Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013

Lord Phillips of Sudbury Excerpts

Wednesday 27th March 2013 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, the speech we have heard from noble Lord, Lord Bach, is very sobering, and although he put it forth in no spirit of partisanship, some of the language was, if I may say so, overcoloured. I do not think that to accuse the Government of spite is reasonable, but I accept that for us apparently to deprive those covered by the Motion, who have suffered at the hands of a First-tier Tribunal where there has been an error of law in the decision, seems, to accept the noble Lord’s word, perverse.

I used to have an office overlooking the Old Bailey, and I never forget the motto over the portal of the Old Bailey. It reads:

“Defend the children of the poor & and punish the wrongdoer”.

If ever there is a category of cases where the children of the poor are likely to be engaged, it is this one: welfare law cases.

I shall listen very carefully to what my noble friend has to say in response to the case put forward by the noble Lord, Lord Bach. My mind is not finally made up, but I must be frank with my noble friend. This seems an extraordinary error of both judgment and justice. We boast endlessly in this country about our justice system, on the whole with reason. I cannot begin to get my head around denying people who have suffered a reverse in the welfare tribunals legal advice on a point of law. I hope that my noble friend will have a compelling argument to bring forth. In particular, it would be very helpful for the House to know just what the cost is, or would be likely to be, if the provision were withdrawn. I very much hope that if the Minister cannot give a satisfactory riposte, the Government will think again, even at this late stage. Sometimes numerically small issues mark a culture, a society, a Government, and this seems to me to be laden with that significance.

[Lord Beecham]

My Lords, this debate consists of two parts. The first is the regret Motion tabled by my noble friend Lord Bach, which deals with a particular decision. I do not want to say any more about that other than that I entirely support the magisterial rebuke that he administers not to the Minister, who of course does not have a free hand in these matters, but to the Government at large for denying a modest concession to about 300 people, the cost of which, to refer to the question asked by the noble Lord, Lord Phillips, must be minimal, in what can only be described as a governmental fit of pique.

Having said that, I turn to the second more general issue that is encompassed in the broader merits regulations and the position of welfare law claimaints in general, who are significantly affected by the changes that are now under way. Hitherto, about 30,000 people have benefited from welfare legal aid and advice, usually, although not exclusively, provided by voluntary organisations, notably the citizens advice bureaux. I place on record my gratitude to the bureaux for furnishing the information that I am about to relate, in part at least, to the House. The situation now is that instead of 30,000 people getting that advice, 3,200 will receive advice and support in respect of Upper Tribunal matters only. There will be no assistance in their case at the first tribunal. There are two aspects to this, a supply side and a demand side, and I shall begin, rather perversely, with the second, which is the demand side.

We are dealing nationally with a group of significantly disadvantaged people. I am informed by the bureaux that some 68% of current welfare legal aid users have a disability. In addition, there will be many with literacy and other problems and vulnerabilities; indeed, they are a significantly high proportion of those who seek advice. They seek advice about their entitlement, but also about the processes that are, to put it mildly, complex. I can illustrate that with one of a number of cases the bureaux have briefed me and my noble friend on. I shall pick the shortest so as not to delay your Lordships any further than necessary.

In one case, a Welsh bureau advised a 57 year-old woman with multiple disabilities who received employment and support allowance and council tax benefit. She made a claim, did not seek advice when completing it and as a result underestimated her needs, in particular her mental health issues. Here, again, I underline the point about the degree of vulnerability of some of these claimants. She attended a medical assessment and was judged to have scored no points. She appealed that, attended a First-tier Tribunal in 2012 and was awarded nine points, but was not awarded any help with the mental health conditions, despite a letter from a GP saying she had a long-term mental health condition and despite the fact that the letter said she was suicidal some months before that decision. The bureau then advised her on looking for options for appealing the decision to the Upper-tier Tribunal. She would have had no help at all from the bureau in the present circumstances if the bureau’s capacity to give it was limited, as it is likely to be.

In effect, legal aid and advice is now limited to the second stage, the onward appeals tribunal. This is not consistent with the intention Parliament originally expressed in respect of first-tier cases where at least basic advice and support on a number of procedural issues, such as a request for a statement of reasons from a first tribunal, seeking leave to appeal from the first tribunal and other aspects—lodging documents and so on—should be covered. Unless these stages are included within regulations, it is unlikely that anybody seeking to appeal, assuming they know of their rights to appeal, would be able to progress from the first tier to the second tier unassisted. That is the second stage.

