Civil Legal Aid

Lord Beecham Excerpts

Thursday 19th May 2011 Lords Chamber

Moved By

[Lord Beecham]

To call attention to the case for civil legal aid; and to move for papers.

[Lord Beecham]

My Lords, I declare an interest as an unpaid consultant in the firm of solicitors of which I was previously senior partner, and which practises in part in the area of legal aid.

We follow a debate on human rights with a debate on one of the most fundamental human rights—access to justice. I say immediately that the credit for this Motion coming before your Lordships’ House today belongs not to me, but to my noble friend Lady McDonagh, who drafted it and would have moved it had she been able to do so. Alas, she is not able to be present today for personal reasons, so I am in a sense instructed by her—a familiar condition for me, because she used to instruct me on behalf of the trade union for which she was an officer many years ago, and after that as general secretary of the Labour Party. I follow my instructions today with perhaps a little more alacrity than I did in that former case.

The legal aid system was one of the great pillars of the post-war welfare state. At one time affording access to justice to 80 per cent of the population, it has undergone many changes in the past 62 years. Currently, around 36 per cent of the population fall within the financial eligibility limits—both income and capital—for legal advice and assistance, or representation in matters of civil law. Some areas have long been excluded from the civil legal aid system, including most personal injury claims, which ironically were removed from the system's scope because of the conditional fee system that the Government now propose to abolish in the guise of an attack on the so-called compensation culture, the extent of which is surely exaggerated.

Last week, I confessed to having form in the matter of police reform. I have a similar confession in respect of legal aid. My noble friend Lord Bach will recall that I was responsible for a debate at a Labour Party conference which was somewhat critical of the previous Government's legal aid policy—this was just before he became a Minister responsible for it—and chaired a very constructive working party that made some improvements to that policy.

At present, legal aid and advice are available across a wide range of issues, including debt, employment, housing, education, family law, immigration and clinical negligence, and more besides. In some of these areas, legal aid does not extend to representation: in others, it does. The total cost is around £900 million a year for civil legal aid and £1.2 billion a year for criminal legal aid. The Government's Green Paper on legal aid reform proposes a massive cut in the civil legal aid budget of £279 million, with a much smaller reduction of around £71 million in the criminal legal aid budget. It achieves this by substantially reducing the scope of the scheme across most of the categories currently covered, while several categories are removed entirely.

The effects are stark. The Government's assessment of the number of individuals affected by the withdrawal of access—not the overall number, which would include family members—is around 500,000 to 550,000. This figure appears to understate the real effect by around 150,000, based on the latest Legal Services Commission data that show that some 725,000 cases will not be assisted. The Legal Action Group’s estimate is 650,000—still substantially more than the Government's estimate. No doubt those figures reflect rising demand stemming from the effects of the recession both in terms of the need for advice and the increasing numbers becoming financially eligible.

What are the implications of this massive cut—around 70 per cent—in the number of cases for which funding will be available? In round figures, funding will be available for 250,000 fewer cases involving family disputes; 140,000 fewer cases involving welfare benefits; 110,000 fewer cases involving debt; 50,000 fewer cases involving serious housing problems; and 30,000 fewer cases involving employment problems. The impact is concentrated on the poorest. Currently, 80 per cent of legal help cases and 90 per cent of cases where legal representation is funded involve the poorest 20 per cent of the population.

No doubt other noble Lords will give examples of the kind of cases for which assistance will no longer be available. I will confine myself briefly to four. In the area of housing, tenants will not receive help in securing the repair of their homes; in the area of education, the parents of disabled children will not be helped to secure proper provision from the education authority; in the area of employment, help will be available only in discrimination cases; and in the complex world of clinical negligence, no claims will be assisted, not even those of children.

The Government believe that greater reliance on two factors, mediation and the support of voluntary organisations, will substantially mitigate the effects of the draconian cuts. However, mediation already exists—it has to be considered now by the parties and the courts—yet only in some 4,000 cases a year is it adopted. Moreover, as I remarked when we discussed the Statement launching the Green Paper, mediation is not suitable when, as in many family cases, there is disequilibrium in the material or psychological resources of the parties, with the pressure on the weaker party to agree often being irresistible. By definition, the objective of mediation is agreement, not adjudication.

As regards alternative sources of support, law centres and Citizens Advice, too, are under extreme financial pressure, both from the withdrawal of government funding implicit in the proposals of the Green Paper and from local councils struggling to cope with the largest ever reduction in government grants. The Law Centres Federation anticipates a loss of something over 50 per cent of law centres’ income, and there is a fear that 50 out of the 56 existing centres may be forced to close if the Green Paper proposals are implemented. Many are already struggling with cuts in grants from local councils such as Birmingham or Hammersmith and Fulham, where the entirety of local authority funding has been withdrawn. Citizens Advice faces similar pressures at a time when demand is increasing.

