Lord McNally’s Calls for a Consensus on Legal Aid Will Ring Hollow


On Wednesday former Justice Minister, Lord Tom McNally finally woke up to the idea that we needed an urgent review into the Legal Aid Sentencing and Punishment of Offenders Act (LASPO). Responding to a letter published in the Guardian, signed by prominent members of the professions, Lord McNally has rightly suggested that we need a cross-party consensus on Legal Aid.

Interesting that this is the same Lord McNally who gleefully shepherded the vicious assault on access to justice that is LASPO through the House of Lords as a Justice Minister. This was despite repeated warnings from myself; Rt. Hon Sadiq Khan MP (shadow Secretary of State for Justice at the time); Lord Willy Bach shadow Justice Minister (at that time) and Andy Slaughter MP shadow under-secretary of State for Justice as well as huge numbers of social welfare campaigners and the not so fat cat publically funded legal aid lawyers up and down the land.

The Tory Governments attack on access to justice that Lord McNally defended as a Lib Dem coalition Minister has caused untold misery for many of our most vulnerable citizens seeking justice.

Matter starts Civil and Family cases are down by a whacking 90 per cent. So Lord McNally is right to finally recognise that removing vast swathes of areas of law out of the scope needs to be reviewed, but he also needs to fess up to the fact that it was a massive mistake to ignore the warnings that he and other Justice Ministers were repeatedly given. I saw him face-to-face on the issue in his cosy Whitehall office. He dismissed my protestations out of hand and just repeated the mantra that our Legal Aid system is one of the most generous and will remain so even after the cuts which he refused to accept were savagely damaging.

It should come as absolutely no surprise to Lord McNally, or any other former or current MoJ Minister, that the Justice Select Committee’s recent report on changes to Legal Aid had found that the MoJ have failed to meet three out of four of its originally stated objectives. Access to justice for many litigants was now through self-representation and that this was done simply in the pursuit of making savings.

As a lawyer, it is troubling to me that members of the Judiciary including the most senior judges have been forced from their nonpartisan, conventionally apolitical comfort zone, to rebuke the MoJ.

The Lord Chief Justice himself, Lord Thomas, in his annual report to Parliament has expressed his dismay at the current state of the justice system which is out of reach for the poorest and most vulnerable, the consequence of which has been a considerable increase of litigants in person.

Our courts with its adversarial system is not designed to deal with the massive numbers of Litigants in Person. This is the stark reality of the coalition Government’s attack on access to justice. Lord McNally was a principal offender in that attack. He now wants to begin his rehabilitation programme but hasn’t yet admitted his culpability. If he were a common criminal, let’s say a petty repeat thief, he wouldn’t be allowed to start reintegration without crucially fessing up for his crimes.

Lord McNally’s call for a cross-party consensus on Legal Aid reeks of hypocrisy. Meanwhile, my old boss as Shadow Attorney General and good friend Lord Willy Bach has been carrying out important work with the Bach Commission designed to untangle the mess that McNally et al have left behind.

Let’s be clear when Labour left office in 2009-10, more than 470,000 people received advice or assistance for social welfare issues. By 2013-14, the year after the government’s reforms to legal aid came into force, that number had fallen to less than 53,000 – a drop of nearly 90%. This shows just how savage the cuts to Legal Aid have been.

We now have a leader of the Labour Party in Jeremy Corbyn that truly understands legal aid. Jeremy cares about access to justice. He believes passionately that whether rich or poor, we need a justice system that provides access to the law and to competent qualified lawyers when a legal issue, whether it be civil or criminal, knocks on the door in the same way that access to medicine is provided through our NHS when illness comes calling, whether rich or poor.

Jeremy is of the view that legal aid is akin to our NHS in the law and he is committed to achieving this and committing to solid policy to make this a reality in Labour’s manifesto. This is why he invited Lord Willy Bach to set up the Bach Commission and asked me to oversee the criminal aspects of the Commissions work.

