Bach Commission: The Right to Justice

Lord Keen of Elie Excerpts

Thursday 14th December 2017 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I, too, thank the noble Lord, Lord Bach, for securing this debate. The ability of individuals to secure access to justice is of paramount importance to society and to the rule of law. Ensuring access to justice is a responsibility that every Government take seriously. I thank the noble Lord and his fellow commissioners and advisers for the work of the commission, including the final report, and for his comments in the House today. I am also grateful to other noble Lords who have contributed to the debate for their considered and diligent scrutiny of government policy on access to justice.

This Government fully agree on the importance of access to justice, to which legal aid makes a valuable contribution, and our commitment to the principle of legal aid is unwavering. Yet it is important to remember that it is only one element of access to justice. In addition to the £1.6 billion we currently spend on legal aid, which is more than a fifth of the department’s budget, we are looking to the future by investing more than £1 billion to reform our courts and tribunals. That, too, is important to ensure that access to justice remains robust and at the centre of our modern justice system. The noble and learned Lord, Lord Thomas, referred to the courts Bill. It is certainly the intention of the department that that Bill should be brought forward in order to implement these important changes.

We have also invested some £5 million to support litigants in person and we have committed to changing the Lord Chancellor’s guidance on inquests to make the inquest process easier for bereaved families by seeking to make the process less adversarial. We have announced changes that will make it easier for the victims of domestic violence to apply for legal aid, something that the noble Lord, Lord Marks, referred to in his observations. On that point, I shall pause to say that while there is a suggestion that solicitors might certify such cases, concern has been expressed in some quarters that this could give rise to a perception at least of conflict of interest. It is a matter that has to be approached with some considerable care.

As the noble Baroness, Lady Chakrabarti, mentioned, the Lord Chancellor has announced the start of the post-implementation review of the LASPO Act, thereby fulfilling the commitment made by Ministers during the Bill’s passage through Parliament in 2012. I hope that noble Lords will recognise that a modern justice system demands that all of these elements, not only legal aid, have to be brought together; essentially, what we are looking at is a jigsaw. When put together, it does seek to ensure access to justice.

The most recent reforms made to legal aid under and since LASPO were founded on the principle of ensuring that legal aid continues to be available for the highest-priority cases. It was important to take a balanced approach to legal aid, which is why the reforms within LASPO were founded on delivering better value for money for taxpayers by reducing the cost of the scheme and discouraging unnecessary adversarial litigation. It was important that some cases were removed from the scope of funding where alternative routes of resolution were or were to become available. It was also important that legal aid was focused on those in our society least able to pay for their representation.

The changes were of course subject to a significant amount of scrutiny during the passage of the LASPO Bill and they were debated extensively, with amendments being made, before they were approved by Parliament. Now, several years since the implementation of those landmark reforms, we are fulfilling our commitment to Parliament to conduct a review of the changes to legal aid. That is why we recently laid before Parliament a detailed post-legislative memorandum summarising how LASPO was implemented and making a preliminary assessment of its impact. In addition, the Lord Chancellor’s detailed post-implementation review of these changes will cover each issue that has been subject to a previous parliamentary commitment by Ministers. In that respect, we are listening to interested parties. Moreover, as indicated by the noble Baroness, we hope to publish our findings by the 2018 Summer Recess.

The noble Lord, Lord Bach, both in his commission’s report and in his remarks today, has raised the idea of a right to justice. A constitutional right to justice is, of course, not a new concept. The noble Lord, Lord Marks, referred to the speech of Lord Reed in the recent Supreme Court judgment in the UNISON case. I shall quote only a short passage, which says that,

“the right of access to justice … has long been deeply embedded in our constitutional law”.

We would all acknowledge that. Sometimes it takes an exceptional Scottish lawyer to explain to the English the scope and impact of the English common law, and Lord Reed has done that yet again. The essence of the issue and our focus should not be to mull over a right which already exists, but rather how this right of access to justice manifests itself in a modern justice system, a point touched on by the noble and learned Lord, Lord Thomas. We are focused on ensuring that it is correctly supported by an effective framework of legal aid, a well-funded, modern court system, and alternative methods of dispute resolution, which were alluded to by several noble Lords. We want to give individuals the power to address their legal issues in a way that is right for them.

