Bach Commission: The Right to Justice

Baroness Whitaker Excerpts

Thursday 14th December 2017 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, I declare an interest in that my daughter is a practising barrister, sometimes funded by legal aid. The rights we have declared since our earliest times as a society are nothing without access, as almost all speakers have said this afternoon. A right to justice Act would therefore be a necessary complement to the Human Rights Act 1998, one of our most important state achievements. My noble friend’s report is of signal importance, and, incidentally, is the best go yet at creating some sort of national legal service which neither incentivises litigation unnecessarily nor does this at exorbitant cost.

The British Institute of Human Rights—I declare an interest as an advisory board member—has many examples of rights denied because of lack of legal aid; that is to say, lack of capacity to challenge wrongful welfare or health or care decisions. The right to a fair trial or, indeed, to any trial at all is clearly dependent on access. One could go on through all the rights we have codified in the Human Rights Act.

When we look at funding arrangements, I draw on my experience as a member of employment tribunals, so often asymmetrically argued because the employer hired a lawyer which the complainant could not afford, with obvious disadvantages which the tribunal had to try to cut through. It took a long time. In some cases of discrimination, which are often very hard to prove, I think it is right to say that without that proper representation justice was not always done and, of course, the position is infinitely worse since the LASPO Act of 2012.

The Law Society has ample information about the cost to the public purse—£3.4 million—the delays and the injustices ensuing from the lack of legal aid-funded early advice, which was referred to by my noble friend Lord Bach in his powerful introduction. Even mediation in family law, the government’s fig leaf of justification aimed at deterring litigation, has declined by 38%.

Some of your Lordships will be aware of the severe disadvantages faced by the Gypsy and Traveller communities in trying to find sites to live on. The LASPO Act seriously curtailed their ability to obtain advice and assistance. Those Gypsies and Travellers living on local authority sites who had at last obtained security of tenure in the mobile homes legislation of 2011 found that they were denied any legal aid for advice and representation in respect of the rights conferred by that legislation, apart from possession actions and cases of very serious disrepair. Curtailment of legal aid for judicial reviews makes it increasingly difficult for Gypsies and Travellers faced with unlawful actions or decisions by public authorities to find any solicitor willing to take on their case because they might not be paid. Exceptional case funding under Section 10 of the LASPO Act, which was referred to by the noble Lord, Lord Faulks, does not really provide a practicable alternative route because of the time it takes to make an application and the extraordinarily low success rate, the consequence being that many solicitors will not contemplate such an application.

The Bach recommendations would put these injustices right. They could usefully add a recommendation that the exclusion of so-called trespassers from loss-of-home actions should be withdrawn, since the right to representation for Gypsies and Travellers who have been unlawfully moved on has also been withdrawn. The very estimable proposals for online access ought to be complemented by face-to-face advice for those who are not online.

Like others, I particularly value the recommendation for legal education in schools. We lack a written constitution which, among other benefits, would ensure that rights and responsibilities were taught. Think of how a British equivalent of the Gettysburg address might help our sense of national identity. Legal education could at least enable the guiding principles of justice to be communicated.

In conclusion, the recommendations in this invaluable report would go far to produce an effective system of public justice that we could be proud of and which, most of all, actually delivered justice to those most in need of it.