Member News
By Lord Thomas of Gresford - 21st November 2011
Lord Thomas of Gresford writes ahead of the second reading of the LASPO Bill in the Lords, arguing that the Legal Aid provisions included within are not designed to increase access to justice.
'In the determination of his civil rights and obligations, a person who can afford it, is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.' Sorry. The Article 6 right set out in the European Convention on Human Rights, actually reads 'everyone'.
To make that right meaningful, the first essential is that a person should know what his civil rights and obligations are. The second is that he should be able to exercise his rights, and if denied, to enforce them. The third is that he should be able to contest any failure alleged in his performance of his obligations. Access for these purposes to that independent and impartial court or tribunal is indispensable.
Of course, every parliamentarian knows that the legislation we pass is crystal clear; our rights and obligations are set out in limpid, elegant prose, the meaning of which never passeth all understanding. Should there be the teeniest doubt, the citizen will send for his lawyer, that mechanic who, for very modest reward, will advise, assist and represent him in any possible dispute with his neighbour, his adversary or the state. After all, the doors of the court are welcome to everyone, especially to the premier division football player, and the tycoon who owns his stadium.
The Legal Aid provisions of the LASPO Bill are not designed to increase access to justice. They are meant to save money. Fair enough. Those lawyers who have grown sleek and fat on the rich pickings of advising the sick, the disabled, the unemployed, the homeless, the immigrant, the children with special educational needs, have now no need to go to Weight Watchers; they can slim effortlessly. The matrimonial and the children's courts, and the welfare and immigration tribunals of this country, will resound not with dry-as-dust lawyers, but with the arguments of good honest grievance-holders, who will present their concise cases with style and precision, and smoothly win their way to justice.
Those of us with practical experience of the court system have just the smallest hesitation in applauding these reforms. We note that the Lord Chancellor takes power to remove further areas of the law out of scope, but no power to return into scope those areas where, as we reluctantly predict, the courts and tribunals will quickly grind to a halt.
But perhaps that will not happen. The injured person who balks at the idea of losing a substantial proportion of his damages under the new provisions for 'no win, no fee' agreements may settle his case at an undervalue. The husband and wife who are at loggerheads over finance, custody and access will conduct their civilised mediation across a table. Children's futures may be decided administratively. In this utopian world, all will be sweetness and light, and the judges and their fusty courts redundant.
For the next four months at least, we toilers on the red benches will pick over, and chew up, all the carcasses deliberately left undigested for us by the elected representatives of the people affected. What delicacies await us!
Martin Thomas is a barrister and deputy high court judge. He was raised to the peerage in 1996 and sits on the Liberal Democrat benches.
Dods Parliamentary Communications Ltd