Bach Commission: ‘Justice is far too precious to be a party political football’

Access to justice should be treated as a basic human right and protected alongside the right to healthcare and a free education, said the shadow justice minister at the launch of the report of Bach Commission on Access to Justice at the Labour conference.

Richard Burgon was speaking at a conference fringe event hosted by the Fabian Society which provided the secretariat for the review. As reported on LegalVoice, the Bach Commission, set up by the Labour party, makes recommendations for ‘a new legally enforceable right to justice’ as well as widening the scope of legal aid to include all matters concerning children and reinstating legal aid for areas of family law and immigration law. The report also proposes public funding for bereaved families in inquests and scrapping rules which limit pay for judicial review cases.

‘When legal aid was set up it was one of the pillars of the welfare state,’ Burgon told delegates. ‘Access to justice should be seen as a human right and treated as such in the same way as access to health and education.’

The Commission’s chair, Labour peer Lord Willy Bach and vice chair Sir Henry Brooke made a pitch for cross-party support for its proposals. ‘It is our view that the crisis in our justice system is best met, perhaps only met, by the re-establishment of the kind of consensus that existed between the major parties for many decades in the last century,’ Bach said. ‘The consensus has broken down and we need to re-establish it.’

Bach, a former shadow justice minister, said that the commission’s work was ‘not meant to be party political’. ‘All parties in government have made mistakes,’ he said. The barrister went on to say that LASPO was ‘probably the worst piece of legislation of the coalition government’, but acknowledged that Labour ‘had not been perfect in government’. ‘Do not expect me to go into details,’ he added.

Sir Henry said that justice was ‘far too precious to be a party political football – although I realise that this may be too much to hope for.’

Burgon delivered a scathing attack on the government’s track record on legal aid. ‘Food banks, zero hour contracts and the bedroom tax are perhaps the most potent symbols of the cruelty of the Conservative government agenda,’ he told delegates. ‘But I believe that the scything away of access to justice should be viewed as equally callous.’

The lawyer flagged up the recent Supreme Court ruling that the government had acted unlawfully by introducing employment tribunal fees in 2013. ‘We are in such a state of crisis in access to justice that on July 26th the Supreme Court decided that the government had been operating illegal in excluding people from access to justice because of the new employment tribunal fees. We need to take a deep breath to let that sink in: the Ministry of Justice had been operating unlawfully since 2013,’ Burgon said. ‘For any government department to be operating unlawfully is very disturbing – but if it’s the MoJ that’s serious.’

Responding to the Bach report in the Guardian, the justice minister Dominic Raab dismissed the Bach report pointing out that one quarter of the MoJ’s budget already went on legal aid. Raab said: ‘We will continue to focus legal aid on those who most need help, recognising the cost of this support is met by the taxpayer, even as Labour produce yet more unfunded proposals.’

Speaking from the floor, Carol Storer, director of the Legal Aid Practitioners Group and a member of the Bach commission, said Raab’s comment was ‘not much of a response’. She said: ‘How are we going to engage with the government – because we can’t wait and hope there will be a change in government?’

Fabian BC
Sir Henry Brooke speaking. Pic: Bar Council

Shadow attorney general Shami Chakrabarti welcomed the Commission’s big proposal of a right to justice. ‘There is no civilisation, no democracy, no rule of law without access to justice. Without access to justice, all our wonderful equality rules – passed in the most part by a Labour government – will remain a dead letter,’ she said.

The former Liberty director argued that 2013 legal aid cuts were not just about cost-saving but reflected a disdain for lawyers. ‘Yes austerity is ideological; but some of the comments that came out of senior politicians mouths have been been positively spiteful.’ Chakrabarti pointed to ‘the denigration’ of individual lawyers and law firms as well as criticism of the judiciary following the article 50 litigation. ‘I can promise you straightaway that that stops when we are in government,’ she added.

Julie Bishop, director of the Law Centre Network, called on Labour to ‘show real leadership’. She argued that it was ‘no coincidence’ that ‘85% of social welfare law’ was removed from the scheme under the LASPO cuts despite the relatively small cost. ‘This was not all about cost-saving. It was not all about austerity. It was about taking away people’s rights to challenge the state.’

Bishop welcomed the idea of a Right to Justice Act arguing that there was a need to establish a legal aid system that ‘wouldn’t be hit by every change in government that comes and goes’. ‘This is a legacy Act,’ she said.

Liz Davies, chair of the Haldane Society of Socialist Lawyers and a housing barrister, backed the commitment to fund early intervention by way of legal help for social welfare law. ‘It seems so obvious that it saves money. These sort of cases are usually legally aided litigants against the state. It’s public money being used to solve a problem that usually should never have got as far as litigation.’

When Labour published its election manifesto in May, Davies said it was ‘great to have some commitment to restoring legal aid but it didn’t go far far enough’. ‘The manifesto was a good start but I am glad we are where we are now,’ she added.

Andrew Langdon, chairman of the Bar Council welcomed the proposals but called on Labour to reform immigration detention. ‘We need a time-limit on detention. There is a very large number of people who simply shouldn’t be there,’ Langdon said.

The barrister pointed to the success rate of pro bono representation by barristers on bail applications. ‘We have a higher than 50% strike rate – over half of the people on behalf applications are being made should never have been there in the first place. This is a rule of law issue and the absence of legal aid has exacerbated the problem.’

Deborah Coles from INQUEST welcomed the proposals for legally aided representation for the bereaved in inquests. ‘My only concern is it didn’t mention non means tested legal aid. One of the problems we find is that the Legal Aid Agency make it exceptionally difficult for families being provided funding for inquests requiring means assessment on extended family members even when they are not living in the UK. Whilst I welcome the recommendations I am concerned it still might not reach those it needs to.’

About Jon Robins

Jon is a journalist and has written about the law and justice for the national papers and specialist press for more than 15 years. Jon is a visiting journalism lecturer at Winchester University, a visiting senior fellow in access to justice at the University of Lincoln and patron of Hackney Community Law Centre. He has won the Bar Council’s legal reporter of the year award twice (2015 and 2005). Jon is editor and co-founder of LegalVoice

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