Ensuring that access to justice is supported by an effective framework of legal aid guided our latest step to protect and support victims of domestic abuse. I note the point that was made about ensuring that parties are aware of their rights and their ability to secure legal advice in such cases. I am sure that that will be looked at in the LASPO review. It is not enough to have the rights—we must ensure that people are aware of the existence of those rights and of how they can be accessed. We have laid a statutory instrument enabling victims of domestic violence to secure more support in taking an abusive former partner to court. In that context, the current five-year time limit on abuse evidence in the family courts will be scrapped, while the range of documents accepted as evidence of abuse will be widened. However, as I indicated to the noble Lord, Lord Marks, we have some reservations about the idea of certification by the solicitor involved in the case. That is an area where we have worked other parties—including Rights of Women, Resolution, Women’s Aid and the Law Society—to ensure that we are doing all that we can to protect and support victims. I am grateful for the discussions on this point today, and I share the views and passion of your Lordships’ House for ensuring that victims have access to justice.

Another point that was touched on was the importance of early legal advice and being able to engage with people at a point in time when it may be feasible to resolve a dispute or issue without resorting to litigation. We talk about individuals exercising their right of access to justice, but it is important to remember that the court is not always the right solution. It is not just a financial consideration; there are other reasons why early legal advice may be appropriate. Access to such advice or information can help individuals to understand their options and it may dissuade them from pursuing court proceedings in circumstances where it is not the appropriate step to take to resolve their issues. That is why we have protected legal help in many cases and why we spent almost £100 million on legal help last year.

Where an alternative route is more appropriate, people should be empowered to pursue it without having to find a lawyer at a great cost to them or to the state. For instance, in cases involving separating couples, mediation or other forms of out-of-court dispute resolution can be less stressful and quicker than going to court—and it is certainly often cheaper than employing lawyers. It can help to reduce conflict after separation, which we know can lead to poor outcomes for children. So we continue to aim for greater use of alternative dispute resolution in such cases, such as when separating parents wish to resolve issues of child arrangements or finances. I note the observations made about where some difficulties may be encountered because, for example, there may be issues with the availability of expert evidence.

We have recently launched an online child arrangement information tool, which is intended to provide clear and concise information on the dispute resolution services that can help parents agree child arrangements, including mediation. I fully accept the importance of ensuring that such services are made available and that people become aware of them. We have also introduced a telephone helpline to provide legal advice in certain categories of law. Last year, there were more than 20,000 instances of advice being provided by that means. In addition, and in reflection of today’s society, we have also developed a user-friendly digital tool that makes it clear to people when legal aid is available to them. For people who are not eligible, the tool signposts them to alternative sources of free or commercial advice.

The matter of litigants in person was touched on and I appreciate the points that were made about their impact, or potential impact, on the court process. Since 2015, the Government have invested £5 million of funding to support litigants in person through the litigants in person support strategy—although I accept that that will not necessarily lead to the production of a single bundle, as alluded to by the noble and learned Lord, Lord Judge. However, it will hopefully improve the ability of litigants in person to pursue matters, particularly in the higher courts.

In some circumstances where publicly funded representation is clearly necessary but matters are generally out of scope of LASPO, funding can be provided through the exceptional case funding scheme. I hear the criticisms that have been made of that scheme, but I will make one point about it in so far as it relates to inquests, where more than half of the applications made in the last two years have been granted. The inquest process is of course important. It can be incredibly traumatic for those involved and it is important that we give as much assistance as we can where the bereaved have to consider the circumstances of the death of a relative. There again, early legal advice can be helpful in allowing families to understand what the process is and will be.

There are additional issues concerning deaths in custody. Noble Lords may be aware of the recent report on deaths in custody by Dame Elish Angiolini, which highlighted some of the issues regarding public participation at inquests in cases of that kind. We are working closely with the joint Ministerial Council on Deaths in Custody, and we have committed to update the Lord Chancellor’s guidance for these cases by the end of the year because they are clearly important.

