Legal Aid

Lord Howarth of Newport Excerpts

Thursday 10th December 2015 Lords Chamber

Moved by

[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.

--- Later in debate ---

[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.

Motion agreed.