Queen’s Speech

Lord Scott of Foscote Excerpts

Monday 9th June 2014 Lords Chamber

[Lord Scott of Foscote (CB)]

My Lords, like the noble Lord, Lord Bach, I want to say a word or two about the civil justice system in this country and the importance that individuals should not only have but be able to exercise their rights of access to the courts, either to prosecute civil claims of their own or to defend themselves against civil claims made against them by others. The ability to have access to the civil courts, whether as claimant or defendant, has a vital part to play in establishing a healthy relationship between individuals and the law and in creating a climate of respect for the rule of law. If any individual is unable to enforce his or her rights in the civil courts, or equally important to defend himself or herself in the civil courts against claims by others, there is a real danger of a diminution in the individual’s self-esteem and a diminution in the individual’s respect for the law itself.

There is no doubt that civil litigation is expensive and that the cost of litigation is capable of constituting a serious impediment to a realisable access to the courts by many, perhaps most, citizens of this country. Of course, legal aid, traditionally, and for many years in my experience, has come to their aid in that regard. Your Lordships may recall that in 1988 and 1989 the then Government adopted a policy that the civil justice system should be made self-financing—the costs to be met by fees charged to litigants. At first, the fees to be so financed excluded judicial salaries, but in 1991 the Government decided that judicial salaries, too, should be included and that all the costs of the civil justice system, save only the costs of the legal aid scheme, were to be met by fees charged to litigants. This was, of course, an impediment to access to justice for all those unable to avail themselves of legal aid.

Since that time, the legal aid scheme itself has been under attack by Governments unwilling to stand the size of the legal aid debts as a burden on the Exchequer year after year. Of course, the consequence of this is that litigants in person will increase in number. The time taken by litigation when the judge does not have the assistance of counsel to represent one or other of the parties will be longer and the whole style of the litigation will change. A judge with a litigant in person before the court cannot afford to have the normal adversarial approach to litigation, with one side against the other and the judge then deciding which of the two is to be preferred in the result. The judge will have to enter the arena and himself or herself investigate the matter, try to discover the real cause of the dispute and the best line of law that should be applied to resolve the dispute. The length of the litigation, as I have said, will increase and at the end of the day I wonder how much in costs will be saved by withholding legal aid from one or both of the disputants.

I ask the Government to make clear their current intentions with regard to legal aid in civil cases. Whatever they are, the Government will, I hope, bear in mind the importance of the respect for the rule of law engendered by a proper ability to appear before the civil courts with legal assistance so as to present the case to the judge and for the acceptance by the general public of the importance of respect for the law. If further inroads are made into the ability to have free access to the courts for want of funds in a way that prevents a proper hearing, that may damage respect for the rule of law, which, in my opinion and the opinion of many, is important for the health of this country’s community.

I therefore ask the Government to make clear their intentions in regard to legal aid, which has been cut down drastically over the past few years and, more recently, in the regulations which came into effect in April this year, which impede the granting of legal aid on applications for permission to bring a judicial review. I need not emphasise how important judicial review is as a form of civil litigation in this country and an individual without legal aid having to make an application for permission is difficult to accept. I therefore ask the Government to think carefully about any further impediment to justice in that and other fields.