Civil Legal Aid

(Limited Text - Ministerial Extracts only)

Thursday 15th October 2015 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

It is a pleasure to serve under your chairmanship today, Mr Brady, for what I believe is the first time—certainly as a Minister. I am grateful for the opportunity to respond to the debate. I am sure many colleagues will have noticed that I am not the Minister responsible for legal aid, and I want to convey apologies on behalf of my hon. Friend the Under-Secretary, the Member for North West Cambridgeshire (Mr Vara), who is caught in the joys of the Committee on the Welfare Reform and Work Bill. I shall address issues of substance—technical and detailed as they are—and principle as best I can. If I cannot deal with them I shall follow them up; or I am sure my hon. Friend will be able to.

I welcome the report and scrutiny, and particularly the tenor of the approach to the issue taken by the Chairman of the Select Committee on Justice. He began by pointing out that all the reforms are happening in the context of trying to deal with the deficit, and noted that the Ministry of Justice is not a protected area. There are no easy choices in this area and I welcome his emphasis on that. At the same time, I think it is agreed across the House that legal aid is a vital element in any fair justice system and I am proud to say that our system remains very generous. Last year we spent £1.6 billion on legal aid. That is about a quarter of the Department’s expenditure. All sorts of issues arise in connection with methods and modalities of legal aid reform—I thought that the Select Committee Chairman handled this aspect of the matter well—but it is incumbent on those whose bottom-line position is that we need to spend more to explain responsibly where the money will come from. They should explain whether it would be from prisons, within the Ministry of Justice budget. We have just had a debate on prison reform and we all understand how difficult the pressures are there. If more spending on legal aid is not to come from the Ministry of Justice budget will it be from the schools or health budgets?

[Karl Turner]

The point, which the Committee made very well, is that there is not necessarily a real saving. There may be a top line saving. Legal aid spending may be reduced, but that is going down the road to another Department. Some other area has to pick up the bill in the end.

[Mr Raab]

That is not correct or accurate and I will address the point in detail shortly. The hon. Gentleman must face up to the fact that the shadow Justice Secretary in 2011, the right hon. Member for Tooting (Sadiq Khan), made it clear that the Labour party’s position then was that cuts would have to be made. I have heard little of substance from the hon. Gentleman other than that the Labour party, even under its current leader, is punting the whole issue into review. It sounds a little to me as if there is a lot of critique but not many positive ideas about what to do.

[Alex Chalk (Cheltenham) (Con)]

In the context of the need for cuts, should we not bear it in mind that one of the issues of concern to the Committee was the underspend on legal aid? There were concerns about lack of information about its continued availability. Is not it important to ensure that where there is legal aid those who may be entitled to it are notified of that, to ensure that they get access to justice?

[Mr Raab]

My hon. Friend is right and that is a more legitimate question to raise.

For all the bean-counting, and the importance of the deficit, the Government have a responsibility to ensure that those in the greatest hardship, at times of real need, are provided with the resources to secure access to justice. As well as being grateful to the Select Committee Chair, I am grateful to all hon. Members in this and the previous Parliament for their diligent and careful scrutiny of our legal aid reforms. Some fair points have been made in the reports, and by the Chairman today.

When the programme to reform legal aid commenced in 2010, the scale of the financial challenge faced by the Government was unprecedented, so we had to confront those difficult decisions. It was our clear intention to remove legal aid for some types of cases while protecting access to justice in key areas. That is why we have sought to make sure that legal aid remains available for critically important cases: where someone’s life or liberty is at stake; where they may, for example, lose their home; in cases of domestic violence; or where children may be taken into care. We were clear about wanting more cases to be diverted from court where suitable alternatives are available. Let us face it; the justice system is there not for lawyers but for society, citizens and victims. There is no doubt that in many cases the court should be the last, not the first, resort.

The changes we had to make to legal aid have been contentious. They were debated extensively, with amendments made throughout their passage, before they were approved by Parliament. Those changes need to be judged fairly, given the passage of time. Yes, the reforms in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have made a considerable contribution to my Department’s programme to reduce its spending, and we are on course to achieve our planned savings; but legal aid continues to remain available where it is most needed. For example, last year we began funding legal representation on more than 46,000 new proceedings under the Children Act 1989 and almost 14,000 proceedings related to domestic violence protective injunctions. Those are the kinds of cases where it is really important that there is still a safety net.

