Bach Commission: The Right to Justice

Lord Phillips of Worth Matravers Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Phillips of Worth Matravers (CB)]

My Lords, the impressive report of the noble Lord, Lord Bach, to which Sir Henry Brooke so notably contributed, accurately depicts the lamentable effect that the withdrawal of legal aid by LASPO has had on access to justice in so many areas. It raises a fundamental question, which I propose to address: can this country still afford the adversarial system of justice?

Since 1949, when legal aid was first introduced, the demands on the justice system have increased exponentially, for reasons to which I shall return. But first, I observe that this is true of other areas of national expenditure. Advances in medical science and the demands of a population that is living much longer pose challenges to the health service that seem likely to prove beyond its means. In education, the cost of the increase in the number of schoolchildren going on to university has ostensibly been met by a student loan scheme that may well prove unviable. Technical advances in weaponry have made the cost of maintaining a credible defence force prohibitive, and if we are to go on earning our keep, heavy expenditure must be devoted to our infrastructure. In this situation, the Government have to make hard choices. One cannot treat it as axiomatic that access to justice in its present form must survive at the expense of other demands.

Why has our justice system become so expensive over the last 50 years? So far as the criminal justice system is concerned, it is because we are sending more people to prison for longer. So far as the civil system is concerned, one reason is because there are now so many more areas of intervention by the state that create demands on the justice system. The report details some of these: children, family law, immigration, inquests, judicial review—a massive growth area; there was almost none 50 years ago—and, of course, human rights.

The report states:

“The UK justice system is commonly praised as being one of the best in the world”.


I believe it is, but at a cost. Under our adversarial system, it is the task of lawyers to investigate both the facts and the law, which are then presented to the judge to assist him or her in reaching the right decision, in court hearings that are oral and can last for days. The lawyers do most of the work. This contrasts with the civil inquisitorial system, where the judges and court experts carry out factual investigations and research the law.

The input of lawyers, assisting each other and the judge, is critical to the working of our common law system, but it is very expensive. The reality is that today only a minute proportion of the populace could contemplate funding lawyers to act for them in judicial proceedings. The steady withdrawal of legal aid, of which LASPO was only a last giant stride, is having the effect of turning our adversarial system into an inquisitorial one. Litigants are appearing in person, and the judges are having to do the work that was done by the lawyers.

The report of the noble Lord, Lord Bach, recommends reversing the cuts to legal aid made by LASPO, but I fear that this would be little more than the application of sticking plaster to a system of justice that has come apart at the seams. Long before LASPO, civil justice was beyond the reach of a large proportion of the populace. We need a commission to look at the entire justice system, criminal and civil, to advise how to deploy our limited resources to best advantage.