Legal Aid

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 10th December 2015 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, like many other noble Lords here today, over the past three years since LASPO I have taken part in a number of debates about legal aid cuts, several regret Motions and, in January this year, the debate obtained by the noble and learned Lord, Lord Morris of Aberavon, on Her Majesty’s Government’s assessment of the long-term impact of current levels of funding of the criminal Bar. Those debates were inevitably too late to prevent the succession of cuts that were being made in the availability of legal aid or in the fees being paid to lawyers, but we—certainly I—took part in them in the hope that, if we protested forcefully enough and presented a sufficiently convincing case against them, we might just discourage the department and the Lord Chancellor from yet further savaging the legal aid scheme, stem the tide of cuts, and perhaps even persuade the Lord Chancellor to turn the tide.

I have read in draft the evidence given eight days ago to the Constitution Committee by the Lord Chancellor and I note with some relief his statement that the amount available for legal aid has remained broadly untouched in the recent spending review. Could it be that our past protestations and arguments have persuaded the Lord Chancellor to desist from further depredations, or is it perhaps that we now, at last, have a Lord Chancellor who recognises the needs and strengths of our legal system and the imperative that we do not further put them at risk but, ideally, restore the system to health? To refer again to the recent evidence given by the Lord Chancellor, one notices his concern to,

“improve the quality of advocacy in our courts, safeguard the future of the criminal Bar and make sure that people whose life and liberty is at stake get the best possible representation”.

One could at this stage feed in paragraph 9.12 from Sir Bill Jeffrey’s review, Independent Criminal Advocacy in England and Wales:

“The particular strengths of the English and Welsh criminal Bar—intellect, expertise, independence, ability to represent both prosecution and defence—may not be unique; but they are a substantial national asset which could not easily (or perhaps at all) be replicated, and they contribute significantly to the high international reputation of our legal system”.

He goes on to worry about the ability under the present system to continue to replenish all that necessary expertise. The criminal Bar is, at the same time, both the most important of all the various specialist Bars and yet sadly the poor relation to all these Bars. It is the most important because, as the Lord Chancellor’s recent evidence suggests he recognises, it operates in the area where people’s lives and liberty are at stake. Of course there are vast fortunes made at the commercial Bar, the patent Bar, the revenue Bar, the Chancery Bar—all these other specialist Bars—but the outcome of all those disputes is really just a matter of book entries and adjusted balance sheets; seldom are people’s day-to-day lives affected, as of course they are profoundly by the outcome of most criminal cases.

Make no mistake about it: the accumulated series of cuts over recent years has had a devastating effect on the criminal Bar. This has been described by the noble and learned Lords, Lord Judge and Lord Woolf, both Lord Chief Justices in their time. I need not rehearse all that again. It is a question of recruitment, of the seed corn for the next generation of criminal specialists—silks, judges, and so forth. Of course, it is not just defendants in need of skilled representation who will suffer from a weak criminal Bar. The efficient conduct of cases in the courts is the linchpin of the administration of justice. Incompetence in the representation of either prosecution or defence inevitably leads to the failure of justice: prolonged delays, wrong verdicts, aborted trials and more appeals—all hugely costly both socially and financially.

Civil justice, too, is much in peril. As the noble Lord, Lord Lester, mentioned, today’s column by the noble Lord, Lord Pannick, in the Times sets much of that out. Sometimes I wonder whether, if perhaps he wrote weekly rather than fortnightly columns, we could not cancel some of our Thursday debates on the future of the legal aid system. Be that as it may, we must continue to hold the Lord Chancellor as best we may to his stated commitment to access to justice and the rule of law.