords, Amendment 292D is in my name. I hope that noble Lords will indulge me if I respond with a few remarks on Amendments 278 and 279. I will do it all in one go and be as brief as I can. I do not intend to take up very much of the Committee’s time with these issues.

Amendment 292D perhaps should not be part of this group but it is, so I will move ahead with it. It is because of the scope of this Bill that I have been able to table this amendment. I will start with two case histories. The first is about a 19 year-old, who, a long time ago, during the Italia 90 World Cup—which noble Lords in the Committee will remember—was in a public house with a friend, watching the football. An incident in which the friend was involved meant that the police were called. The first individual tried to stop his friend from making an even greater idiot of himself by assaulting the police and, for his pains, he was charged, no doubt properly, with obstructing the police. He was not charged with assault, but he was fined £20. Since then, he has never been in trouble again. He has been a councillor for many years and, ironically, he chaired the community services team—that part of the council which works closely with the police to reduce crime. He also happens to be the regional secretary of a very important organisation covering the whole of the Midlands and, to add irony upon irony, he is just celebrating his 20th year as a magistrate. Public-spirited, he applied to be a candidate for the position of police and crime commissioner in his area some years ago, only to be told that his conviction banned him from doing so.

--- Later in debate ---

[A noble Lord]

You failed.

[Lord Bach (Lab)]

I am sorry that it has taken so long. I have waited a long time for this opportunity in the Committee and I am sorry if I have abused it.

A good police and crime commissioner should be a combination of a diplomat and an innovator, with a sense of responsibility while doing the job. I am glad to say that the vast majority of them, if not all, see the position in that light. They deserve some support and not always denigration.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have added my name to these two amendments and I hope the Minister will agree to take them away. I did so, first, to support my noble friend Lord Bach, and, secondly, not so much to agree with the noble Baroness, Lady Jones, on her actual amendment but to try to develop a debate on the role of police and crime commissioners. As my noble friend has said, unfortunately we have had little opportunity to do so since the Bill in 2011 and the Act that was subsequently passed came in.

As the noble Baroness, Lady Harris, said, I led for the Opposition at that time. We were very glad to work with her and opposed the concept. It was defeated in the Lords and the Bill went back to the Commons without a reference to police commissioners, which was subsequently put back in. The fear at the time was always that it would risk undermining tolerant policing in this country by bringing political partisanship too close to police operational matters. I suggest that there is still that fear around the way in which PCCs have operated. There have of course been notable successes—I mention my noble friend Lord Bach, Dame Vera Baird and David Jamieson in the West Midlands as examples—but there have been failures too. A number of police and crime commissioners have had to resign prematurely under what one might call somewhat unfortunate circumstances.

During the passage of this Bill we have debated policing quite extensively, particularly in relation to lamentable performances on domestic violence. My noble friend Lord Bach, whom I rarely disagree with, thinks that nine years is too short a period on which to make a judgment. However, I think I am entitled to point out that on the cultural issues which are very much at the heart of police failures in relation to domestic violence, I cannot see much evidence that this new leadership has been able to tackle those effectively.

A two-part review of PCCs is going on at the moment. The first part reported in October last year and there is a second review. It is interesting that this review is not getting anywhere near the heart of the issues around PCCs. It is also interesting that, in the first review, a lot of reference was made to the dismissal process for chief constables, which reflects the fact that there has been a fallout in many areas between the PCC seeking to exert his or her power and the chief constable. There has been instability. Because of this, there is a shortage of candidates for chief constable roles—not surprisingly.

Of course, the tension between chief constables and police and crime commissioners was built into the legislation. PCCs were there to provide political leadership for policing in their area, but they were not responsible for leading their force. Police chiefs retained operational independence, making independent decisions supposedly free from political interference on operational matters. Of course, there is no definitive list of operational matters, nor an expectation that operational decisions should be free from political scrutiny altogether. Inevitably, a grey area was built in between policing matters that PCCs can influence and those that are at the operational discretion of chief constables.

