Legal aid cuts undermine constitutional right to access to justice, peers warn
House of Lords committee calls for Ministry of Justice to reconsider cost-saving measures set out in legal aid bill
Government proposals to slice £350m out the annual legal aid budget undermine the constitutional principle that citizens must have access to justice, a senior House of Lords committee has warned.
Issued by the constitution select committee, which includes prominent crossbench and Conservative peers, the report is a significant challenge to the legal aid, sentencing and punishment of offenders bill days before its second reading in the upper house.
The committee, which is packed with experienced lawyers, sets out in three, tightly argued pages why the Ministry of Justice should reconsider the fundamental assumptions underlying its cash-saving reforms.
The justice secretary, Ken Clarke, has defended the bill as a means of removing the “compensation culture” which, he alleges, flourished under the previous Labour government.
The constitution committee addresses only the legal aid aspects of what is also a wide-ranging criminal justice bill.
“Cutting legal aid in the manner and to the extent proposed … raises discrete issues of constitutional principle,” the study says. “There is no doubt that access to justice is a constitutional principle.”
A 1993 court of appeal judgment by Lord Justice Steyn established, the committee points out, that the “principle of our law that every citizen has a right of unimpeded access to a court … even in our unwritten constitution … must rank as a constitutional right”.
The bill, the report suggests, should therefore be amended to read that “the lord chancellor must secure that legal aid is made available in order to ensure effective access to justice” – rather than providing legal aid “within the resources made available”.
This, the report says, “would help ensure that the constitutional principle of access to justice is not undermined”.
The new director of legal aid casework, a post established by the bill, which abolishes the Legal Services Commission, may not be sufficiently independent of the government, peers also warn.
“The house may wish to consider whether these provisions are sufficient to secure that the director of legal aid casework will be independent of possible government interference in the carrying out of his functions.”
As well as elevating legal aid to an issue of constitutional principle, the report highlights one aspect of the bill, clause 12, which introduces powers to subject those detained by the police to means testing to see if they are entitled to free legal advice.
“The supreme court recently observed that an individual in police custody has the right not just to legal advice, but to free legal advice,” the report says.
“The House [of Lords] may wish to consider whether this provision should be amended.”
Among Conservative peers on the committee are Lord Renton, Lord Crickhowell and Lord Louth.
Lord Powell, Margaret Thatcher’s adviser during her time as prime minister, is a member as are the former Labour lord chancellor Lord Irvine and attorney general Lord Goldsmith.
The committee chairman, Lady Jay, said: “Our report to the house sets out significant constitutional concerns which arise from the government’s proposals.
“It is important members of the Lords are aware of some of the implications which may threaten the important rights of access to justice and availability of legal advice to people in police custody.
“The legal aid, sentencing and punishment of offenders bill will shortly have its second reading. This will be the first time that the house gets to debate the key principles in the bill in detail and we hope our report will inform that debate and allow members to raise any concerns they have.”
Lord Bach, Labour’s justice spokesman in the Lords, welcomed the report.
“This is a very important moment,” he said. “The constitution committee warns of the dangers to constitutional principles of access to justice by taking away legal aid.
“The government must listen. The house will expect the government to change its position to take note of the findings of the committee. This bill goes to the heart of access to justice.”