(9 years ago)
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Lord Howarth of Newport
That this House takes note of the future of legal aid.
Lord Howarth of Newport (Lab)
My Lords, I am not the noble Lord, Lord Bach. Unlike my noble friend, I am not a lawyer, merely a citizen. As a citizen, what should I reasonably be able to expect of our system of legal aid? It is a good subject for debate on Human Rights Day.
To know what we should do in the future about legal aid we should first consider the values that have been violated and the damage that has been done in recent years. In his book The Rule of Law Lord Bingham proposed as the core principle:
“All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made … and publicly administered in the courts”.
He traced the genesis of the rule of law to the coronation oath and to Magna Carta, which declared,
“to no one will we sell, to no one deny or delay right or justice”.
It is insufficient, however, if legal rights are merely declaratory; they must be enforceable by all to whom they apply. With the development of legal aid in the 20th century, publicly funded legal advice and legal representation became available, if not to all citizens, to a vastly greater proportion of them. The institution of legal aid, enacted by a Labour Government, despite post-war austerity, in the Legal Aid and Advice Act 1949, marked one of the great constitutional advances in our history. Over the next 40 years, the scope of legal aid was extended to more of the courts and to more classes of case.
Then, in 1987, the Conservative Government commenced a long attrition of public spending on legal aid. The Labour Government more or less carried on the policy after 1997. But it was the coalition Government that really took the axe to legal aid. The coalition parties had no mandate for this; their manifestos had not hinted at it. They claimed that the global financial crisis obliged them to make drastic cuts to the legal aid budget. Kenneth Clarke’s Legal Aid, Sentencing and Punishment of Offenders Act 2012—LASPO—excluded all but the very poorest from eligibility for civil legal aid and took out of scope, with only very limited exceptions, clinical negligence, employment, private family law, housing, debt, immigration, education and even social security.
At the very same time, the Ministry of Justice was wasting very large sums elsewhere. The department was being ripped off by contractors claiming money for tagging non-existent prisoners and was duplicating an internal IT system in ignorance of a parallel project being run by the Cabinet Office.
Mr Clarke’s successor, Chris Grayling, placed a novel interpretation on the Lord Chancellor’s oath of office, to,
“respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficiency and effective support of the courts for which I am responsible”.
He set about an extensive and extraordinary assault on the rule of law, including a further attack on legal aid. In 2013, he announced his intention to cut another £200 million per annum. In a consultation paper with the Orwellian title Transforming Legal Aid: Delivering a More Credible and Efficient System, he proposed further narrowing of the scope of matters covered by civil legal aid, for example prison law and judicial review; further reductions in payment rates for areas of civil legal aid that remained within scope, such as childcare cases; restructuring of the criminal legal aid market with cuts in legal aid rates for solicitors and barristers; and further restrictions on eligibility, for example a residence test.
In response to the consultation, writing in the Solicitors Journal, John Halford and Mike Schwarz said:
“Legal aid is not a welfare benefit; it is an equalising measure. Its aim is to ensure that everyone subject to UK jurisdiction can enjoy their rights in a meaningful way through access to legal advice when it would otherwise be unaffordable and representation funded to the extent necessary to ensure that the merits of any court case will determine the outcome, rather than the relative wealth or power of the opposing parties”.
They went on:
“These fundamental principles remain shamelessly compromised by the Government’s proposals … The crime proposals perpetuate a dangerous trend; those for civil work will create a silenced minority whose cases will never be heard by our courts, regardless of their merits or what is at stake”.
As the President of the Supreme Court, the noble and learned Lord, Lord Neuberger, has said, when a case is dropped for lack of legal aid, it is,
“a blot on the rule of law”.
A YouGov poll in April this year found that 84% of the public rated access to justice a fundamental right. Without access to justice, inequality becomes more dangerous. Yet net expenditure on legal aid fell from £2.2 billion in 2011-12 to £1.6 billion in 2014-15. A letter to the Guardian on 1 May this year, signed by more than 100 senior lawyers, said:
“The effect of the cuts is reflected in eye-watering statistics. From 2012-13 to 2013-14, debt cases fell from 81,792 to 2,423 and in clinical negligence from 2,859 to 114. In employment law, legally aided cases fell from 16,154 to six in the same period”.
It is to the credit of Mr Grayling’s successor, Michael Gove, that he has spent his first six months in office seeking to clear up the mess left by his predecessor. His speech to the Legatum Institute, on a one-nation justice policy, showed his grasp of the principles that should guide him in his office. He acknowledged:
“While those with money can secure the finest legal provision in the world, the reality in our courts for many of our citizens is that the justice system is failing them. Badly”.
I hope that the attitude of the new Lord Chancellor will reopen the possibility of a consensus—a positive consensus—between the political parties on legal aid. He has, however, given no commitment to restore any state-funded legal aid. No crumbs were forthcoming from the Chancellor of the Exchequer’s table when it was found to be laden with an extra £27 billion.
The consequences of the reductions in legal aid have been fourfold: denial of access to justice, human suffering, failure to achieve the intended savings, and damage to the legal profession.
Problems that could have been addressed quickly and cheaply through early advice have become costly social, mental health or welfare issues. The commission of the noble Lord, Lord Low, has described these ravages. I also commend to noble Lords Shelter’s analysis of the effects on housing and homelessness. The LASPO cuts in legal aid have reduced funding for its legal services by 50%. It has been forced to close nine services around the country.
An article in the Guardian on 7 November reported from another devastated zone. Sitting in on family law cases in court, the author, Louise Tickle, witnesses “the extreme stress” that litigants in person, in states of heightened emotion, find themselves under. A barrister tells her of,
“dads who think the court process is inherently biased against fathers, who feel disempowered and unable to pursue their case without help—so they don’t try, and the result is that they don’t have any contact with their children at all. That’s disastrous”.
Alistair MacDonald QC, chairman of the Bar Council, told readers of the Times on 26 March 2015:
“Recently the legal aid agency denied support to a mother with learning difficulties as she fought for custody of her child, claiming their decision did not breach her right to a fair trial. The woman could not read or write. We have seen cases where children and partners have faced being cross-examined by fathers who have been accused of abusing them”.
The LASPO assault on legal aid coincided with the Treasury’s assault on social security funding in a pincer movement against the poor. The president of the Law Society, Jonathan Smithers, has said that, following the exclusion of 600,000 people a year from legal aid:
“The lack of access to justice in this country for a significant proportion of our population undermines society itself”.
The National Audit Office reported a 30% increase in cases starting in family courts in 2013-14 in which neither party had legal representation. The huge increase in litigants in person points to a deterioration in the quality of justice. This is not the fault of judges, who attempt patiently to guide litigants in person through bewildering court procedures and maintain a fair balance between contesting parties. There has been a significant increase in the costs of running courts in the Family Division as cases take longer.
The Public Accounts Committee on 19 January 2015 stated:
“The Ministry of Justice … is on track to make a significant and rapid reduction to the amount that it spends on civil legal aid. However, it introduced major changes on the basis of no evidence in many areas, and without making good use of the evidence that it did have in other areas. It has been slow to fill the considerable gaps in its understanding, and has not properly assessed the full impact of the reforms. Almost two years after the reforms, the Ministry is still playing catch up: it does not know if those still eligible are able to access legal aid; and it does not understand the link between the price it pays for legal aid and the quality of advice being given. Perhaps most worryingly of all, it does not understand, and has shown little interest in, the knock-on costs of its reforms across the public sector. It therefore does not know whether the projected £300 million spending reduction in its own budget is outweighed by additional costs elsewhere”.
What an abysmal way to govern. The Government consider justice too expensive. They need to grasp that injustice is even more expensive. The rule of law underpins not only a just and humane society, but the health of our economy.
LASPO has also ended the careers of many legal aid lawyers and advisers who had dedicated their working lives to enabling disadvantaged people to have access to justice. The Government have squandered this resource. Organisations such as the Norfolk Community Law Service are fighting back, for example by providing work experience for law students in their free legal advice services. But voluntary and pro bono work is no substitute for legal aid.
The noble and learned Lord, Lord Woolf, has said in this House that,
“it would be difficult today for any responsible person to advise a youngster coming into the profession to take up a criminal practice”,
noting:
“The quality of our judges is dependent on the quality of the legal profession from which they are drawn”.—[Official Report, 10/7/14; col. 332.]
Last year, the Government reduced litigators’ fees by 8.75%. This year, they have published regulations for a second draconian cut of 8.75%. Meanwhile, the Law Society reported that 120 providers were facing bankruptcy as a result of the previous cuts. We have seen boycotts by solicitors and barristers of new cases paid at the lower rates of legal aid. With the reduction in funding for legal aid work and in the volume of legal business, as my noble friend Lord Beecham has warned, firms are not recruiting trainee solicitors.
In opening this debate I have attempted to sketch the problems that surround legal aid. My noble friend Lord Bach will be chairing a review of the future of legal aid. The president of the Law Society has said of reform:
“You need to start by asking, ‘What do we want to achieve, what does good justice look like, and how are we going to get that?’”.
My noble friend will also need to establish the full facts. The Government should provide a comprehensive cost-benefit analysis of the impact of LASPO and other cost-cutting measures. If the Government will not bring forward their review of LASPO, he should do it for them.
My noble friend’s review may wish to examine the factors that have driven the demand for legal aid, because they all continue to apply. These include the huge increase in the volume of law and the creation of many more criminal offences. There has been the increase in family breakdown. Affluence and the greater availability of credit have increased demand for consumer redress. With technological change, data protection issues have become more important. With better education and more information, more people have become aware of their legal rights and sought to assert them. There has been a growing insistence that the Government and other public agencies should be accountable and be made to provide redress when they are at fault. All these are legitimate reasons for the growth of legal aid.
The decent way to constrain legal aid spending will be to deal with underlying causes that are not acceptable: bad landlords, bad employers, reckless moneylending, non-payment of debts and chaotic immigration. Limiting the growth in legal aid requires a responsible, activist state.
While accepting, of course, the need for financial discipline, for the elimination of abuse where it exists and for efficiency within the legal aid system, my noble friend should accept that, as economic growth is achieved, some of its fruits should be used to restore funding to legal aid, bringing back into scope categories that were so wrongly excluded, easing the severity of the means tests, and paying rates that are viable for the legal profession. The rule of law, after all, is beyond price. He may also want to look at the option of an indemnity or insurance fund, and he may wish to consider whether less adversarial processes are appropriate in some areas, perhaps in the family courts.
My noble friend’s review will be about more than damage limitation. It will set out what the desirable dispensation for legal aid should be in the future. I know that my noble friend will make a clarion call for equal access to justice. I beg to move.
