Covid-19 and the Courts (Constitution Committee Report)

Lord Howarth of Newport Excerpts

Wednesday 23rd March 2022 Grand Committee

[Lord Howarth of Newport (Lab) [V]]

My Lords, I congratulate and thank my noble friend Lady Taylor for her fine chairmanship of the committee and for the way she introduced our report. The committee notes that Covid hit a justice system that was already in trouble. We also noted that the courts rallied impressively to meet the huge challenge of Covid by adapting at speed as best they could to provide remote hearings, operate in improvised premises and keep court users safe.

Access to justice was gravely compromised before the Covid crisis made it worse. The Treasury had been gunning for legal aid since the 1990s, and criminal legal aid fees for solicitors, I understand, had not been increased since 1998. An egregious example of the injustices resulting from Treasury niggardliness was what became known as the “innocence tax”, whereby a defendant refused legal aid after means testing was not reimbursed their legal costs if acquitted. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 was, however, the biggest assault on access to justice, hitting especially those least able to assert their rights. LASPO largely removed from the scope of legal aid family, employment, welfare benefits, housing, debt, clinical negligence and immigration law.

The Government claimed that austerity necessitated a reduction of legal aid spending by £350 million—an indiscernible fraction of public expenditure but a significant proportion of the legal aid budget. In the event, the cut to legal aid spending between 2010-11 and 2018-19 was worse than that: £1 billion, or 36%. Political hostility to legal aid was part of a wider narrative about scroungers, shirkers and the undeserving poor. The Ministry of Justice said that its aim was to target legal aid on those who needed it most. What actually happened was that those left without essential advice and representation included disabled people, people with impaired mental capacity, carers, victims of sexual exploitation, trafficking and slavery, victims of domestic abuse, people who were homeless or living in substandard accommodation, people in detention and people fleeing persecution.

With this drastic reduction in legal aid, by 2019, more than half of law centres and not-for-profit legal advice services had closed. I declare with pride an interest as a patron of Norfolk Community Law Service. It has defiantly kept going, raising enough funding to provide advice and support to many people—though only a fraction of those who need it.

The MoJ said that another of its intentions in LASPO was to deliver better value for money for the taxpayer, yet it removed funding for early legal advice, which is crucial to prevent problems escalating. In housing law, legal aid for advice on disrepair issues became unavailable until the situation had become serious enough for people’s health to suffer. In family law, legal aid became unavailable until a dispute about a child had escalated to a complex legal battle with even more damaging effects on all concerned. The long-term cost in mental health can only be great. The health—or otherwise—of the justice system is reflected in the health of society. Cuts to the MoJ budget of 27% in 10 years were a false economy, with MoJ costs exported and multiplied in the health service, social security, education, the police and local government.

Between 2010 and 2019, 295 court facilities—a third of the courts estate—were closed, including more than half of magistrates’ courts. A huge backlog of maintenance also developed. When Covid came, posters in courts instructed people to wash their hands but barristers reported that there were no soap or towels. Decent, well-maintained court buildings were once a mark of respect for the law and society. In 2018-19, the Government cut 15,100 court sitting days; they then reinstated just 4,700. At the end of 2019, before the pandemic hit, the backlog in the Crown Court was 37,500 cases.

Plenty of money was found for digitisation, however. In 2016, the Government proclaimed that they would spend £1 billion

“to modernise and upgrade our justice system so that it works even better for everyone.”

Not a lot then happened. There was no public consultation on the principles that should apply in regard to the rule of law and access to justice in the digital realm, although there was the obvious risk that significant numbers of people who were not computer literate would be seriously disadvantaged. This was found to be so in the pandemic. Progress was dilatory in equipping the courts with new technology and training court users. In 2020, when, with Covid, the courts suddenly needed to hold virtual hearings, they were unprepared to do so.

There has developed an unhappy lack of comity between senior Conservatives and the judiciary. As Lord Chancellor, Liz Truss appeared unwilling to defend judges when the Daily Mail attacked them as “enemies of the people”. In January 2020, Suella Braverman launched a remarkable attack in Conservative Home:

“The political has been captured by the legal. Decisions of an executive, legislative and democratic nature have been assumed by our courts … if a small number of unelected, unaccountable judges continue to determine wider public policy, putting them at odds with elected decision-makers, our democracy cannot be said to be representative.”


Shortly afterwards, the Prime Minister appointed her Attorney-General.

Smarting at the decisions of the Supreme Court in the two Miller cases and on the legality of the Prorogation of Parliament, the Government have been meditating on how to clip the wings of the judiciary. Access to justice will not be improved by further limitations on the right of citizens to seek redress by way of judicial review for the improper use of powers by government and its agencies.

What is the Government’s vision for the justice system? The backlog in the Crown Courts is now around 60,000 cases and it is taking up to five years for cases to come to court. In his letter to Peers of 15 March, Dominic Raab expressed some appropriate aspirations, but not since Michael Gove was Lord Chancellor have we heard a fully considered statement of principle or strategy. From time to time, in the face of disaster, small mitigations of LASPO and small additional doses of money have been forthcoming. I recognise that there was a more substantial development last week in the Government’s response to the Bellamy review of criminal legal aid. In the view of the Criminal Bar Association, the additional funding will not be enough to prevent a continuing haemorrhage of criminal advocates. I hope it is wrong.

The MoJ’s post-implementation review of LASPO in 2019 was belated and timid, failing to address the issues of the scope of civil legal aid, means tests, bureaucracy and the supply of services. Its so-called action plan amounted to little more than promises of further research and consultation, and some narrow pilot schemes. The recently approved order for a two-year pilot scheme in Manchester and Middlesbrough to examine whether early advice can produce savings for the public purse is unnecessary: the evidence that it does was set out compellingly in the Pragmatix report. It smacks of Treasury-driven foot-dragging.

