Access to justice is a fundamental part of a properly functioning democracy, wrote Ken Clarke on Monday as the legal aid, sentencing and punishment of offenders bill entered its committee stage.
The justice secretary's assertion is rendered rather meaningless in light of government's plans to cut £350m from the £2.2bn legal aid scheme by, for example, removing nearly all social welfare law from it in one sweep.
The peers continued to give the bill a tough time and were supported in their efforts to moderate the proposed legislation's worst excesses by Lord Tebbit. The one-time Tory hard-man cast aside that image to join "the side of the angels" and backed preserving legal aid for children in cases of medical accidents.
Clarke described legal aid as in the grips of an existential crisis. However, I'd argue that any "existential" conflict surrounding our embattled legal aid system exists largely (but not exclusively) in the government's head. It hasn't troubled previous ones which largely understood and accepted the role and cost of publicly funded law in the welfare state and our society.
The failure of ministers to go back to first principles, despite Clarke's claims, was very much the big theme of Monday night's debate in the House of Lords – in particular the complete absence on the part of the government to recognise access to justice as a constitutional principle. That point made emphatically by the constitutional committee only last month.
The first of 197 changes proposed by members of the Lords was drafted by the barrister Lord Pannick QC and supported by the likes of the former lord chief justice Lord Woolf. It sought to remedy the perceived "defect" in Clause 1 of the bill which omitted to mention that the objective of the legislation was to secure access to justice.
In truth, the debate around the amendment somewhat misfired. Pannick explained that any such duty required of his amendment was not absolute but would be "defined by reference to the resources available". The Labour peer Lord Howarth confessed to being "a little confused" about exactly what the amendment would "require of the system" – without that qualification it would have been a "humdinger", he added.
The former minister was not alone. Lord Goldsmith questioned an amendment that did not go "as far as the constitution committee". Allowing such a qualification "might allow the damage to be done to the legal aid system and the access to justice that so many people need that we are fighting for", said the former attorney general.
Lord Phillips of Sudbury, a partner in a City law firm and founder of the Legal Action Group, called the amendment "dangerous", saying that without an effective legal aid scheme any legislation produced by parliament could be viewed as cynical.
"To legislate rights knowing that a large number of those for whom they are intended do not have access to them must be a form of cynicism," he said.
If access to justice was a fundamental constitutional principle, Howarth reasoned that we – "as citizens and taxpayers" – should pay whatever it "reasonably takes to secure it". The legal aid budget was only around 1% of the social security budget and the £350m cut to the legal aid represented about 0.2% of the deficit, he said.
So another bashing from the Lords, but will ministers make any compromises?
The Liberal Democrat peer Lord McNally, leading on the bill for the government, pondered on how the government might be judged on those areas of law that it planned to cut from the scope of legal aid. He seemed resolute. "The lord chancellor and my colleagues in government are confident that we have made the right decisions, hard as they have been in some cases."
Fellow Lib Dem Lord Carlile of Berriew was supporting the Pannick amendment and clearly frustrated at the fact that there was "no hint" of concessions from the government. He described the prevailing mood of the government as "an air of irritated intransigence".
Jon Robins is the editor of thejusticegap.com