Lord Lester of Herne Hill (LD)
My Lords, I congratulate the noble Lord, Lord Howarth, on his powerful speech, with which I agree. I am very sorry that the noble Lord, Lord Pannick, cannot be with us today, owing to a family bereavement, but his powerful essay in the Times today says everything with which I also agree.
Today is international Human Rights Day. One fundamental human right is effective access to justice, protected by the Human Rights Act and the common law. It is a state’s duty to provide a system of legal aid that enables everyone, including the poor and not so rich, to have effective access to courts and tribunals. Fifty years ago when I began to practise law, our legal aid system was the best in the world. It was the Attlee Government’s great achievement to have brought in the Legal Aid and Advice Act at a time of severe post-war austerity. Its vision was that no one should be unable to defend a legal right or bring a just and reasonable claim because of lack of means.
I am proud to be honorary president of the Liberal Democrat Lawyers Association. We have always toasted the health of the 1949 Act at our annual dinner. Now there is little left to toast. Legal aid has been treated as the Cinderella of the welfare state—an easy target for the Treasury’s axe. Successive Governments have cut legal aid to the bone. In 1949, eight in 10 people had access to legal aid, based on income and assets. By 1986, six in 10 were eligible. By 2008, just shy of three in 10 satisfied the means test. In 2009, an independent review concluded that it would be wrong to tighten the screw any further. However, the coalition Government made swingeing cuts without adequate research into their probable impact.
The yearly budget for civil legal aid before the cuts was £2 billion in total—equivalent to running the NHS for a fortnight. It was reduced by £300 million, and plans were announced to cut criminal legal aid by £220 million every year until 2018. The civil legal aid reforms swept whole areas of law out of the safety net—family, debt, housing, employment, immigration, medical negligence, education and welfare benefits—with narrow exceptions. This House voted against the legislation 14 times before it squeaked through.
The Government anticipated that reforms would encourage potential litigants to engage in alternative dispute resolution. Those calculations were misjudged. In January 2015, the Commons Public Accounts Committee found that mediation for family law matters had fallen by 38% rather than increasing by 74% as the ministry expected. As Lord Scarman discovered when he spent three days trying to solve a social security problem for his cleaning lady, welfare law is as complex as tax law, yet as more and more legal advice centres are starved of funding, litigants must represent themselves.
The cuts come at a time of stringent reductions in other public services, when the need for access to justice could not be greater. Whenever people cannot have access to legal assistance, one sees spiralling debt, mental health problems, homelessness, criminality and family breakdown—all with knock-on costs to other public services. In compelling evidence to the Commons Justice Committee, Islington Law Centre reported that two people had collapsed in its offices because of a lack of food. They had received benefits sanctions and had not contested them. In one case, a man had not eaten for six days; in another, a woman was unable to feed herself and her three young children. The exceptional funding scheme was intended to be a safety net, but the application process remains so complicated that people cannot use it.
The previous Lord Chancellor imposed exorbitant taxes on justice. For the first time, court fees do not reflect the administrative costs of the court: instead, the Treasury profits from people seeking to enforce their legal rights. The justice system is too expensive for traders, small businesses and the victims of personal injuries. I warmly welcome last week’s decision by the new Lord Chancellor to scrap the criminal courts charge and announce a review into court-ordered financial impositions for offenders. I hope that he will also reverse the increase in court and tribunal fees in civil cases.
In December 2014, the previous Government promised a post-implementation review,
“on a period of three to five years”—[Official Report, 4/12/14; col. 1402.]
after the implementation of LASPO. Waiting until 2018 for a comprehensive review is too long. Post-legislative scrutiny should begin in April 2016. I hope the Minister agrees. It is vital that these assaults on our two-nation justice system are reversed. What use is the rhetoric of human rights if the system, like the Ritz hotel, is open only to the rich?
Lord Goldsmith (Lab)
My Lords, I, too, congratulate my noble friend on initiating this debate. That he opened the debate as a non-lawyer is not a deficiency; it is a strength. It underlines the fact that legal aid is not just a specialist interest for the legal profession: it is about ordinary people, and everyone in our country who needs legal advice and legal assistance. I want to speak about one particular aspect of that—the effect of the legal aid cuts on the voluntary sector, which provided a great deal of support to people in need. I declare interests as the current chairman of the Access to Justice Foundation and as the founder and president of the Bar Pro Bono Unit.
It is also important to take account of the effect on young people in the legal profession. I note that among the speakers for this debate are two former Lord Chief Justices and one former member of our highest court. I hope and expect that they, as well as the other distinguished speakers, will be able to draw attention to other features that I shall not touch on in my few brief remarks.
Legal advice can make an enormous impact on people’s lives. It can help to reduce poverty and suffering. It has been shown that it also has an impact on government services. If we reduce welfare advice there is an effect on doctors: the amount of advice that they then must give adds even further to their burdens in the National Health Service. That is why legal aid was originally intended to provide a structure to enable legal issues to be identified at an early stage, as well as to deal with disputes once they had arisen.
In that field, the law centres and the citizens advice network have played an enormously important part—but the law centres have lost 40% of their funding since 2011. They used that funding enormously effectively, partly to fund some of their other services, because they could use the green form scheme and other schemes to fund their general activities. Let us take one statistic as an example. In 2005, 30,000 women were dismissed as a result of pregnancy discrimination. In 2015, the figure was 54,000. Where do those women get legal advice, and where do they get the money to pay tribunal fees? It has become so difficult for them to get help and enforce their rights.
The law centres were also able to adopt a holistic approach to people’s problems. People would come in with a specific problem—a dismissal from employment, a redundancy notice or a particular problem with debt—but the workers in law centres and citizens advice bureaux would often discover that that was only one of the problems that that individual had. They would often have a number of other issues to deal with, which was overwhelming for many people, but the specialist advice available enabled them to access other streams of advice within the centres, which would help to solve their problems. They would often get advice on more than one issue.
How is this now being dealt with? I will touch in particular on the advice and support given by those outside the paid lawyers and the legal aid system, although I utterly support that system and agree with all that my noble friend said. The knock-on effect on our court system is already enormous: a 30% increase across all family court cases in which neither party had legal representation. That is a very serious result. Over the last three years, the number of litigants in person applying to the Bar Pro Bono Unit for help has increased 30% year on year. These are all people who cannot access justice without this assistance and they have to come to free legal advice. The Ministry of Justice report on litigants in person in private family law cases found that only a small minority of litigants in person were able to represent themselves competently in all aspects of their family law proceedings. Any of us who have had any dealings with some of these areas—even the lawyers—will know that that must be the case. These are immensely complicated, difficult areas and the procedures of our courts make it more difficult still, despite all the efforts of the senior judiciary to make it more straightforward.
There is much talk, therefore, of lawyers doing more. The Secretary of State for Justice has talked about this. In fact, and I speak from experience, the pro bono intentions of lawyers are strong. When I established the Bar Pro Bono Unit I wrote to all barristers and asked them to volunteer 20 hours or three days of their time a year. The response was overwhelming. In my experience they are always willing to give of their help. But while they give voluntarily of their time, there is also a need for infrastructure to challenge that need. That is why organisations such as the Access to Justice Foundation raise money to support organisations that provide free legal advice. That is why it is important that they should be supported in doing that.
However, even with the profession’s best intentions there will always be a gap and a need for legal services that is unmet—not from Russian oligarchs or wealthy divorcees, perhaps, but from people who need legal advice to deal with the problems that are overwhelming for them in their everyday lives. I take this opportunity both to thank those who support the pro bono organisations and the voluntary sector that do that, but also to encourage the Government to recognise that they cannot turn to the legal profession simply to say, “Pay more money in this way to support these services”. Although the pro bono sector is hugely important, it can never be a substitute for a properly funded legal aid system.
Lord Judge (CB)
My Lords, I begin with an apology. I am afraid that I cannot stay for the entire debate. I have a commitment with the Constitution Committee that means that train and plane will take me to Edinburgh tonight. I apologise to the House, as I have apologised to the Minister.
In the early 1960s I went to have a cup of tea with a High Court judge, hoping to impress him. He made me sit in the back of the court. Over the cup of tea he said, “This is a wonderful system, isn’t it?”, so I said inanely, of course, “Yes, certainly, my Lord”. He said, “Isn’t it absurd? I’m trying a case in which £75 is at stake, two insurance companies are battling over it and two of the most distinguished QCs in the country are arguing it. Next week I go out to try crime. Any fool can do that”. The implication was plain. He went on: “I didn’t get a brief of any kind until I’d been in practice for three years. You’re very lucky. The new arrangements for criminal legal aid will make a great difference and it’ll make a difference to the system”.
I have not time, beyond commending what I have heard so far, to go through all the various facets of this but, at heart, have we not got to recognise that it actually matters whether we lock people up for things they have not done or fail to lock up people for things they have done that they are proved to have done, and that the future of every single child matters when its parents are in dispute? We are talking about whole lives that lie ahead.
I am going to talk about crime because of a great brain drain to the criminal Bar. We see bright, intelligent men and women who have committed themselves to qualification, to training, to pupillage, to finding a tenancy and to practising for 10 years who are now leaving the profession. It is not that they want to make a lot of money but they do want to make a living. They have responsibilities and they want to meet their responsibilities. They are going. Where, I ask, is the future crop of Queen’s Counsel to come from, Queen’s Counsel available to be briefed by both sides—the defence and the prosecution? Where, I also ask, is the future crop of criminal judges to come from, men and women who have had experience of years in the criminal justice system and who are regarded as competent enough to be appointed to the Bench? For those of us who worry about these things, perhaps the answer is the future students.
In the past three or four years, for a variety of reasons, I have spent many hours with students from famous universities and universities which are not so famous. They want to do law; they want to practise in the legal profession. Being young—not just because they are young—they are enthusiastic. Wonderful—but when you ask them what sort of law they want to do, they do not mention crime. I can think of about half a dozen, perhaps fewer, who have said to me with a willing smile on their face, “I am going to do crime; I think it really matters”. The overwhelming majority say they want to do commercial or administrative law, or this, that or the other, and when I say, “But what about crime? Locking people up for things they have not done or not locking people up for things they have done matters”, the smile is more wistful and slightly patronising—I do not know what the real world is like. They are not going to do it.
The quality of advocacy matters. After all, we run an adversarial system and are proud of it. An adversarial system is no better than the advocates who do the adversing. The result is—the signs are there to be seen already—our criminal cases are taking longer and longer. The administration of justice cannot be as well done. If you bear in mind that every case that takes longer means that a defendant, sometimes in custody, is waiting for his or her case to come up, you will understand that justice is being damaged. If we go on the way we are doing, 25 years or so from now we will be looking around for the diverse judiciary that we want. We will be going back to the days when to practise at the criminal Bar meant that you came from parents who were reasonably prosperous and who could support you. The young man or woman with no such advantage cannot afford to start at the criminal Bar. I am really asking no more than this: can we please recognise that what was the future in the early 1960s should not become a footnote in history?