We have also made sure that funding will be provided, where it is needed, through the exceptional funding scheme. That scheme has been criticised and it remains the subject of continuing litigation. I am sure that hon. Members will appreciate that I cannot comment on that litigation. The exceptional funding scheme has never been intended to provide a general power to fund cases that fall outside the wider generic scope of legal aid. That is not its purpose. The scheme is expressly aimed at making sure legal aid is provided when it is required strictly under the European convention on human rights or otherwise under EU law. In the two years following the implementation of LASPO we have granted exceptional funding in almost 300 cases, and the number of grants is rising with each quarter. In the most recent quarter, April to June 2015—I think that the same figures were cited by the Select Committee Chairman—there were 121 grants, the highest number since the scheme began and a three-fold increase on the same quarter of the previous year.

That the scheme has been subject to litigation is not surprising: it is a new regime, so litigants will seek to test its limits, particularly given the professional sector we are talking about. Having said that, we will listen to the concerns of the courts and address them where necessary—for example, by updating guidance or amending regulations to reflect the detail of the latest case law. My hon. Friend the Chair of the Select Committee made a point about the complexity of the forms; we are looking at that and will see whether we can simplify how they are presented.

Litigants in person are not a new feature of our justice system. People involved in litigation are engaged in a range of disputes and have a range of different needs and capabilities. For many people, representing themselves might be the right choice, whether because they literally want their day in court, physically; because of financial considerations; or because of the nature of the case. Litigants in person have always been a feature of the family justice system. Family court judges are well practised and rather good at stretching and striving to find the right kind of support and to allow flexibility so that litigants in person can give the best evidence possible.

I am not saying that we should disregard the impact of the reforms on litigants in person. In anticipation of an increase in numbers, right at the outset we put in place £370,000 of extra support for organisations, including new guidance. We have kept that under review and, where there have been concerns, we have taken further action, which is why we announced £2 million of further support for litigants in person in October last year.

[Karl Turner]

Is the Minister suggesting that the significant increase in litigants in person is based purely on the choice of the litigant, rather than the fact that they are just not in the position to access a lawyer, whether because of an advice desert in the area where they need advice or for other reasons?

[Mr Raab]

No. As the Chair of the Select Committee pointed out, we are talking about behavioural conduct—human beings in very difficult situations. Sometimes their lives might be chaotic or difficult, or they might be under pressing conditions. I am not sure that we can say precisely why it has happened, because there could be a variety of reasons. The fact is that there is now a new litigants in person support strategy in place, led by the advice, voluntary and pro bono sector, which builds on domestic and international advice and evidence. Progress has been made, with increased provision of face-to-face, phone and online support.

It is not right to claim that increasing numbers of litigants in person have created knock-on costs that undermine savings from legal aid reform. The National Audit Office looked at the matter very closely and reported that the additional costs of the changes are relatively small compared with the gross figures—we are looking at around £3.4 million a year, compared with the scale of the civil and family legal aid savings achieved, which the NAO estimated at around £300 million a year. The suggestion about knock-on costs is therefore just not right.

Encouraging greater use of mediation has been a key plank of our wider reforms to the justice system, and it is germane here. Mediation can a be quicker, cheaper and less stressful means of dispute settlement than protracted litigation. It is right that we try to keep a whole range of disputes outside of the courts. As I said earlier, the justice system is there for citizens, not just lawyers. Mediation also plays a role in reducing conflict and helping the parties to communicate better with each other.

Admittedly, the volume of individuals diverted from court into family mediation was not as expected following the reforms, but family relations are difficult to predict, particularly on a societal scale. Nevertheless, we acted quickly to address matters when it became clear that the behavioural shift was not being achieved to the degree that had been hoped for and estimated, although it was only an estimate. The Family Mediation Task Force was established in January 2014 to respond to the situation, and we accepted many of its recommendations.