I now turn to the supply side. There is a growing crisis in the sector. There is no doubt about that. Citizens advice bureaux and other organisations are suffering significant reductions in funding from national and local government, the latter of course having been awarded a further 2% cut in government grant in the recent Budget, so things are not going to get any better for some time in that context. The problem now is that bureaux are disposing of staff. My bureau in Newcastle has had to rid itself of the equivalent of three and a half full-time legal advisers, the bureau in Gateshead is closing, and this pattern is being repeated all over the country. It has to be said that some bureaux continue to provide pretty much a full service, but increasingly the pressure is resulting in a substantial decline in the capacity of the organisations to meet the demand, which is likely to rise, not least with the Welfare Reform Act changes that are about to strike hundreds of thousands, if not millions, of people.

The process now is that the contracts to provide this service for the only part that is to be covered by legal aid, the Upper Tribunal, are being let in a very curious system. I did not know about this until a couple of days ago. Apparently there are to be only four areas in which these contracts will be granted for the whole country. I am not sure whether Scotland is included, but certainly England and Wales are divided into four areas under which a contract will be let. A tendering process will commence and it is intended to be completed in October.

What is to happen in the mean time, between April and October, given the pressure on the budgets of the CAB and other advice agencies, remains to be seen, but there must be a significant worry that there will be difficulties in dealing even with appeals to the Upper Tribunal pending the allocation of contracts. Certainly there is a good deal of concern in the sector about that, because in the mean time several hundred welfare law contracts, which are not currently distributed on the basis of just four contracts for the whole country, will come to an end. So there is a really significant problem immediately on the supply side.

The four areas—it is clear that Scotland is not included—are the north, the Midlands and the east, the south-west and Wales, and London and the south-east. These are huge geographic areas. The CAB says that the contracts will require that:

“The applicant must be able to provide face to face services from locations and access points across the whole area, as well as delivering remote advice”—

that says it all, really—

“and interacting with the civil legal aid (CLA) helpline; no subcontracting is submitted and the applicant must be a single individual”.

A very strange market is going to develop in which only four organisations will be involved. One imagines that organisations such as Group 4 and Atos, which have covered themselves in glory in recent years, will be rushing forward to supply this important and sensitive service.

The contracts themselves are very limited. For London and the northern procurement areas, only 1,035 cases are assumed to be included in the contract. The other two areas have 600 and 90 each. That is minimal in the face of the likely demand. It certainly does not take us beyond the current 3,200 people who get legal aid and advice for the Upper Tribunal. There is no flexibility in that. If you have only that small number of cases you will have only two or three specialist advisers covering areas as vast as those that I have described. Remoteness is indeed going to be evident. How on earth can two or three people sensibly look to face-to-face contact with appellants over an area as wide as that? Yet that is what the contracts are heading towards.

Will the Government look again at support for the advice sector, and the contract in particular, first, to ensure that services are maintained on the present basis between 1 April and the date on which the new contract comes in? That will be difficult because people will be looking for alternative employment. If the contracts are going to involve only 12 people nationally, people who are currently engaged locally on this kind of work are going to be looking for other work. I hope that the Government will provide some temporary support at least for the continuation of that service. Secondly, will they look again at this ridiculous pattern of four huge areas served by a handful of people? I cannot believe that the Government seriously think that this is the way to support people of the kind that the CAB describes, which I related to the House, who desperately need personal contact if they are to have their cases heard.

Of course, we are not voting on the regulations as such. I believe that the Minister will be sympathetic to the issues I have raised. I hope he will take this back to the department and that we can have some changes: first, some reconsideration, preferably with proper discussion with the sector about how it might work; and, secondly, a review of whether the contracts should go ahead on the present basis. I certainly hope that the Government will have second thoughts about this matter.

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[Lord McNally]

The noble Lord knows how Governments work, and spending reviews are carried out by individual government departments. He was responsible for the arts budget, fortunately in happier days with regard to spending. Individual government departments have to take hard decisions. It is an old scheme in government to say, “Oh well, of course defence spends this much more”. You have to make the decisions, and we had to make decisions about the scope of legal aid.

