Legal Aid

Lord Faulks Excerpts

Thursday 10th December 2015 Lords Chamber

[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.