Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Elystan-Morgan Excerpts

Tuesday 20th December 2011 Lords Chamber

I hope that in his dealings with this Bill, the noble Lord will stand by those principles, which I believe he held earlier and which his party claims to hold to this day. If he cannot accept this amendment today, at the very least I hope that he will go back to his department and to those who are less liberally minded in his office and put his foot down. If he does not, our constitution is in danger, under his watch, of changing very much for the worse as a result of this Bill.

[Lord Elystan-Morgan]

My Lords, 43 years ago, I was a Home Office Minister but I doubt very much whether the procedures that have been so dramatically described by the noble Baroness were current in those days.

I rise to support wholeheartedly this amendment and to salute the courageous and most splendid speech of the noble Lord, Lord Carlile. This amendment goes fundamentally to the heart, core and kernel of what we mean by justice, the rule of law and the fundamental constitutional principles that govern Parliament. If one looks at that splendid book, The Rule of Law, by the late Lord Bingham, which was published last year, the right to justice where a person has a reasonable cause is utterly fundamental. In the immortal words that he used, one of the ingredients of the rule of law itself was that,

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

He went on to say that,

“denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law”.

No one could put it more splendidly than that. Indeed, it is on that basis that the Constitution Committee has attacked the elements which seek to undermine legal aid. The clear recommendation made by the committee on this clause was that:

“Clause 1 should be amended to read: ‘The Lord Chancellor must secure that legal aid is made available in order to ensure effective access to justice’”.

I consider those words in the light of the amendment moved by my noble friend Lord Pannick.

On the one hand, one can see that a distinction can be drawn between the two. One is in absolutist terms while the other is in qualified terms. But I do not think that the Committee need worry a great deal about that. The words chosen by my noble friend have already been enshrined in statute in the Access to Justice Act 1999, and all that we are doing is saying that we wish to take the House and the British community back to the mentality which supported the Access to Justice Act. In doing that, I wholeheartedly respect and support this amendment.

The idea that access to justice is a constitutional right has been spelt out in the courts. In 1994, in the matter of R v Secretary of State for the Home Department, ex parte Leech, Lord Justice Steyn ruled in the Court of Appeal that the,

“principle of our law that every citizen has a right of unimpeded access to a court … even in our unwritten constitution …must rank as a constitutional right”.

No one could put it clearer than that. It means, therefore, that any substantial impediment to the reasonable exercise of that right is something that undermines the very concept of our constitution, unwritten though it be. I can well imagine that the Deputy Leader of the House, the noble Lord, Lord McNally, will say, “Well, these are difficult times. Everyone has to react to the crisis and to accept responsibility which is joint and several in respect of all of us”. I can understand that, but I would say in reply to such a submission that, first, no credible and enlightened Government in our day and age can ever stand before the world and say, “We are too poor to be able to afford justice”. Secondly, it is almost certain that the net saving in respect of the £350 million which the Government claim will be slashed from the legal aid bill will either be a very small saving or no saving at all. We will debate these matters in the months to come and there is ample evidence in support of that proposition.

Lastly, let us remember what the situation was in 1949 when the Legal Aid and Advice Act was passed. Britain had emerged from a terrible war bloodied, weakened and practically insolvent. John Maynard Keynes was sent to the United States to negotiate on the best terms possible a loan that it took many decades to repay. The Americans absolutely screwed us and, as we know, it was only a few years ago that that loan was repaid. The Government of the day in 1949 could have said, “We are so impoverished and reduced in our strength that we cannot conceive of such a luxury as legal aid”, but they did not.

[Lord Goldsmith]

My Lords—