Baroness Mallalieu (Lab)
My Lords, after 40 years as a legal aid practitioner I have hung my wig up so I have no direct personal financial interest to declare in this debate, for which we are all indebted to the noble Lord, Lord Howarth, but I do have an indirect one which puts me very much in mind of what has just been said by the noble and learned Lord, Lord Judge. Despite the strongest possible advice to the contrary, my daughter is now a legal aid practitioner and, in the ironic words of Horace Rumpole, now lives “high on the hog” on the,
“rich pickings of the legal aid system”,
down on the Western Circuit.
The coalition Government’s cost savings to the legal aid budget have come at a heavy price for justice. It was predicted; the warnings were given in this House and everywhere else, and they were disregarded. The figures speak for themselves: 400,000 fewer new legal aid cases in the past year, and those in areas of law which almost inevitably involve the most vulnerable—welfare, debt, immigration and homelessness, victims of domestic violence among them; in 2014 more than 8,000 more cases involving contact with children where neither side was represented; 37,000 men and women without the benefit of qualified legal advice in family matters, usually involving children.
What of the exceptional case funding scheme which we were promised by Ministers would be the safety net? We were told that somewhere between 5,000 and 7,000 people were going to apply, mostly successfully, each year. Yet, between April 2014 and March 2015, only just over 1,000 applied and only 225 were granted help. The guidance given to those hoping to apply and the scheme itself have more than once been found by the courts to be so unreasonable as to be unlawful. Whatever else happens in future, that scheme has to be simplified and widened so that it does what was promised. As a result of all this, we have already heard about the tidal wave of litigants in person, who are not only slowing up the courts but drawing judges and court staff into the litigation in attempts to make sure, or try to make sure, that injustices do not occur.
Others who know more about civil legal aid than I do have already spoken, or will be speaking later, about the effects to people of the civil legal aid cuts and the extent to which access to justice is now denied to people in need. However, I cannot ignore the criminal justice system—where, of course, legal aid still exists—where the real damage is less immediately apparent. The noble and learned Lord, Lord Judge, has just indicated some of it. You would be mad to go into the criminal Bar now. Indeed, what other profession has seen its remuneration fall since 2007 by nearly 50%? Those who think lawyers are overpaid are not thinking of the legal aid practitioners.
It is surely in all our interests that criminal offences should be prosecuted fairly and competently by those who are experienced and that those who are accused of crime are also properly represented. There is no question that advocates are now much better trained than we were when I entered the profession. For a start, they have to do advocacy training, which we never did, in addition to continuing professional development and so on. However, I can still see that the quality of the service they are able to provide is being drastically eroded.
Certificates for two counsel on legal aid are as rare as hens’ teeth. The result is that a rape trial, which used always to command a leading counsel, now rarely does, despite the fact that rape is now treated far more seriously than it ever was 20 years ago. I am aware of a contested case last year in which both the prosecution and the defence were conducted by counsel of under 10 years’ call, both having been refused a Queen’s Counsel, the case involving the rape of a very young child and the defendant receiving a sentence of 26 years. It is as if consultants were no longer allowed on the NHS. Very young advocates are dealing today with some of the most stressful cases, and we are all aware that there is a huge increase in distressing sex cases.
There is the additional difficulty in some places of finding experienced counsel to take on the prosecutions, which generally pay even less than the defence. The fee structure is hopelessly illogical, with the result in one case of which I am aware that three days’ work was remunerated with £40, which did not cover the cost of travel to court. In the west country—I have said this before in this House and have received reassuring answers which are incorrect—the Crown Prosecution Service is on the verge of collapse, with the result that barristers are approached directly by the police because no one answers the phone at the CPS, which is hopelessly understaffed and underresourced, and advices are not dealt with, causing the consequent inevitable delays and unnecessary adjournments.
Once upon a time, not long ago, the best-known common lawyers in the land would still take a legal aid case at the Old Bailey. If you wanted to be represented by George Carman, there was a very good chance that he would agree to do it. Now there is no way you could get the noble Lord, Lord Faulks, into the Old Bailey on legal aid, or anyone else in the other branches of the profession.
We had the best legal aid system in the world, both civil and criminal. There were savings that had to be made and could have been made. With a little more investment in digitalisation, unnecessary hearings could be avoided; virtual conferencing could take the place of much of what goes on in court; and with better case management and a sane fee structure, these savings could have been made and still could. It has taken very few years to inflict terrible damage on a system that was the best in the world.
I am not holding my breath, but I am encouraged by our current Lord Chancellor, who has in some areas recognised that change is to be made. However, it needs to be recognised that some of the Government’s attempts to save money have been ill-directed. They must be reviewed and repaired before hopelessly irreparable damage is done.
Lord Dykes (Non-Afl)
My Lords, at the beginning of this debate I was worried that I had deliberately decided not to have a written text but to listen very carefully to the experts. The noble Lord, Lord Howarth of Newport, need not have worried himself about being a non-lawyer. I agreed with all his excellent and detailed offerings. I am an amateur in this matter but I share his indignation.
I have had plenty of conversations, particularly with young lawyers, the group that my noble and learned friend Lord Judge mentioned, or lawyers starting out on their careers. I know the intense demoralisation that they often express in all kinds of circumstances when asked what they do or are planning to do. That never was so before. The legal profession stood proud and was adequately and respectably remunerated without excess, bar some rare and exceptional cases.
I have benefited very much as an amateur listener to this debate, joining in without a written text deliberately, because I agree so strongly with the tone of indignation in the five preceding speeches. I thank the noble Baroness, Lady Mallalieu, as an expert who added weight to her evidence in sharing the demoralising experiences of a member of her family. I particularly thank the noble and learned Lord, Lord Goldsmith, whose reputation as Attorney-General is very distinguished, for his offerings today. These disturb me greatly. The fall in the number of cases now qualifying for legal aid is truly shocking. I am glad that the noble Lord, Lord Bach, who will be replying on behalf of the Opposition, has, I think, already started his review of the legal aid system and what should be done. I believe that he hopes to present a report to the next Labour Party conference. It will be very important indeed to see what that says. The extraordinarily modest total savings—although having a dire consequence for the people and families who are suffering—are not a major component of the Government’s spending cuts. Cuts in other areas might be more justified. To promise a further decrease in the fees being paid just adds to the stunning demoralisation among lawyers that I have already related. This has got to be taken in hand.
I am very glad that the noble Lord, Lord Faulks, is going to reply today because I hope he will reassure us that there will now be the beginnings of what I hope will be the Gove revolution to get more sanity and balance into this whole system. Mr Gove started off well, abolishing the absurd extra court charges that were already distorting the practice of justice in our courts. That is very difficult for people in the legal profession, who are very proud of our legal achievements in the post-war period, to entertain and suffer. Abolition is therefore very important indeed.
The noble and learned Lord, Lord Falconer, in commenting about these matters in the debate on the Queen’s Speech, said:
“There are no proposals to deal with the damage done in the last five years in the area of justice—for example, the decision to take the overwhelming majority of social welfare law out of the scope of legal aid. Now it is no longer possible to obtain legal aid in the areas of welfare benefit law; employment law; housing law, except possession cases; debt law; and much of immigration law”—
a growing theme because of the crisis that we face both here and in other European countries—
“relevant to all but particularly to the poor, the marginalised, the vulnerable and the disabled”.—[Official Report, 1/6/15; col 168.]
That is really a shocking thing for a distinguished former Lord Chancellor to have to say, and the Government must listen carefully to these voices, which are not tendentious or artificial but genuine. I also welcome that the noble Lord, Lord Marks of Henley-on-Thames, will be replying on behalf of the Liberal Democrat group, given his distinguished record and experience as a practising senior lawyer. I hope he will really deal with these matters.
Some time ago, in October 2013, the noble and learned Lord, Lord Neuberger, gave a speech arguing that the impact of the changes to legal aid provision would result in people being denied access to justice and would constitute,
“a blot on the rule of law”.
That is strong language indeed for senior judges and lawyers to use. This goes into the realm of politics, as well. This Government have built up a reputation—albeit, I hasten to remind the House, on the basis of 24% of the electorate and 37% of the turnout voting for them; not a really significant figure—of pursuing tendentious policies that cause social distress, particularly to families dealing with the cases I have already referred to. The Government must think again. There is a chance to do so. The amounts of money involved are not crisis-creating but modest, although for individuals they are absolutely vital for their future welfare and survival.
Lord Low of Dalston (CB)
My Lords, it is always a pleasure to follow the noble Lord, Lord Dykes, with whom I so often find myself in accord. I thank the noble Lord, Lord Howarth, for securing this debate. The legal aid landscape is in such flux these days that it is important for Parliament to keep on top of it. I apologise to the noble Lord and to the House that I arrived so late for his opening speech. On the way here, I am afraid I dropped my BrailleNote on the floor and could not get it to start again. It is only thanks to the doorkeepers and staff of the House, who, with great resourcefulness, managed to connect it to the mains, that I have anything at all to say to your Lordships this afternoon.
I first came into contact with the legal aid system some 50 years ago when I was doing a PhD—sadly, still unfinished to this day—on legal aid in criminal cases. To that extent, I suppose I am one of those people whom JK Galbraith described as having built a successful career on their unpublished works. Fifty years later I was brought into contact with the legal aid system again—although things are very different now—when I was asked by the Legal Action Group, with funding from a number of charitable trusts and foundations, led by the Baring Foundation, to chair a commission on the future of advice and legal support on social welfare law in the wake of the cuts to legal aid introduced by the LASPO Act.
When I saw who else was on the commission, I said I did not think I had sufficient expertise to be there at all, to which they said, “That’s why we thought you’d make the ideal chair”. As regards the name, we went for something completely boring and bureaucratic—the Low commission—because all the other names seemed too close to campaigns against the LASPO Bill. Some people thought it was a misprint for the Law Commission, and the Guardian even got hold of the idea that it was the Low Pay Commission, presumably thinking it had something to do with barristers’ remuneration. It was intended to be just a one-year inquiry but the charities were so pleased with our work that they kept funding us to do more. We have now produced three reports but we will probably be drawing things to a close next March.
We saw advice and legal support as a continuum, including public legal education; informal and formal information and general advice, often provided by local authorities; specialist advice; legal help; and legal representation. However, in a situation where we have to accept that there will be less money for legal help and representation, it seemed clear to us that the advice end of the spectrum was going to need to take more of the strain. That is why we have been focusing more, of late, on what needs to be done to strengthen local advice services.
