Bach Commission: The Right to Justice

Lord Falconer of Thoroton Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I declare my interests: first, I gave evidence to the Bach commission; and, secondly, I made a financial contribution to the work of that commission. I pay tribute to my noble friend Lord Bach, who has driven the Bach commission. I also pay tribute to all the members of that commission who have expertise and experience in the provision of legal aid and access to justice. I invite noble Lords to look at page 2 of the draft report to appreciate the quality of the people engaged on the commission. I join my noble friend Lord Bach in paying particular tribute to Sir Henry Brooke, whose insight, energy and sympathy are evident in every word of the report.

The report accurately refers to a crisis in relation to access to justice. The evidence is marshalled brilliantly in the report. The effect of the crisis can be seen in many areas, of which I will mention just a few. The rights that we give to people are worthless if they cannot enforce them. I refer to three areas in this regard. First, the laws on welfare are so complicated that you need a lawyer to get through them to access welfare benefits. However, you cannot get access to a lawyer or to a tribunal to correct a decision: 61% of cases brought to any sort of appeal on a welfare officer’s decision are overturned. That figure accounts only for those cases taken to an appeal. The number of wrong decisions is unimaginable. That is an example of there being no access to justice.

Secondly, as regards equality rights, as a country we pride ourselves on having taken steps to ensure that, for example, there is a right to equal pay. To enforce that right you have to go to a tribunal. As a result of this Government’s conduct in relation to the charges for going to a tribunal, the last four or five years have meant, as the court found in the UNISON case, that that right was inaccessible to large numbers of people.

Thirdly, as regards employment rights, over decades we have given people the right to be treated fairly and properly at work. Those rights are ultimately enforced by going to an employment tribunal. If you do not understand the rights because they are too complex or the fees to go to an employment tribunal are too large, you do not have access to justice in that regard.

Those are three examples of the consequences of there not being proper access to justice, but it goes much further than that. If people cannot hold the Government to the law by means of judicial review—which they cannot unless they can afford it and unless in practice they can get a lawyer to do it for them in most cases—the Government are, in effect, free not to comply with the law. Many events happen to people who are completely blameless, where we have sought to give protection through the law.

I will give two examples, the first of which concerns bereavement caused by an act of the state. Inquests are designed to get to the truth. It is incredibly important for an individual’s sense of what happened that they get to the truth, and it is incredibly important to ensure that it will not happen again. If, as a family member involved in one of these cases, you cannot have legal assistance and you are faced with a battery of lawyers from the police, the fire service, the ambulance service, the local authority and the contractor, you do not have a hope of getting to the truth. At present, you cannot get reasonable legal assistance in most inquest cases.

Secondly, if your relationship with your partner breaks up—for example, you have been a victim of bullying by your partner over years—one of the things LASPO did was to take away the right to legal aid in practically every single private law case; that is, cases where husbands and wives or partners splitting up row about particular issues. That led to institutionalising the ability to bully one party if that had been going on before.

The standards of our life drop if people cannot go to court and the burden on the Exchequer goes up if you cannot help people reach reasonable solutions. Immediate change is required. The report identifies 25 specific things that need to be done to address the immediate crisis, but much more is required on an institutional basis. At present, for there to be proper access to justice we depend on cases that are brought before the court once in a blue moon, charging that there has been no access to justice, as a result of the work of pressure groups and lawyers, the statements of judges and the work of the Lord Chancellor behind the scenes. Obviously, that is not enough. That we have ended up in this crisis situation—again, I say that “crisis” is not an overworked word—indicates that the institutional safeguards to ensure that people have access to justice are not working. There needs to be something more, just as in relation to the health service and education.

The proposal in the report—the right to justice Act—will ensure that each individual has a right to,

“reasonable legal assistance without costs they cannot afford”.

That does not mean a right to be given legal aid in every single case; it means that where it is necessary to satisfy the minimum requirement of access to justice, it will be provided. It is not for politicians to decide when that is required, but an independent body. That body should be able to intervene to ensure that that happens and to fulfil the need for access to justice.

I commend the detail of this report to the House. I very much hope that the Government will look at it and consider acting on it, because, if they do not, the crisis will continue.