Bach Commission: The Right to Justice

Lord Ponsonby of Shulbrede Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, first, I declare an interest: I sit as a magistrate in London. I congratulate my noble friend on his report. I will concentrate primarily on part 2 but will say just a word or two about part 1 and the proposed right to justice Act. If it works, I am in favour of it. My only observation, as someone who sits at the bottom of the judicial pile, is that I regularly see defendants and victims who have difficulty accessing justice. They lack advice, they are confused by the procedures they are dealing with and they have no assistance to better understand the position they are in.

Magistrates’ courts deal with 95% of all criminal cases in England and Wales, so it follows that for the vast majority of individuals who come into contact with the criminal justice system, it is their experience in magistrates’ courts which will give them their faith—or otherwise—in the country’s criminal justice system. There are many wider questions about access to justice. The noble and learned Lord, Lord Thomas, talked about moving to online justice and how there are ever fewer magistrates’ courts in the country, but I shall not talk about that now. For today’s debate, I shall talk about part 2 and the urgent policy changes advocated by my noble friend.

As my noble friend’s report says, the greatest change in civil legal aid brought about by LASPO was the change in support for family law. When I started as a lay family magistrate about five years ago, about half of my sittings were on public law matters and about half on private law matters. Now, it is about 20% public law and 80% private law. Of the private law applications I see, a very large proportion are from litigants in person. All the cases I see would have been considered for mediation. That mediation may have been deemed unsuitable, usually because there are allegations of domestic violence. It is very common to see allegations of and convictions for domestic abuse in the courts in which I sit and if so, there is an availability of legal advice, although the parties sitting in court may not necessarily be aware of that. It is quite common for them to turn up not knowing that they are entitled to legal advice. It is also very common for drugs and alcohol to have played a part in the couple’s relationship, although this factor in itself would not entitle either party to legal aid. A further factor that is very common is mental capacity—either historic or current—in its widest sense. Again, this is not an issue that would entitle either party to legal aid, although it plays a central role in the sorts of cases I hear.

In court appearances there is the applicant and the respondent, and a variety of possible representation. For example, there is the litigant in person, whom the noble and learned Lord, Lord Judge, spoke about. Applicants and respondents may be represented by a lawyer, either privately funded or legally aided. They may be accompanied by a McKenzie friend; we do not know how expert that McKenzie friend is. They may be accompanied by a friend or a family member just to give them moral support. They may be represented by a student lawyer—student lawyers do have a right to speak; in my experience, they are often very good—or they may be accompanied by a volunteer from a personal support unit, if available. This is just in London, where there is a patchwork of provision. It is uneven. I have a list of six possible people who could sit in court with either the applicant or the respondent.

When we sit in court as magistrates—this is echoing the point made by the noble and learned Lord, Lord Judge—we do not know the advice that the parties have received. Sometimes I feel moved to ask them what advice they have been given. I have to say that I am reluctant to do this because it is very easy to give a perception of bias to one party over the other. On the other hand, if one party is completely unaware of the advice that is available—if they were to go to the personal support unit, or something—it would be an unfair outcome anyway. This puts the magistrates—in my case—in a difficult and sensitive position in trying to resolve these cases.

My noble friend has made six specific recommendations and I want to concentrate briefly on one of them: to have the funding of expertise in court. Expertise in private family matters is often the key to resolving the issue. A common scenario is where there is a history of drug and alcohol abuse, where the mother would be happy for the father to have access to his children if she could be persuaded that her concerns about drug and alcohol use could be allayed. Of course, this is not legally aided, so very often these issues are not resolved and there is no court order giving the children access to their father in the example that I am giving here.

This is an unsatisfactory situation and one in which the court is failing the children who are at the heart of the family system. I very much hope that the Minister will respond to some of the specific recommendations made by my noble friend.