We argued for a national advice strategy, supporting local advice and legal support plans, produced by local authorities with the local not-for-profit sector and commercial advice agencies. I am happy to say that there seems to be an appetite for this on the part of government and a recognition of the contribution the advice sector makes to society. The Minister has always been very supportive. I remember that, at one Question Time, he even commended the Liberal Democrats’ endorsement of this approach in their election manifesto.
Money is not really the issue. There is no shortage of potential funding streams—Help Through Crisis, Reaching Communities, Building Better Opportunities, the Local Sustainability Fund, Commissioning Better Outcomes, the Social Outcomes Fund and the Troubled Families programme. What is needed is co-ordination of these funding streams, with provision for advice services as a central strategic theme.
There is one other matter I want to raise because of the impact it has had on access to justice. There has been a massive hike in fees for taking a case to an employment tribunal. From nothing at all in August 2013, the issue fee can now be £250 and the hearing fee as much as £950 in more complex cases. These may include discrimination, equal pay and unfair dismissal claims. For claims to the Employment Appeal Tribunal, the issue fee is £400 and the hearing fee £1,200. It has been said that the remission system operating in the civil courts, under which fees can be waived if a party cannot afford to pay, is to be extended to employment tribunals and the Employment Appeal Tribunal. However that may be, since the introduction of fees, the volume of employment tribunal claims has plummeted. Between October 2013 and September 2014, single claims brought by individuals were 64% down on the previous 12 months. Multiple claims were down by 67%. Even if one accepts that the imposition of fees flushed out some unmeritorious cases, it is clearly having a very negative impact on access to justice.
The Government’s recent decision to abandon the criminal courts charge is extremely welcome. Can the Minister say if the Government are minded to row back on the system of fees which has obviously had such a deleterious impact on access to employment tribunals?
Lord Knight of Weymouth (Lab)
My Lords, this is the first time I have spoken on legal aid. I normally leave that to those in this House with a wealth of expertise, particularly from the legal profession, and to those from whom we have already heard, as exemplified by the excellent speech from the noble Lord, Lord Low.
I want to take a little time to talk about the importance of access to justice. Let me talk about three people. Two years ago, I visited New Orleans for the first time. My Dorset friend, Emily, suggested meeting John Thompson. So, one afternoon, we were waiting just outside the French Quarter when John rolled up in his car and let us into his building. It was in many ways like any community building we have all visited. On the walls, however, were pictures of middle-aged black men, with their stories written below. These were stories just like John’s. He told us about his experience of being on death row as a convicted murderer in the Angola prison in New Orleans. He was exonerated after 18 years on death row. He was released suddenly—unemployable, homeless and mentally not healthy. He had to then prove innocence to qualify for compensation from the state of Louisiana. He overcame these obstacles to found his centre, Resurrection After Exoneration.
While we talking, an older man hobbled in with a styrofoam tray of fried chicken. Two months previously he had been exonerated after 30 years on death row. Almost 20 people have been victims of this gross miscarriage of justice. They were all in the wrong place at the wrong time and too poor to afford decent legal representation. All were helped by the Innocence Project New Orleans, established by my friend from Dorset, Emily Bolton. She qualified as a lawyer first in Louisiana and, subsequently, here when she moved home in 2004.
Meeting John really brought home to me the importance of credible legal aid and access to justice. Yesterday Emily emailed me. She said that,
“cuts to police and CPS are eroding the quality of prosecution evidence. In addition, the cuts to legal aid are making miscarriages of justice more likely. This is because the fee structures discourage proactive work by defence solicitors and even the most conscientious among them are unable to do the work needed to achieve justice for their clients pro bono”.
This is much as my noble and learned friend Lord Goldsmith said.
Barristers are forced to do more last-minute work because solicitors have not sought their own answers to the questions posed by the prosecution evidence and their clients. As a result, it is becoming rarer for the courts to be presented with a fair and complete picture of the case and the system’s accuracy is fatally undermined. In turn, the Criminal Cases Review Commission is working with 30% less money on 70% more applications from prisoners to have their cases reviewed. The aspirational goal is that prisoners will serve only three years before having a wrongful conviction overturned. The reality is far longer, as a period of time will pass before we correct our mistakes.
What do these statistics mean for the people who the system is designed to protect and serve? Let me tell your Lordships a little about Mr Jamie Green, a fisherman from the Isle of Wight. Jamie is a prisoner for whom these systemic dysfunctions and delays in the criminal justice system have meant that he has been waiting for more than five years to have what is now clearly a wrongful conviction quashed. As the noble Lord, Lord Dykes, was speaking, the funeral of Jamie’s wife of 26 years, Nikki Green, began. Nikki died of cancer last Monday, before her husband could be exonerated and freed. Jamie will have accompanied her coffin into the service in Newport in shackles, accompanied by security officers who will return him to prison after the service. Tonight, when we leave this House, Jamie will be contemplating all he has lost, alone in his cell. This is the human cost of trying to do justice on the cheap. Because of underfunding of the system, Jamie could not be there to help his wife through her chemotherapy or try to bring comfort to their children. He could not provide for his family during such trying times. Jamie will never again see his wife alive, as a free man.
Jamie is represented by the Centre for Criminal Appeals, a new non-profit criminal appeals practice established by my friend Emily, which is raising private grant funding and donations to cover the work that legal aid will not pay for and that the commission cannot create time for. The centre estimates that in some cases this is at least 50% of the work needed to prove that a conviction is unsafe to the satisfaction of the Court of Appeal. Every wrongful conviction which the centre gets overturned saves the taxpayer the cost of incarceration—an average cost of £25,000 per year. For every one the guilty party is free and unpunished, but of course this is about so much more than that. How many more people like Jamie and his family must be irrevocably harmed by the cuts to criminal justice funding? As we debate the future of legal aid, we must ensure that the tragedy blighting the Green family is not repeated.
Lord Cotter (LD)
My Lords, there have been so many concerns expressed in recent times about the change in the laws related to our legal system. Nothing should be sacrosanct, but the proposals made have not been well thought out. A recent survey found that only a quarter of the population believes that the UK’s legal system is fair and transparent. Two-thirds of those questioned feel that wealth is now a more important factor in gaining access to justice than it used to be.
There is much still to be done to address the genuine, real and justified concerns that the public have. But it is not just the public: legal experts, judges, magistrates and practitioners also share these concerns, so it is welcome that the Justice Secretary has just abandoned, for example, the punitive criminal court charges. However, the damage has been done already through many magistrates of experience—experience which is now lost—resigning in protest at the court charges. We are still left with the massive problem of ensuring that the public are in future to be represented by high-quality legal aid lawyers who are well funded and valued.
During a short debate last month over concerns that the bidding process was faulty, the point was made that because of the process, the future for good legal aid work was and is at risk. Replies at the time from the Government tried, in my opinion, to suggest that a few disgruntled solicitors were protesting because they were not given the work. It was implied that they were just being childish. This was not a lottery—or was it?—but the process should have been carried out professionally. Even at this stage the Government have a duty to re-evaluate the process, which was not professionally done. We are talking about the obligation to ensure that the general public have the best possible protection for their rights.
We have just celebrated Magna Carta and there is a duty on the Government to ensure that this process of fairness is maintained, so again we are back to process. It is not just imagined that the assessment process was faulty. Insufficient time was allowed to train the assessors and for them to do the actual work. This has been attested by many people who know this and have seen it with their own eyes. Basically, the assessment process was a rushed job and we shall pay for the results in the long run. The Government have to accept that having inexperienced assessors paid low rates may have reduced the cost of this process at the time but that we, the public, will pay much more in the long run. The assessors and the assessment process for anything should be professional, well tested and well run.
Many examples of poor decisions made about appointments for this work, as a result of this poor assessment process, have been given to me. In a longer debate I could give many of those examples, such as high-quality practices with knowledge in serving their local communities quite frequently being ignored. They have not been granted contracts, meaning that those given the work with no local knowledge will be less effective. Again, this has happened on a number of occasions. In regard to the wrong people being appointed I would instance, as I have mentioned previously, the past work carried out by a reputable, professional central London firm which meant that it should have been appointed to do such work in London. But no: it was not given the work. In fact, firms from Stafford, Leicester and Leeds were given that work to do in central London. In itself, that is just ridiculous.
I speak as a member of the public, as others have done, and I stand in awe of the experts. But I also wanted to represent the concerns that the public have about this service in future, as I have mentioned. We have a duty in this Chamber to ensure that changes are made so that the public get the right and fair justice system they need.
Lord Clinton-Davis (Lab)
Some 60 years ago, when I was quite a young solicitor, legal aid was in its infancy. It demonstrated vividly that the law was part and parcel of the reformist drive which was a vital part of our system at that time. Legal aid was relatively inexpensive and brought great relief to so many in civil and criminal cases. That positive scenario remained for many years, and legal aid was a significant element in our welfare state.
Was Britain rendered poorer as a result? Decidedly, it was not. In fact, its reputation was advanced. As the years passed, the character of legal aid changed for the worse. Fewer people were eligible. Today, save in a few complex or extremely long cases, legal aid is no longer an essential part of the fabric of our social services. Of course, the largest firms of solicitors try to fill the void by promoting their own help, which is far better than nothing but does not provide a real answer to the problems we face.
We now have virtually no legal aid, save in a few extensive cases. In other words, legal aid has ceased to be available to most people. Do we save a great deal as a result? The answer is clearly no. People who should be properly represented are frequently not. Sometimes people in that category advance bogus or irrelevant arguments and they are not entirely to blame as a result. It happens. Trials have become much longer and the courts have to be paid. There has been no adequate inquiry into all this.
What are the Government prepared to do? Will the Minister shed any light on this? I doubt it. In many cases, the result has been disastrous as people who are entitled to legal aid do not get it. The whole profession, Bar and solicitors alike, is despondent, and that is to put it mildly.
Lord Woolf (CB)
My Lords, it is a pleasure to follow the noble Lord, Lord Clinton-Davis. I think we probably went into the legal profession at approximately the same time and have seen the huge transformation that has taken place in it since then. It has grown dramatically. I sometimes think that I entered the legal profession at a very good time as after the war years it was suffering from the fact that people could not afford to employ lawyers and more people were leaving the Bar than were going into it. They were leaving because they just could not make a living, especially if they had recently come out of the forces. Since then, largely thanks to the Legal Aid and Advice Act, the position has been transformed but, as must be clear to everybody in the House, in recent times it has been transformed again. It has changed from a profession that served the public well to one that is unable and not equipped to do so because of a lack of resources.
Having listened to the excellent speeches here, it is clear that this is a critical time for the administration and doing of justice in this country. It is vital that we avoid doing more damage to what was a good system but is at the moment in peril. It is in peril for the reasons that have already been heard in this debate—there is no need to stress them again.