Going back to our debate on the Bill, where policing culture and failures in domestic abuse have been so evident, it is interesting that Ministers and noble Lords who have debated this extensively have laid responsibility clearly at the hands of chief constables. PCCs have hardly had a mention. Why not? If PCCs cannot get a handle on crucial issues such as this, what on earth is the point of them in the first place?

Obviously, the model that the Government started with was a US model. The logic, when they first brought in the Bill, was for PCCs to be given much more power than they have been given because of their democratic accountability. However, the Government backed off, partly through fears of politicisation, but also because of the usual Whitehall paranoia about letting go. One of the stated aims of PCCs was for police forces to stop looking up to Whitehall and be more accountable locally. If anything, in the last 10 years, we have seen more and more interventions by Home Secretaries into the work of chief constables and pronouncements on strategic policing requirements. Home Secretary interventions have become the order of the day. The end result is utter confusion as to where accountability lies, ambiguities and tensions between the role of the PCC and the chief constable and a sense that policing lacks effective direction.

I look forward with interest to part two of the review that the Government are undertaking but, when one looks at the areas that they are inquiring into, it seems that none of them goes to the heart of the issue of what PCCs are really for and whether they are going to be given the powers to carry that out. That is a matter of regret.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, with the greatest respect to the noble Lord, Lord Carlile of Berriew, when he started talking about amalgamating police forces again and the Welsh Assembly, I wondered whether this was turning into a filibuster. However, we move on.

The issue raised by Amendment 292D that we all agree on is that it is ridiculous that somebody convicted of a very minor offence at a very young age should be disqualified. The other side of the coin is that there is no process for the recall of a police and crime commissioner who commits an offence in office or is guilty of misconduct. Because they are democratically elected, the only way to get rid of them is by another election. Compare this to MPs, for whom there is now a process by which a by-election can be triggered. I agree with Amendment 292D, but there is another side to the same coin which also needs to be addressed.

We on these Benches have always been opposed to police and crime commissioners, notwithstanding, as everybody has said, that there are some outstanding ones, as the noble Lord, Lord Bach, was. Not just because he used to be my boss—this is the House of Peers now—I agree with almost everything the noble Lord, Lord Hogan-Howe has said.

[Lord Bach (Lab)]

Would the noble Lord forgive me for a moment? I know his view has always been consistent on this, but the truth of the matter is that the Bill got through only because of the support of both parties in the coalition; one of those parties was the Liberal Democrats. It is very easy to say now that you are not in favour of it as a party, but you clearly were in favour of it because you passed it into legislation. I am sorry if it is a crude point, but it happens to be true.

[Lord Paddick (LD)]

Yes, and, as the noble Lord will very well know, in a coalition there have to be compromises on both sides. You cannot get through the things you think are absolutely important unless you give way on others. However, the policy of this party now is to oppose police and crime commissioners. I am very grateful to the noble Lord for allowing me to clarify the position of the party on that.

It is very difficult for one person to represent both rural and urban areas in policing, or perhaps an area where there is a large African or Caribbean community and another where there is a large south Asian or Chinese community, or even an LGBT community. These could and do exist within the same police area—as in London, for example. Therefore, with one police and crime commissioner for that whole area, it is difficult for that one person to represent all those communities. It is important to be represented when it comes to accountability around policing, particularly for minority communities, where trust and confidence in the police are not as strong as they are with others.

As others have said, the majority of police and crime commissioners are party political. Therefore, there is a danger that a small “p” political difference between a police and crime commissioner and a chief constable, or even a commissioner—without pointing at any particular examples of that—could result in a good chief constable or commissioner having to resign over that small “p” political difference, or even a personality difference with the police and crime commissioner

As the noble Lord, Lord Hogan-Howe, has said, we are in a position where, because it is one person hiring and firing the chief constable, we are not getting a range of candidates applying for the chief constable post. The assumption is that the incumbent deputy will have a good relationship with that police and crime commissioner and have a natural advantage over any outside candidate, and therefore it is not worth applying. For all these reasons, we feel that having a range of people holding the police to account—particularly if they are democratically elected councillors —as opposed to one person, would be preferable. But I agree with other noble Lords that the suggested way to replace the system is probably not through a series of referenda that could result in different mechanisms in different parts of the country.

