Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Kennedy of Shaws Excerpts

Monday 21st November 2011 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, like the noble Lord, Lord Phillips, I came in to the law full of idealism. I have remained idealistic about the law and what its purposes are and I have remained proud of the legal system in which I work. That has not meant that I have not been a critic of the legal system. Frequently and regularly, I have been involved in criticising the law’s failures and suggested ways in which we could improve the system. From the 1970s onwards, I have campaigned for women’s issues and for greater fairness for women in the courts, hoping and working for better sentencing and so on. I have been only too aware of ways in which we have had miscarriages of justice, and I have been involved in many of those cases.

However, when you travel abroad, nothing fills your heart with greater joy as a lawyer than to realise just how wonderful our legal system is. I happen to believe that it is the best legal system in the world and that it is a source of pride to us. Yet I ask myself regularly: why is it, when we have something so precious and wonderful that is the best in the world, that we should we seek in any way to undermine it and actually take steps to destroy it?

One of the ways in which we are measured as a democracy is that we are proponents of the notion that the rule of law and democracy travel hand in hand. Britain is looked to as a great place of law, with great judges who are not corrupt, as the noble Lord, Lord Phillips, said, and great lawyers, whatever public opinion might be. When I go to the United States and speak to judges even in the Supreme Court, they say that they have sat and watched proceedings in our courts, like the Old Bailey. They say, “We have some great lawyers who are as good as some of your greatest advocates; but we do not have great lawyers in the middle ranks to measure against the lawyers that you have in the general run of courts”. It does not come without a price. We train our junior lawyers well. We give them opportunities to hone their skills. They start small doing legal aid cases, as I did, and build it up. I have to say that most of my life has been spent doing legal aid cases, and I take a pride in that. I do not feel that it is the sad end of the work that we do. I think that it is about the most precious and important work that we do.

I want to remind noble Lords why all of this matters. Only a week ago I was discussing the rule of law with people in government in Iraq. They asked, “How do we make access to justice real?”. When I am describing how our system has operated, it is a solid reminder that the rule of law is about more than passing laws and what we do in this House. It is about making it real by giving people genuine access. The Master of the Rolls, the noble and learned Lord, Lord Neuberger, recently made a speech in which he, like the late Lord Bingham and the noble and learned Baroness, Lady Hale, talked about how we get incredible value for money compared to other places. We also have a strong sense of what the rule of law is about. The noble and learned Lord made it very clear in speaking about its three facets: making clear and effective laws, which we try to do by honing, refining and improving legislation; enforcing those laws effectively and clearly through a good legal system, which I consider the best in the world; and ensuring that the law and the legal system are accessible to all.

As the noble Lord, Lord McNally, told the press in a recent interview, like every other government department, the Ministry of Justice had to take its hit. Of course, that is done at the behest of the Treasury, which is not really looking at the principles of the rule of law. However, two-thirds of the savings being made are being paid for out of the legal aid pot. The Ministry of Justice could have been bolder about taking more money out of the prison system. Regrettably, over the past 20 years, we have seen the ratcheting up of the numbers of people going in to prison, all satisfying a sort of Dutch auction on sentencing when we really ought to be much more creative about the ways in which we deal with crime. We could have been bolder about the ways in which this requirement to reduce the bill in the Ministry of Justice was fulfilled. Instead of reducing across the board what legal aid would mean in civil law, we have seen whole areas of law being removed from its ambit. It cannot be right or good for law.

The cuts are going to dismantle two key elements of the existing system. Others have mentioned how the legal aid system came into being at the end of the Second World War. It was saying that law is not just for the rich or for those who have money, but for all of us. That is what having a mature democracy is about. What came into being at that time was essentially legal aid that started off in family law and provision for women who did not have equality of arms and for their children when it came to the increase in divorces and in family disputes. The second thing that happened in the stages of this building up of legal aid was the Legal Advice and Assistance Act of 1972, which was taken through this House by Lord Hailsham, who was not exactly a bleeding heart on matters to do with law but a very fine constitutional lawyer who understood why it was important. He introduced assistance, which was the green form scheme, to which I will turn in a minute. We are going to see that dismantled. Having ready access to a lawyer will be replaced by a telephone hotline, a sort of call centre. We all know the problems that we have with call centres in every other area of our lives; imagine it when you are in distress and in need of decent legal advice.

The 1972 Act introduced a scheme for legal advice on any matter of English law, known variously as the green form scheme or the £25 scheme. It meant that a solicitor was available to give you advice. Law centres and advice bureaux came into being around that time, too, to give advice—on welfare benefits, community care, mental health, education law and so on—on that first call, when people have anxieties about how something is affecting their lives. I know good, decent, committed, idealistic lawyers, who have not become rich but who can persistently stay in this area providing that kind of advice to people. For us to be destroying it seems to me to be crazy.

The suggestion that there is a compensation culture, I am afraid, has been swallowed by our Lord Chancellor—to my surprise, because I am a great admirer of his. With the tabloid notion that a compensation culture exists, in a society that has idealised materialism and put the greatest value on money, it is not surprising that when bad things happen to people, they will want to be compensated. If you deregulate the professions and make it possible for them to ambulance-chase, it is not surprising that you will have poor outcomes. Judges at the Old Bailey now tell me that, because of the legal aid cuts by the previous Government, they are seeing a decline in the quality of representation in the courts before them. Why is that? Increasingly, people will go in ill prepared. Cases of weight are being conducted by inexperienced people. That happens if you are paying people very little money for doing a professional job.

I really think that a mistake is being made in these proposals. I urge the Front Bench, which I know is concerned about these matters, to think again. This is a precious part of our legal system and the consequences of the cuts may be far greater than anyone imagines.