Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Lester of Herne Hill Excerpts

Tuesday 20th December 2011 Lords Chamber

[Lord Lester of Herne Hill]

I do not mean to prolong the noble Lord’s speech by my interruption, but perhaps I could suggest that it is not helpful to his case if he becomes narrowly partisan. This is not an area where any one party can claim a monopoly of virtue or vice. It is much better to focus on what unites the House rather than what divides it.

[Lord Howarth of Newport]

I hope to be able to do that. I hope that I have not been unduly partisan, but we all feel strongly on this issue and I very much hope that noble Lords on the Liberal Democrat Benches, who I understand feel strongly on the issue, will explain their case to us and, when it comes to voting in the Division Lobby, will act according to their professions. Perhaps in that remark I am becoming a little too party political—for which I apologise to the Committee.

If the Government say that a national debate is taking place, I would reply that the 5,000 responses to the Green Paper demonstrate that there is a very strong consensus against what they propose and that they would be wrong to defy that consensus.

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[Baroness Butler-Sloss]

My Lords, I wonder whether I might make some brief comments, bearing in mind the time. I would like to add to what has been said. It has largely been lawyers who have spoken, and I very much hope that noble Lords will not give less weight to the names on this first amendment or to the lawyers who have supported it. That is, as the noble Baroness, Lady Kennedy, has just said, inevitable because we know what goes on on the ground. As a former judge, hearing mostly legal aid cases, I have clear knowledge of what happens on the ground.

The lawyers who have spoken are all very distinguished. They have done a great deal in the past and indeed are still doing it. What they have to say should resonate with all Members of this House because these are not party political issues. I very much hope that no noble Lord will make them party political issues. Seeing as people have spoken from all sides of the House, it would be good if no one spoke any longer in a party political way. This issue is too important for us to do so.

To recognise and accept the amendment would not drive a coach and horses through the Bill. On the contrary, it recognises financial restraints and in my view is very shrewdly phrased. I do not believe that it has the effect that the noble Lord, Lord Phillips of Sudbury, was suggesting. There is nothing to stop us dealing with other areas where we would say it is necessary to have legal aid and it would not be possible for the Government to say that such legal aid should not be forthcoming. However, one has to recognise reality. We have to recognise that not every aspect of the current legal aid bill can continue to be paid. There are areas highlighted by amendments—some of them my own and some from other noble Lords—which we have to look at and say that there should not be cuts. One example of that is private law.

This amendment sets out in simple language the right of citizens to have access to justice in general terms. It is an amendment that would be extremely difficult to oppose and I strongly support it.

[Lord Lester of Herne Hill]

My Lords—

[Lord Hylton]

My Lords—

[Baroness Verma]

My Lords, if we could hear from the Liberal Democrats, the Cross Benches and then the Labour Party.

[Lord Lester of Herne Hill]

My Lords, many years ago, when Lord Scarman was chairman of the Law Commission, I remember him saying that his cleaning lady came to him one day and asked whether he could help her with a social security problem. He described how it took him three days of combing through the social security legislation before he was able to help her. He told us this story because he was explaining how there was an enormous need for poverty lawyers—the ones who deal with the legal problems of the poor—to be empowered to provide those services. If a Law Lord such as Lord Scarman took three days to do what a law centre could do more quickly, it illustrated the point.

The great virtue of the amendment of the noble Lord, Lord Pannick, is its conspicuous moderation and realism. I cannot understand those noble Lords who criticise him for being so moderate and realistic. The real value of his amendment is that it strengthens the hand of the Lord Chancellor and Justice Secretary in his dealings with the Treasury. Many years ago when I was Roy Jenkins’s special adviser, I remember that Barbara Castle, a Minister in the then Government, explained why she supported cuts in civil legal aid. She wrote to her colleagues saying that if she had to choose between hospitals and legal services, she would unhesitatingly preserve hospitals. It is that notion that legal services for the poor are a soft target and matter a great deal less culturally and politically than health services which is at the bottom of the problem in my view.

Successive Governments have found it very easy to sabotage civil legal aid since the original Legal Aid and Advice Act was passed. This is not a party political problem; it has pervaded all parties. The noble and learned Lord, Lord Irvine of Lairg, who, unfortunately is not in his place, cut legal aid when he was Lord Chancellor, and followed a long line of Lord Chancellors in doing so. He attacked what he called fat-cat lawyers to justify some of the cuts that he made. When Lord Taylor’s memorial service was held in St Paul’s cathedral, Sir Humphrey Potts, in giving the encomium—I recall that the noble and learned Lord, Lord Irvine, was at the front of the cathedral—made a joke at his expense, saying that he saw that he, in a fit of post-retirement remorse, was attacking fat-cat lawyers. It was a good joke but it illustrated a powerful point. It would be very easy for my noble friend Lord McNally when he replies to make some cynical remarks about his legal friends standing up for the closed shop. However, I am sure that he will not fall into this trap. As the noble Baroness, Lady Kennedy of The Shaws, has said, those of us who are here today are not in the platoons of legal services for the poor lawyers who will be most hit by these cuts, along with their clients.