The Government rightly claim that our legal aid scheme, when compared internationally, is one of the most, if not the most, generous. However, as the Bar Council points out, if one looks at the cost of the justice system as a whole, adding the cost of the courts to the legal aid bill, the gap is much narrower. Reducing the costs of administering the system should be the first priority. Paradoxically, the reduction in legal aid and advice might drive up costs, as the courts contend with the problems of dealing with litigants in person. International comparisons of expenditure are inevitably rough and ready, taking little or no account of different legal systems, let alone different social and economic structures or pressures. Citizens Advice, in its response to the Green Paper, demonstrated that the taxpayer saves substantially by investing in legal aid. In the case of housing, the saving is £2.34 for every £1 spent on legal advice or legal aid; in the case of debt, £2.98 for every £1 spent; in the case of benefits advice, £8.80; and in the case of employment, £7.13.

Clearly, the justice system cannot be immune from the pressure to engender savings at a time when deficit reduction is a given, even if the scale and timing of reductions continue to be contestable issues. However, I urge the Government to consider very carefully the Law Society's proposals for savings. It identified £249 million-worth of savings for the Ministry of Justice from a range of measures, including improving the efficiency of the prosecution service and capping an individual lawyer’s fees derived from legal aid. In addition, it accepts £62 million of the savings that the Government propose in the Green Paper, plus further savings from barristers' fees. I observe that the Law Society is rather quick to suggest reductions in barristers’ fees; its enthusiasm may not be shared by the Bar Council. In addition, it suggests areas where revenue can be raised: for example, by a modest 1 per cent levy on the alcohol industry, which contributes significantly to the need for legal services not just in the criminal courts but in such areas as family law, housing, debt and welfare—or, on another track, by simplifying housing law. It estimates that £158 million could be raised from a variety of such measures. If all the savings suggested by the Law Society were to be adopted and implemented, they would bring a total of £469 million-worth of savings—substantially more than in the Government's proposals contained in the Green Paper.

There may be other ways of contributing to reductions in the civil legal aid budget. In earlier days, legal aid lawyers suffered a levy of 10 per cent on their costs, as eventually assessed by the courts or agreed with the other side. Perhaps we could revert to that system to generate money for the legal aid fund: or perhaps we could introduce a contingency fee system under which legally aided clients would contribute a proportion of their damages or sums that they recover to the legal aid fund, but preferably not to their lawyers. I recall suggesting such a scheme at a meeting where my noble friend Lord Boateng, then a Minister in another place, had roundly denounced fat-cat lawyers. Speaking, as I said at the time, as a moderately plump-cat lawyer, I thought that my proposal was worth investigating. He did not, and it was not: yet it still seems to me that such a system, coupled with the former practice that cases had to be independently assessed by practitioners as having a reasonable chance of success, and authority obtained to incur significant expenditure, would be better than the conditional fee system that is supposed to incentivise lawyers to undertake weaker cases—on the grounds that swings and roundabouts would apply—many of which might fail. Those cases would be subsidised from the fees from cases that they won. Of course, the conditional fee agreement is now to go.

The Lord Chancellor has made a refreshing start on reforming penal policy, distancing himself from both his Conservative and Labour predecessors. I applaud him for that, though not for yesterday’s unfortunate pronouncements, but in this area of civil legal aid, he is in danger of making a grievous error. In the words of the current Lord Chief Justice, the proposals fail,

“to recognise the depth of the problem”,

and,

“the proposals would lead to a huge increase in the incidence of unrepresented litigants, with serious implications for the quality of justice and for the administration of the justice system”.

Consider the following from the Jackson report from which the Government have cherry-picked recommendations about costs and conditional free agreements:

“I do not make any recommendations … for the expansion or restoration of legal aid. I do, however, stress the vital necessity of making no further cut backs in legal aid availability or eligibility. The legal aid system plays a crucial role in promoting access to justice at proportionate cost in key areas”.

Those are very salient words from a distinguished judge looking at this key issue of public policy.

I have quoted the present Lord Chief Justice, and I conclude by referring to a most distinguished predecessor, the noble and learned Lord, Lord Woolf, who is not in his place today. Two or three years ago, the noble and learned Lord published a volume which is a distillation of his jurisprudence, wisdom and humanity. It is called The Pursuit of Justice. The title is derived from the biblical injunction:

“Justice, justice shalt thou pursue”.

I hope that this House in the course of this debate will endorse that sentiment and urge it on the Government.

--- Later in debate ---

[Lord Beecham]

My Lords, I thank noble Lords who contributed so seriously and constructively to the debate, and others who indicated interest and support but were unable to attend. I cite in particular the noble Lord, Lord Newton of Braintree, who very much wished to be here. I extend my thanks and sympathy to the Minister, who struggled manfully with the constraints of collective responsibility—or, as some of us would say, collective irresponsibility. I am sure that he will take back the opinions, facts and suggestions from today's debate and that we will see at least some of them reflected in the legislation that is wending its way towards us. In the circumstances, I beg leave to withdraw the Motion.

Motion withdrawn.