Legal Aid

Lord Scott of Foscote Excerpts

Thursday 11th July 2013 Lords Chamber

[Lord Scott of Foscote]

My Lords, I join all noble Lords in thanking the noble Baroness, Lady Deech, for arranging this debate. I also thank noble Lords who have already spoken, because they have said virtually everything that could possibly be said. I support what they have said and have heard nothing with which I have disagreed.

The subplot to this debate about legal aid and proposed cuts is the rule of law and access to justice. Everyone in this Chamber would accept the importance of the rule of law in a civilised country. It depends on many features, one of which, of course, is access to justice for people who need to go to the courts. If they need to claim something they believe to be due to them, the courts are there for them—self-help is frowned on and criminalised in many cases. If they are defendants, the courts are there for them to reject the claims that they believe to be unjustified.

The rule of law requires that there be access to justice, but it has to be a reality and not just a constitutional theory. It used to be said that the Ritz was open to everyone, but of course it was not, as not everyone could afford to pay its charges. The courts theoretically at least are open to everyone, but to get in front of the courts now, whether as a claimant or as a defendant, you have to pay a fairly substantial sum up front.

I cannot remember how long ago it was—I think that it was when the noble and learned Lord, Lord Mackay of Clashfern, was Lord Chancellor—that the then Government introduced the notion that the civil justice system had to be self-financing, with substantial charges for commencing or defending an action or putting in a reply; practically any step you took in the action was subject to a fee. It was a relatively expensive matter to embark on litigation or to defend it. However, in those days, although the civil justice system had to be self-financing, it was not proposed that the fees paid by litigants should cover the cost of legal aid assistance. That was left alone. It is being introduced now as a feature. The Government need to save money to cut down on public expense, and the legal aid bill, whether for criminal or civil legal aid, is looked at as one of the means of reducing government expenditure to balance the books. The object is one with which one cannot possibly quarrel, but the Government have to bear in mind what this process may do to the justice system.

I want to concentrate my remarks on the civil justice system, because, as all my colleagues will know, I know precious little, or nothing, about the criminal justice system. In the civil justice system, individuals need to have access and, if they cannot have access to it to defend themselves or prosecute their claims, their respect for the justice system will be affected. Respect for the rule of law is a cultural advantage, which this country shares with many others, but there are many countries in the world where the rules and regulations that appear to provide for the rule of law lack reality, because the laws in question do not command respect.

In this country, individuals, of course, disapprove of some laws that they may be required to obey, but, broadly speaking, one of the features of living in this country is that the population and the public as a whole respect the rule of law. That respect is cultural, however; it is not to be found in every country and it is not necessarily immutable. Let us think of what may happen if there is a substantial number of people whose access to the courts to prosecute claims that they think they are owed, or to defend themselves against claims that they think are unjustified, is made impractical or impossible because of the difficulties of financing the entry into litigation or paying for lawyers to argue their case. Some may try to argue the case themselves, with all the difficulties that they must know that will involve because they are not lawyers—or at least in general circumstances they are not lawyers, and the law is not always something that appears simple to non-lawyers; sometimes it does not appear simple to lawyers, either.

Respect for the rule of law, which is so important, is capable of being forfeited and lost if excessive cuts are made affecting potential litigants. I wish that the Government would bear that in mind in considering how far to take the inroads into the legal aid bill for the purpose of cutting government expenditure. I hope that it will not happen to a point that the rule of law loses the respect that at present it commands. It cannot be taken for granted by the Government that that will not happen and I hope that they keep that in mind.