Civil Legal Aid (Housing and Asylum Accommodation) Order 2023

Monday 23rd January 2023 Grand Committee

Motion to Approve

16:38

Moved by

[Lord Bellamy]

That the Grand Committee do consider the Civil Legal Aid (Housing and Asylum Accommodation) Order 2023.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, this statutory instrument will expand the scope of civil legal aid to allow early legal advice before court on housing, welfare benefits and debt issues for those at risk of losing their home. It will also ensure that failed asylum seekers who face a genuine obstacle to leaving the UK remain eligible for legal aid to support them in obtaining accommodation support from the Home Office. These provisions are made under the overarching legislation known as LASPO, which covers the grant of legal aid.

Going into slightly more detail on the changes to housing legal aid, the purpose of the instrument is to provide a better wraparound and earlier legal support for those facing the loss of their home. The current arrangements provide for legal aid only for help at court, whereas the new scheme allows for much earlier advice to be sought as soon as the tenant receives notice that the landlord seeks possession. At the same time, the scope of the advice now available will cover wider matters, including advice on debt, housing, and welfare benefits and related matters. In general, this is a wider and, we trust, more effective use of legal aid in this sector.

The order results from the post-implementation review of LASPO, where the absence of legal aid in this specific area was identified as a gap in the system that led to an increase in court proceedings, greater reliance on welfare and extra pressure on local authorities. The order seeks to help individuals to resolve problems before they lead to housing loss.

The advice will not be means tested, meaning that individuals will not need to pass any financial eligibility tests to receive it. The present in-court duty service, whereby defendants can be represented in possession cases at court, will continue. Under the remuneration regulations, we will ensure that fees for legal aid providers for those services are increased at the same time.

The other amendment the instrument makes is essentially purely technical: to ensure that legal aid for failed asylum seekers continues to be available so a failed asylum seeker can obtain accommodation support where they are destitute and there is an obstacle preventing them leaving the United Kingdom. The amendment is necessary because of a technical change tied to Sections 4 and 95 of the Immigration and Asylum Act 1999 to take account of a new Section 95A, to be introduced when the provisions of the Immigration Act 2016 come into force. That is a purely technical arrangement, the main thrust of the arrangements being the improvement of legal aid in housing. That is a short explanation of the statutory instrument.

[Lord Bach (Lab)]

My Lords, I thank the Minister for introducing the order. No one could have done it with more clarity than he has. I hope he will forgive me: while I of course welcome the small but important improvements the order represents, they are in reality just a tiny step and a little progress in dealing with the depressingly large picture of the decimation of an important part of our legal system, namely social welfare law.

That decimation occurred when the coalition Government put together, against all-party opposition and many defeats in your Lordships’ House, the Act of Parliament known as LASPO. That Act, which, ironically, came into force almost exactly 10 years ago today, has arguably done more harm than any other piece of legislation over the last number of years. No wonder the Liberal Democrats, who supported it as part of the coalition, have rightly distanced themselves from it. I detect that the governing party is perhaps just beginning to show, in instruments such as this, that it realises how much harm that Act has done in some areas.

16:45

The noble and learned Lord the Minister cannot be blamed in any way at all. He was certainly nowhere near the scene of the crime. Indeed, I suspect—he will know better, of course—that most distinguished lawyers like him have, over the years, wondered why Part 1 of this Act was ever brought forward.

By taking social welfare law out of the scope of legal aid, the Government saved a large amount of Ministry of Justice money but a very small amount of public money—£350 million out of a Ministry of Justice budget of £2.1 billion. However, the price was, and still is, that many hundreds of thousands of people who under the previous system, which was far from perfect, could obtain early advice and, if need be, representation on legal issues such as welfare benefits, debt, housing and immigration, now just cannot do that, unless they can afford it. The figures are staggering. By 2016-17, the number of civil legal aid matters initiated was down by 84% from 934,000 to 147,000. Certificates for representation were themselves down by 36%. This meant that citizens could not get the advice at the time when they needed it. It meant they had—this needs to be said—no access to justice.

I looked at a passage that the Minister himself referred to in the Explanatory Memorandum to this order, in Paragraph 7.2, which states:

“The Government carried out a Post-Implementation Review … of LASPO in 2019, which assessed the impact of the policies against the original objectives. Broadly, the PIR found that whilst the objective in relation to reducing legal aid spend had been met, the reforms that removed areas of early civil legal advice from scope of legal aid resulted in a lack of early intervention in social welfare. It also suggested that whilst this saved money on legal aid, ultimately these costs have been shifted elsewhere, as relatively minor legal problems can escalate and cluster into more serious problems.”

If I may say so, that puts it extremely well. A government document says those words—and it is so different in context and tone from the words used when the original White Paper came out and when the Government put forward the Bill that became LASPO.

It seems that, at long last—much too late—the Government have understood what is wrong with the legislation. That is why I have so much support for the small step that is being taken in this order. The introduction of the housing loss prevention advice service is welcome, particularly because it will provide some crucial early legal advice on social welfare issues, welfare benefits and, in this case, debt. It will also retain the invaluable duty service, on the day and in court, which I saw many years ago as the Legal Aid Minister.

