Bach Commission: The Right to Justice

Lord Marks of Henley-on-Thames Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I join other noble Lords in congratulating the noble Lord, Lord Bach, on securing this debate, on the initiative he took to secure the appointment of his commission, on the thorough work that he and the commission undertook and on the end result, which is the report that has commanded such widespread support in this debate.

From these Benches, I endorse the central conclusions: first, the time has now come, after years of decline in legal aid and the failure of successive Governments to support it, to have a new legally enforceable right to justice which involves a right to reasonable legal assistance without unaffordable costs; and, secondly, there should be a justice commission tasked with advising on monitoring and helping to ensure that the right to justice is delivered in practice. We see the advice role of a justice commission as particularly important. I agree, of course, with the point made by the noble Lord, Lord Faulks, and echoed by the noble and learned Lord, Lord Thomas, that ultimately there is a political decision to be made about the overall budget for legal aid and that it is a matter, in the final analysis, for Parliament. Nevertheless, I completely agree with the observation of the noble and learned Lord, Lord Woolf, that there is a very important role for a justice commission in keeping the working of the legal aid system under continuous review.

The principles behind the Legal Aid and Advice Act 1949 are well known. It was introduced as an important part of the welfare state, constructed on the basis that all citizens should have access to justice; that rights in law were of value only if they were matched by remedies that could be accessed and that defences in law were of value only if they could be effectively granted; and that those ends could be achieved only if those who could not afford legal advice and representation were able to secure it through public funds.

Access to justice is also a public benefit. It enables our law to develop, enables citizens to have confidence that the law will be enforced and has the effect of enabling the law to be enforced in practice. The UNISON case was about employment tribunal fees. The introduction of very high fees had led to a 75% reduction in the number of employment tribunal cases started. That, in turn, led to employers feeling more confident in denying their employees the rights to which they were entitled. Similarly, the imposition of very high court fees is deterring case starts where creditors are nervous about pursuing debts in the courts because of the level of up-front fees involved, which encourages debtors not to meet their obligations. It is also clear, I suggest, that making citizens’ ability to resort to law dependent on the capacity to pay for their lawyers also permits others to ignore their legal obligations.

Many noble Lords have mentioned the UNISON case and the judgment of the Supreme Court. As it has not been quoted before in today’s debate, I hope that I will be forgiven for quoting from the eloquent and timeless statement of the principles underpinning access to justice, in paragraphs 66 and 68 of Lord Reed’s judgment. He said, in paragraph 66:

“The constitutional right of access to the courts is inherent in the rule of law. The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the ‘users’ who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings”.


Paragraph 68 states:

“At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other”.


The background to this debate is, of course, the LASPO Act, which severely restricted the scope of legal aid, failed to honour the principles on which legal aid had been conceived, and undoubtedly caused much injustice. The coalition Government were led by the need to control the public purse but it is now quite clear that they underestimated the effects that the Act would have on access to justice and the extent of the costs that would be saved as they estimated a sum of £450 million when, in fact, the reduction in costs has been £950 million. Happily, the Act contained provision for review and permitted areas of law to be brought back into scope. The review is now taking place, although later than we hoped. It is too early to speculate on what its outcomes might be. I regard it as a shame that the review is being conducted as an internal review within the Ministry of Justice rather than by an independent reviewing body, which might have inspired more confidence. We on these Benches recognise, as we did in the coalition Government, that there can be no open chequebook, that there have to be limits to the availability of legal aid, and that expenditure on legal aid has to be subject to some controls.

However, the fundamental issue that has exercised many speakers today is that of scope. I suggest that if there is to be a justice commission, it should be charged with keeping the scope of legal aid under review. Noble Lords have mentioned social welfare, debt, housing, family law, in particular law relating to children, and domestic violence, where the Government have made some limited reforms on the evidential requirements. However, I suggest that they ought to consider the recommendations of many that solicitors themselves ought to be able to certify the eligibility of their clients for legal aid. The financial eligibility rules need review as to both capital and disposable income. The present rules appear to proceed on the basis that people’s litigation is the only call on their finances apart from their immediate needs. My noble friend Lord Dholakia referred to the difficulties facing prisoners in securing legal aid. I also suggest that exceptional case funding, where the take-up has been extremely low—it has improved slightly, but it is not nearly good enough—is another area where solicitor certification may have a role. We place too much reliance on solicitors and barristers accepting pro bono work, which introduces an unacceptable level of arbitrary selection and evades, frankly, a responsibility of government.

The noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Howarth, made points about the effect of the cuts on the voluntary sector and on smaller providers—law centres and, in the case of the noble Lord, Lord Howarth, the NCLS.

The noble and learned Lord, Lord Judge, made an important and significant speech on the effect of more litigants in person: delays, points missed, judges being faced with the difficulty of getting to the heart of cases quickly, and the general effect on litigation of cases taking longer. Those points were developed by the noble Lord, Lord Wigley, and the noble Lord, Lord Trevethin and Oaksey.

We heard from the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Howarth, of the advice deserts. I also mention the point that of course one provider in a town or area is not enough in the case of a contentious piece of work, which requires lawyers for both sides.

The point was made that money spent on legal aid saves money spent elsewhere. I sometimes despair at the inability of the Treasury to understand spend to save across departments. I hope that the Ministry of Justice will start to pioneer saving across departments.

I fully endorse the points made about early assistance, more access to advice online, and the reference to the commission of the noble Lord, Lord Low. I am not entirely with the point made by the noble and learned Lord, Lord Phillips of Worth Matravers, on the inquisitorial system. I accept that much more inquisitorial justice in simpler cases is important, but to develop the particularly attractive analogy of the noble and learned Lord, Lord Woolf, about the bicycles and the Rolls-Royce, we need to preserve the Rolls-Royce even though we need a great many more bicycles.

We have had a powerful debate. However, the central issue is not only access to justice but the interdependent issues of the rule of law and the quality of our justice system.