Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Borrie Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Borrie]

My Lords, several participants in the course of this debate have referred to and quoted from the book by our late colleague Lord Bingham. If noble Lords will forgive one more quotation, he described the Legal Aid and Advice Act as one of the great but less celebrated achievements of the post-war Attlee Government. The noble Lords, Lord Pannick, Lord Goodhart, and others, made the point, following on from what Lord Bingham said, that legal aid is a service that the modern state owes to its citizens as a matter of principle. Lord Bingham went on to say that the closer a country comes to achieving the goal of expeditious and affordable dispute resolution, the better the rule of law is served. As several noble Lords, including the noble and learned Baroness, Lady Scotland, from these Benches, have already said, access to justice for all is essential to the rule of law.

These are powerful and persuasive sentiments. Because of the cost of legal aid—many noble Lords have rightly concentrated on this this afternoon—increasing, of course, in the 60-plus years that have passed since 1949, successive Governments and senior judges alike have promoted alternative remedies. The noble and learned Lord, Lord Woolf, in particular has promoted alternative dispute resolution procedures such as arbitration, mediation, more informal tribunal hearings, and alternative methods of financing litigation in the courts through conditional fee arrangements. Some of these are not appropriate in all circumstances, and I do not think that anyone is suggesting that they are. However, as people have worked through those proposals and as some of them have been implemented, we have come to see their value but also their limitations.

This Government, like the previous Government—and I certainly have no objection to this at all—are trying to reduce the costs of civil litigation. Many participants in the debate this afternoon have indicated serious doubts about the detail of the Bill because it very specifically limits legal aid for the most vulnerable and impecunious in society, such as those in need of advice on social welfare. Many people in this House, this week, next week and so on, will be involved in the most tremendous upheaval in welfare rights, and many individuals who may or may not be on welfare at the moment will have somehow to see whether they are eligible under the new legislation that will be in force very soon.

Many provisions in this Bill are counterproductive, as has been indicated, sometimes with detailed figures such as those given by the former Attorney-General, the noble and learned Lord, Lord Morris of Aberavon, and as Citizens Advice has pointed out as well. Judges have said many times that if applicants are unrepresented in the courts—and in the tribunals, which deal with so many welfare matters—they will be overwhelmed trying to cope with litigants in person. Trials that might have taken such and such a time will take much more time if litigants are not represented. The noble Lord, Lord Newton of Braintree, made a special point about this.

A seemingly minor change is a promised requirement that applicants must use the telephone as the only method of communication. Several people have put it as a mandatory requirement. Yet it must be clear to many people that for those with mental health problems or linguistic problems, the telephone is a more difficult method of communication compared with others.

The only other matter that I wanted to mention briefly relates to criminal proceedings. I do not think that it has been mentioned today; it is the provision that bail should be granted to a defendant where,

“there is no real prospect”,

that the defendant will be sentenced to imprisonment at the conclusion of the proceedings. But of course, as many people realise, bail is normally determined at the beginning of proceedings, and at that stage it is guesswork rather than any rational, intelligent observation that determines whether the proceedings are likely to end with a term of imprisonment. I understand that the Sentencing Council has criticised the Government’s proposals, saying:

“it will not be clear until the conclusion of the trial … whether the offence … merits a custodial sentence”.

So what is the point of this in determining whether bail should be given?

Finally, again on the subject of bail, the Opposition in the other place made a powerful case for the prosecution to have the right of appeal against a court decision to grant bail to an accused person. Jonathan Vass was given bail in a rape case in 2009, despite the fact that he had a very violent past. While on bail he murdered a woman who had earlier filed a number of complaints of rape against him. I understand that the Director of Public Prosecutions endorsed the desirability of a change in the law through a statement made by Parliamentary Under-Secretary Mr Crispin Blunt, and that favourable comments were made by the Government a few weeks ago in favour of the prosecution having the right of appeal against the granting of bail. I will be interested both in what the noble Lord, Lord Macdonald, will say shortly and in what the Minister will say in due course.