In March 2014, our current Lord Chief Justice launched JUSTICE’s new strategy for the courts. He said:
“Some would say that with such dramatic reduction, our system will break. But that cannot be permitted. If it breaks we lose more than courts, tribunals, lawyers and judges. We lose our ability to function as a liberal democracy capable of prospering on the world stage, whilst securing the rule of law and prosperity at home … Our task is therefore to ensure that we uphold the rule of law by maintaining the fair and impartial administration of justice at a cost the State and litigants are prepared or able to meet. We can only do that by radically examining how we recast the justice system so that it is equally if not more efficient, and able to carry out its constitutional function”.
The Lord Chief Justice was taking on the responsibility, as he saw it, for protecting the justice system. That responsibility is not that of the judges’ alone; it is also that of Ministers. Indeed, the Lord Chancellor in his oath of office has to swear to do what is necessary in that regard and that is a matter of which he, rightly, should be extremely conscious and not neglect. At this time it is important that we focus on what can be done to make the justice system work more effectively. At least then if resources are not provided, there will be no excuse that they are not being used well. When you have a system of justice in the state that ours is at present, it will be no easy task to undo the damage that has been done. This damage has not been caused intentionally but is the unforeseen consequence of policies that were thought justified at the time but can perhaps be seen now as to have caused disproportionate damage to our society as well as to the justice system.
We have had two reports recently. One is JUSTICE’s report, Delivering Justice in an Age of Austerity, and the other is the report of the Low commission. Both set out programmes intended to alleviate the situation. I am conscious that the reforms I made to the system 20 years ago were meant to make it more efficient. They clearly have not achieved what I wished to achieve and there are two reasons for that. First, I designed a system to work with legal aid and we have heard what happened to that. Secondly, we were assured that we would get the IT that was critical to the successful implementation of those reforms. In view of what the Lord Chancellor said recently, I hope that that technology will now be provided. If it is not, we will never be able to achieve the aim which the Lord Chief Justice set out in the passage I quoted.
Baroness Dean of Thornton-le-Fylde (Lab)
My Lords, I thank my noble friend Lord Howarth for obtaining this debate today. It is because he is not a lawyer that I was attracted to take part in what could be regarded, on the margins, as a debate about the technical aspects of law. However, it is not—it goes to the heart of our democracy as it is about the ability of any citizen to have access to justice, irrespective of their standing or their affluence.
The 2013 Act and the policy introduced by the coalition Government resulted in a 28% drop in the Legal Aid Agency’s budget at a time when demand was going up. Two years have passed since then. The House of Commons Justice Committee said that those changes have harmed access to justice for some litigants— those who are poorer in our community. That is supported by the National Audit Office, which also criticised the Government for not taking an evidence-based approach to this issue.
My concern in this debate is for those suffering as victims of domestic violence, children and people with disabilities, who are some of those most harmed by the 2013 Act. The Minister may well say that there is exceptional case funding which can be applied for. As my noble friend Lady Mallalieu said, the Ministry of Justice estimated that there would be around 6,000 applicants a year. In fact, of the 1,100-plus applications made, just 3% received exceptional case funding and half of those were in the pipeline before the law was introduced. Exceptional case funding needs reviewing and simplifying on the basis of the evidence that we now have of how the 2013 Act has worked and how it has, in fact, denied access to justice. In the case of families, which I am particularly interested in, there has been real hardship, real denial of access to justice and a real impact of the Act.
There has been a significant drop in mediation. The National Audit Office noted that there was a £20 million underspend on mediation. Restoring funding for initial advice is estimated to cost around £14 million. That would be neutral in cost terms, but would provide some support for the people I am talking about.
Legal aid is not available at the moment for extended family members seeking to provide homes for children who would otherwise be facing life in local authority care—and what a poor start for our children that provides. The current provisions do not allow family members—for instance, grandparents—to have legal aid support. If it were allowed, it might result in substantial numbers of those children staying within the family and being properly looked after, rather than going into local authority care with all the problems that creates. It is often not only a life blighted but a higher cost to the state.
The amendment of the domestic violence gateway needs real discussion and change. I remember the debates on the Act vividly, although I did not take part because I am not a lawyer. The opposition Benches pleaded with the coalition Government to look at domestic violence and make an exception. Those pleas fell on deaf ears, much to the shame of that coalition Government. Why not allow solicitors and other advisers approved under the legal aid contract as supervisors to have delegated power to confirm that a client is a victim of domestic violence and is therefore entitled to legal aid? I ask the Minister to answer these points when he replies.
The Act has now had time to give us an indication of whether it assists access to justice. We all accept that savings had to be made, but not by penalising those least able to cope. Those who are affluent will always have access to the law. It is the people who do not whom I am concerned about, so I ask the Minister to reply to these points.
In conclusion, as the noble Lord, Lord Cotter, said, this year many of us have been going round saying how proud we are of 800 years of Magna Carta. What a year for such an issue over legal aid. Magna Carta states:
“To no one will we deny or delay … justice”.
Today, many men, women and children in this country do not have that provision.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, like many other noble Lords here today, over the past three years since LASPO I have taken part in a number of debates about legal aid cuts, several regret Motions and, in January this year, the debate obtained by the noble and learned Lord, Lord Morris of Aberavon, on Her Majesty’s Government’s assessment of the long-term impact of current levels of funding of the criminal Bar. Those debates were inevitably too late to prevent the succession of cuts that were being made in the availability of legal aid or in the fees being paid to lawyers, but we—certainly I—took part in them in the hope that, if we protested forcefully enough and presented a sufficiently convincing case against them, we might just discourage the department and the Lord Chancellor from yet further savaging the legal aid scheme, stem the tide of cuts, and perhaps even persuade the Lord Chancellor to turn the tide.
I have read in draft the evidence given eight days ago to the Constitution Committee by the Lord Chancellor and I note with some relief his statement that the amount available for legal aid has remained broadly untouched in the recent spending review. Could it be that our past protestations and arguments have persuaded the Lord Chancellor to desist from further depredations, or is it perhaps that we now, at last, have a Lord Chancellor who recognises the needs and strengths of our legal system and the imperative that we do not further put them at risk but, ideally, restore the system to health? To refer again to the recent evidence given by the Lord Chancellor, one notices his concern to,
“improve the quality of advocacy in our courts, safeguard the future of the criminal Bar and make sure that people whose life and liberty is at stake get the best possible representation”.
One could at this stage feed in paragraph 9.12 from Sir Bill Jeffrey’s review, Independent Criminal Advocacy in England and Wales:
“The particular strengths of the English and Welsh criminal Bar—intellect, expertise, independence, ability to represent both prosecution and defence—may not be unique; but they are a substantial national asset which could not easily (or perhaps at all) be replicated, and they contribute significantly to the high international reputation of our legal system”.
He goes on to worry about the ability under the present system to continue to replenish all that necessary expertise. The criminal Bar is, at the same time, both the most important of all the various specialist Bars and yet sadly the poor relation to all these Bars. It is the most important because, as the Lord Chancellor’s recent evidence suggests he recognises, it operates in the area where people’s lives and liberty are at stake. Of course there are vast fortunes made at the commercial Bar, the patent Bar, the revenue Bar, the Chancery Bar—all these other specialist Bars—but the outcome of all those disputes is really just a matter of book entries and adjusted balance sheets; seldom are people’s day-to-day lives affected, as of course they are profoundly by the outcome of most criminal cases.
Make no mistake about it: the accumulated series of cuts over recent years has had a devastating effect on the criminal Bar. This has been described by the noble and learned Lords, Lord Judge and Lord Woolf, both Lord Chief Justices in their time. I need not rehearse all that again. It is a question of recruitment, of the seed corn for the next generation of criminal specialists—silks, judges, and so forth. Of course, it is not just defendants in need of skilled representation who will suffer from a weak criminal Bar. The efficient conduct of cases in the courts is the linchpin of the administration of justice. Incompetence in the representation of either prosecution or defence inevitably leads to the failure of justice: prolonged delays, wrong verdicts, aborted trials and more appeals—all hugely costly both socially and financially.
Civil justice, too, is much in peril. As the noble Lord, Lord Lester, mentioned, today’s column by the noble Lord, Lord Pannick, in the Times sets much of that out. Sometimes I wonder whether, if perhaps he wrote weekly rather than fortnightly columns, we could not cancel some of our Thursday debates on the future of the legal aid system. Be that as it may, we must continue to hold the Lord Chancellor as best we may to his stated commitment to access to justice and the rule of law.
Lord Judd (Lab)
My Lords, I warmly congratulate my noble friend Lord Howarth on having secured this debate. I particularly liked the measured and thoughtful effectiveness of his speech, which is so characteristic of his contribution in this House. I also want to put on record how glad I am that my noble friend Lord Bach is replying for this side of the House. He has done fantastic work in recent years—his unflagging commitment is a challenge to us all.
We need more modesty than we usually display when talking about the United Kingdom’s record and position in the world on these matters. In my formative years, I faced the reality of the revelation of what was, for example, going on in Hola and in Kenya, which has now come to light.
We would have a much stronger position in the world if we talked about our leading role in the struggle for the emergence of what we see as justice and our commitment to it. In that vital struggle, I also want to put on record how much I admire the legal profession and those courageous members who have certainly led the world in consideration of the issues.
I also think that we must discipline ourselves into thinking more clearly about the difference between law and justice. Justice is what we seek as the principle for a healthy, effective, self-confident society. We constantly repeat that we are seeking to advance the rule of law across the world, but we should be emphasising more heavily that we seek to lead the world in the fight for justice. Law must be judged by how far it advances justice—and how far it does not. If you are considering law, what is the law? What is its validity? What principles is it based upon? Law is not automatically synonymous with justice and we are foolish if we ever forget that.
I became very convinced—even more convinced than I was already—about the importance of justice for the future of humanity during my time as director first of VSO and then of Oxfam. It is not a struggle just within Britain; it is an international issue of which we are a part. Repeatedly in that work, I saw that the real issue was justice. If you were dealing with greedy landowners and land grabbers or if you were dealing with corruption on a massive scale, what people needed was justice. With justice they were able to prosper and tackle the task of their own development. Without it they were so often set back. That must apply in our own society—of course it must. Justice is central to our security, in containing the wickedness of extremism and terrorism, and also in having the healthy, self-confident society to which I referred earlier.
In my young political days, the controversial political figure, Gerald Nabarro, went through a very controversial and long-running saga of what I shall call a “car incident” to which he was central. I thought he was very wise when, at the end of that case, referring to his experience he said that British justice was great for those who could afford to pay for it. Do we want to live in that kind of society? Do we not see the hallmark of the society in which we want to live as one in which everybody has access to justice? I am not against looking at the effectiveness of the institutions that we have for ensuring this. Nor am I against the principle of cost-effectiveness, because the absence of cost-effectiveness means that it is not effective. Cost-effectiveness is central to effectiveness. That is very different from having the principle that dominates—or has come to be seen to dominate—the argument, which is, “How do we cut the costs of access?” That inevitably advances the reactionary move towards injustice.