[Robert Neill]

I understand the point the Minister is making, but, perhaps precisely because it is difficult to predict these things, would he accept that it is not realistic to wait three to five years for a review? Would he be prepared to review the situation in this coming year, in light of that very unpredictability?

[Mr Raab]

I say to my hon. Friend that, in fairness, it can be argued both ways. One could argue that we ought to have a look now because of some fluidity in the figures, or one could say, “Hold on, shall we see if it settles down and we get a slightly bigger picture? Otherwise we’ll only end up having a second review or implementing reforms based on an initial review without having the big picture.”

[Robert Neill]

Again, I understand what the Minister says, but will he also bear in mind that there is not only the issue of the unpredictability that is acknowledged on all sides, but the fact that there is a significant underspend? If there is a significant underspend, which is quantifiable, that tends to indicate fairly strongly that some cases that should be getting legal aid are not, even on the estimates that were made.

[Mr Raab]

That is a fair point, but I am not sure whether that alone would justify bringing forward the review. We want to gauge the long-term direction of the reforms, but I take on board my hon. Friend’s point, which he made perfectly reasonably.

The actions taken as a result of the Family Mediation Task Force’s recommendations include the mediation information and assessment meeting and the first session of mediation for both participants, where one participant is eligible for legal aid. The number of publicly funded mediation starts have now increased for five consecutive quarters and are at their highest volume since the quarter April to June 2013. We acknowledge that the volumes are not where we would like them to be, but we are working on it. While the figures bed down and we tweak the system, we acknowledge that it has not been perfect or particularly easy to estimate with any great precision, but we are seeing significant and substantial improvements. Given the trajectory we are now seeing, it is not right to rubbish this aspect of the reforms.

We have also worked to increase awareness of legal aid and the Civil Legal Advice service on the Government web pages. There is a new, enhanced “Check if you can get legal aid” digital tool available, which provides interactive information to help individuals to assess their eligibility for legal aid. The service has been designed and tailored around the needs of applicants following extensive user testing—it has not just been put up there on a whim. A new communications strategy will be launched this autumn to increase the awareness of our partners, stakeholders and their front-line advice providers, on the availability of legal aid and the Civil Legal Advice service through the new digital tool.

Domestic violence is undoubtedly one of the most important dimensions of the reforms and their impact. I assume it goes without saying that domestic violence and abuse appals everyone present, as well as everyone across the House and across society. That is why it is a priority for the Government, and why we retained legal aid for protective injunctions, such as non-molestation orders. On top of that, in private family law matters—cases concerning child arrangements and financial matters—funding might be available for those who would be disadvantaged by facing their abuser in court. That is an important innovation.

Of course, evidence is required to ensure that the correct cases attract funding, but we have listened to and responded to specific concerns. Following an early review of the system, we made changes to make evidence easier to obtain. Since we intervened, the number of grants in such cases has risen quarter on quarter and by 25% over the past year. We will keep that under review and we will keep responding to the evidence, because that is the responsible thing to do.

I would like to touch briefly on the proposed residence test, which is also important. It is also the subject of litigation that is before the Court of Appeal today, I think, so I cannot comment on the detail. Nevertheless, I want to make it clear that the Government believe, as a matter of principle, that individuals should have a strong connection to this country in order to benefit from our civil legal aid scheme. We believe that the test we have proposed—with important exceptions for vulnerable groups—amounts to an approach that is fair and appropriate.

I want to pick up on some of the points that were made in the previous speeches. The Chair of the Select Committee referred to the estimates of the spend; we need to be honest that they were estimates. The scheme is demand-led, so it is difficult to make estimations with great precision, but, when needed, legal advice will be available. We will be conducting a post-implementation review. He may argue that it should take place sooner rather than later, but there are arguments both ways. We should not have a review too quickly before the reforms bed down; otherwise, we risk not seeing what the full impact and implications are, and we will get only a partial view.

[Alex Chalk]

Does the Minister agree, however, that the other relevant consideration is that the longer we leave it, the more scope there is for some people who should have access to legal aid to be denied it? That can have significant implications for those individuals. That is one of the competing considerations to bear in mind.