As far as the abolition of deposits in elections is concerned, that is perhaps slightly wider than this Bill should be considering. Of course, as Liberal Democrats, we would have to declare an interest as far as that is concerned. I absolutely agree with the noble Lord, Lord Carlile of Berriew, about potentially reducing the size of the deposit, rather than getting rid of it completely.

Were police authorities better? In some places, I think they were. As the noble Baroness, Lady Jones of Moulsecoomb, has said, the Metropolitan Police Authority was certainly very effective. The noble Lord, Lord Hogan-Howe, who experienced both, said there was not much to choose between the two on accountability.

For the reasons that I have explained, we agree that there should certainly be an examination of how effective police and crime commissioners are.

Queen’s Speech

Lord Bach Excerpts

Wednesday 8th January 2020 Lords Chamber

[Lord Bach (Lab)]

My Lords, I declare my interest as the elected police and crime commissioner for Leicester, Leicestershire and Rutland. I start with a short tribute to Ron Hogg, the former police and crime commissioner for Durham, whose life was celebrated yesterday at Durham Cathedral. He was in a past life a senior police officer, before being elected PCC in 2012. He was an outstanding and popular police and crime commissioner who called himself the “police and victims commissioner” and focused relentlessly on victims of crime. He will be long remembered.

In the short time available, I want to concentrate on the Government’s very welcome commitment to increasing the number of police officers by 20,000 over the next three and a half years; a welcome step, as I said, but one that needs perhaps to be examined in a little detail. The Government have called this,

“an unprecedented drive to increase the ranks.”

In a sense it is, but it is worth recording that in 2010 the number of serving police officers was 171,600. By March 2019, there were just over 150,000 officers, which represents a decrease over those years of 12%, 21,000 officers having left.

When the new police officers are in place, we will simply have cancelled some of the cuts brought about by the measures that Governments thought were necessary but which in my view were a mistake. For local context, in Leicestershire we had over 2,300 police officers in 2010. When I started in 2016, this figure had fallen to 1,800; that is, 500 fewer police officers on the streets of an area whose population had grown by 10% to 1.1 million. Recorded crime has doubled.

Our Chief Constable Simon Cole and his team are being asked to do much more with far less against a rapidly shifting backdrop that remains fairly unpredictable, not least because of Brexit. Our share of the new officers will be about 400; that is great, but it is worth pointing out that we have a long way to go before we will have increased the number sufficiently to get back to the necessary figures.

Another challenge that I raise, in a gentle spirit, is this: it looks as though the Government will be allocating £750 million to fund the recruitment of these 20,000 new police officers. But will police and crime commissioners and chief constables actually receive that money? The figure may be nearer £630 million; the rest, as the Government have already said, must come from that old favourite, efficiency savings.

I fear that the promise of 20,000 police officers set out in the manifesto is underfunded by over £100 million. Finding that sort of money for a police force after a decade of austerity, in an environment where approaching nine-tenths of the cost are taken up by salaries, will be a challenge, to put it mildly. Indeed, if it is £630 million for 20,000 police officers, that is £31,500 per post. The actual cost of a police officer is much nearer £50,000 per officer so there will be underspending—an underfund —unless we are very careful. On top of that there are the infrastructure costs associated with the increase in police officer numbers, recruitment, training, ICT, vehicles and equipment, and those non-salary costs are not captured in the on-costs of police officers.

Of course, the policy change is very welcome but all Governments, whatever their complexion, are fond of giving with one hand and taking away with another. With all the pressures that there are on police forces up and down the country—those pressures of course include recruitment as well as serious violent crime and other matters that the House knows well—I argue that it would be a major error for the Government to limit the amount that police and crime commissioners are able to precept in the coming settlement. That settlement is of course now out of date but, because of the election, the new one has not yet been announced; perhaps it will be announced next week. I really hope that the Government will bear in mind, in the spirit of what they are trying to do, that they should ensure that chief constables’ powers are not limited by too little precept.

