Legal Aid

Lord Lester of Herne Hill Excerpts

Thursday 10th December 2015 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, I congratulate the noble Lord, Lord Howarth, on his powerful speech, with which I agree. I am very sorry that the noble Lord, Lord Pannick, cannot be with us today, owing to a family bereavement, but his powerful essay in the Times today says everything with which I also agree.

Today is international Human Rights Day. One fundamental human right is effective access to justice, protected by the Human Rights Act and the common law. It is a state’s duty to provide a system of legal aid that enables everyone, including the poor and not so rich, to have effective access to courts and tribunals. Fifty years ago when I began to practise law, our legal aid system was the best in the world. It was the Attlee Government’s great achievement to have brought in the Legal Aid and Advice Act at a time of severe post-war austerity. Its vision was that no one should be unable to defend a legal right or bring a just and reasonable claim because of lack of means.

I am proud to be honorary president of the Liberal Democrat Lawyers Association. We have always toasted the health of the 1949 Act at our annual dinner. Now there is little left to toast. Legal aid has been treated as the Cinderella of the welfare state—an easy target for the Treasury’s axe. Successive Governments have cut legal aid to the bone. In 1949, eight in 10 people had access to legal aid, based on income and assets. By 1986, six in 10 were eligible. By 2008, just shy of three in 10 satisfied the means test. In 2009, an independent review concluded that it would be wrong to tighten the screw any further. However, the coalition Government made swingeing cuts without adequate research into their probable impact.

The yearly budget for civil legal aid before the cuts was £2 billion in total—equivalent to running the NHS for a fortnight. It was reduced by £300 million, and plans were announced to cut criminal legal aid by £220 million every year until 2018. The civil legal aid reforms swept whole areas of law out of the safety net—family, debt, housing, employment, immigration, medical negligence, education and welfare benefits—with narrow exceptions. This House voted against the legislation 14 times before it squeaked through.

The Government anticipated that reforms would encourage potential litigants to engage in alternative dispute resolution. Those calculations were misjudged. In January 2015, the Commons Public Accounts Committee found that mediation for family law matters had fallen by 38% rather than increasing by 74% as the ministry expected. As Lord Scarman discovered when he spent three days trying to solve a social security problem for his cleaning lady, welfare law is as complex as tax law, yet as more and more legal advice centres are starved of funding, litigants must represent themselves.

The cuts come at a time of stringent reductions in other public services, when the need for access to justice could not be greater. Whenever people cannot have access to legal assistance, one sees spiralling debt, mental health problems, homelessness, criminality and family breakdown—all with knock-on costs to other public services. In compelling evidence to the Commons Justice Committee, Islington Law Centre reported that two people had collapsed in its offices because of a lack of food. They had received benefits sanctions and had not contested them. In one case, a man had not eaten for six days; in another, a woman was unable to feed herself and her three young children. The exceptional funding scheme was intended to be a safety net, but the application process remains so complicated that people cannot use it.

The previous Lord Chancellor imposed exorbitant taxes on justice. For the first time, court fees do not reflect the administrative costs of the court: instead, the Treasury profits from people seeking to enforce their legal rights. The justice system is too expensive for traders, small businesses and the victims of personal injuries. I warmly welcome last week’s decision by the new Lord Chancellor to scrap the criminal courts charge and announce a review into court-ordered financial impositions for offenders. I hope that he will also reverse the increase in court and tribunal fees in civil cases.

In December 2014, the previous Government promised a post-implementation review,

“on a period of three to five years”—[Official Report, 4/12/14; col. 1402.]

after the implementation of LASPO. Waiting until 2018 for a comprehensive review is too long. Post-legislative scrutiny should begin in April 2016. I hope the Minister agrees. It is vital that these assaults on our two-nation justice system are reversed. What use is the rhetoric of human rights if the system, like the Ritz hotel, is open only to the rich?

--- Later in debate ---

[Lord Faulks]

We are very much discouraged from using Latin in any context now, although I do not know whether the noble and learned Lord would agree that it is remarkable that when you are told not to use Latin, it becomes almost irresistible to use it and somehow will only serve as the correct way. It is very much a thing of the past, I think.

[Lord Lester of Herne Hill]

In deference to the noble and learned Lord, Lord Woolf, will the Government reinstate the word “writ” instead of claim form?

[Lord Faulks]

I share the noble Lord’s dislike of that expression but I cannot give any commitment at the Dispatch Box on that matter.

Mediation is not, I entirely accept, a panacea but the Government have done a great deal of work on mediation. It is clear that the courts need to be concerned with most decisions of great importance but we need to encourage mediation. We have taken a number of steps to promote family mediation and its benefits. From April last year the Children and Families Act 2014 made it a legal requirement that anyone considering applying to court for an order about their children or finances must first attend a mediation, information and assessment meeting, unless exemptions such as domestic abuse apply. On domestic abuse, we have changed twice the evidence requirement, to make it easier for legal aid to be obtained for domestic abuse.

From November last year we fund the first single session of mediation in all cases where one of the people involved is already legally aided. In this scenario both participants will be funded for MIAM and the first session of mediation. So, I am pleased to share with the House that the number of people starting legally aided family mediation has increased over the last year and is at its highest volume since April to June 2013.

Legal aid remains a vital part of the system. It was brought in by the Attlee Government post-war and remained part of a significant improvement to social justice. This Government do not want to abandon legal aid. We are, of course, suffering under financial constraints but that does not mean that we should not be directing our attention to ensure that access to justice can be obtained, partly by legal aid and partly by improving our justice system in the various ways touched on in the course of this debate.

The Ministry of Justice remains open, as I hope has been indicated by the Lord Chancellor’s response to one or two areas, which may be characterised as U-turns or, more properly, further consideration. I do not consider the capacity to change course to be a weakness and I hope that noble Lords will agree about that. The lessons that we learn from LASPO will, I hope, inform policy-making. We remain under significant financial constraints. However, there is no reason to abandon our commitment to access to justice. I am grateful to all noble Lords, all of whom I know share the Government’s commitment, for bringing these matters to the attention of the Government and to the House.