We tried from the beginning to ensure that there was a logic to what we were doing, in that—I have just been handed a little guide to it—we prioritised civil legal services so that they would be available in the highest-priority cases: where people’s life or liberty was at stake, where they were at risk of serious physical harm or the immediate loss of their home, or where children may be taken into care. That has undoubtedly meant cuts elsewhere, which the noble Lord, Lord Beecham, outlined, although the dividing line between legal advice and advice sometimes gets blurred.

I should also make the point that the universal credit is not a big bang; it will be phased in over a number of years. Of course we will keep a very close eye on how these things develop and the impact that they have.

I make this point again to the advice services: I know that CAB and others have been formidable lobbyists, and again I make no complaint about that, but the advice service is no more spared from the cuts that have affected this area than my own department is or than local authorities are. We live in hard times as far as these bodies are concerned, and we are trying to give money to the advice sector to help it reorganise and adapt to new circumstances. We will continue to do so, but we cannot immunise it from those impacts.

One of the oldest members of my flock, my noble friend Lord Hutchinson of Lullington—Jeremy Hutchinson QC—sadly no longer attends the House for what I think is the entirely bogus reason that he is 96, but he is as sharp as a tack. He was involved with the Bar in the setting up of legal aid in 1948 and told me, “We really thought that we were creating a National Health Service for the law”. That was an extremely noble aspiration. However, I have also found, particularly since 2010, that given the financial circumstances that we inherited, not just this Government but the previous Government had been looking at whether some parameters had to be set on the provision of taxpayer-funded legal aid. I hope that in taking these measures forward we can engage in attempts to get some kind of cross-party consensus on society’s commitment to legal aid.

In a discussion that the noble Lord, Lord Bach, and I had at University College recently, I said that if he were here in 2015, and he asked Chancellor Balls, or whoever, for £500 million to restore the legal aid cuts, I did not think that he would get a very promising answer as the same economic constraints and realities would still apply. However, there is an interesting debate to be had about the future of legal aid and our national commitment to it. Thus far, we have made hard decisions but I want to make sure that as far as possible we are not left with rough justice.

On the point made by my noble friend Lord Phillips, we will keep the matter under review. I have asked all the various sectors of the MoJ that deal with these matters to keep monitoring the measure’s impacts and effects from day one. I know that noble Lords on all Benches will want to see how this works out. However, I believe that we have done the best we can in difficult circumstances.

[Lord Phillips of Sudbury]

Before my noble friend sits down, will he answer the question that I think was put by the noble Lord, Lord Bach, and certainly by myself: namely, what broadly is the cost of allowing advice to be given to those few hundred people who want to appeal on a point of law against a tribunal decision on welfare law?

[Lord McNally]

I think a rough estimate is that it is probably less than £1 million. It was a very small concession, but it was not me who withdrew it.

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[Lord McNally]

Built into the system are corrections to the tribunal. The noble Lord will know that the tribunal system was initially conceived as a relatively lawyer-free zone where people could make their case. The other part of our reforms of justice is, in a whole range of measures, to offer different forms of mediation and arbitration that reduce what was becoming an over-lawyered system, including in tribunals.

[Lord Phillips of Sudbury]

I am sorry to intervene again on my noble friend, but it is not fair to say that the tribunals introduced a lawyer-free zone. The point of this debate is that it is in respect of issues of law in relation to tribunals that advice is plainly needed from lawyers. That is ineluctable.

[Lord Bach]

My Lords, I thank all noble Lords who have spoken in this debate. I thank in particular the noble Lord, Lord Phillips of Sudbury, for his remarks. If the word “spite” offends him because it is rather overblown—rather like the number I claimed for a previous amendment—I apologise. I do not want to overblow this but I want to make the point. I am grateful to my noble friend Lord Beecham for his remarks on the general issue around legal aid that this House discussed over many months. He is absolutely right. When Part 1 of this Act comes into force next Monday, it will be a day of shame for our legal system because—I am sorry to use this phrase again—access to justice for the poor, disabled and marginalised will, in many cases, effectively disappear because they will lack the ability to get the advice—