Bach Commission: The Right to Justice

Lord Faulks Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Faulks (Con)]

I congratulate the noble Lord, Lord Bach, on producing this report and on securing this debate, so that we can discuss in the limited time available some of the recommendations that it makes. During the debate on the Queen’s Speech, I said that I hoped that when the Government looked at LASPO, they would take into account what was said by the Bach commission, and I reiterate that today.

The availability of legal aid was part of the post-war settlement. It enabled many people to have access to legal advice and representation that they had never had before. But successive Governments, of all colours, became alarmed at the growth and level of expenditure. Modest reforms by my noble and learned friend Lord Mackay of Clashfern were followed by the Access to Justice Act 1999. It was brought in by the Labour Government and created, probably inadvertently, a veritable bonanza for litigators and various parasitic organisations, causing a real imbalance in litigation. Somehow legal aid got lost along the way.

The LASPO Bill, introduced by the coalition Government, took heavy fire in Parliament, particularly in your Lordships’ House. I was on the Back Benches and was far from happy with Part 1, which concerned the scope of legal aid. Indeed, it is the only area in which I have voted against the Government in my time in your Lordships’ House. Part 2, on the other hand, was a considerable success, reflecting the Jackson reforms.

There is a great deal to recommend in this report. The provision for exceptional case funding never seemed to make a great deal of sense. I think it was designed to fend off possible attack in Strasbourg. I attempted to probe the scope of that provision in Committee but never got a very satisfactory answer. I also very much agree with the recommendation on early legal help. There used to be a green form scheme, which allowed initial advice to be given at modest rates. So many disputes could be avoided by sensible advice given at an early juncture. It can point people in the right direction, not always—in fact, rarely—towards full-scale litigation but to alternative routes to solving problems. There are also some good points about the proper way to calculate eligibility for legal aid and some powerful points about scope.

However, the report acknowledges—the noble Lord, Lord Bach, referred to this—that the recommendations will cost money. The estimate is £400 million, but of course it will cost a great deal more in due course. I part company with the recommendations at this point. In my view, Parliament and the Government ought to be responsible for spending on legal aid. I appreciate the reference to the desirability of some cross-party consensus on this issue—it somewhat echoes what many people say about the NHS—but these proposals seem significantly to subcontract the whole question of legal aid to a quango, however eminent the members of that quango might be. The commission would have significant powers to ensure the so-called right to justice, including how it is understood; to intervene and assist in individual cases; and to enforce that so-called right to justice. It could effectively tell the Government what to do in a number of areas. Judges, too, would have a power to adjourn proceedings, to issue a certificate stating that legal aid should be made available, and to review the lack of legal aid on the basis that the right to justice has been infringed. The justice commission would challenge government decisions and intervene in individual litigation. In short, it would have very considerable powers.

When it comes to legal aid, the Government—any Government—are subject to scrutiny from all professional bodies, parliamentary committees and, of course, the Opposition. I saw how effective that can be during the progress of the LASPO Bill through Parliament, when many amendments were made. I therefore do not share the view of the noble Lord and his commission that a right to justice or a justice commission would be a substitute for the way the lines of accountability currently work.

There is much to recommend in this report but there are also parts that seem undesirable—they could give undue power to a quango and risk politicising judges. We can make changes to the legal aid system without doing either of those things.