Rule of Law

Lord Bach Excerpts

Tuesday 26th November 2024 Lords Chamber

[Lord Bach (Lab)]

My Lords, I start of course by congratulating my noble and learned friend Lady Smith of Cluny on her wonderful maiden speech. I enjoyed it thoroughly, as I think the House did too. I would also like to say that I look forward very much to the maiden speech that is to follow me, from the noble Baroness, Lady Laing.

I declare a registered interest, in that I am the unremunerated chair of a board of trustees of the Leicester law centre. I am also the co-chair of the All-Party Parliamentary Group on Access to Justice.

I very much welcome this debate; in my years here, I do not remember another like it. In itself it is significant as evidence that this Government mean it on the subject of the rule of law. The emphasis on the rule of law by the Attorney-General and Advocate-General has been both striking and encouraging. For me, the strong reference to it by the Prime Minister in his conference speech in October was a breath of fresh air, and the best moment of the speech. Noble Lords will understand my using the Bingham principles as the basis of my remarks. I will argue that a number of those principles were broken, or at least stretched to the limit, by the last Government in relation to social welfare law and family law.

Of course, I am immensely proud that our country, the United Kingdom, enjoys a unique reputation for putting our rule-of-law principles into practice. This is clearly, as we have already been told, what attracts so many from abroad to want to litigate in London, and so much more. But do we still fully deserve that reputation or is it the case that, over the last few years, it has slipped away in certain areas of the law? Is it because we have allowed part of our legal system to be attacked and dealt with without enough regard for rule-of-law principles? My view is that it is not too late to remedy this, but I believe that some damage has been done and we do not have endless time to put it right.

I will concentrate on social welfare law, which is a way of describing legal disputes involving mainly housing, debt, welfare benefits, immigration, asylum, and employment law. These issues may sometimes seem quite trivial compared with dramatic criminal trials or substantial civil cases between powerful interests. However, to the claimants and, I argue, to our system as well, they are of potentially huge significance. If you are evicted, if you lose your job, if you do not receive the benefits that you are absolutely entitled to, it can affect you and your family for ever, leading to that downward spiral that we read about so often. Under a system that works, many of those issues can be resolved by early legal advice. This was the purpose behind the old green form that many of us regret the passing of, and the system of small amounts of legal aid, supported by all political parties, that so often dealt with these problems quickly and without recourse to the courts.

Of course, the majority of people using this sensible, pragmatic system were poor and had little. They were not able to pay for legal advice, let alone representation. There never was a golden age, but the passing and coming into force, 11 and a half years ago, of the Legal Aid, Sentencing and Punishment of Offenders Act—LASPO—took many areas of law outside the scope of legal aid and has had a devastating effect on this crucial area of access to justice and thus to the rule of law. LASPO was part of the austerity programme but, sadly, has cost so much more than it has saved, in both financial and human terms. It has done so much damage that it is no exaggeration to say that the system is a long way to being broken.

I shall give noble Lords a couple of facts. The number of legal aid cases to help people get the early advice they need and are entitled to dropped from almost 1 million in 2009-10 to just 130,000 in 2021-22. The number of people having to go to court without representation has trebled. The number of advice agencies and law centres doing this important work has fallen by 59%. It is estimated that the number of people helped by legal aid in that period dropped by 4.5 million. Not surprisingly in this context, by next year a single person will not be eligible for legal aid unless he or she earns less than £9 a day, or £268 a month, 81% below the minimum income standard. Frankly, if it were not for the wonderful and selfless work done by lawyers and others, including law centres and advice centres—and pro bono work too, of course—this part of the law would be gone by now.

How does what I have tried to describe fit it with the Bingham principles on the rule of law? In my fairly amateur view, three come into play. The first is:

“The law must be accessible”.


Clearly, it is not accessible for many thousands of our fellow citizens. Another is:

“The law must afford adequate protection of fundamental human rights”.


It does not. The exceptional case funding part of LASPO has been pretty much a total failure. Perhaps most tellingly, Lord Bingham said:

“Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve”.


This is exactly what the present state of the law does not allow for.

The truth is, and it is disappointing to have to say it, that the rule of law does not seem to apply meaningfully to this—I would argue—vital area of the law. There will always be a majority of people of good will in this House and beyond who will agree that this sounds like a common-sense issue that in theory at least can be reasonably easily put right. To be fair, the last Government began to see the errors of their ways, and small steps were taken to try to relieve the worst of LASPO, which had been pointed out in many reports and studies over the years.

Of course, what is needed is an increase in legal aid and making it available for early advice in the areas of law struck down by LASPO. I accept, of course, the dire straits of the state of the finances bequeathed to this Government. My plea would be that such an egregious and clear breach of access to justice, and thus to the rule of law, should be remedied as quickly as possible; in other words, this issue should be given high priority.

I end by quoting from the Westminster Commission on Legal Aid in 2021. It said that

“there must be a recognition across government that the Rule of Law is not something we can have for free. It is a choice we make as a society: either we decide that the law should apply to us all equally or we don’t. If we decide we do, then there is a cost. It is a small cost relative to other areas of public spending and it is one that we believe is worth paying”.