A House of Lords committee has warned that the Legal Aid, Sentencing and Punishment of Offenders Bill threatens the rights of access to justice and availability of legal advice to those in police custody.

The Constitution Committee published a report today considering the constitutional implications of the bill, before it is debated in the Lords next week.

The report raises concerns about the ‘manner and extent’ of the legal aid reforms, which are designed to cut £350m from the £2.1bn annual legal aid budget.

It draws attention to provisions in Part 1 of the bill, which it says may undermine the constitutional principle of access to justice.

The report states that access to justice is a constitutional right, quoting Lord Justice Steyn in the Court of Appeal in R v Secretary of State for the Home Department, ex parte Leech. He said that the ‘principle of our law that every citizen has a right of unimpeded access to the court…even in our unwritten constitution…must rank as a constitutional right’.

It also cites the late Lord Bingham’s book The Rule of Law, in which Bingham argued that one of the ingredients of the rule of law 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’.

Bingham went on to say that the ‘denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law’.

The committee suggests that Clause 1, which states: ‘The Lord Chancellor must secure that legal aid is made available in accordance with this Part,’ should be amended to provide that: ‘The Lord Chancellor must ensure that legal aid is made available in order to ensure effective access to justice.’

It warns that Clause 12, which seeks to introduce a means test before people detained in police custody can get free legal advice, ‘undermines’ the right to free legal advice in custody that has been enshrined in English law through statute and case law.

The bill abolishes the Legal Services Commission and brings responsibility for legal aid directly within the Ministry of Justice. A newly created director of legal aid casework will be directly responsible to the Lord Chancellor.

The committee questions whether the bill’s provisions make the director sufficiently independent of ‘possible government interference’.

The report raises concerns about ‘significant’ omissions with respect to detail in the bill about the operation of civil legal aid, which have been left to be provided in regulations.

The committee also suggests there should be a provision in the bill, which removes many areas of civil law from scope and provides for more to be taken out, to enable services to be added.

Committee chair Lady Jay said: ‘Our report to the House sets out significant constitutional concerns which arise from the government’s proposals.

‘It is important members of the Lords are aware of some of the implications which may threaten the important rights of access to justice and availability of legal advice to people in police custody.

‘The LASPO bill will shortly have its second reading. This will be the first time that the House gets to debate the key principles in the bill in detail and we hope our report will inform that debate and allow members to raise any concerns they have.

‘The report will also allow members to consider areas where the bill can be improved and amended in its passage through the Lords, in order to ensure that the best possible legislation emerges onto the statute book.’

Labour’s justice spokesman in the Lords, Lord Bach, said the report from the ‘highly respected’ committee is ‘very significant’.

He said: ‘The government must listen to the committee’s serious criticism of many of their proposals particularly when they affect access to justice.

‘Along with peers from all sides including the crossbenchers, we will continue to fight these proposals that remove access to justice for fellow citizens who need legal advice.’

Law Society president John Wotton said he was struck by the forthright nature of the report. He said: 'It is unusual for a Lords Committee toexpress their concerns with such startling clarity. There have been concerns that the bill is unlikely to deliver the claimed savings but as the committee makes clear, access to justice is a priceless constitutional right.

'The government should take this report to heart and work with stakeholders to improve the bill so that it does not jeopardise access to justice for all but the most wealthy.' 

The Society argues that the Lord Chancellor should be granted a power to bring cases back into the scope of legal aid by regulation, so that serious problems could be addressed without the need for primary legislation, and supports the Committee’s view that the right to free advice in the police station should be maintained without exception.

The report can be read on the Committee website.

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