Legal Aid, Sentencing and Punishment of Offenders Act 2012: Review

Lord Bach Excerpts

Monday 12th November 2018 Lords Chamber

Asked by

[Lord Bach]

To ask Her Majesty’s Government when they expect to complete and report on their review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

[Lord Bach (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and declare my interest as the police and crime commissioner for Leicester, Leicestershire and Rutland.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the Government remain committed to publishing the findings of the post-implementation review of LASPO by the end of the year. The evidence-gathering phase of the review concluded in September and we are considering the evidence submitted. During that phase we engaged more than 70 organisations. This review process also represents an opportunity for the Government to consider what the future of legal support should look like.

[Lord Bach]

I thank the noble and learned Lord for his reply and commend those in the Ministry of Justice who are carrying out the review for their courtesy and willingness to meet with all interested parties. I thank Lucy Frazer MP personally for meeting with me and members of the Bach Commission, which proposed some sensible changes that the Government could make very quickly. Is the Minister aware that there is a broad consensus among senior judges, practising lawyers, parliamentarians of all colours and none, and many others, that Part 1 of LASPO was a serious mistake that has led to many of our fellow citizens being deprived of access to justice—and if people cannot access justice, why should they in the long run consent to live under the rule of law?

[Lord Keen of Elie]

My Lords, we are conscious of the importance of access to justice. I thank the noble Lord and those who sat with him on his commission for their contribution to the debate, but I will not anticipate the outcome of a review that will be published by the end of the year.

Bach Commission: The Right to Justice

Lord Bach Excerpts

Thursday 14th December 2017 Lords Chamber

Moved by

[Lord Bach]

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

[Lord Bach (Lab)]

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

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

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

The foreword to the report states:

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Lord Bach]

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

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

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

Motion agreed.

Extradition: UK Law and Practice (Extradition Law Committee Report)

Lord Bach Excerpts

Wednesday 16th September 2015 Grand Committee

[Lord Bach (Lab)]

My Lords, I begin by thanking the noble Lord, Lord Inglewood, and his distinguished committee and congratulating them on their excellent report. I also thank all noble Lords who have spoken in this debate. All those noble Lords who were members of the committee undoubtedly had a lot to contribute, and we have heard from many of them today. I hope they will forgive me if I say this about the presence on the committee of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who has had the distinction of having heard and decided a number of the most important extradition cases over recent years. That seems to me a particularly telling point. The House of Lords has come in for much criticism recently, some of it no doubt justified, but in what other Parliament would it be possible for a committee to have the benefit of the expertise on the subject in question of a recently retired Supreme Court judge? It is a good example of how we can sometimes do better than people think.

Talking of legal luminaries, I am delighted that the noble and learned Lord will be replying for the Government. Having listened to this debate as I have, and read the Government’s response to the report, even he will have his work cut out to justify the negative tone—I am being polite there—of that government response. However, I do not want to be negative. There is a widespread and welcome consensus that,

“there is no systemic problem with the UK’s extradition regime”.

Systemic may be a rather important word in that sentence. That is what the committee found and what has been the spirit of all the contributions, more or less, today. The Labour Government, who were in power when the Extradition Act was passed in 2003, should get some credit, as should the present Government for changes that they have introduced. In such an important and sensitive area of law as extradition, there should be, if possible, broad agreement. I hope it may long continue. However, just in case all this sounds a little cosy and even a little self-satisfied, it is important to look at some of the recommendations made by the committee of the noble Lord, Lord Inglewood.

The conclusion in paragraph 90 of the report is that,

“it is questionable, in our view, whether the UK can be as certain as it should be that it is meeting its human rights obligations”,

because of the “flawed” nature of the arrangements in place for monitoring assurances. The committee argued for a clear government response on that, which leads to my first question to the Minister. Can he can tell the Committee today when the review of the monitoring of assurances will be completed? The noble Lord, Lord Inglewood, himself asked that question earlier today. What appears to be autumn in the Government’s response to that request can often turn out to the rest of us to be deepest winter in government-speak, and even, occasionally, when the first daffodils appear. It would be helpful to know when the review will be completed.

