Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Whitaker Excerpts

Monday 21st November 2011 Lords Chamber

[Baroness Whitaker]

My Lords, we all believe in upholding the rule of law, but when it comes to making a reality of what the law provides, there are problems. Our law is not easy for everyone to understand. The vast accumulation of case law from Magna Carta on, let alone the wording of the statutes, whose occult succinctness is so cherished by parliamentary draftsmen, makes it almost impossible for the average person to grasp what they can and cannot do, or have done to them, without expert help, and there is no alternative.

The law is not always coterminous with justice, but it is our best shot, and if we want access to justice we have to have a means of getting the point of laws. Professional lawyers are that means, and when the aggrieved person is poor, legal aid is the path. I think it was a judge who said that a person who represents himself has a fool for a client. I do not know about that, but I have sat on tribunals where the people who brought the case did not understand the rules of evidence, did not know the difference between facts and opinions, could not present their case in the terms of the law at all, and yet had a genuine grievance. It was very time-consuming, as my noble friend Lord Clinton-Davis said.

Some ask whether this is an Anglo-Saxon problem, notably the much-lamented late Lord Bingham, and the noble and learned Baroness, Lady Hale, in her celebrated Henry Hodge memorial speech last June. Our adversarial system is heavily dependent on preparation by lawyers, with the judge coming in at the end to decide. If the judge were more proactive, the argument runs, there would not be such a need for an expensive and lengthy presentation of the case, so access might be easier. However, our courts are faster and cheaper than those in the inquisitorial system, so, as the noble and learned Baroness, Lady Hale, says, the total legal system is not extravagant and legal aid is necessary to ensure access.

The Jackson report, on which the Government base much of their rationale, did not recommend purging legal aid, as the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Faulks, both said. I will quote just one more sentence from Sir Rupert Jackson:

“I do, however, stress the vital necessity of making no further cutbacks in legal aid availability or eligibility. The legal aid system plays a crucial role in promoting access to justice at proportionate costs in key areas”.

Will the Minister confirm the total cost of our judicial system relative to that of other common law countries? The Lord Chancellor said in the House of Commons that our system costs four times that of New Zealand, which is a rather smaller country. Does this make a true comparison for civil legal aid?

We should realise that the costs of severe reductions in legal aid will not fall on the Ministry of Justice budget. Its own cumulative impact assessment states that,

“if dispute outcomes were much less fair … these resource gains might be more than outweighed by the total economic cost … This would include wider social and economic costs, both tangible and intangible”.

Can the Minister give any idea of what costs might fall on other budgets if people are not helped early on in their battles over housing, debts, employment or family breakdown? What is being sacrificed for this dubious saving? A huge proportion of civil legal aid under threat in this Bill is spent on things that matter very much indeed to poor people: getting the benefits they have a right to, domestic violence, fair compensation for injuries that prevent normal living or earning a living, getting the appropriate education for their children or housing.

Take an appeal against the refusal of a planning application for a Traveller site. It looks as though High Court planning appeals and planning injunction actions would all be out of scope for legal aid, and it seems that if a local authority takes eviction action against an unauthorised encampment in the county court, and even if it does this in an unlawful way, say by ignoring government guidance, the defendants will not be allowed legal aid. Would the Minister confirm this? If that is so, a very high proportion of Travellers who have no legitimate home will lose the chance of acquiring one or will face unlawful eviction.

As long as local authorities shirk their task of providing enough sites, an inability to get legal aid for the interim stages of establishing legitimacy or for those on the roadside through no fault of their own, as well as for the characteristic problems of negligent landlords and illiterate tenants, will unfairly prejudice this group of claimants. Why is the cumulative impact assessment silent on this impact? Does the Ministry of Justice include Gypsies and Travellers in its category of black and minority ethnic citizens, and if not, why not?

To supplement the already scarce social good of legal aid, the no-win no-fee system was brought in. That enlightened decision by the noble and learned Lord, Lord Mackay of Clashfern, and the second even more enlightened decision by my noble and learned friend Lord Irvine of Lairg to extend the conditional fee agreement system were responsible for some important settlements of fair entitlement. How could the countless mesothelioma cases, the passive smoking landmark cases or the Trafigura case have been brought under the proposed new regime?

My noble and learned friend Lord Davidson of Glen Clova referred to the United Nations Secretary-General's special representative for business and human rights’ commendation of the UK system in cases of high public interest in his letter of 16 May to the Justice Minister, Jonathan Djanogly, and expressed concern over the proposed reforms. Could that letter be placed in the Library? I think noble Lords would find it helpful. This Bill would take away advice that often results in cases not going expensively to court, and it cuts away equal access to the rule of law in major areas of deep human importance.

Finally, I refer to Magna Carta again:

“To no one will we sell, to no one will we deny or delay, right or justice”.

There is a facsimile copy in the Voting Lobby that noble Lords can have a look at. I think it is time for the Barons to get on the case again.