Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Prosser Excerpts

Monday 21st November 2011 Lords Chamber

[Baroness Prosser]

My Lords, I am pleased to be able to contribute to this debate, but less than pleased with the proposals contained within the Bill itself. I will restrict my remarks to the social welfare law aspects of the Bill, plus a couple of comments regarding access and rights.

Prior to becoming a trade union organiser, I worked in a south London law centre for six and a half years. It was work that I thoroughly enjoyed and was an experience which has given me a good understanding of the range of issues dealt with and the types of people looking for help.

I also clearly understand how the law centre and advice centre network is interdependent, providing general and specialist advice and services and a system of cross-referrals, almost always with good connections to services, benefit offices and so forth. There seems to be confusion in the minds of supporters of the Bill as to what does and does not constitute legal advice. On Report in another place, it was said that social welfare problems are not legal matters and do not require legal expertise to resolve them.

However, common sense would teach us that these matters are as legally complex, with case law and precedents to be taken into account, as any other legal area. Where they differ, of course, is that the first port of call for a hearing or an appeal is usually a tribunal where an unqualified lay person can speak and represent the claimant or client. The law centre and advice centre movement is also acutely aware that to claim legal aid for non-legal advice is simply against the law.

Because of the interdependency of the services provided, restricting the availability of legal aid support in the ways proposed is likely to see the collapse of the whole advice network. It is very hard to see how in a civilised society justification can be made to withdraw access to legal remedies from the most vulnerable and needy among us. It seems that there is a view that such people will somehow be able to look up the law, draft out a legal case and speak to the court—all this, of course, after going through the mandatory telephone gateway where they will be required to refer to complex documents at the same time as interpreting the legalese and trying to articulate their case—all in the name of reducing the overall legal aid bill, where civil legal aid is not even the culprit.

Many other aspects of the Bill cause me to feel dismayed. There is to be no housing advice unless the person is likely to lose their home. What about redress against landlords who make their tenants’ lives a misery, turning off the electricity for example or refusing to do essential repairs? There is to be no help in cases of domestic violence until the point where the woman is likely to be afraid for her life and often the lives of her children. There is to be no help for employment cases. Combine that with the introduction of fees to access the employment tribunal and a wronged employee has no effective right of redress at all. The Minister refers to the fact that tribunals were intended as more informal venues where the ordinary person can go along and state their case. He implied that it would be good to get back to that happy state and I am sure that most of us would agree, except that we cannot go back. We are where we are. Informal venues have been turned into highly legalistic arenas where the inexperienced will be swallowed up by complex arguments and convoluted language. Eleven years of sitting on the employment appeal tribunal tells me that unrepresented cases will take up much more court time. Where is the saving?

I turn briefly now to matters of rights and access. I declare an interest as deputy chair of the EHRC. There are two areas of particular concern. The first is the likely impact of the mandatory telephone gateway on those with disabilities. The equality impact assessment carried out by the Government does not properly assess whether the impact can be justified as a means of achieving a particular aim. Indirect discrimination in services and public functions is of course unlawful unless it can be objectively justified.

The second is the overall question of legal rights being no rights at all if they cannot be accessed. As is known, we have international obligations and the right to a fair trial is guaranteed by Article 6.1 of the European Convention on Human Rights. It has also been found by our own courts to be a constitutional right. The proposals contained in the Bill do not reflect the values of a civilised society. In my opinion, they are pretty shameful.