The next point I want to raise briefly is recommendation 8 at paragraph 199 and the relationship between extradition law and proceedings in family court child abduction cases and people-trafficking law. The committee asked the Government to commission a review, to which the Government said they would give further consideration. Have they done so, and if so, what are their conclusions?

It is on the disagreement about means-tested legal aid and the matter of legal advice that I want to comment in a little more detail. Chapter 6 of the report deals with legal advice, legal aid and expert evidence from paragraph 200 onwards. On legal advice, the committee was concerned, rightly, that the duty solicitor rota is not a satisfactory scheme. Unlike other duty schemes, there are no assessments, qualifications or mandatory training, which is particularly important. This is perhaps particularly unfortunate in this field of law, as anyone glancing at the report will understand that the first appearance can be so important in deciding which way the case will go—for example, how long it will take and how much it will cost. Those are considerations such that if you get it right on first hearing it can save everybody—for want of a better phrase—a great deal of agony later on.

Recommendation 9 was for a ticketing system so that proper expertise is there from the “earliest point”. Alas, the Legal Aid Agency said no through its witness,

“simply because of an issue of cost”.

The Government’s response puts it perhaps rather more elegantly, but it comes to the same thing. They state:

“The Legal Aid Agency … does not believe that the cost of introducing an accreditation scheme for extradition work is proportionate to the level of concerns reported to the Committee. Given that no accreditation scheme currently exists for extradition, costs would be incurred in the development of a scheme and defence solicitors would have to pay for training and examination”.

Will the Minister think again on that matter? Expert advice and representation from the start invariably has the advantage of not just being in the interests of justice but saves costs down the line. This is especially true in extradition cases.

As to whether requested people should be means- tested before being granted legal aid, there is a huge imbalance in opinion. Sir Scott Baker, in his review, leading lawyers in the field who gave evidence to the noble Lord, Lord Inglewood’s committee, the Office of the Chief Magistrate, and, of course, the committee itself in its recommendations, support a system that is not means-tested. Only Her Majesty’s Government oppose it in unambiguous—I think that that is being polite—terms; they really dismiss the idea. They of course deny any link between means-testing and all that it involves, and delays to the extradition process.

However, in a powerful passage in the report—I refer to paragraphs 216 and 217 on pages 62 and 63—the case is made out by the committee for no means-testing for automatic legal aid. It can just take too long for an award to be made—I do not think that one should hide away from that fact. An award is not often made straightaway and it is extremely difficult for many people who come before the court in extradition matters to be able to fill in the documentary requirement satisfactorily. There is also the argument about cost, as has been referred to, and the Government’s refusal to have a proper cost/benefit analysis, which, reading between the lines, it is clear the committee felt very strongly about.

Recommendation 10 of the committee is strongly worded. It states:

“The Government should conduct and publish a full and detailed cost-benefit analysis. In our view, unless a cost-benefit analysis very clearly favours retaining means testing, the interests of justice should take priority”.

That is a powerful argument and I look forward to the Minister’s response to it.

I wish that I could say that I am surprised by the Government’s written response, but I am not. Having closely—perhaps too closely for my own good—followed the Government’s approach to legal aid for five-and-a-half years or so, they have in my view nearly always got it wrong, and this is another instance of that. Can the Minister, who has a reputation for being a most persuasive advocate, go back to the department and ask it to think again about that matter?

I do not want to end on a discordant note. Extradition law, with its particular difficulties and its great human sensitivities, is in one way a very good mark of a country’s whole approach to the rule of law and the principles of access to justice—I hope that we can all agree on that. It is the committee’s view, and it is a view that I am happy to share, that on balance the United Kingdom does this pretty well. However, it would be good to see the further improvements that the committee recommends. The Committee looks forward to hearing from the Minister.