On Monday the Legal Aid, Sentencing and Punishment of Offenders Bill came before the Lords for its second reading. In eight hours there were over fifty contributors to a high quality debate.
Part 2 (litigation funding and costs) and part 3 (sentencing and punishment of offenders) did not feature greatly in the exchanges, and were largely approved. Overwhelmingly the debate concerned part 1 of the bill – legal aid. And overwhelmingly the contributors opposed the government’s proposals.
Baroness Scotland said: “Justice should be available in times of good and ill. In times of ill, it is more necessary than ever.” She quoted the late Lord Bingham when he argued “that one of the ingredients of the rule of law itself was that ‘means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide disputes which the parties are unable themselves to resolve.” Lord Bingham went on to say that “denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law.” Lord Pannick looked back to the speech of Sir Hartley Shawcross, the Attorney-General, when he introduced the Legal Aid and Advice Bill in December 1948. He said: “His concern and the concern of the Labour Government in those days was that the doors of the courts were in theory open to ordinary people, ‘just as the grill room at the Ritz Hotel is open to all’, but obtaining and acting on legal advice were ‘luxuries which were beyond their reach’.”
Viscount Simon was concerned that taking clinical negligence out of the scope of legal aid will prevent vast numbers of people ever having their case properly investigated. “Because the vast majority of clinical negligence victims are harmed at the hands of a state body – the NHS – there is a strong moral argument that the state should ensure that these people have access to justice,” he said. Baroness Gould said: “The Bill is discriminatory and will entrench inequality for women, people from minority ethnic groups, disabled people and other groups facing discrimination, all of whom will be disproportionately affected.” Drawing on some 25 years’ experience of legal aid litigation, Lord Clinton-Davis said: “The real trouble with this Bill is that there will be no savings: indeed, the very reverse. Unrepresented persons will appear before courts and tribunals and many, through no fault of their own, will make false and incoherent points. Time will be wasted.”
Baroness Kennedy expressed concern that “having ready access to a lawyer will be replaced by a telephone hotline, a sort of call centre. We all know the problems that we have with call centres in every other area of our lives; imagine it when you are in distress and in need of decent legal advice.” Lord Elystan-Morgan asserted that “unless a Government of the future pass a one-clause Bill to abolish legal aid completely, the contents of this Bill and the proposals surrounding them must constitute the most savage and most deadly attack upon the institution of legal aid in the 62 years of its existence.”
As chief prosecutor, Lord Macdonald had seen the extent of the scourge of domestic violence, its impact on those who suffered it, who were mainly women, and its impact on the children, who usually witnessed it. He said: “An inevitable consequence of the Bill’s approach to domestic violence is that more people – again, mainly women and children – will be trapped in more abusive relationships with no succour at all from our law. I venture to suggest to noble Lords that that is a situation that would bring shame upon our entire legal system.” On means testing at the police station he said: “Are we really to say that no interview is going to take place before a means test is considered, no charge may be preferred until the financial forms are filled out and passed – mortgage payments, rents, wage slips, debts, assets and all the rest of it? It is – I choose my words carefully – a foolish notion. Who is going to calculate the cost of this in wasted time and disruption to the forensic process?”
Replying to the debate, minister of state Lord McNally said: “It is not true that we brushed aside the Law Society’s wonderful ideas for saving the money in different ways. We considered its proposals very carefully…A great deal of its proposals were shuffling responsibilities and costs around Whitehall or producing new taxes, which is not the same as making savings.”
The Bill was read a second time and committed to a Committee of the Whole House, on a date to be arranged. That’s when the serious business of attempting amendments to the bill will take place.