Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Clinton-Davis and Lord Alton of Liverpool

Monday 5th March 2012 Lords Chamber

[Lord Alton of Liverpool]

My Lords, it is always a pleasure to follow the noble Lord, Lord Newton of Braintree. The House will know, of course, that he has held high ministerial office, having been a Cabinet Minister and a Secretary of State, but also as a former Leader of the House of Commons he brings distinguished experience to your Lordships’ House. The Minister should reflect on the wisdom of what the noble Lord has just said.

While we all accept that legislation is not like semaphore—it is not just about sending signals—there is grave public anxiety. The right reverend Prelate the Bishop of Exeter expressed the concern of groups such as Citizens Advice about the load that will be placed on their shoulders. The noble Lord, Lord Carlile of Berriew, expressed the concerns of groups such as claimants. He and I were privileged at the very outset of the proceedings of the Bill to meet a lady who is bringing up a brain-damaged child and who told us in no uncertain terms about the problems that would have beset her if she had not had access to justice via legal aid.

It is for that reason that I support my noble friend’s amendment today. As he has rightly said, it will not cost the Exchequer money but it sends a signal and lays down an important principle. It invites us to consider again the purpose of legal aid, which, when Hartley Shawcross introduced it in 1948, was one of the principles of the founding of the welfare state. It also invites us, especially those of us who are not lawyers, to consider the importance of access to justice for many people throughout this country. As the noble Lord, Lord Hart of Chilton, said, it is moderate and realistic. Access to justice is not a service or a product but an intrinsic right for every citizen. Dr EJ Cohn made the case best when he said:

“Just as the modern State tries to protect the poorer classes against the common dangers of life … so it should protect them when legal difficulties arise. Indeed, the case for … protection is stronger than the case for any other form of protection. The State is not responsible for … old age or economic crises. But the State is responsible for the law”.

This is not simply a moral duty but a legal one. As the European Court of Human Rights has held, an overly restrictive legal aid system can be a violation of Article 6 if it means that there is a significant inequality of arms and the individual is unable to mount an effective defence or claim. It is in this light that the first line of the Bill should be construed—namely, in the light of the important moral and legal duty under which the Lord Chancellor would be placed.

The beginning of any piece of legislation will often articulate the principles driving it. This Bill is no different. The noble Baroness, Lady Mallalieu, was right to remind us of that. It is the overriding duty of the Lord Chancellor to provide effective legal assistance to those in need, which should be the backdrop against which all other clauses of the Bill are construed. It is therefore crucial that the first clause should provide clarity as to what that duty is, as well as on its more general nature. As presently construed, Clause 1 lacks any clarity of principle. It does not focus on the needs of the citizen or on the fact that such assistance must be effective. Instead, it presents the Lord Chancellor’s duty as being extremely narrow, focusing simply on enacting the Bill, rather than on ensuring any greater principles.

In contrast, my noble friend’s amendment seeks to remedy that fault by focusing the nature of the Lord Chancellor’s duty on being, first, effective and, secondly, according to one’s needs. The principles of effectiveness and provision according to need go to the heart of what is meant by providing proper legal assistance. It is critical that all assistance provided must be effective—what is the point otherwise? For it to be otherwise would be likely to hinder an individual’s access to the courts as well as likely resulting in a waste of money. As to need, it is important that legal aid goes to those who need it and those people only. Indeed, that is the whole point of the scheme. It is therefore important to state that unequivocally and clearly at the beginning of the Bill. Should the Lord Chancellor wish to demonstrate that he is effecting his duty properly, that duty is then stated in the Bill.

However, it is also important to note that the amendment does not place an undue burden on the Lord Chancellor. Nor does it curtail much of what the Bill strives to achieve. The Minister might be right to worry that the Lord Chancellor would be placed under too heavy a burden—a herculean task that would need a huge amount of both time and resources. However, he need not harbour such concerns unduly. My noble friend’s amendment clearly states that such a duty would be restricted to the provisions in the Bill. The amendment would simply recognise that the duty of a Lord Chancellor is to provide legal assistance, as provided in the later clauses of the Bill, but that he must do so in a manner that is both effective and according to need. This is entirely reasonable. If the Government resist the amendment, alarm bells should ring about their apparent covert intentions, and many suspicions about the potential ramifications of the Bill for access to justice will be confirmed. The amendment might go some way to assuage those misgivings. For those reasons, I am very happy to support my noble friend’s amendment.

[Lord Clinton-Davis]

The amendment sums up precisely why so many of us entered the law in the first place. I will not take up much time—only a few seconds. Essentially, why the Minister is resisting this amendment is beyond me. It goes to the very heart of why we join the legal profession as solicitors and barristers in the first place. I see him shaking his head but I do not know why. The amendment summarises precisely why we join the legal profession and, for that reason, I support it.