Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Phillips of Sudbury Excerpts

Wednesday 14th March 2012 Lords Chamber

[Baroness Grey-Thompson]

My Lords, the amendment is also in the names of the noble Lords, Lord Bach, Lord Newton of Braintree and Lord Pannick. It seeks to remove the provisions for both a mandatory telephone gateway and the delivery of legally aided services exclusively by telephone. Instead, the amendment would insert a duty to promote the plurality of provision and the delivery channels in order to have regard to the needs of clients when procuring services.

The Government have said that they will introduce the mandatory gateway initially in four areas of law. However, the Bill gives the Government wide powers to make legal aid services available exclusively by telephone or other electronic means in the future. I move the amendment for several reasons. A telephone-only service may work for a large number of people. However, it may adversely impact the most vulnerable clients, who may struggle to explain complex problems over the phone. I should like to ask the Minister to share with us how the coalition Government will identify the groups of people for whom this service is not suitable, and the criteria that will be used, given that the Government acknowledged the difficulty in their impact assessment, which stated:

“Disabled people may … find it harder to manage their case paperwork through phone services. They may also find it harder to communicate via the phone or manage any emotional distress more remotely”.

Indeed, it may be hard for many people even to access a telephone suitable for dialling in. Many people in current times do not have a land line but only a mobile. Accessing a telephone gateway via a mobile could be expensive. Due to waiting times, credit may even run out before a conclusion has been reached. Also, fewer public phones are available, and they are perhaps not the best way to try to resolve issues. I am also concerned that people with language or speech difficulties may be deterred from seeking advice. Without early intervention, it is likely that their problems will become more complex and costly to resolve at a later date, and their problems will be pushed to another area.

We must also think carefully about training operators. It is my understanding that they will receive some training, but there will be no formal legal training. As a result, operators may not be able effectively to interpret the nuances of complex cases put to them, let alone cases put to them by clients who may be confused or have some difficulty in communicating.

The Government’s savings from their proposals will be negligible, and they may in fact cost more. The June 2011 impact assessment predicted savings of between just £1 million and £2 million—a relatively small amount. In fact, a study by the Legal Services Research Centre found that telephone advice can take longer to resolve problems than face-to-face advice. Face-to-face advice is important in many cases for fostering trust and building relationships in order to get to the right resolution.

We could also lose the current streamlining. Much good work has been done by local advice agencies, which collaborate to streamline advice, whereby clients need to go through the advice journey only once. The mandatory telephone gateway will fracture this again, because clients would need to phone in first and then be referred to special advice elsewhere.

During the Bill’s Second Reading and Committee stage in your Lordships’ House, Peers from all sides expressed the view that a telephone-only legal aid service would not be appropriate for all users. While I accept that it may suit many, those with language difficulties, learning difficulties or mental health problems may be disadvantaged. Vulnerable clients, perhaps those experiencing bereavement, loss of a job or debt, or those with low self-esteem or poor literacy or numeracy, are much more likely to be disadvantaged.

The Government risk excluding vulnerable people from accessing meaningful and effective legal advice. I beg to move.

[Lord Phillips of Sudbury]

My Lords, I started in a Suffolk solicitor’s office in the late 1950s. As was common then and now, a lot of preliminary advice, particularly to people who could not pay anything, was given by junior members of staff. Ever since, I have been imprinted by early recollections of how difficult it is for some people to give instructions at all. Later, I became non-executive director of a company that ran the first telephone helpline in the country, and observed first-hand, as one might say, how that worked. Of course, a great many people in the present age feel perfectly comfortable with telephones. Provided that there is no cost factor, to which the noble Baroness, Lady Grey-Thompson, referred, that may prove an adequate way to give instructions. However, we know that there are many, even now, who are not comfortable with telephonic communication and for whom, if the matter they are seeking advice on is painful to them or arouses great emotion, it is not a satisfactory way to try to impart instructions.

If one thinks of poor people—perhaps I should not have said poor people, because they can be highly articulate, but inarticulate people and those who cannot begin to analyse their problem and do not know quite what it is—the telephone is unlikely to be an effective means to impart information without which the adviser cannot hope to help them to best effect. We are all wholly aware of the Government’s need and wish to save expenditure on legal aid, but I put it to my noble friend that this is the falsest of false economies. Anyone who has given such advice will readily say that the cost in the adviser’s time is released when the client is in front of them, when they can help the client, who is often confused or emotional, to give them the precious information without which they cannot hope to do a satisfactory job. On cost grounds, the savings assumed for the telephone helpline as an exclusive channel of advice are misconceived. More importantly, I think we all agree, so it does not need emphasising any further, that justice cannot be done if there is no alternative to deliver advice by face-to-face means.

I end by saying that where the person needing help is poor, confused and deprived, the notion that one should add to that catalogue of disadvantage the inability to access the only advice that will work for them—face-to-face advice—would be a terrible indictment of our claim to be a democracy where we are equal before the law.

[Lord Wigley]

My Lords, I shall speak briefly in support of Amendment 119, moved so persuasively by the noble Baroness, Lady Grey-Thompson. The amendment removes the provision contained in Clause 26 for the Lord Chancellor to make legal advice services available by telephone gateway or other electronic means. It would instead place a duty on the Lord Chancellor to ensure that individuals eligible for legal aid advice are able to access that advice in the forms most suited to their needs, including initial face-to-face contact.

Clause 26 is perhaps one of the most controversial elements of the Bill and has attracted widespread criticism from disability groups and campaigners. The clause contains provisions to establish a compulsory telephone gateway and to make this gateway the only method by which advice in certain categories of law is available. These proposals will in effect disfranchise individuals with learning difficulties or disabilities that impair their ability to communicate efficiently from being able to access advice. As Scope has pointed out, many legal aid clients experience complex and multifaceted problems that would be difficult to explain over a telephone, while those with limited English or with language or speech problems may be deterred from seeking advice at all. Common sense suggests that cases that are not dealt with at an early stage will be more costly to resolve at a later stage.

The proposals represent a retrograde step that would put up shocking barriers to equal access to justice. The Government acknowledged this in their own impact assessment, recognising that:

“Disabled people … may find it harder to manage their case paperwork through phone services. They may also find it harder to communicate or manage any emotional distress via the phone”.

What is more, as pointed out once again by Scope, these proposals could end up costing the Government more money, as opposed to making savings. The impact assessment published in June 2011 predicted modest savings of about £1 million to £2 million, while a study compiled by the Legal Services Research Centre found that advice provided over the telephone can unnecessarily prolong cases, as was mentioned a moment ago, and thereby make them more difficult to resolve.

In summary, Clause 26 adds further stress to already distressing situations and risks excluding vulnerable individuals from accessing legal advice altogether. The proposals go against the principle of equality of arms before the law and, frankly, display a cavalier attitude towards the needs of those with disabilities or impairments. Individuals with disabilities should be treated with the utmost respect and dignity in all areas of society. It is our duty to ensure that they are not disfranchised by a scheme that aims to provide justice on the cheap.