Bach Commission: The Right to Justice

Lord Trevethin and Oaksey Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Trevethin and Oaksey (CB)]

I, too, add my tribute to the work of the commission and will, in the time available, add a few short observations from the perspective of a practising barrister—I declare an interest in that respect.

I will start by adding a respectful coda to what the noble and learned Lord, Lord Judge, had to say about the problems posed by litigants in person. I have asked juniors in my chambers, and my son and his friends, who are starting out at the Bar, about their day-to-day experience at the Bar, and I hear one theme again and again. They say, “Well, it’s all right, I’m enjoying it and there’s a fair amount of work, but I’m against litigants in person 70% or 80% of the time”. Practising lawyers and judges all know what that means. It creates major problems. First, there is an honourable tradition at the Bar that, if you are against a litigant in person, you behave yourself, if I may put it that way; you give proper assistance, as you should anyway, to the court in relation to the relevant principles and facts, which is important.

The unfortunate side-effect in some cases is that your client begins to wonder whose side you are on, and that creates difficulties. Then the judge is placed in a difficult position, as the noble and learned Lord, Lord Judge, said, because the judge will find that he or she has to intervene in the cross-examination of witnesses and at other times in a way that gives rise to a perception of bias—and litigants are very swift to perceive bias, even when it is not there. My sources tell me that the consequence is that cases take two, three or four times as long as they should and that often they are being fought when they would not have been fought if access to legal advice had been provided to both sides at the outset. So that is a major problem with major, substantial, uncounted costs flowing from it, which has been greatly exacerbated by the reforms with which this debate is concerned.

I will just mention the criminal justice system, which has not received very much air time today. I talked to the ex-chairman of the Criminal Bar Association about the current position. He made many points to me, but I do not have time to relay them to the House. He made one point that was very striking and which chimes with something said by Sir Henry Brooke in one of his very readable and compelling appendices. He said that the junior Bar is shrinking—it has shrunk by something like 25% or 30% over the past five years—because publicly funded work is becoming very difficult to carry out in any satisfactory way.

The line in the report that caught my eye in that respect was an observation that the age profile, as Sir Henry put it, of criminal practitioners, is rising fast—that is, those doing crime on the solicitors’ side of the profession are getting older and older. The consequence is going to be that, in 15 or 20 years’ time, there will be a dearth of candidates to sit on the Crown Court bench, and the very high quality of Crown Court judges who dispose of criminal cases up and down the land will be diminished as a result of the shrinking of the publicly funded profession, in the way that I have mentioned, and which we all recognise is taking place.

I shall seek to put some flesh on the real problem about access to justice that now exists by mentioning three or four cases that I have come across in one way or another. I take first a case that a friend of my son mentioned to me. He was working for the Free Representation Unit and he came across the case of an employee who had been cynically short-changed by his employer over a number of months to the tune of about £500—a sum that he badly needed. His employment came to an end and he wanted to get that sum back. He had a clear right to get it back under the relevant legislation but, as a result of changes that were recently declared unlawful by the Supreme Court but which were operative at the time, he would have had to pay £900 to bring the proceedings that technically he was legally entitled to bring. That change to the fee system in the employment tribunals converted a real right into a pseudo-right or non-right, and it has now been declared unlawful—although the Minister’s response to the Supreme Court decision did not appear to me to recognise how serious the error that had been made was.

Secondly, I will cite a case in which a father was seeking access to his children and was accused of the sexual abuse of one of them. He was unable to afford representation. The Court of Appeal held that the judge had no power to direct that the state provide representation but recommended statutory change in May 2015—which statutory change has not yet occurred.

Thirdly—and finally, before time runs out—I will cite a case mentioned on page 59 of appendix 5, written by Sir Henry Brooke, which is very well worth reading. The case concerns the death of a child called Zane as a result of either carbon monoxide poisoning or of cyanide poisoning from a local landfill site. The child’s family appeared at the inquest against three QCs representing the Environment Agency, the local council and some other interested party, but they could not get legal aid and therefore had to resort to crowd funding to afford representation. These are very substantial problems.