Bach Commission: The Right to Justice

Baroness Chakrabarti Excerpts

Thursday 14th December 2017 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I thank your Lordships for one of the most important, thoughtful, expert, evidence-based, compassionate, passionate and yet restrained and consensual debates I have had the privilege of listening to in your Lordships’ House. It is invidious to single out contributions, because there have been so many that I learned so much from. However, I cannot do much better on the principles than by following and agreeing with the noble Lord, Lord Marks, or much better on the practical crisis we face in legal aid than the noble and learned Lord, Lord Judge.

By way of declaring my interests, I have been a lawyer all my adult life. I no longer make self-deprecating jokes about that, because politicians of both persuasions have done that to all of us for long enough. I am a member of 39 Essex Chambers and, like, I believe, the noble and learned Lord opposite, I have been a bencher of the Middle Temple since 2006. I particularly thank my noble friend Lord Bach for the work he undertook and the cross-party, non-party way in which he undertook it. Surely, the rule of law and access to justice can and must be non-negotiable. I have often thought that party politics should be about tax and spend and, to some extent, about implementing social and economic rights. However, civil and political rights ought to be agreed on by all democrats, and it is self-evident that the rule of law is essential to civilised society, let alone democracy.

The poorest and most vulnerable always suffer most from abuses of power and therefore need the law most of all to protect and empower them. In my legal career I have never been in the Rolls-Royce; I have always litigated for and against the Government and, as I say, I have always been on the bicycle, acting in the public interest for Governments of both persuasions and for those whose most important legal relationships are with local and central government.

What would it feel like to face losing your children, income, job or anything of huge importance to you without any comprehension of whether the law protects you, let alone without advice and representation to allow you to argue your case? As the noble Lord, Lord Marks, said, this is a revising Chamber where noble Lords devote hours, days and weeks of their time to getting the law just right. But that legislative scrutiny remains a dead letter in a sealed book without advice and representation for the people we come here to serve. Unfortunately, the cuts to legal aid in recent decades, and in particular the last four years, have made this lack of access to justice a reality for too many in our society.

Schools and hospitals are seen rightly as vital pillars of the welfare state, but legal advice and representation does not seem important until you are really in trouble. Like joy and grief, the law can be a great leveller, but there is no longer a level playing field in legal services. After decades of cuts, the poorest and most vulnerable are often shut out altogether from a legal system that we were once so proud of. Entitlement to legal aid is not another service; it is a fundamental human right. We on these Benches are clear that we will support and defend the principle of legal aid and reverse the alarming trend towards a fundamental denial of justice. As we have heard from so many noble Lords today, including my noble friend Lord Bach and my noble and learned friends Lord Falconer and Lord Goldsmith, in the wake of the changes wrought by LASPO, we are in a world where access to justice is a reality for too few. It is in this context that we must consider the findings of the Bach commission.

I listened carefully to the points made by the noble Lord, Lord Faulks, about the responsibility of government when it comes to funding legal aid. However, I am conscious also of the way in which legal aid can be annoying and irritating to Governments of either persuasion because, in part, legal aid is about holding Governments to account. Therefore, there may be some role for independence after the basic political decisions of funding in the round have been made.

I have various words to describe LASPO, but I will instead go back to the exquisite restraint and understatement of the noble and learned Lord, Lord Judge: LASPO was “not wise”. It has been widely criticised by expert stakeholders including the Bar Council, the Justice Committee and the Law Society. The Public Accounts Committee made it clear that in bringing in this legislation, the Ministry of Justice had not properly assessed the full impact of the reforms. That impact has proved devastating for too many.

The primary recommendation of the Bach report—a new statutory right to justice under which people have a right to reasonable legal assistance which they can afford—sends an important message. We need to fight against the erosion of rights and demonstrate commitment to the importance of legal representation.

It is important to understand the context of that recommendation. As we have heard, the number of civil legal aid matters initiated has fallen by 84% between 2009-10 and 2016-17. The number of legal aid certificates granted for civil representation is down by 36%. In November 2017, the Government stated in response to a Written Parliamentary Question that the MoJ projected departmental spending limit would be £5.6 billion in 2019-20, a cumulative real-terms reduction of 40% on the £9.3 billion limit in 2010-11. To repeat, that is a 40% cut in the space of nine years; hence the crisis in our prisons, the crumbling of our courts and the hollowing-out of legal aid. According to Amnesty, the year after LASPO came into force, assistance was given in under 500,000 cases, which was a drop of 46%.

One example of the problem is in the First-tier Tribunal asylum appeals system. Data obtained by a freedom of information request by the BBC has revealed that asylum seekers—some of the most vulnerable people in our society—are facing a lottery, depending on where their appeal is heard.

The problems caused by the new system are many and varied, and we have been given a flavour of some of the terrible problems today. I cannot address them all—and I do not intend to repeat them all—but the noble Lord, Lord Faulks, was right to single out that the exceptional case funding plainly is not working. The Government originally suggested that around 847 children and 4,888 young adults would be granted that kind of funding each year, and yet up to June 2015 only eight children and 28 young adults were granted legal aid under the scheme. The cuts, therefore, have been much deeper than anticipated by the coalition Government. It is a reason for all sides of your Lordships’ House to think again.

The pressing issue, which has been mentioned by many noble Lords today, is the abandonment of funding for most forms of early legal advice. In whatever detailed system we imagine and create in the future, we surely need to front-end the advice. We need early intervention and advice to mitigate pain, anguish, costs, court costs, litigation in person and so on. I do not need to repeat the problems that we have without early legal advice. Mediation is a great idea in principle but not if you do not have the advice to help you take forward sensible mediation. If you do, there is no inequality of arms.

The mass closure of legal aid firms is also a problem. That may not be the most popular position to take in Britain in 2017 but legal aid lawyers have been denigrated. Most are loyal public servants who could have chosen the Rolls-Royce and more lucrative careers elsewhere.

In setting out these challenges, noble Lords and the Government have an opportunity to reflect on the problems we face. However, there are also opportunities for cross-party reflection and co-operation on such a vital issue into the future. I am grateful that the Government have finally announced a review of Part 1 of LASPO. We have been promised that this will be concluded before the start of the Summer Recess. LASPO has been in place since 2012 and, to repeat the noble and learned Lord, Lord Judge, it has not proved wise. Let us all co-operate with the Government, look to reviewing it quickly and doing better for everyone in our country and for the rule of law in the future.