The Earl of Sandwich (CB)
My Lords, finding myself properly behind and below a formidable list of speakers, I should first explain why I entered the Chamber. As in previous debates, I remain concerned about the ability of asylum seekers, migrants, trafficked persons and detainees to obtain legal aid following recent cuts and LASPO changes. Our inherited sense of justice, backed up, as we have heard, by the ECHR Article 5, requires that we maintain the status of their claims among all the other priorities facing our legal aid system.
Many lawyers are rightly up in arms about the cutting of legal aid for all kinds of reasons—most rehearsed today. I am glad that the noble Lord, Lord Bach, is leading the review, since it is rightly a major concern of the old and new Labour Party. Family law, domestic violence, poverty and indebtedness all have their claims on public money, and I recognise that asylum and immigration generate a lot of claims and difficulties of interpretation for which exceptional case funding may well not be available. However, asylum, migration and trafficking are way down the list on the GOV.UK website, coming at number nine out of 12 things that you can get legal aid for.
I am aware that these issues are causing the Government more trouble and that the numbers keep going up, but we also have an exceptionally disturbed world, especially when it comes to Syrian refugees. Once they have arrived, we have a clear humanitarian duty to look after them until they are either safely returned home or accepted into our society. Those in limbo between those two alternatives are often detained for long undefined periods in immigration detention centres. I had the opportunity in the past to visit a number of these IRCs, such as Haslar, Campsfield, Oakington, Yarl’s Wood and Harmondsworth, and little seems to have changed since I was a member of the Independent Asylum Commission some years ago.
A year ago the charity Detention Action quoted detainees’ typical comments, such as, “I felt completely helpless”, “I was scared”, “You feel trapped”, and, “The Home Office had turned off my brain for three and a half years”. This is not the time to re-examine the law governing detention centres, the length of detention or the rules and conditions in those centres, though some of us may have that opportunity during the Immigration Bill. I mention them only because many of the inmates who are seeking legal redress, whatever the merits of the Home Office’s case against them, are still finding it difficult to get proper representation.
We forget that many detainees are not isolated individuals but have families in this country. An organisation for which I have the highest regard, Bail for Immigration Detainees, in a report entitled Rough Justice, recently looked at the cases of 102 parents who had been separated from their children by immigration detention during an 18-month period in 2013-14. They left detention between 1 April 2013 and 30 September 2014. In most cases they were detained pending deportation or removal to countries like Somalia, Iraq and Zimbabwe. Criminal convictions were often triggered by non-violent offences such as theft and false documents. Only half of these parents had current access to a legal representative, most of them to a legal aid solicitor, and 11% had never had access to a legal representative. Some 77% of the detainees who had access had to wait longer than a week to make an appointment, and one in 20 had to wait longer than a month. Fewer than half the detainees who did contact a solicitor were subsequently taken on as a client, and even among the detainees who had legal aid representation, just one in three had a bail application made on their behalf by their legal representative. The survey also revealed details of the 219 children of these detainees. Nearly all of those for whom data were available were born in the UK, and 80% were even British citizens. Most of their parents had therefore lived in the UK for long periods. One in five was deported or removed without their children.
These figures provide a fairly grim picture of a system that the Government claim to be inclusive and accessible. On the present trend of cuts and savings, which many see as inevitable, conditions are likely to get worse and exceptional circumstances are likely to be fewer. Out of 102 detainees surveyed by BID, only two were known to have applied for exceptional case funding, and only one of these was successful after a long court battle, which ties in with what the noble Baroness, Lady Dean, was saying. Having said this, I very much hope that the Minister will contradict me and point out that exceptional cases are not being reduced and that cuts in funding will not affect immigrants and asylum seekers disproportionately.
Noble Lords will know better than me that the Government have acted on at least some of the 2013 JCHR report recommendations. One sentence caught my eye:
“We remain concerned that refugees may be unable to access civil legal aid during their first few months of lawful residence in the UK”.
Given that the gateway programme is considerably expanded owing to the Syrian crisis, will the Minister assure us that the UK’s international obligations will be met and that civil legal aid will be available to all new refugees?
Lord Marks of Henley-on-Thames (LD)
My Lords, I refer the House to my registered interest as a practising barrister. I congratulate the noble Lord, Lord Howarth, on securing this debate and on the very able and moving way in which he opened it. The debate gives us the opportunity to consider ways we might set about trying to restore access to justice to those who have been denied it—those who cannot afford legal representation—thereby underpinning the rule of law.
A commercial lawyer friend of mine, discussing with me this impending debate, pithily described the present situation by saying, “Legal aid is now in a bad place, isn’t it?”. As we have heard from every single speaker, so it is. We on these Benches do not shirk our share of responsibility for the cuts made in the legal aid budget by LASPO. The coalition made deep cuts to legal aid—cuts made, certainly, in the face of severe financial restraints and the need to cut public expenditure, but none the less damaging for that. They added to the damage and peril caused over decades by successive Governments to a system that was once admired the world over, as my noble friend Lord Lester and the noble and learned Lord, Lord Woolf, and others have pointed out.
There are now many more litigants in person, a point developed by the noble and learned Lord, Lord Goldsmith. The National Audit Office report of last November estimated that the additional cost to the Courts and Tribunal Service of the changes in 2013-14 was £3 million, largely owing to the rise in the number of unrepresented parties. The wider costs to society, though, are far more extensive. Litigants in person mean that cases last longer; they are more often adjourned because evidence is missing; and points of law are missed, and unjust results follow. The Master of the Rolls, Lord Dyson, told the Justice Committee last December that, although no one can prove it, lack of representation leads to litigants in person losing cases that they would have won with a competent lawyer. If that were not so, why would anyone retain a lawyer to represent them at all—and why a good lawyer rather than just any lawyer?
Section 9(2) of LASPO gives the Lord Chancellor the power to modify the list of services within scope. He should review the list now, not in three years’ time, because severe injustices are already glaringly apparent. In particular—the noble Lord, Lord Bach, has assiduously pressed this case—the Lord Chancellor should reconsider the exclusion of legal aid for social welfare cases in First-tier Tribunals. There is a related problem to be addressed: the high success rate of appeals to First-tier Tribunals, well over 50% in the first two quarters of this year, is largely attributable to poor or rushed decisions by officials in the first place. The appeals process should not be an escape route from bad decision-making, and officials should be putting more effort into getting decisions right first time, thereby saving money for their departments and heartache for claimants.
For all the rhetoric about tribunals being less legalistic and simpler to access than courts, social welfare law in particular is complex and difficult to navigate. Points of law arise at every level and claimants need lawyers to argue them. In family cases, generally the old “green form” scheme for official advice on legal aid worked well, and I support the suggestion that the MoJ should consider a similar scheme now. In relationship breakdown cases, the parties need urgent advice on what the legal processes involve, how they should deal with issues relating to children, money and property, and where to go for help. An early professional overview can help avoid later conflict, which is often the result of ignorance and misunderstanding.
I also agree that the domestic violence provisions have not worked well. There is a very low take-up of the legal aid that is, in principle, available. Genuine victims are often unable to obtain the evidence required to demonstrate that they qualify. I agree with the Law Society’s suggestion, pressed today by the noble Baroness, Lady Dean, that solicitors themselves should be able to certify a client or potential client as a victim of domestic violence so as to qualify for legal aid, without that victim having to jump through difficult hoops to establish eligibility.
Exceptional case funding under Section 10 has also had a very low take-up—the noble Baroness, Lady Mallalieu, gave us the figures. The Law Society has called for those lacking the capacity to represent themselves to qualify automatically as exceptional cases. That may go too far because cases turn on other considerations as well—their nature, merits, what is at stake, financial circumstances and the availability of alternative assistance. However, it is intrinsically offensive that people without the capacity to present their cases have important issues about their futures decided in proceedings which they cannot comprehend without representation or advice. Will the Government at least trial a system whereby a legal aid solicitor could certify that a potential client meets the test for exceptional case funding for lack of capacity alone? I also commend the noble Lord, Lord Low, and the Low commission for the valuable work they have done in shining a light on how a network system of legal advice and support can help relieve the strain on the legal aid budget.
Turning to criminal legal aid, the criminal Bar and criminal solicitors are demoralised. The judiciary rightly complain that standards of criminal representation have fallen—the result of progressive cuts in legal aid and in fees. I have repeatedly argued the case for making savings by increased efficiency, rather than by making criminal practice uneconomic. The Government accept the thrust of the Leveson review’s recommendations on efficiency. At a time of falling crime it should be possible to reduce costs by better case management, continuity of decision-making, efficient charging decisions and better use of technology. Making the system work better involves retaining motivated and high-quality professionals. Continual cuts to criminal fees just drive the best lawyers out of the profession or into other areas of work, as the noble and learned Lords, Lord Judge and Lord Brown of Eaton-under-Heywood, have said so eloquently.
I have also repeatedly suggested saving costs by two measures we proposed in our manifesto. The first is allowing restrained funds to be used to meet legal costs, as is standard in civil cases with freezing orders, rather than paying those costs on legal aid. The second is requiring large companies to carry insurance against the cost of defending prosecutions for fraud. Those two measures would save a great deal of the money currently spent on the disproportionately expensive, very high cost cases. To date, we have had the unreasoned response that the Government have no such plans.
I cannot leave this debate without saying a word or two about procurement. The process of tendering for the duty solicitor contracts this autumn, mentioned by my noble friend Lord Cotter, has clearly been chaotic, as revealed by the two whistleblowers who graphically described how untrained temporary staff were put under unreasonable time pressure to assess bids for the new contracts. When I raised this issue on 24 November, we were told that while some solicitors might be disappointed by the outcome of the process, the MoJ was satisfied that it was fair. I can quite see that, in view of more than 100 procurement challenges and a judicial review application for which permission has now been granted, the department would wish at this stage to stonewall. However, a thorough and fair procurement system is essential if the professions are to have any confidence that a contract system is efficiently run.
Legal aid lawyers have a right to that consideration. Theirs is not just a job, not even just a profession, but a vocation. They are not paid a great deal. They work very long hours. They deal patiently with the most demanding of clients, who are often the least able to understand the predicaments they face and the advice they receive. In mixed practices, they have to face the constant scepticism of partners who are undertaking more remunerative work. On top of that, they get very little public recognition for the work they do. They undertake it because they have a passionate belief in the right of everyone to have access to justice under the law. In Michael Gove we now have a new Secretary of State who, as other noble Lords have said, appears prepared to listen and to care about access to justice. I know the noble Lord does too. I hope his response to this debate will demonstrate that he and his department understand that legal aid lawyers and all their clients—actual and potential—deserve a better deal.
