Bach Commission: The Right to Justice

Lord Howarth of Newport Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, I live in Norfolk. The Norfolk Community Law Service—NCLS—is staffed by people who believe deeply in the right to justice. A small paid staff are supplemented by volunteers: 65 experienced solicitors and barristers and a team of 45 law students from the University of East Anglia. With their moral energy and practical resourcefulness, the people at NCLS provide services across a wide range of legal advice needs. The most severe problem areas are family issues, debt, welfare benefits and housing. NCLS says there is a perfect storm created by austerity, legal aid cuts, reductions in public funding for advice services, welfare reform and falling incomes.

The case load of NCLS has increased year on year since LASPO. In the current year, it is projecting a 21% increase. Increasing personal debt is being driven by stagnant incomes, zero-hours contracts and the benefits cap. Welfare benefits cases, after increasing by 19% in 2016-17, are on course to increase by 65% in the current year. With the assistance of the UEA students, NCLS is winning no fewer than 83% of appeal cases that go to tribunal, which shows there is something seriously wrong with DWP decision-making.

With the loss of legal aid, demand for the family court support service of NCLS has soared, increasing six times between 2015-16 and 2016-17. Nine volunteer family court supporters at NCLS help clients to gain a realistic view of their prospect in court. They attend hearings with them and help them to complete court forms and draft complex statements. Clients also get legal advice from the domestic abuse service of NCLS. The situation in Norfolk is made worse by the lack of solicitors doing legal aid work for domestic abuse, so even where the client would be eligible for legal aid, no one is available to take on their case because of the reduction in funding by the Government. Volunteers, however, cannot represent clients in court: they can provide only practical support during the very stressful experience of appearing as a litigant in person. Organisations such as NCLS can limit damage but they cannot substitute for professional legal advice and a properly funded justice system.How right my noble friend Lord Bach’s commission is to recommend that the Government bring legal aid back into scope for all matters concerning children and widen the scope of legal aid for certain family cases. It is profoundly depressing that Ministers could ever have taken legal aid away from people with few resources in such unhappy situations.

In a debate in Westminster Hall on 29 November, the Minister of State for Courts and Justice, Mr Dominic Raab, was, however, unrepentant. He intoned:

“The Government have a responsibility to make sure that those in the greatest hardship, at the times of greatest need, can secure access to justice, that the most vulnerable are catered for, and that the resources are made available to do that. That is a responsibility that we take very seriously”.


These are fine-sounding words but a world away from the reality the Government have created. The report by Amnesty International, Cuts that Hurt, describes how homeless people and those with mental health difficulties, learning disabilities, low numeracy and literacy levels, language problems, alcohol and drug dependency and even terminal illness are now without entitlement to legal aid as they attempt to engage in legal processes.

Why, anyway, should the responsibility of government be confined to those in the greatest hardship? We cannot claim to be a society that lives under the rule of law if swathes of the population cannot in reality avail themselves of legal remedy. It would appear that the Minister had not read the judgment of the Supreme Court in Unison v The Lord Chancellor.

Mr Raab then observed that post-LASPO spending on legal aid per person in England and Wales was the highest of all Council of Europe members. This argument is disingenuous. Our legal system, adversarial rather than inquisitorial, cannot be compared in this way to systems in other Council of Europe countries. The noble and learned Lord, Lord Phillips of Worth Matravers, made some very interesting observations in that regard. Anyway, what other countries choose to do should be neither here nor there. We can still do what is right according to our proper constitutional tradition, as developed in the Legal Aid and Advice Act 1949 and the expansion of legal aid in the 40 years that followed.

Mr Raab’s third defence was that,

“the financial pressures in which the LASPO reforms were introduced remain with us today … We in the Government have the responsibility to ensure that taxpayers get the best value for money”.—[Official Report, Commons, 29/11/17; cols. 168-71WH.]

I do not question the need to reduce the deficit but I absolutely reject the appropriateness of doing it by undermining the rule of law. I do not question the need to achieve efficiencies in the justice system, provided they are well judged, but too many have not been. Nor do I question the desirability of discouraging unnecessary and adversarial litigation but the reduction in the number of solicitors holding a legal aid contract has led to a fall, not an increase, in the use of mediation. The principle of access to justice for all should have been non-negotiable. The purported saving, a fall in spending on legal aid of £600 million since LASPO, though large enough to have wreaked havoc on access to justice, is trivial in the context of total public spending of £814 billion. The cost of the justice system is not to be compared with the costs of health or defence.

As for value for money, the saving has been overstated if not illusory. The commission of the noble Lord, Lord Low, the National Audit Office, the Law Society and many others have demonstrated how the removal of funding for early advice has led not just to increases in human misery but to new costs for the Exchequer. We shall see whether the MoJ’s post-implementation review of LASPO, now promised for next summer, makes an honest assessment of this.

I hope that today, the Minister will not use the stale and discredited arguments paraded by his ministerial colleague in Westminster Hall. I endorse the analysis in the report of the Bach Commission, The Right to Justice. Its proposals for reform deserve serious and urgent consideration.