[Mr Raab]

My hon. Friend is absolutely right, and he makes the point fairly. As policy makers we always face that issue, but I am not entirely convinced—the Minister responsible for legal aid will have to think about this and come to a conclusion—that the balance of argument is in favour of risking a rushed review. We should wait and see how the reforms bed down. The Minister responsible for legal aid may take a different view, but I am sure he will give the matter careful consideration, as I have today.

I want to raise two or three other issues in the time available. First, McKenzie friends were rightly raised; they are an important issue. We will consider the report and the updated guidance from the judiciary once we have got it. The right thing to do is to wait until we have got the expert advice from the judiciary before we come to a conclusion.

Other questions were asked about domestic violence and why the rules are not subject to greater discretion. That is a perfectly legitimate issue to raise, but we need objective evidence to apply the rules in a way that maintains the basic integrity of the system. We can have a debate about some of the detail of it, but that is an important point to note. I want to emphasise that the two-year time limit relates to the evidence of the abuse, not the abuse itself. I think there has been some misunderstanding about that important distinction.

I hoped that the Labour party would take a slightly more consensual approach, because in 2011 the then shadow Justice Secretary, the right hon. Member for Tooting (Sadiq Khan), told MPs that the legal aid budget is unsustainable. He said:

“We’ve got to be honest with the British public. When Labour left office, the legal aid budget was £2.1bn out of an overall MoJ budget of £8.5bn. That’s a lot of money. If you want to make savings you can’t cut courts, you can’t close prisons, you can’t cut probation, so the point that I make and I still make is: there are savings to be made.”

He was absolutely right, and if the shadow Minister disagrees he needs to explain where the extra money is going to come from. Punting it into review and saying they are going to pay for this thing by getting the Bank of England to print extra money—an idea that has been panned by the Governor as not only economically irresponsible but likely to hurt the most vulnerable in society, including the elderly and the poorest—will not do in a serious debate. We need credible contributions like the one today.

[Karl Turner]

Listen, the point is this. My right hon. Friend the Member for Tooting (Sadiq Khan) made those comments in 2011. The reality is that the Opposition criticised the changes in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 throughout all stages of its passage through the Commons. Indeed, many changes were made in the Lords. The point is that the Select Committee is criticising the Act now. It is an objective criticism, and in truth the Chair criticised it more than I did.

[Mr Raab]

The reality is that before the previous election the Labour party’s clear position was that cuts need to be made. Unlike the Chair of the Select Committee, who made a number of detailed points about the substance—

[Karl Turner]

It was not.

[Mr Raab]

Exactly. It said very little on the substance; the hon. Gentleman is quite right. We have not had, amid the carping and criticism, any serious alternative approach on the “how”, rather than the “whether”.

[Karl Turner]

It is coming.

[Mr Raab]

Well, we will wait for that, just as we are waiting for proposals on a range of social policy areas. In fact, there seems to be very little policy that is not up for grabs and up for review.

We have made significant reforms to the legal aid scheme, and we believe they are sustainable. We do not say that they have been easy choices. The Legal Aid Agency undertakes regular capacity reviews of supply, which continue to show sufficient capacity in all categories of civil law in the majority of procurement areas. Where that is not the case—for example, where a provider has withdrawn from a contract—the agency has taken action to find alternative provision.

I recognise the strength of feeling on this subject and the importance that hon. Members from both sides of the House attach to it. The Ministry of Justice and the Legal Aid Agency routinely and closely monitor the operation of the legal aid scheme, taking action when issues or problems are identified. I have tried to set out as best I can the areas where we have already responded. We do not say that we got it right first time without glitches or problems in the implementation.

We have also committed to conduct a post-implementation review of our legal aid reforms within three to five years of implementation—in other words, by 2016 to 2018 at the latest. The precise timing and the form of the review will be guided by our assessment of the extent to which the reforms have reached a steady state, as I have already indicated, and by Government and wider stakeholder research and evidence on the impact of the reform. I appreciate that there is a perfectly proper debate to be had on the timing, but we want to wait for that evidence and research to come through.

I am grateful for the Select Committee’s report and its approach. I am grateful to hon. Members who have spoken in this debate. I appreciate the points made by the shadow Justice Minister, and I hope I have been able to address as many of the questions as possible. I am happy to follow up further afterwards if that is not the case.