I appreciate that this is an important debate, no matter when it comes in the House’s calendar, and I am glad of the opportunity to address this matter. As we go forward, I reaffirm our commitment to the post-implementation review of LASPO that is now under way and which I hope will address many of the questions raised in your Lordships’ House.

We are committed to looking forward to ensure access to justice for future generations. We are continuing to ensure that legal aid is made available to the most vulnerable. We are investing more than £1 billion to transform our courts and tribunals, and we are committed to delivering a modern justice system, today and into the future, that maintains its standing in the world.

I will very briefly touch on one or two of the particular points raised during the debate. The noble Lord, Lord Bach, raised early advice as an essential element in any legal assistance process. We accept that. Indeed, we have been seeking to develop mediation and advice as being appropriate in this context.

Regarding statutory recognition of a right to justice, we suggest that that is already embedded into our common law. We have reservations about whether such statutory recognition could improve matters. Therefore, I express reservations about that.

My noble friend Lord Faulks indicated that it perhaps would not be appropriate—I believe this reflected observations by the noble and learned Lord, Lord Thomas—to take the matter of spending for legal aid away from Parliament and government and essentially to subcontract it to a quango. There are very real political issues about these matters. They should ultimately rest with Parliament and government.

The noble and learned Lord, Lord Falconer of Thoroton, referred to the need for an agency, an independent body, that was not subject to ministerial interference in the context of legal aid. I observe that the Legal Aid Agency operates free from ministerial interference. Indeed, there is a statutory prohibition on Ministers interfering in respect of any legal aid application. Therefore, there is that degree of independence already in the system.

The noble Lord, Lord Dholakia, alluded to the issue of those in custody and prisoners. I indicate first of all that spending in respect of legal aid for those in custody has increased recently. On the particular point he raised in the context of the recent Court of Appeal judgment, an amending statutory instrument is being drafted to reinstate legal aid in the three categories of cases highlighted in that judgment. Indeed, I reassure him that we hope to have that statutory instrument going forward in the near future.

The noble and learned Lord, Lord Phillips of Worth Matravers, raised the interesting point that we have to address not just the issues of legal aid and access to justice but the issue of how we provide justice in this country. It may be that in some areas—inquests are a particular example—we will see further moves towards a more rigid, inquisitorial system that would benefit parties going forward. After all, the inquest was originally intended to be an inquisition, an inquisitorial system, and over the years it has rather grown arms and legs. I am certainly not suggesting a movement towards a civilian code or anything of that kind, but I do believe that the noble and learned Lord’s contribution underlines the fact that we are dealing with a rather broad and delicate ecosystem. We cannot just take legal aid out and put it back in; we have to look at the overall system to see how it is going to work.

If I do not mention noble Lords specifically, it is not because I am unconscious of their contributions but because I am slightly more conscious of the time, and of the fact that I hope I have addressed some of their points already. The noble and learned Lord, Lord Woolf, spoke of the distinction between the Rolls-Royce and the bicycle. Clearly, there are those who require the Rolls-Royce, but most of us are content with a bicycle and have been during our professional careers.

The noble Lord, Lord Wigley, raised certain issues about the provision of legal aid in Wales. I understand that there is intended to be a commission in Wales looking at the provision of justice—albeit we are talking about a single jurisdiction between England and Wales, there are certain specialities that are developing, particularly from statutory law.

I hope that I have covered the majority of the points that noble Lords raised. A number of noble Lords raised questions about early intervention, advice centres and the ability to seek advice before the need for court litigation. The noble Lord, Lord Howarth, alluded to observations made in Westminster Hall by a fellow Minister. I note the observations that were made in that regard. Of course, the Ministry of Justice is undertaking a review of LASPO, and we will take into account all the interested parties’ submissions on that matter.

I hope that I have been able to address some of the points raised in what I acknowledge is an important debate, which had as its foundation the report of the commission undertaken by the noble Lord, Lord Bach, and which we will take away and give consideration to. I am obliged to noble Lords.