We need to look systemically at the whole ecology of justice. The Government need to ensure that proper data are available to enable informed understanding of what is happening. Everything interacts. All parts of the system need to be resourced properly or else deficiency in one area produces damaging pressures elsewhere. The Government can reduce the burden on tribunals and courts by making better administrative decisions in social security and immigration cases—and, of course, by addressing the roots of poverty and crime.

The chronic underfunding of the justice system disrupts society, wreaks misery across the country and violates the principle that, where citizens have a reasonable case but cannot afford justice from their own resources, they should be supported by the state to have their case heard. That was once common ground across the political parties; for decades, we moved towards its fulfilment. It should still be seen as a bedrock principle of the welfare state, our constitution and a liberal society. The Justice Secretary, who is also Lord Chancellor, bound by his oath of office to respect and defend the rule of law, should not tolerate continuing dereliction of this principle. I look forward to the Minister telling us how the Government plan to restore and renew the justice system.

Prisons: Releasing Women into Safe and Secure Housing

Lord Howarth of Newport Excerpts

Monday 21st March 2022 Lords Chamber

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, we have a virtual contribution from the noble Lord, Lord Howarth of Newport.

[Lord Howarth of Newport (Lab) [V]]

My Lords, I wanted to ask my question on the next Question.

[Baroness Armstrong of Hill Top (Lab)]

My Lords, it is very clear that many women end up in circumstances where perpetrators of abuse exploit and take advantage of them if they are not in safe and secure housing. One recent study has shown that, overwhelmingly, a number of those women in prison have previously been subjected to abuse and, therefore, suffer trauma. Is not the priority, therefore, to ensure that there is more trauma-informed work available to work with women, so that they do not enter the criminal justice system?

Barristers Leaving Criminal Practice

Lord Howarth of Newport Excerpts

Thursday 17th March 2022 Lords Chamber

Asked by

[Lord Howarth of Newport]

To ask Her Majesty’s Government what plans they have to bring forward measures aimed at reducing the number of barristers leaving criminal practice.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, our plan is more work for criminal barristers at higher fees. We have made radical proposals for wholesale reform of legal aid, provided £150 million more on fees and £20 million more for longer-term reform, and increased sitting days so that the Crown Court can get through more trials. The combined effect of our plans will take expected criminal legal aid spending to £1.2 billion per year.

[Lord Howarth of Newport (Lab) [V]]

Does the Minister accept that before this week’s announcement, a decade of underfunding by the Government brought the criminal Bar to near collapse? Criminal advocates, having suffered a 40% real-terms cut in their earnings, were exiting criminal work in droves—a quarter of junior barristers and half of all QCs. Criminal trials were being adjourned for lack of available counsel and it was taking up to five years for cases to come to trial. Therefore, I welcome the Government’s acceptance this week of the Bellamy review recommendations, but why did it take the third threat in eight years by criminal barristers to go on strike before the Government acted? Also, does the Minister understand that it is far from clear that the Government have provided enough money for the remuneration of criminal law barristers to keep them in the system?

[Lord Wolfson of Tredegar (Con)]

My Lords, it did not take the threat of a strike from the Criminal Bar Association for us to respond to Sir Christopher Bellamy’s report, but I hope that our responding in a way which has drawn broad welcome from the Bar Council, the Law Society and the Chartered Institute of Legal Executives will mean that the Criminal Bar Association will withdraw its utterly ill-thought-out and unfounded strike proposal.

Assisted Dying Bill [HL]

Lord Howarth of Newport Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Lord Howarth of Newport (Lab) [V]]

My Lords, I know that my friend, the noble Baroness, Lady Meacher, is motivated by nothing but kind-heartedness. However, I cannot support the legalisation of assisted suicide. This is not just because of practical difficulties in her scheme. I believe that, if we legislate to make it legal to dispose of a particular class of human being, there will be consequences that none of us would wish. In thus devaluing human life, we will reinforce existing tendencies towards a desensitisation and coarsening of our society. The paradox, I fear, is that, in seeking to extend self-determination, and with an intention to mitigate suffering, we would jeopardise the liberal and humane values that we must uphold.

A majority of the public in fact has serious concerns about legalising assisted suicide. A ComRes poll has shown that, when the issues were properly understood, support dropped from 73% to 43%.

Consider recent history in some western democracies. In Belgium and Canada, as well as in Oregon, the original safeguards limiting the availability of assisted dying have been significantly loosened in subsequent legislation and court judgments. Consider the history of the last century and the slide into barbarism of countries in Europe where, as democracy decayed, it became official ideology that certain groups of people were disposable. I do not want enthusiastic legislators unwittingly to bundle us along that road.

Our democracy is precarious. A large-scale survey by the Centre for the Future of Democracy found last year that younger generations in the UK have become increasingly dissatisfied with our democracy. There is a smell of the 1930s in the air. We have again seen the allure of populism. Anti-Semitism and violence against women have been on the rise. Social media algorithms intensify anger and curate hatred. Online abuse, intimidation and a discourse of hate have become normalised. Death threats against MPs are now routine; two MPs have been murdered. We are witnessing a new intolerance, with virulent assaults on academic freedom, licensed by cowardly academic leadership. Our public life is perceived as corrupt. Our Government are widely considered to be equivocal about the rule of law and illiberal in their reforming intent. Giant digital corporations ruthlessly manipulate government and citizens alike. Young people despair of the efficacy of democratic politics to address existential threats and are frightened about the future.

Amid these pathologies—in this hideous melee—now to legalise the killing of a class of people seems deeply misguided.