Covid-19 and the Courts (Constitution Committee Report)

Lord Howarth of Newport Excerpts

Wednesday 23rd March 2022 Grand Committee

[Lord Howarth of Newport (Lab) [V]]

My Lords, I congratulate and thank my noble friend Lady Taylor for her fine chairmanship of the committee and for the way she introduced our report. The committee notes that Covid hit a justice system that was already in trouble. We also noted that the courts rallied impressively to meet the huge challenge of Covid by adapting at speed as best they could to provide remote hearings, operate in improvised premises and keep court users safe.

Access to justice was gravely compromised before the Covid crisis made it worse. The Treasury had been gunning for legal aid since the 1990s, and criminal legal aid fees for solicitors, I understand, had not been increased since 1998. An egregious example of the injustices resulting from Treasury niggardliness was what became known as the “innocence tax”, whereby a defendant refused legal aid after means testing was not reimbursed their legal costs if acquitted. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 was, however, the biggest assault on access to justice, hitting especially those least able to assert their rights. LASPO largely removed from the scope of legal aid family, employment, welfare benefits, housing, debt, clinical negligence and immigration law.

The Government claimed that austerity necessitated a reduction of legal aid spending by £350 million—an indiscernible fraction of public expenditure but a significant proportion of the legal aid budget. In the event, the cut to legal aid spending between 2010-11 and 2018-19 was worse than that: £1 billion, or 36%. Political hostility to legal aid was part of a wider narrative about scroungers, shirkers and the undeserving poor. The Ministry of Justice said that its aim was to target legal aid on those who needed it most. What actually happened was that those left without essential advice and representation included disabled people, people with impaired mental capacity, carers, victims of sexual exploitation, trafficking and slavery, victims of domestic abuse, people who were homeless or living in substandard accommodation, people in detention and people fleeing persecution.

With this drastic reduction in legal aid, by 2019, more than half of law centres and not-for-profit legal advice services had closed. I declare with pride an interest as a patron of Norfolk Community Law Service. It has defiantly kept going, raising enough funding to provide advice and support to many people—though only a fraction of those who need it.

The MoJ said that another of its intentions in LASPO was to deliver better value for money for the taxpayer, yet it removed funding for early legal advice, which is crucial to prevent problems escalating. In housing law, legal aid for advice on disrepair issues became unavailable until the situation had become serious enough for people’s health to suffer. In family law, legal aid became unavailable until a dispute about a child had escalated to a complex legal battle with even more damaging effects on all concerned. The long-term cost in mental health can only be great. The health—or otherwise—of the justice system is reflected in the health of society. Cuts to the MoJ budget of 27% in 10 years were a false economy, with MoJ costs exported and multiplied in the health service, social security, education, the police and local government.

Between 2010 and 2019, 295 court facilities—a third of the courts estate—were closed, including more than half of magistrates’ courts. A huge backlog of maintenance also developed. When Covid came, posters in courts instructed people to wash their hands but barristers reported that there were no soap or towels. Decent, well-maintained court buildings were once a mark of respect for the law and society. In 2018-19, the Government cut 15,100 court sitting days; they then reinstated just 4,700. At the end of 2019, before the pandemic hit, the backlog in the Crown Court was 37,500 cases.

Plenty of money was found for digitisation, however. In 2016, the Government proclaimed that they would spend £1 billion

“to modernise and upgrade our justice system so that it works even better for everyone.”

Not a lot then happened. There was no public consultation on the principles that should apply in regard to the rule of law and access to justice in the digital realm, although there was the obvious risk that significant numbers of people who were not computer literate would be seriously disadvantaged. This was found to be so in the pandemic. Progress was dilatory in equipping the courts with new technology and training court users. In 2020, when, with Covid, the courts suddenly needed to hold virtual hearings, they were unprepared to do so.

There has developed an unhappy lack of comity between senior Conservatives and the judiciary. As Lord Chancellor, Liz Truss appeared unwilling to defend judges when the Daily Mail attacked them as “enemies of the people”. In January 2020, Suella Braverman launched a remarkable attack in Conservative Home:

“The political has been captured by the legal. Decisions of an executive, legislative and democratic nature have been assumed by our courts … if a small number of unelected, unaccountable judges continue to determine wider public policy, putting them at odds with elected decision-makers, our democracy cannot be said to be representative.”


Shortly afterwards, the Prime Minister appointed her Attorney-General.

Smarting at the decisions of the Supreme Court in the two Miller cases and on the legality of the Prorogation of Parliament, the Government have been meditating on how to clip the wings of the judiciary. Access to justice will not be improved by further limitations on the right of citizens to seek redress by way of judicial review for the improper use of powers by government and its agencies.

What is the Government’s vision for the justice system? The backlog in the Crown Courts is now around 60,000 cases and it is taking up to five years for cases to come to court. In his letter to Peers of 15 March, Dominic Raab expressed some appropriate aspirations, but not since Michael Gove was Lord Chancellor have we heard a fully considered statement of principle or strategy. From time to time, in the face of disaster, small mitigations of LASPO and small additional doses of money have been forthcoming. I recognise that there was a more substantial development last week in the Government’s response to the Bellamy review of criminal legal aid. In the view of the Criminal Bar Association, the additional funding will not be enough to prevent a continuing haemorrhage of criminal advocates. I hope it is wrong.

The MoJ’s post-implementation review of LASPO in 2019 was belated and timid, failing to address the issues of the scope of civil legal aid, means tests, bureaucracy and the supply of services. Its so-called action plan amounted to little more than promises of further research and consultation, and some narrow pilot schemes. The recently approved order for a two-year pilot scheme in Manchester and Middlesbrough to examine whether early advice can produce savings for the public purse is unnecessary: the evidence that it does was set out compellingly in the Pragmatix report. It smacks of Treasury-driven foot-dragging.

We need to look systemically at the whole ecology of justice. The Government need to ensure that proper data are available to enable informed understanding of what is happening. Everything interacts. All parts of the system need to be resourced properly or else deficiency in one area produces damaging pressures elsewhere. The Government can reduce the burden on tribunals and courts by making better administrative decisions in social security and immigration cases—and, of course, by addressing the roots of poverty and crime.

The chronic underfunding of the justice system disrupts society, wreaks misery across the country and violates the principle that, where citizens have a reasonable case but cannot afford justice from their own resources, they should be supported by the state to have their case heard. That was once common ground across the political parties; for decades, we moved towards its fulfilment. It should still be seen as a bedrock principle of the welfare state, our constitution and a liberal society. The Justice Secretary, who is also Lord Chancellor, bound by his oath of office to respect and defend the rule of law, should not tolerate continuing dereliction of this principle. I look forward to the Minister telling us how the Government plan to restore and renew the justice system.