Lord Bach (Lab)
My Lords, I start by thanking all noble Lords who have taken part in this debate. It has been an excellent debate, which is hardly surprising given the stellar cast list. I am particularly grateful to my noble friend Lord Howarth of Newport for agreeing to open the debate. My Front Bench responsibilities mean I have to wind up for the Opposition. I am sure the House will agree that the noble Lord, Lord Howarth, did a superb job.
Rather unusually, I thank someone who has not taken part: the noble Lord, Lord Pannick. He, as the noble Lord, Lord Lester, reminded us, devoted his column in today’s Times to this debate. What he has to say about the Government’s conduct over the past few years and—as importantly—his suggestions about the future of legal aid are, as the House would expect, extremely clear and telling. If I have one regret about the debate it is that, apart from the excellent Minister, the noble Lord, Lord Faulks, there will be no one speaking from the government Benches today. It makes us regret even more than normal the absence of the late Lord Newton of Braintree, who used to be such an important part of these debates.
The subject of today’s debate is the future of legal aid. In instigating the debate, I thought it well past time for this House, with its obvious expertise in this field, to discuss once again this vital issue. I confess I also had another purpose. Noble Lords will know now that the new leader of the Labour Party, Jeremy Corbyn, has asked me to lead a review into the future of legal aid under the auspices of the noble and learned Lord, Lord Falconer of Thoroton, the shadow Lord Chancellor. Mr Corbyn is, I believe, the first leader of a political party in this country really to understand legal aid and its importance, not just in our legal system but for the type of country we want to be. In my view, it is well past time that a major political party undertook such a review. This is not because there has been a lack of excellent work done in this field. I have only to mention the three reports from the Low commission—and it was very good to hear the noble Lord, Lord Low, today—the Legal Aid Practitioners Group, Justice and many more. A political party that hopes to win power needs a robust, thought-through policy that is credible, practical and principled. What better way to ensure the review’s success than to canvass the views of this House and listen to its analysis of where legal aid is now and what should be done in the future to ensure it plays its proper role? We are in the process of asking people to sit on a commission that will advise on the way legal aid should go. When the make-up of the commission is announced—shortly, I hope—it will be clear that its members have been chosen not for their political views but for their expertise in a wide variety of law, lawyers and non-lawyers alike.
What approach will we adopt? We hope to be inclusive; we will collaborate with the considerable and well-evidenced work and ideas that have already been developed; and we will not be afraid of innovation. We all have to look for new approaches—as has been said, many may involve the new technology—to meet the huge unmet needs that exist. Finally, we will do our best to try to stem the decline which there clearly has been and which exists in our justice system at the moment. It is a critical time, as the noble and learned Lord, Lord Woolf, reminded us. Poorly thought-out reforms, many of them not evidence-based, have begun to affect the reputation that our legal system enjoys. If access to justice becomes no more than a theoretical right but is in fact denied to many, then, as has been pointed out by the senior judiciary, the rule of law itself is put at risk.
It sometimes seems that everyone in the world except the Ministry of Justice knows that LASPO has had a profound and debilitating effect on access to justice. Having removed, in such an unthinking way, so much from the scope of legal aid—so much family law and nearly all social welfare law—it is hardly surprising that litigants in person flood the family courts. In the area of social welfare law, many people—very largely the poor and the vulnerable—are no longer able to receive even advice.
It is perhaps just worth repeating the shocking statistic that, whereas in 2009-10 there were 471,000 advice and assistance new matter starts, by 2013-14—just four years later at the end of the first year of LASPO’s implementation—that figure had fallen to 52,000, a drop of nearly 90%. To put that in human terms, it represents hundreds of thousands of our fellow citizens who only a few years ago could get legal advice and now are not able to. It is almost beyond belief but the figures show it to be true.
In the field of criminal legal aid, which I will not have time to go into today, we have heard some passionate and very well-made speeches from all sides of this Chamber. I thank the noble Lords who have spoken about the real crisis that there undoubtedly is in the criminal system.
There were many decades when a broad consensus between the political parties helped to develop legal aid as an essential part of the social security system that every citizen was entitled to in a civilised country such as the United Kingdom. Sadly, that consensus has broken down to some extent, particularly in the last few years. I argue that the reason for that is largely, although not completely, the administrative and legislative action of the coalition Government. I was very grateful for what the noble Lord, Lord Marks, said a few minutes ago about that.
If there is one thing that I would like to see arise from the review that I am undertaking, it is the possibility of a return to that consensus. One hopes that it would be about the principles set out so well by the Young Legal Aid Lawyers—a very impressive group—in its briefing note:
“Equal access to justice for all irrespective of wealth should be the absolute core principle of our legal aid system. We believe that the cost of legal aid should be met by the state through general taxation. We believe that access to justice is a public good”—
I emphasise the words “a public good”—
“that should be classed by government in the same category as the rights to healthcare and education”.
These are principles that should unite us all, and I believe in principle that they do. However, if I may say so to the Minister, whose remarks I look forward to hearing, a good start would be for Her Majesty’s Government to think urgently about undoing some of the damage they have caused.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, this has been an excellent debate, with significant contributions from a number of noble Lords, covering not just legal aid but our system of justice as a whole. I am afraid that in the time available to me I will not be able to cover all the issues but I will, I hope, at least respond to a number of the points that have been particularly highlighted.
I begin by joining in the tributes to the noble Lord, Lord Howarth, for introducing this debate so well. This is not the first time that he has decorated the House in debates of this nature. His knowledge is considerable and he approaches the subject with great passion.
I also join the noble Lord, Lord Bach, in expressing my, and the Government’s, commitment to the principles of maintaining and ensuring access to justice. I wish him and his colleagues good fortune and wisdom in their approach to their significant task, and we look forward to hearing the results of their endeavours. Of course, the Ministry of Justice remains receptive to all constructive and innovative ideas which can assist in providing access to justice. The noble Lord indicated the nature of those who might be joining him on that commission. I hope that he will also include members of the public and taxpayers, who may not have quite the same identity of interest as those with legal experience in this issue. I hope also that there will be no shirking from an analysis of the cost of any proposals, because it is vital that one does not consider these matters in the abstract. If, for example, the suggestion is that the Government—whatever Government—should spend £1 billion more on access to justice, that should be identified.
The noble Lord, Lord Marks, made a number of suggestions about improving access which did not restrict themselves entirely to simply increasing the cost of legal aid. Of course, they are all valuable, and indeed some of them were foreshadowed in the Liberal Democrat manifesto.
The LASPO changes were fundamental. They reduced the cost of legal aid from more than £2 billion to £1.6 billion a year—a significant reduction. Inevitably, some results will have been certainly less than optimal. However, the Government consider that legal aid remains a vital element in our justice system and, although these comparisons are difficult because of the different nature of justice systems, we believe that we have a generous system at £1.6 billion a year.
The challenges that the coalition Government faced when they came into power were considerable and, in their view, it was necessary to reduce the amount of spending. The country’s finances have, to a significant extent, been put back on course, although there is still a great deal to be done in that connection. We remain of the view that, if possible, cases should be diverted away from court and court proceedings, and sometimes away from lawyers, where suitable alternatives are available, and that court, although an important and indeed vital part of a civilised society, should be the last resort rather than the first. We do not shirk from the fact that we think that those who benefit from the civil legal aid scheme should have a strong connection to the United Kingdom. That is why we remain committed to the residence test and are now planning the next steps following the success of the Government in the challenge in the Court of Appeal. We welcome a great deal of the work done by the noble Lord, Lord Low, in his reports. They are of great assistance to policymakers, as I hope I have acknowledged in the past; I continue to do so. We recognise the importance of advice being available in all sorts of contexts.
Criminal legal aid has undoubtedly suffered in terms of remuneration for lawyers. The Government are well aware of the concerns expressed by the noble and learned Lord, Lord Judge, about the possible damage to careers and the prospect, in due course, of a reduction in the quality of criminal judges. I acknowledge that. In fact, there is no reduction in the availability of legal aid to defendants, but I think the issue was that the career structure is so unattractive that this will diminish in the long term the quality of those involved in what is, I agree with the noble and learned Lord, Lord Brown, probably the most important part of the legal system. However, the Bar cannot be entirely immune from the need to reduce legal aid expenditure, but the Government remain committed to maintaining a vibrant and independent Bar and decided in June 2015 not to proceed with the planned reduction in advocacy fees, as we made clear in a Written Ministerial Statement.
Changes in the criminal process, which were heralded by the report from Lord Justice Leveson and the observations by Sir Bill Jeffrey, will, I hope, result in greater efficiency and a reduction in the costs of court processes generally, without diminishing in any way—enhancing, indeed—what we recognise as criminal justice. As for civil legal aid, the result of LASPO has undoubtedly been an increase in the number of litigants in person, but litigants in person have always been a feature, to some extent, of the legal system. The question of employment tribunal fees was specifically raised by the noble Lord, Lord Low. A review of employment tribunal fees was announced in June last year and will be published in due course. It will consider how effective the introduction of the fees has been in meeting what was the original objective, which was to deter inappropriate and frivolous claims. It is important that those who have genuine disputes should be able to bring them to court.
The noble Baroness, Lady Dean, and the noble Earl, Lord Sandwich, mentioned the question of exceptional funding. Over time, the Legal Aid Agency has, in fact, granted ever more applications for exceptional funding. In fact, these have increased every quarter. I accept that the forms were originally probably less than clear: they have been changed. In the most recent quarter for which we have data there was a grant rate of 35%, a considerable increase on the figure mentioned by the noble Baroness and the highest number since the scheme began. Mr Justice Collins decided that the existing scheme as it was administered was unlawful; that is subject to appeal. However, in the mean time the Government brought forward a statutory instrument to amend the provisions, which makes it much easier to obtain exceptional funding.
The main burden of the debate could be said to be that it is time the Government looked again at the fall-out from LASPO. We committed to look at those results within three to five years. Noble Lords may be aware of what the Permanent Secretary at the Ministry of Justice said to the Justice Committee on Tuesday 13 October, which was that we were enjoined to do a post-implementation review of LASPO and that we would do it at the front end of the period rather than the latter end. Discussions are going on as to whether to run the various reviews together.
He also wrote to tell the committee about three projects being undertaken in respect of civil legal aid. One, Varying Paths to Justice, was a large-scale qualitative research project examining how people seek to resolve civil, administrative and family justice problems. The second, a survey of not-for-profit legal advice providers in England and Wales, will provide an indication of how advice providers in the sector have been affected by legal aid—a number of noble Lords mentioned the importance of the not-for-profit sector; I entirely accept that. The third is the initial findings from the legal problems resolution survey on the prevalence of civil justice problems in England and Wales, which will be published early in 2016.