In my view, the Government are definitely moving on this issue. I am also conscious of the pilots that are taking place as we speak. This is largely being done because of the influence of the Minister and his predecessor in this House. But—and it is a big “but”—the speed of movement is very slow.

In supporting these regulations, I ask the Minister to invite his staff to take from the shelf The Right to Justice, which is one of many reports over the last number of years—it may be getting a little dusty now, because it is a number of years old. Although I was certainly not a major part of it, I was privileged to be the chair of the commission that produced that document. I invite the Minister, and perhaps ask him to invite his Secretary of State, to read its very sensible and common-sense suggestions, particularly on these matters. That is all I want to say. I know I have gone on for quite a long time, but this is an important matter and, in its small way, this is an important order.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Explanatory Memorandum explains that the order will expand the

“scope of civil legal aid to allow early legal advice before court, on a wider range of issues, for those at risk of losing their home. It also introduces a new fee to be paid to legal aid providers delivering this early legal advice … The second purpose is to maintain the Government’s policy that those at risk of homelessness can access legal aid. This applies to failed asylum-seekers, who otherwise would be destitute, to receive legal aid to obtain accommodation support.”

We in the Labour Party do not oppose this SI. We support in principle the introduction of initial advice for housing, welfare benefits and debt that is not means tested or merit tested, but we are concerned about the sustainability of providers and whether they have the resources to deliver advice, particularly on welfare benefits and debts. These areas were previously largely removed from scope by LASPO in 2012. This statutory instrument will do little to improve the wider state of disrepair that the civil legal aid system is currently in, and we welcome it for what it is.

My honourable friend Afzal Khan MP spoke about this in the equivalent debate in the other place. He went into some detail on the state of the current civil provision and support for people across the country. I will not repeat everything he said, but he was basically talking about “legal aid deserts”. He quoted the following statistic, that

“65% of the population do not have access to an immigration and asylum legal aid provider.”

He asked the Minister:

“What steps are the Government taking to tackle legal aid deserts, so that victims can have access to justice?”—[Official Report, Commons, Fourth Delegated Legislation Committee, 18/1/23; col. 6.]


My honourable friend also made an equivalent point for a housing legal aid desert, saying that about 12.5 million people do not have access to housing legal aid advice. What can the Minister say about the lack of uniformity of provision across the country, which was drawn to the attention of his colleague, Mr Freer, in the House of Commons?

My noble friend Lord Bach gave a significant speech. He is absolutely steeped in this issue and, of course, he has his own distinguished record from before he came into the House and in various roles that he has held in this House. He said that this SI was a small but important improvement, and he spoke about the previous decimation of social welfare law. He quoted from the Explanatory Memorandum the various elements of paragraph 7. My noble friend concluded by modestly drawing the Minister’s attention to his report, The Right to Justice, which he prepared for a previous Labour opposition group, if I can put it like that. I have read it, but I will do so again. It is interesting, with recommendations across the whole piece of civil legal aid, and I recommend it to the Minister.

So, as I say, we welcome this SI as far as it goes, but the Minister is perhaps better positioned than many previous Ministers to know just how little that is.

[Lord Bellamy (Con)]

My Lords, I thank noble Lords for their comments. I pay particular tribute to the noble Lord, Lord Bach, for his earlier role in this area as a Minister. I will certainly reread The Right to Justice and ensure that members of my staff do, too.

If I may say briefly, regarding LASPO, it is probably not useful at this stage to go into the historical circumstances that led to that legislation. At the time, there were very large expenditures and there were thought to be some abuses in the legal aid area. It has remained a controversial statute, and the ministry’s post-implementation review, correctly carried out as post-legislative scrutiny, has revealed certain problems which we are determined to address.

On the wider issue, I hope that the Government will shortly be in a position to announce the result of the means-test review, which I hope will increase the scope of legal aid for many people. We have already announced a full review of the whole of civil legal aid, and I very much hope that that will be progressed during 2023.

If I may make a personal comment, it seems to me that an important issue is the role of early legal advice and how far intervening early saves the overall cost of the proceedings, quite apart from reducing the stress and strain of those concerned, and generally results in earlier resolution. That point was recently made so powerfully by the House of Lords Children and Families Act 2014 Committee, of which the noble Lord, Lord Bach, and others present are not entirely unaware, if I may put it like that.

It is important to say that the points that have been raised today will be borne in mind in the civil legal aid review that we are undergoing.

As to the problem of the sustainability of the providers and the problem of deserts, we are establishing, specifically in the housing area, a panel of experts to support providers. There may be some areas where the skills are less up to date than they could be. I am sure that the issues of deserts will feature in the civil legal aid review. It is to some extent mitigated by the arrival of remote technology in the meantime, because it no longer matters where your adviser actually is, although of course it is preferable to have someone who is geographically close.

I hope that these and other very important issues will be addressed in the future. I think the order results in a further £10 million towards the legal aid fund. It may be a small step, but I can only agree with the noble Lord, Lord Bach, that it is a significant step. I commend this Motion to the Committee.

Motion agreed.