Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Mallalieu Excerpts

Monday 5th March 2012 Lords Chamber

[The Lord Bishop of Exeter]

My Lords, last week I was asked to give a lecture on perspectives on social justice from the Old Testament. We found ourselves deep in the prophet Amos. If your Lordships are looking for some edifying and deeply challenging Lenten reading, I commend this ancient Hebrew text to you. At the heart of Amos is the same concern with access to justice. He constantly attacks a system whereby the rich can buy justice and the poor are denied it. We find him thundering against those who would turn aside the needy at the gates of justice. Access to social justice runs, like lettering through a rock, through not only Amos but the whole of the Old Testament. I suggest that it is also at the heart of any civilised society. I would not expect the Government in general or the Minister to dissent from that principle, but without this amendment or something like it that principle is in danger of being fundamentally undermined and flawed.

Among the many privileges of my life is to be the president of the local Exeter CAB. I know how much CABs and others working with the poorest of the poor fear the consequences of the removal of access to legal aid and justice for those who are very poor. I heard the Minister earlier this afternoon stand at the Dispatch Box and say, “Well, the danger here is that we begin to think about worst-case scenarios”. If I have learnt one thing from my time in this Chamber, it is that one of the functions of the law—and of this House—is to look forward precisely to worst-case scenarios. My fear is that the Bill as it stands is cast around a best-case scenario. In its desire to tackle, properly, abuses within the system and deal with the unnecessary, escalating costs associated with, for example, the no-win no-fee industry, there is a danger that huge swathes of activity hitherto amenable to legal aid are being removed from those who need that access.

As I say, the aim of the law and of a House like this is to foresee worst-case scenarios and see ahead to the elephant traps. Without such an assurance as is contained in this amendment, I fear that such elephant traps could include not only the denial of justice to the poor but, for example, people acting as plaintiffs on their own account in a court of law, inefficiently taking up more time, leading to more appeals and adding to further legal costs. Is there not a danger that those denied access to justice might even begin to take the law into their own hands?

This amendment is a very simple one. It does not undermine the heart of the Bill at all. It ensures that individuals, rich and poor alike, have access to legal services that effectively meet their real needs.

[Baroness Mallalieu]

At Second Reading, I supported a very similar amendment, and I would like to support this one today. This is the single most important amendment in relation to this Bill. It sets out a clear principle that the Government say that they accept—that nobody should be deprived of access to our legal system because they cannot afford it. The rest of the Bill contains many instances where one doubts whether that principle is being applied. I usually take the view that a statement of principle at the very beginning of a Bill is rather pointless—it is merely words—but in this case it is essential. It indicates that this Government, in this Bill, despite the difficulties that they are facing financially and the difficult decisions that they are having to make, are not abandoning a central pillar of our constitution—that nobody should be denied the right to go to a court of law because they cannot afford it. That is all that I would like to see put into the Bill in that amendment.

[Lord Newton of Braintree]

I am sorry, but I cannot quite make it. I shall try again later.

--- Later in debate ---

[Lord Faulks]

My Lords, my name is also attached to the amendment, and I have very little to add to what has already been said. I am concerned too with the independence of the director, who will have considerable power over the allocation of what is left of legal aid. Perhaps I may give the House just two examples of where his or her role may be particularly important.

The provision for exceptional funding is still somewhat mysterious with its reference to the European convention and EU law. It is said to cater for quite a number of those cases where legal aid may still be given. How it is used is a matter of considerable importance. In deciding the best way of deploying exceptional funding it is very important that the director should be independent of the sort of influence which is potentially possible from the Lord Chancellor.

Secondly, Clause 4(4) states:

“The Lord Chancellor may not give directions or guidance about the carrying out of those functions in relation to individual cases”.

I am rather more concerned not so much with the individual case as with the type of cases. If the Lord Chancellor should take the view that certain areas of litigation are worrying the Government or should not be pursued, that is not covered by Clause 4(4). Although I am sure that this Lord Chancellor would not seek to exercise any inappropriate influence, it is extremely important that this new creature who will be at the centre of legal aid has independence firmly enshrined in the Bill. I support the amendment.

[Baroness Mallalieu]

My Lords, I support both this amendment and the amendment that the Government have tabled. For reasons that have already been given, it is crucial that the figure who is the director should not be political in any way and should not, in so far as it is humanly possible, be susceptible to political pressure. That is not only because he will be dealing, as has just been said, with cases that may have political undertones but also because—and I say this as a clinical practitioner—there may very well be a serious crisis in criminal legal aid in the not too distant future which may have repercussions that go far beyond individual cases. It may be necessary that whoever is in the role of the director is prepared to stand up to pressures that might be placed on him in relation to the funds that are available. It is important that he should report, and I welcome that amendment, but that does not go quite far enough. The amendment in the name of my noble friend Lord Hart and others does.

[Lord Phillips of Sudbury]

My Lords, I concur with everything that has been said. As time goes by the role of the director is liable to get more rather than less sensitive. It seems to me that the law in this country is getting closer and closer to politics more and more often, particularly in relation to the development of judicial review. Public confidence is vital. I do not think that it needs repeating as to why it is so vital, not just in terms of the judiciary but in terms of this very sensitive office. The director will have to make some extraordinarily sensitive and difficult decisions. As we all know, because we have been debating this Bill for some while, some fine judgments will have to be made by whoever is the director.

I also note that the director is to be appointed from among the Civil Service, which strikes a rather odd note. Why should the director not be appointed from anywhere? Why should he or she not be the most appropriate independent-minded person? As the noble Lord, Lord Faulks, said, it is a pity that Clause 4(4) restricts the power of the Lord Chancellor to direct to individual cases rather than to classes of cases. I wish that I had put down an amendment to that.

In all the circumstances—although the publishing of an annual report is extremely beneficial; and my noble friend the Minister may say that because of this and because of that it is superfluous to express on the face of the Bill the need for independence—if ever there were a need for a single simple statement in what is already 200-plus pages of legislation, it is that this person should be absolutely independent of government.