The House of Lords Constitution Committee has today published a report on Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Bill. This is the part of the Bill which deals with legal aid. The Committee states that the extent of the proposed cuts to legal aid, and the manner in which they are to be delivered, raises issues around important constitutional principles of access to justice
Access to justice and role of Lord Chancellor
The Committee recommends that the provision in the Bill relating to the Lord Chancellor's role in ensuring legal aid is available should be strengthened to read "The Lord Chancellor must secure that legal aid is made available in order to ensure effective access to justice". This would help ensure that the constitutional principle of access to justice is not undermined.
Director of Legal Aid Casework
The Bill abolishes the Legal Services Commission, giving responsibility for determining which civil and criminal cases qualify for legal aid to a new Director of Legal Aid Casework, based on regulations set out by the Lord Chancellor. The Committee suggests that the House consider whether this post will be sufficiently independent of possible Government interference.
Legal aid for individuals in police custody
The Committee raises concerns that the Bill would allow the newly created Director of Legal Aid to determine whether an individual qualifies for free legal advice when held in police custody. They point out that the Supreme Court recently observed that an individual in police custody has the right not just to legal advice, but to free legal advice. The Committee says the House may wish to consider whether this provision should be amended.
Commenting upon the publication of the report, Committee Chairman Baroness 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 Legal Aid, Sentencing and Punishment of Offenders 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."