Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Clinton-Davis Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Clinton-Davis]

It is a great privilege for a mere solicitor to follow the noble and learned Lord, Lord Woolf. Contrary to the view of the noble Lord, Lord McNally, I think that this Bill is profoundly flawed. In my view, many of the clauses are not capable of amendment. Many people, in both civil and criminal fields, will be adversely affected by these proposals.

I had some 25 years’ experience of legal aid litigation. In its earlier days, the scheme was seen to be an essential part of the system of social justice introduced by the post-war Labour Government. The House will be grateful to the noble Lord, Lord Pannick, for his views about that.

The advantage enjoyed by the legislation introduced by the Labour Government of that day was that it brought legal protection and legal rights within the reach of ordinary working people and also middle-class people, who would pay a contribution towards the Legal Aid Fund. This was enjoyed for the very first time; previously they had been outside the scope of any remedy whatever. Much of what was introduced by the Labour Government was opposed by the Conservative Party then and, apparently, now. Of course, a small minority of lawyers milked the system, but few made hefty profits. Nowadays, with ever-declining numbers of solicitors operating legal aid, younger members of the profession are disinclined to be part of the whole system. Who can blame them? Is this not bound to have a deleterious effect on the question of obtaining legal aid?

In my day, even the most complicated criminal cases rarely lasted more than three months. Today that situation is very different. Of course, the law has become more complex. Perhaps I can make a tentative suggestion—namely, that the system of applying for more funds should be readjusted. But it should be recognised that in normal circumstances approval should not be given, save where the claimant can establish beyond a peradventure of doubt that it is in the interests of justice that the application should succeed. However, there should be a term limited by the award.

The real trouble with this Bill is that there will be no savings: indeed, the very reverse. Unrepresented persons will appear before courts and tribunals and many, through no fault of their own, will make false and incoherent points. Time will be wasted. Inevitably, judges and chairmen will provide greater slack than ever, and accordingly costs will burgeon. Many organisations—charities, the judiciary, the Bar, the Law Society, many victims’ groups, Justice, the Magistrates’ Association, CABs, the Sentencing Guidelines Council and now the bishops, by a large majority—have signposted their anxieties about the Government’s proposals. They have all been spurned.

My own umbrella organisation, the Law Society, has raised a number of vital points. So far, the claims which they have made have been unanswered. They say that the cuts to civil legal aid are a violation of the European Court of Human Rights and the Charter. Are they right about that?

They say that the Bill’s proposed exceptional funding model is likely to prove ineffective. Are they right about that?

They also claim that limitations on the scope of legal aid will carry with them unrealistic costs, risks and burdens.

Then they say that the proposals introduce a lack of institutional independence and impartiality. That is a very serious claim indeed, and deserves a response from the Government.

Finally, they say that there is a serious risk that the courts will declare that compatibility under Section 4 of the Human Rights Act 1998 will be seriously impaired. The £350 million postulated by the Government by way of savings has been challenged by others, including the noble and learned Baroness, Lady Hale, of the Supreme Court. She has argued that this will be exceeded, and there can be little doubt that the poor and the most vulnerable will be the principal victims.

The Government reply in a superior and uncomprehending way. For example, they recommend more telephone advice and excellent advice to ensure that the legal system is hardly ever used. Most people needing such advice are without telephones and, if they do manage to get through, are incapable of communicating their often-complicated problems. Are the Government wholly out of touch with reality as far as this is concerned?

In conclusion, it is noteworthy that one of the principal supporters of this legislation has been the Association of British Insurers. It perceives that it is in its interest to see the decline of legal aid and ordinary people’s access to justice. My hope is that these disgraceful endeavours will be frustrated. The House of Lords now has the chance to demonstrate that it prefers to protect the interests of ordinary people rather than the powerful, such as Enron and Lehman Brothers. This legislation is fatally flawed.