Legal Aid

Lord Low of Dalston Excerpts

Thursday 11th July 2013 Lords Chamber

[Lord Low of Dalston]

My Lords, I join other noble Lords in thanking the noble Baroness, Lady Deech, and congratulating her on securing this important debate, which could not be more timely. I declare an interest up front. As noble Lords may know, I have for the past nine months or so been chairing a commission established by the Legal Action Group with funding from the Baring Foundation, the Barrow Cadbury Trust, LankellyChase Foundation and the Trust for London on the future of advice and legal support on social welfare law in England and Wales. We are on course to have a draft report for consultation in September and produce our final report by the end of the year. I have been keeping a fairly low profile so as not to compromise the independence of our report, but I have been prevailed upon to break cover for just six minutes today.

Let me say straight away that I understand the Minister’s problem. On my first day at university, we received a lecture from Lord Denning who said that the difference between a judge and an academic was that whereas judges had to find a solution for every difficulty, academics took pleasure in finding a difficulty for every solution. In this, I see Ministers as more akin to judges than academics. We shall certainly be trying to come up with solutions rather than difficulties. We do not think it is possible or even desirable simply to put things back as they were and I hope we will be able to come up with some suggestions for creating a more orderly landscape of advice services which will be helpful to Ministers in getting the most out of reduced resources.

The recent proposals are mostly about criminal legal aid, of course, and that is not our concern. But there are also some proposals affecting civil legal aid which have been less remarked on, although they have not been ignored today, perhaps because they save a comparatively small amount of money—£6 million, I think. They may nevertheless have some untoward consequences and I want to say a word about two of them in a personal capacity, in the hope that the Government might be willing to reconsider them, particularly when they make such a trifling saving. They also concern me because of their potential to impact on children with special educational needs trying to secure the special educational provision they require.

Often the only thing that makes a local authority do what they know they ought to do is the threat of judicial review. According to MoJ figures, about half the cases in which legal aid is currently granted to bring judicial review do not lead to a JR. My information is that the actual figure may actually be considerably higher than that. That is not because the claims are unmeritorious but because in many of them a local authority caves in when they know a JR is coming. If, as under the new proposals, lawyers do not get paid for the work they do before the permission stage, many fewer JR claims would be brought, as has been said, and local authorities would be let off the hook. Either that or, if lawyers get paid only for cases which are issued and permission is granted, and not for cases that settle, there will be a perverse incentive to commence cases which would currently settle and more, not fewer, JRs will be brought and the projected saving will soon disappear.

Secondly, stopping the funding of borderline cases will have a dramatic effect for tiny savings on disability and SEN cases. Many such cases are currently classified as borderline in terms of their legal aid merits, either because they are factually complicated or are test cases, raising new issues of law. Some very important test cases of strategic significance are borderline and will not now be able to be brought. Indeed, test cases are almost by their very nature borderline.

In passing, the residence test will impact very harshly on children challenging special educational provision who happen to be the children of persons who have not been resident for 12 months. In effect, they will be being punished for their parents’ immigration status.

Also in passing, I am advised that recent reforms to the costs regime in civil litigation have had a deleterious impact on disabled litigants trying to bring cases under the Equality Act. No longer having the benefit of cost-shifting rules or the ability to recover insurance premiums, it is much more difficult for them to bring proceedings under a conditional fee agreement. They are thus unintended casualties of the Jackson reforms. I wonder if the Minister would be prepared to meet me to see if we can find a way through this.

Finally, young legal aid lawyers have written to me to express concern about the impact of these latest proposals on junior lawyers. Some, such as the cuts to civil advocacy fees, will have a direct impact. Others, like price-competitive tendering, will have an indirect impact as firms cut corners in order to stay afloat. This will impact on the future of the profession. If junior lawyers are not paid, supervised and trained to an adequate level, we will lose our next generation of legal aid lawyers.

As the judiciary said in response to the consultation, there is a,

“real risk that the firms obtaining contracts will employ those who will take the lowest salary in order to maximise the firm’s profits”.

This can lead only to a race to the bottom. It will also impact on social mobility and diversity in the profession, which will become increasingly closed off to those from less affluent backgrounds. These are not fat cats talking but young lawyers with a real sense of public service, which I find runs strongly within the profession, who want to be able to provide a quality service to vulnerable clients.