Part 1 of the Legal Aid,
Sentencing and Punishment of Offenders Bill|
1. The Constitution Committee is appointed "to
examine the constitutional implications of all public bills coming
before the House; and to keep under review the operation of the
constitution". In carrying out the former function, we endeavour
to identify questions of principle that arise from proposed legislation
and which affect a principal part of the constitution.
2. This report draws to the attention of the
House Part 1 of the Legal Aid, Sentencing and Punishment of Offenders
Bill. Part 1 of the Bill constitutes a major overhaul of the system
of legal aid for England and Wales. It builds on the Government's
Green Paper, Proposals for the Reform of Legal Aid in England
and Wales. The House
of Commons Justice Committee published a report on the proposals
in March 2011. The Government
published a response to this report in June,
when the Bill was introduced into the House of Commons.
3. It is accepted by all parties that the goal
of the reforms is to cut costs. The annual legal aid budget in
England and Wales is £2.1 billion. The Government's proposals
are designed to make £350 million of savings (cutting about
16%, or nearly one-sixth, of the budget). The Ministry of Justice
has a target of reducing its overall budget by 23% (approximately
£2 billion) by 2014-15.
4. On one level, the party political and broader
argument about the cuts to the legal aid budget is just one facet
of the ongoing political debate about cuts to public spending.
On another level, however, cutting legal aid in the manner and
to the extent proposed in Part 1 of the Bill raises discrete issues
of constitutional principle, and it is these issues which the
Committee draws to the attention of the House.
Access to justice and constitutional principle
5. There is no doubt that access to justice is
a constitutional principle. In R v Secretary of State for the
Home Department, ex parte Leech,
Steyn LJ ruled in the Court of Appeal that the "principle
of our law that every citizen has a right of unimpeded access
to a court
even in our unwritten constitution
rank as a constitutional right". Applying this reasoning,
the High Court subsequently ruled that setting court fees at an
unaffordable rate may be unlawful.
6. If access to justice is a constitutional right,
then the courts will require that any impediment to access is
made not only with lawful authority but is proportionate. The
leading case defines this to mean (among other matters) that "the
means used to impair the right
are not more than is necessary
to accomplish the objective".
7. In his book, The Rule of Law, the late
Lord Bingham forcefully 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".
He went on to say that "denial of legal protection to the
poor litigant who cannot afford to pay is one enemy of the rule
8. These are the constitutional principles
which, in our view, should inform the House's scrutiny of this
The scheme of Part 1 in outline
9. The Bill abolishes the Legal Services Commission
(which, under the Access to Justice Act 1999, is currently responsible
for legal aid in England and Wales) and brings responsibility
for legal aid within the Ministry of Justice directly (clause
1). A newly created Director of Legal Aid Casework will take over
many of the functions of the Legal Services Commission (clause
10. Those categories of civil justice which may
fall within the scope of legal aid are listed in Schedule 1; most
of the categories listed there are subject to exclusions, which
are likewise listed in Schedule 1. A considerable number of categories
of civil justice that currently fall within scope would be excluded
(wholly or partially) under the Bill.
11. Criteria determining whether an individual
qualifies for civil legal aid are to be set out in regulations
to be made by the Lord Chancellor (clause 10). Further regulations
may be made (under clause 20) concerning any financial contribution
that an individual is to make.
12. Provision is also made in the Bill regarding
criminal legal aid.
Constitutional issues arising
13. A series of issues of constitutional principle
arise with regard to these provisions, as follows.
14. Clause 1 provides that "The Lord Chancellor
must secure that legal aid is made available in accordance with
this Part". There is no reference in this provision to the
overarching constitutional principles which, in our view, should
frame decision-making about legal aid. The law currently provides
that the Legal Services Commission is under a statutory duty "within
the resources made available" to ensure that "individuals
have access to services that effectively meet their needs".
Clause 1 should be amended to read: "The Lord Chancellor
must secure that legal aid is made available in order to ensure
effective access to justice".
15. Clause 4 concerns the Director of Legal Aid
Casework. We note that clause 4 does not currently require that
the person appointed to this office will have any particular relevant
experience. We further note that the Director must comply with
directions and must have regard to guidance given by the Lord
Chancellor (clause 4(3)) and that the Lord Chancellor is prohibited
from giving directions or guidance "in relation to individual
cases" (clause 4(4)). 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.
16. It is a feature of Part 1 of the Bill that
much of the detail as to the operation of civil legal aid is provided
not in the Bill itself but is to be provided in regulations to
be made under the Bill. While the Bill does contain some provision
as to the content of these regulations, there are significant
omissions. There is no requirement in clause 11, for example,
that reasons should be given when legal aid is refused. Further,
clause 11(6) provides that the regulations "may make provision
for appeals to a court, tribunal or other person". The
House may wish to consider whether clause 11(6) should provide
that the regulations "must" make provision for appeals.
17. Clause 12(1) concerns criminal legal aid
in the context of advice and assistance for individuals in police
custody. It provides that "Initial advice and initial assistance
are to be available under this Part to an individual who is arrested
and held in custody at a police station or other premises if
the Director has determined that the individual qualifies for
such advice and assistance in accordance with this Part (and has
not withdrawn the determination)".
Section 58(1) of the Police and Criminal Evidence Act 1984 provides
that "A person arrested and held in custody in a police station
or other premises shall be entitled, if he so requests, to consult
a solicitor privately at any time". The Court of Appeal has
described the right enshrined in section 58 as "one of the
most important and fundamental rights of a citizen".
18. Section 58 has been most recently discussed
by the UK Supreme Court in Ambrose v Harris, in which Lord
Brown stated that "On arrival at the police station the detainee
must be advised about his right to free legal advice, including
a right to speak to a solicitor on the telephone, and he must
be asked if he wishes to do so".
19. The House may wish to consider whether clause
12 of the Bill, as it is currently drafted, has the potential
to undermine this right in practice, particularly given Lord Brown's
recent observation in the Supreme Court that the right is not
merely to legal advice but to free legal advice. As such, the
House may wish to consider whether clause 12 should be amended
so as to omit the words "if the Director has determined that
the individual qualifies for such advice and assistance in accordance
with this Part (and has not withdrawn the determination)".
20. Under the Bill the Lord Chancellor will have
a power to modify Schedule 1 by omitting further services from
the scope of civil legal aid (clause 8(2)). Orders made under
clause 8(2) will be subject to the affirmative resolution procedure.
This provision should be amended to enable the Lord Chancellor
not only to omit services from the scope of civil legal aid but
also to add services to the scope of civil legal aid.
1 Cm 7967, December 2010. Back
3rd report of 2010-12, HC 681. Back
Cm 8111. Back
See House of Commons Justice Committee, 3rd report of 2010-12,
HC 681, paras 11-12. Back
Both the Law Society and the Bar Council have intervened to argue
against the Government's reforms to legal aid. Back
 QB 198. Back
R v Lord Chancellor, ex parte Witham  QB 575. Back
R (Daly) v Secretary of State for the Home Department 
2 AC 532, at para 27 (Lord Steyn). Lord Bingham in the same case
ruled that the right of access to a court and the right of access
to legal advice may be curtailed only by clear and express words
and even then "only to the extent reasonably necessary to
meet the ends which justify the curtailment" (para 5). Back
Tom Bingham, The Rule of Law (Allen Lane, 2010), p 85. Back
Ibid, p 88. Back
Access to Justice Act 1999, section 4. Back
Emphasis added. Back
R v Samuel  QB 615 (at p 630). Back
Ambrose v Harris  UKSC 43,  1 WLR 2435, para
79 (emphasis added). Back
Clause 40. Back