Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Bishop of St Edmundsbury and Ipswich Excerpts

Monday 21st November 2011 Lords Chamber

[The Lord Bishop of St Edmundsbury and Ipswich]

My Lords, Members on these Benches, like many noble Lords who spoke, have many serious questions about the legal aid provisions in Parts 1 and 2, but broadly welcome the sentencing provisions in Part 3, particularly the ending of IPP sentences. I recently spoke to a Crown Court judge who had not used to such a sentence for more than two years, and had found them very unsatisfactory before that. Questions remain about those who are in the system already under IPP sentences, and how some of the anomalies will be dealt with. However, that is something apart from the Bill.

It is not easy for those of us who are not lawyers to evaluate the claims and counterclaims made about the workings of legal aid. However, some principles from which we on these Benches work include the very clear concern for justice that runs right through the scriptures. In the Old Testament, the prophet Amos said:

“Hate evil, and love good, and establish justice in the gate”.

Members on these Benches are aware not only of the widespread opposition in the legal profession to these changes but of the apprehensiveness of many voluntary organisations that work with less well-off recipients of legal aid.

There is a consensus that costs are too high in both the civil and criminal courts, but there is a lot of disagreement about the causes. We understand the problems that the Government face. A well known study by the University of York concluded that the high expenditure is driven by the high income ceilings on eligibility, although I realise that the Select Committee on Justice in another place concluded that the ceilings here were not very different from those in comparable European Community countries. There is also a wide coverage of different areas of law and a necessity for high-quality representation in an adversarial system. The committee also found that the comparatively high proportion of legally aided criminal cases was due in part to the higher rates of recorded crime and to the higher proportion of cases brought to court. Given this, some remedies lie outside the legal aid system, which cannot help being a victim of its success.

It seems that the limitation on the types of cases eligible for legal aid, the changes to the criteria of eligibility and the extension of means testing will have drastic effects on many litigants and defendants. The Bar Council stated:

“If legal aid is withdrawn from substantial areas of law, many people will be unable in practice to enforce their legal rights”.

The question is one of access to justice. The repeal of the duty to ensure that individuals have access to legal services that effectively meet their needs is regressive, as the Constitution Committee of the House noted. Surely there is the potential to swamp the courts with ill-equipped litigants in person. This would not only put extra pressure on the individuals but would extend the length of proceedings, thereby partly cancelling out the savings made by cutting legal aid.

I have particular areas of concern. There remains an anxiety that the Bill will have a damaging effect in family law cases, particularly where domestic abuse is involved. A number of children's advocates remain anxious about what has been curtailed in the way of legal aid in this area. The Bill will limit the ability of people to seek compensation in areas such as clinical negligence. The proposal to amend defendants’ cost orders looks like a blow to innocent defendants who choose to fund themselves. The exclusion of most immigration cases will affect people who often have no alternative means of resolving disputes and enforcing their rights. The provision of exceptional case funding for people in special need seems puzzling. Almost all cases should pass the proposed test, so why have exceptional funding in the first place?

As we heard, notably from the noble Baroness, Lady Grey-Thompson, disabled people are likely to be disproportionately affected. They tend to rely on benefits and are less able to represent themselves. If firms specialising in legal aid are put under financial pressure or go out of business, there will be considerable knock-on effects. The Bill may save money in one area at the expense of considerable social disruption and consequent expenditure in others.

As I said, it is difficult when you are not a legal expert; however, when we stand and listen to the debate, as Members from these Benches will do with great care, we remain hopeful that Parts 1 and 2 will continue to be heavily scrutinised and substantially amended by your Lordships’ House. Our attention will be there.