I hope that we will be able to provide a response—assisted, no doubt, by the commission of the noble Lord, Lord Bach, although the timings may not precisely coincide—to some of the matters that have arisen from LASPO. The purpose of LASPO was, of course, to reduce the cost of legal aid and to try to focus legal aid where it was most needed, in the most important cases. The noble Lord, Lord Bach, has been a consistent critic of the effect of the lack of legal aid in social welfare cases and I understand this concern, but I think he and the House would agree that not all problems that come from social welfare difficulties— particularly debt, for example—are best approached by lawyers. That is not to undervalue the lawyers’ contribution, but lawyers, at whatever hourly rate they charge, may not be the best people to sort out, for example, the many debt problems that beset those people who have social welfare problems.
A number of noble Lords mentioned the question of the process for solicitors’ legal aid contracts. There was criticism from the noble Lords, Lord Marks and Lord Cotter, of the whole process by which such contracts are obtained. This process is the subject both of litigation in respect of the procurement process itself and also judicial review in respect of those contracts. It would not be appropriate for me to go into much detail about that, save to say that the Ministry of Justice, as I have said previously from this Dispatch Box, is satisfied that the process was fair and will maintain that in court. The noble Lord, Lord Cotter, returned to an issue he has raised in this House before about a geographical problem with solicitors being outside of a necessary area. I can tell him and the House that bidders would be required to have, or commit to have, an office in the relevant area where the work was delivered. That would be a matter taken into account.
The Law Society acknowledged that there was a need for some consolidation. Fortunately, the crime rate has dropped and the process was undertaken in a way that we think was appropriate to make sure that taxpayers’ money was well spent but that, nevertheless, there could be access to the duty solicitor scheme. Of course, solicitors will still be able to have the own-client system and they will be able to provide, as agency providers, services that they have hitherto provided.
Litigants in person are undoubtedly a feature of the current system, but a number of initiatives have been undertaken; and not simply pro bono, although I entirely endorse the importance of the pro bono sector and the valuable work done by solicitors and barristers in this connection. There is support taking place across England and Wales; for example, the LawWorks clinics network, which provides a local face-to-face and telephone advice service for litigants in person, predominantly in the area of social welfare law. The network has continued to grow and has 220 legal advice clinics in England and Wales, supported by volunteer solicitors, barristers, trainees and law students. That is just one example of the strategy in action across England and Wales to support litigants in person. There is also a national campaign launched this autumn to raise awareness of the help available to litigants. Postcards and posters will be distributed widely.
The strategy is not of course the only answer. There are numerous schemes going on nationally and also at a local level. I heard about some of these developments at the Civil Justice Council’s fourth National Forum on Access to Justice for Litigants in Person, which I attended last Friday. It was well attended by representatives from across the justice system and I was struck by the level of expertise, experience and enthusiasm shown by delegates to maintain the momentum that has been building for litigants in person.
Much has been done in this process. A simple rule change—rule 3.1A—is helping in this regard. The noble and learned Lord, Lord Woolf, was unfair to himself in suggesting that the CPR had not been a total success. In many ways it improved a great deal the system which prevailed under the rules of the Supreme Court—the predecessor of the civil procedure rule. With respect, he is right that it has not prevented disputes being very expensive. Certainly, the reforms that we intend to bring forward in our civil justice system, using the increasing availability of technology and reducing the number of court hearings, will build on those reforms. Rule 3.1A, on “case management—unrepresented parties” will encourage judges when dealing with litigants in person to use language and a way of dealing with them which is wholly different from the way it was used before. Simple illustrations were given at the meeting to which I went that the terminology is mysterious. What is an appellant? What is a respondent? Ordinary language will help. In the new climate that we live in it was encouraging to see so many judges attending this civil justice forum who deal with litigants—
Lord Woolf
I am very grateful for the comments made by the noble Lord. What about Latin?
Lord Faulks
We are very much discouraged from using Latin in any context now, although I do not know whether the noble and learned Lord would agree that it is remarkable that when you are told not to use Latin, it becomes almost irresistible to use it and somehow will only serve as the correct way. It is very much a thing of the past, I think.
Lord Lester of Herne Hill
In deference to the noble and learned Lord, Lord Woolf, will the Government reinstate the word “writ” instead of claim form?
Lord Faulks
I share the noble Lord’s dislike of that expression but I cannot give any commitment at the Dispatch Box on that matter.
Mediation is not, I entirely accept, a panacea but the Government have done a great deal of work on mediation. It is clear that the courts need to be concerned with most decisions of great importance but we need to encourage mediation. We have taken a number of steps to promote family mediation and its benefits. From April last year the Children and Families Act 2014 made it a legal requirement that anyone considering applying to court for an order about their children or finances must first attend a mediation, information and assessment meeting, unless exemptions such as domestic abuse apply. On domestic abuse, we have changed twice the evidence requirement, to make it easier for legal aid to be obtained for domestic abuse.
From November last year we fund the first single session of mediation in all cases where one of the people involved is already legally aided. In this scenario both participants will be funded for MIAM and the first session of mediation. So, I am pleased to share with the House that the number of people starting legally aided family mediation has increased over the last year and is at its highest volume since April to June 2013.
Legal aid remains a vital part of the system. It was brought in by the Attlee Government post-war and remained part of a significant improvement to social justice. This Government do not want to abandon legal aid. We are, of course, suffering under financial constraints but that does not mean that we should not be directing our attention to ensure that access to justice can be obtained, partly by legal aid and partly by improving our justice system in the various ways touched on in the course of this debate.
The Ministry of Justice remains open, as I hope has been indicated by the Lord Chancellor’s response to one or two areas, which may be characterised as U-turns or, more properly, further consideration. I do not consider the capacity to change course to be a weakness and I hope that noble Lords will agree about that. The lessons that we learn from LASPO will, I hope, inform policy-making. We remain under significant financial constraints. However, there is no reason to abandon our commitment to access to justice. I am grateful to all noble Lords, all of whom I know share the Government’s commitment, for bringing these matters to the attention of the Government and to the House.
Lord Howarth of Newport
My Lords, I add my thanks to the thanks just now expressed by the Minister to all noble Lords who have spoken in the debate. Without exception, noble Lords have spoken with deep feeling about the problems of access to justice that have been intensified in consequence of the LASPO legislation. Some strong language has been used but, I think in these circumstances, very justifiably.
The debate has been informed by deep experience. My noble friend Lady Mallalieu spoke of her 40 years’ experience as a legal aid lawyer; my noble friend Lord Clinton-Davis capped that by referring to his 60 years of experience; and then the noble and learned Lord, Lord Woolf, said that he, too, had come into the law at about that same time. Of course, that was an exceptional vintage.
We also had the very important and eloquent contribution of a former Law Lord, the noble and learned Lord, Lord Brown of Eaton-under-Heywood. As my noble friend said, we miss the expertise of the noble Lord, Lord Pannick, but he finds his ways to share that with us. Many noble Lords spoke of the pride that historically we have had in our system of justice. The noble Lord, Lord Lester, and my noble friend Lady Dean were eloquent on that. Amidst all this wealth of expertise and profound experience, I was glad to be joined by at least a handful of amateurs, to use the term used by the noble Lord, Lord Dykes, to characterise those of us who have the misfortune—or possibly the fortune—not to be lawyers.
My noble friend Lord Judd reminded us that justice is at the heart of so many different policy issues, and other noble Lords were specific about areas of present injustice about which they are deeply concerned, such as domestic violence and the predicament of disabled people. The noble Earl, Lord Sandwich, spoke of the plight of asylum seekers, trafficked people and Syrian refugees to come, who will need to be able to obtain justice. My noble and learned friend Lord Goldsmith spoke about the disproportionate effect of many of the changes that have taken place on the predicament of women. My noble friend Lord Knight of Weymouth spoke with particular eloquence and passion about some cases that he has studied. I wish him well—and his friend Emily very well indeed—in the work that they are doing in their part of the country. He spoke, quite rightly, of the human cost of doing justice on the cheap.
A number of suggestions for reform were made. The noble Lords, Lord Cotter and Lord Marks of Henley-on-Thames, discussed procurement. The noble Lord, Lord Marks, also drew attention to the Leveson reforms, and the noble and learned Lord, Lord Brown, referred to the recommendations of Sir Bill Jeffrey. The noble Lord, Lord Low, was able to draw from the depth of his experience in chairing the commission that he has chaired in successive instances, and his ideas for a better network to enable the availability of justice are important and should be heeded. I think that after 50 years, the noble Lord, Lord Low, is entitled to submit the three volumes that his commission has published, plus the text of his speech today, for his PhD. It is time he gained it.
Many noble Lords spoke of their admiration for the legal profession. My noble friend Lord Judd made that point strongly. My noble and learned friend Lord Goldsmith spoke with pride about the Bar Pro Bono Unit, which he founded. We should all take this opportunity to thank so many members of the legal profession—indeed all of them, I would like to think—who, whether paid or unpaid, are dedicated to ensuring that justice is in truth and in reality available.
There was considerable discussion about the current state of the legal profession and of the courts. There was pretty well a consensus that there are very serious problems at the criminal Bar. The noble and learned Lord, Lord Judge, talked of a brain drain happening at present, as people leave the criminal Bar. The noble and learned Lord, Lord Brown, underscored that point in this most crucial area of legal practice. There is a crisis. My noble friend Lady Mallalieu told us of lawyers who earn less for their brief than the cost of the train fare to court. Clearly, if that is the case, the system is not sustainable.
The noble Lord, Lord Lester, helpfully introduced into the debate the issues of exceptional case funding and the fall in the incidence of mediation. The Minister, in his reply, accepted that those were indeed issues. The noble and learned Lord, Lord Woolf, said that it was a critical time for the administration of justice, and it would be no easy task to undo the damage that has been done. There was also some valuable discussion of the case of LIPs—litigants in person.
I want to add my personal tribute to my noble friend Lord Bach, because the scrutiny he led of the LASPO legislation and its subsequent emanations has been wholly admirable, and I have found him persuasive—at every point, I think. I wish him well in the work of the review that the leader of the Labour Party, Jeremy Corbyn, has asked him to undertake, and I indeed hope that we can move towards a consensus.
I also thank the noble Lord, Lord Faulks, the Minister, for the generosity of his remarks, the tone of his speech, and his willingness to acknowledge that there are lessons to be learned from LASPO, and that all is indeed not well. He spoke about various issues on which he and his colleagues in the Ministry of Justice are at present working. He also wished my noble friend well in his work on the commission. I hope that he and the Government will be assisted by my noble friend’s work, and that we shall achieve the consensus that we all desire.