Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Pannick Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Pannick]

My Lords, the exceptional quality of all the contributions that your Lordships have heard so far in this debate confirms—as if there were any doubt—the importance to the rule of law of the issues raised by this Bill. I want to focus my comments on Part 1. To put these issues in context, your Lordships may find it of assistance to look back at the speech of Sir Hartley Shawcross, the Attorney-General, when he introduced the Legal Aid and Advice Bill in the other place in December 1948. His concern and the concern of the Labour Government in those days was that the doors of the courts were in theory open to ordinary people,

“just as the grill room at the Ritz Hotel is open to all”;

but obtaining and acting on legal advice were,

“luxuries which were beyond their reach”.—[Official Report, Commons, 15/12/48; cols.1221-23.]

The 1949 Act recognised that the rights conferred by Parliament and the duties imposed by Parliament are undermined to the extent that people cannot enforce their legal entitlements through the judicial process. The law and democracy are quite simply brought into disrepute. As with other pillars of a civil society—such as an efficient National Health Service, an effective defence system and effective border controls— there is no getting away from the fact that these cost money.

I want to mention four main objections to Part 1 of the Bill. First, it does not recognise that access to justice is, as we have already heard today, a vital constitutional principle. Mention has been made of the report of your Lordships’ Constitution Committee last week. I am a member of that Committee and I will be putting down an amendment to replace Clause 1(1) of the Bill. The amendment will state that the Lord Chancellor must secure, within the resources made available, that individuals have access to legal services that effectively meet their needs. I hope that the Minister will be able to accept such an amendment, because it echoes precisely the current statutory provision in Section 4(1) of the Access to Justice Act 1999.

The second objection to Part 1 that I want to mention—we have heard about this already—is that it removes from the scope of legal advice and assistance many complex areas of law where the law is a vital safeguard of basic needs for the most vulnerable sections of our community—areas such as clinical negligence. The fact of the matter is this. It is indisputable that the removal of legal aid in these contexts will inevitably result in many hopeless claims being pursued by litigants in person, because they will not have had objective legal advice, as well as many proper claims not being pursued or, almost as bad, being pursued ineffectively by litigants in person. Do-it-yourself litigation—because that is what it is—will be as effective as a do-it-yourself medical operation, and I do not think that the elementary truth of that proposition is undermined by my declaration of interest. I am a practising barrister who occasionally has the privilege to act in legal aid cases.

I recognise the problems of delay and expense in the legal system. They continue to impede access to justice despite the exceptional work done in this area by the noble and learned Lord, Lord Woolf of Barnes, who I am delighted to see will be speaking later in the debate. But it is wholly unrealistic to suggest, as the Minister did in his measured opening to this debate, that mediation or a telephone helpline are practical solutions to the exclusion of legal aid in welfare law, in clinical negligence or, indeed, in family law where the problem is that often the parties are inherently unreasonable and unwilling to reach agreement, at least in their mutual relations.

The third point I want to mention is that Clause 8(2) will confer power on the Lord Chancellor by subordinate legislation to take further categories of services out of the scope of legal aid. This is inherently objectionable in that inevitably there will not be full parliamentary scrutiny. It is all the more objectionable when the Bill confers no power on the Lord Chancellor to add services back into the scope of legal aid, a point already mentioned by the noble Lord, Lord Thomas of Gresford, if, for example, experience shows a lack of wisdom in the exclusion or if, as we all hope, the economy improves. Again, I will be tabling an amendment on this subject, which was addressed by your Lordships’ Constitution Committee.

Fourthly, and finally, the money that the Government hope to save through these measures really needs to be assessed by reference to the financial costs that will have to be met by the state. Judges will need to deal with many more hearings in which litigants in person are going to waste valuable and expensive court resources. The health and housing agencies of the state and other welfare agencies will have the burden of dealing with the consequences of vulnerable children and adults being denied the benefits to which the law entitles them. The Justice Committee in another place and the Law Society have rightly criticised the Government for conducting no study into the costs of the provisions contained in this Bill.

I hope that the Minister will forgive me for saying that I know that he personally did not come into politics to aid and abet the infliction of serious harm to the legal aid system which Sir Hartley Shawcross introduced, and I very much welcome his assurance today that he will be listening as this House carries out its vital work of scrutinising the Bill in Committee and on Report.