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[Lord Lester of Herne Hill]

I am sorry to interrupt and I am grateful to the Minister for giving way. I want to help the Minister, I really do. I do not yet understand whether he really disagrees with the principle stated in the amendment tabled by the noble Lord, Lord Pannick. The principle stated would replace what is in Clause 1 with what seems to me a platitude but a very important one. I do not hear the Minister say that he thinks it is not the right principle.

I suggest that this needs to be thought about right now because we had the same situation in connection with the Public Bodies Bill. In Committee on that Bill, the noble Lord, Lord Pannick, and I did a rather bold and perhaps unthinkable thing and I stood on my head about it. The noble Lord made the House divide on my amendment to write a principle at the front of that Bill. We did that at the beginning in Committee, and getting the principle in had a beneficial effect. I am not suggesting that that might be necessary now, but it would help those of us who are loyal to the Government to know whether there is a real disagreement with the statement of principle in the amendment of the noble Lord, Lord Pannick.

[Lord McNally]

If my noble friend had a fault—and, my God, that is a dangerous thing even to suggest—it is his impetuosity. I was just coming to the nub of the Pannick amendment, but thought that after a long debate it was reasonable to try to pick up at least some of the points made by noble Lords.

The amendment seeks to place a statutory duty on the Lord Chancellor to secure access within the resources made available and in accordance with the provision in Part 1: the legal services that effectively meet the needs of individuals. We accept that this proposed amendment is very similar to the duty placed on the Legal Services Commission by Section 4(1) of the Access to Justice Act 1999. We also accept that the duty that the amendment would place on the Lord Chancellor would be qualified by the reference to the duty being subject both to the resources available and to the provisions of Part 1. However, against the backdrop of this Bill, we believe that Amendment 1 is unnecessary. It is central to our proposal for reform that the reforms establish an affordable system while ensuring that no one is denied their fundamental right of access to justice. Legal aid will be a key element in ensuring access to justice in some cases, but in many cases justice can and should be afforded without the assistance of a lawyer funded by the taxpayer. Fundamental rights to access to justice are the subject of international protections such as the European Convention on Human Rights and certain enforceable EU rights, and are protected by this Bill in relation to legal aid through the areas retained in scope in Schedule 1 and through the exceptional funding provision in Clause 9.

The exceptional funding scheme will ensure the protection of an individual’s right to legal aid under the European Convention on Human Rights, as well as those rights to legal aid that are directly enforceable under European Union law. These rights are of fundamental importance, and the Government consider that the Bill adequately protects them. However, we do not consider that any more extensive right to taxpayer assistance by way of legal aid to access to the courts should be established. In light of the way the Bill protects fundamental rights of access to justice, to the extent that the amendment seeks to introduce requirements over and above what is required by, for example, Article 6 of the European Convention on Human Rights, it is not desirable or necessary. To the extent that it would require no more than, for example, Article 6, it is also unnecessary. Clause 1 states that the Lord Chancellor must secure that legal aid is made available in accordance with Part 1 of the Bill. The Lord Chancellor has powers under Clause 2 to make arrangements to meet that duty.

Considerations about the demand for civil legal aid services have not been ignored. Under Clause 10 the Lord Chancellor will make regulations setting out criteria that the director of legal aid casework will be required to consider when making decisions. When settling the criteria, the Lord Chancellor must consider the extent to which the criteria should reflect certain factors. These include the availability of resources to provide the services and the appropriateness of applying such resources to provide the services, having regard to present and likely future demands for civil legal aid services.

In addition, the Lord Chancellor will be required, in carrying out his functions, to protect and promote the public interest and to support the constitutional principle of the rule of law. These considerations are inherent in the Lord Chancellor’s functions as a Minister of the Crown and do not require specific reference here. In addition, the Lord Chancellor will have specific duties under the Constitutional Reform Act 2005. We have also been clear in our response to consultation that we will work in conjunction with the Legal Services Commission and its successor executive agency to develop and to put in place a procurement strategy that will reflect the demands and requirements of the new legal aid market.

Having read that out, I appreciate that a large number of noble Lords will want to read Hansard, see what it says and see how it matches. It would be madness for any Minister faced with an amendment tabled by the noble Lords who tabled this amendment simply to dismiss it. I will certainly draw the attention of the Lord Chancellor to the debate.

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[Lord McNally]

The point is that that is genuinely what we, too, are trying to do. It is a matter of judgment. In the next month or six weeks, as we take the Bill through the House, we will test those judgments in detail. I hope that in the light of my response, the noble Lord, Lord Pannick, will withdraw his amendment.

[Lord Lester of Herne Hill]

The Minister referred to Article 6 of the convention being the standard. We should bear in mind, as he said, that among the 47 states we have one of the best systems, yet by using Article 6 we are adopting a standard well below common law and anything that we in this country have enjoyed since 1949. Will he reflect on that?

[Lord McNally]

As I said, I reflect on almost anything that my friend says, and it is now in Hansard as well.