Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Mallalieu Excerpts

Monday 21st November 2011 Lords Chamber

[Baroness Mallalieu]

My Lords, I must first declare two interests. I am a practising member of the criminal Bar with an almost exclusively legal aid practice. In addition, I have a daughter who has followed me into the same area of practice, despite my best efforts to stop her boarding a sinking ship. I have had 40 years’ experience of looking at the legal aid system from inside and outside, and in my seven minutes I will concentrate on Part 1 of this Bill.

Most members of the public give credit to the 1945 Labour Government for laying down the foundations of the National Health Service. However, few people outside this Chamber remember that that same Government introduced legal aid and that, later on, reforming Labour Lord Chancellors, notably Lord Gardiner and Lord Elwyn-Jones, built on those beginnings to try to ensure that no one in our country should be denied access to justice through lack of funds. They saw that principle, as I do, as a fundamental aim of a just and civilised society and part of our very constitution.

Since then, like the health budget, the legal aid budget has grown and grown as areas of law have developed and expanded. In the present climate, every area of public spending, including legal aid, faces cuts in addition to those that have already been imposed on criminal legal aid with very damaging consequences under the previous Administration.

The legal profession has not been guilty of special pleading. It entered into the consultation with the Government fully on this Bill and identified alternative cost savings of more than £350 million in the administration of justice, which the Government have so far chosen to ignore. Those proposals would have saved money yet retained the structure of the legal aid system without abandoning some of the most vulnerable to do-it-yourself justice. But instead, in Part 1 of the Bill, the Government have preferred to throw out the baby as well. Indeed, Part 1 might just as well be titled the “slash and burn” Bill, because it is destructive and in no way constructive. What it says is, “We’ll get rid of legal aid and maybe we’ll give a little help to some further mediation here or a bit of encouragement to some pro bono work there”.

If access to our health service was to be reduced to as many people and to the extent to which this Bill proposes to reduce access to legal assistance for those in need, there would be a public outcry and very probably a major demonstration taking place outside in Parliament Square today. We can all readily envisage a time when we or those close to us may need a doctor or a hospital, but few of us envisage needing a lawyer or having to go to court until it actually happens to us. Much of the outcry against this Bill, and there is one which will grow as its reality becomes better known to the wider public, comes from people who have seen for themselves those in need of help and the protection of the law, or with good and valid claims sometimes against government departments or large companies with big purses, who lack the means and the ability to pursue them without proper help.

Like others who have spoken, I hold no brief for ambulance chasing, for referral fees which should rightly go, or for excessive legal costs. For the reasons given by the noble Lord, Lord Thomas of Gresford, I spoke out against conditional fee agreements when they were introduced in this House, but I have to say now, “Thank goodness for them”. I am very concerned about some of the steps that are proposed in a later part of the Bill which are likely to close that avenue off to many people.

To remove legal aid altogether, saying that there will be nothing but self-help in so many areas of the law for those who cannot afford to pay, ultimately does not punish the greedy lawyers, who if they exist in this field will simply move on to other work, but puts the most needy outside the protection of the law. Strong cases have been advanced in a number of areas during the course of this very interesting debate. People have argued for the victims of domestic violence, for those involved in welfare claims and also in cases of clinical negligence. All of these are likely to fall outside the scope, as far as I can see, of any remedy. I would just say this. Clinical negligence is not alone. There are many other cases where medical reports and expensive preparations have to be made before a case can be begun, and I doubt very much that many solicitors will take up those costs unless the case is 100 per cent sure, which they seldom are.

As the noble Baroness, Lady Kennedy, said, we have in this country the best legal system in the world. Our judges are drawn from the top of the practising profession and they are of the highest quality. Our courts are not corrupt, they are relatively speedy and they have a worldwide reputation for fairness. But our justice system will be tarnished if it lies beyond the means of whole sections of our poorest citizens. On the figures I have heard mentioned, over half a million people a year who would now be eligible for help will be excluded. If people are left with no alternative but to grin and bear it or try to represent themselves, usually against a trained lawyer experienced in the field, where does that take equality of arms? I sat as a recorder for some years in both criminal and civil cases. A litigant in person was the one thing I most dreaded. The whole case took far longer as everything had to be explained—the procedure and the law, which usually I had no time to check. I had to help them with the evidence, with cross-examination and, indeed, with every aspect of the case. The rest of the list, which was always long, often went out of the window.

The Government’s own research shows that poorer outcomes, longer delays, fewer settlements and overall a greater likelihood of injustice occurs where someone is not represented. To take away legal aid in cases where at present there is no practical alternative and to leave so many of our poorer people without help in a time of need is to strike a blow at fairness itself. We may all have to stomach many unpalatable cuts in these difficult times but we would be mad to dismantle the very structure of one of the pillars of our constitution which goes to the essence of fairness in our society and respect for the rule of law.

When we come to the Committee stage of this Bill for my part I shall support the amendment which the noble Lord, Lord Pannick, indicated that he would put down and which the noble and learned Lord, Lord Woolf, indicated that he would support, which will place clearly on the head of the Lord Chancellor a duty to secure that legal aid is made available in order to ensure effective access to justice. If we cannot stop unpleasant and painful cuts being made, we can at least stop the pillars of our constitution being knocked down in this way.