The Commission has brought together experts across the professions who between them have an expansive level of knowledge and experience. It aims to comprehensively look at legal aid provision across England and Wales looking at the case for access to justice as a public entitlement, minimum guarantees as part of a new public entitlement and how best we can transform our justice system.

In a short space of time the Bach Commission has heard from the Bar Council, Lord Low, Professor Richard Susskind, Criminal Solicitor representatives the CLSA, and the LCCSA as well as having received written submissions from a number of third sector organisations that have seen first-hand the devastating effects that cuts to Legal Aid has had on access to justice.

Lord McNally’s warm words are welcome but they leave those of us that truly care about access to justice distinctly cold, especially when you consider the damage that the Lib Dems in government did by slashing Legal Aid budgets and deliberately placing access to justice out of reach for the poor and most vulnerable.

A good, but very unfortunate example of this came to me in the Easter recess at the constituency office. The constituent (Mr. A), a tenant of a private rented property for 12 years, had attended at my office last summer to seek the advice of the CAB which helpfully run an advice surgery from my office, generously sponsored by local Solicitor Neil Hudgell.

Mr. A had been, according to his landlord, ‘pestering’ for repairs to the home he rented. The landlord had refused completely for years saying that he wouldn’t spend a penny on the place and that people were ‘queuing up to rent it’ and that If he ‘didn’t like it he could find fresh lodgings’.

The CAB adviser had suggested that Mr. A must start to formalise repeated pleadings for repairs by putting requests in writing. As soon as Mr. A had done this, the landlord began to say he now needed possession of the property to let it to someone else. The landlord gave notice and then started eviction proceedings.

Mr. A attended at my advice surgery desperate for legal advice once it became apparent that there is little Housing Law advice available. This comes at a time when the Legal Advice Agency had had to act after a Solicitor’s firm withdrew from providing Legal Aid in Hull.

Having never practised Housing Law, I could only really give advice on the basics, such as help with court forms.

So annoyed was I that Mr. A was being treated so badly by somebody financially much better off and so much more powerful I took to twitter.

Within no time I had offers of pro bono advice. The excellent homeless charity Shelter very kindly offered to look to see if a disrepair claim could be brought under a CFA agreement. At the time of writing, Shelter are deciding whether or not their team of lawyers can take the case on.

Why do I tell the story? Well because I think this sorry case emphasises the importance of Legal Aid. The importance that Mr. A should, as a matter of right, be able to seek legal redress as against a more powerful, bullying, very rich private landlord.

We need, in my opinion, to get back to a position where Mr. A can seek that much needed redress. This starts with a review of where we are now in terms of access to the courts for the poor and most vulnerable and where we want to be as a society? Whether we think the vision that Jeremy Corbyn has is achievable. Whether that vision of a NHS for the law is in fact affordable?

It is Labour, with the Bach Commission, that is doing the real work here. Assessing the Legal Aid landscape and coming up with credible, yet radical, solutions. This Commission will produce the ‘cross-party consensus on legal aid’ that Lord McNally says he urgently wants to see.

So perhaps Lord McNally will want to provide written submissions about how his time in Government has effected access to justice, how LASPO removed the rights of redress for all but the wealthiest few and has eroded the proud history of Legal Aid provision and the post war consensus.

If Lord McNally wants truly to influence the legal aid policy of the Government, whether it is the current Government or the next. If he wants to influence policy makers on access to justice and to achieve a ‘cross-party consensus on legal aid’ as he claims then the Bach Commission is the only game in town.

The Commission consist of nonpartisan members. Some are lawyers and others not but Commissioners are appointed purely based on their unique expertise and professional reputation. Lord Bach also benefits from the advice of senior Counsel John Cooper QC as adviser to the Commission.

I firmly believe the Commission would genuinely welcome Lord McNally’s evidence and would be advantaged from his experiences and lessons learned from LASPO and invite him to submit his proposals here.