Duty calls to defend access to justice

Willy BachLord Willy Bach is Labour’s Shadow Justice Minister in the House of Lords

Today sees the return of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill to the Lords. Last week, by increasingly smaller majorities, the Government overturned the 11 critical amendments sent to the Commons before Easter. In doing this, Ministers made a small number of concessions but otherwise rejected the amendments, which had found widespread support among Peers.

As far as Part 1 of the Bill (Reduction in Legal Aid) was concerned, the major concession in the Commons was to allow legal aid for social welfare benefits at the second-tier tribunal, the Court of Appeal, and Supreme Court appeals. This however, is not as generous as it might sound. It was always an absurd proposition that appeals solely on points of law should not automatically be legally aided. Ministers knew that full well and yet waited to the last moment to concede.

There was a concession in the Commons on the evidential burden in Domestic Violence matters in relation to legal aid but it clearly did not go far enough. For example, the maximum number of years for relevant evidence to be admissible was only moved from one to two years. This is nowhere near long enough as, on average, many victims do not come forward for many years.  The Government have fundamentally misunderstood the experience of domestic violence victims.

There was also a ‘concession’ made on lower-tier tribunal for appeals in welfare benefit cases, but this has all the trademarks of a rushed, badly thought out, “back-of-the envelope” deal with the Lib Dems.

The offer however, just looks at the possibility sometime in the future of a tribunal Judge being able to certify a point of law and therefore permit legal aid to be granted for that case. It is a poor effort, and the truth is that clients who are not satisfied with a DWP review need legal advice there and then before deciding whether to appeal to the tribunal.  In addition, as Tory MPs pointed out, it is impossible to make a final distinction between law and fact – the two run together and are both material at the lower tribunal.  No wonder the Lord Chancellor found it difficult to define in his response.

It will come as no surprise that many Peers are angry at the lack of normal compromise shown by the Government. In addition there is amazement at the way Financial Privilege has been claimed by Ministers, even on a purely Constitutional amendment moved by the Crossbencher Lord Pannick.  In continuing to oppose these measures, Labour continues to work closely with colleagues from around the Lords.

We believe it is our duty to persuade the Commons that if Part 1 is passed in its present form, it will be immoral because it picks on those least able to defend themselves, unconstitutional because it diminishes Access to Justice, and most absurdly financially counterproductive, as the state will have to pick up the pieces when people don’t get the legal advice they need and are entitled to.

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