Legal Aid: North-West

Afzal Khan Excerpts

Tuesday 22nd February 2022 Westminster Hall

[Afzal Khan (Manchester, Gorton) (Lab)]

It is a pleasure to serve under your chairmanship, Ms Fovargue. I am also grateful to everybody who has spoken today, especially my hon. Friend the Member for Salford and Eccles (Rebecca Long Bailey) who secured this important debate. There is much consensus in the room on the importance of legal aid, as well as an appreciation of how it should work and why it is not working now.

It is fair to say that the legal aid system is broken. As Members of Parliament, we all meet constituents who are in desperate need of both civil and criminal legal aid. From housing, welfare and immigration issues to more serious criminal cases, access to legal aid is essential to protect people’s rights and livelihood. We are suffering from the serial underfunding of the entire legal aid sector, paired with a strict means test and a huge backlog in the criminal courts. We know that justice delayed is justice denied.

Thousands across the north-west are impacted by this. We have already heard a number of examples of how it impacts ordinary people’s lives in the north-west. I recently learned about a couple who were referred to the Vauxhall law centre in Liverpool. Self-employed and unable to work during the pandemic, the couple depleted their savings and eventually fell into rent arrears. When the eviction ban was lifted, their landlord issued them with an eviction notice but, by the time the claim was issued at court, the couple had returned to work, and therefore failed the means test for legal aid. Their savings had gone; their earnings barely covered their bills. Thankfully, the law centre was able to provide support and ensure that the possession order was set aside.

Law centres such as that one are providing an emergency service up and down the country, preventing people from facing destitution, homelessness and even deportation. I want to put on record my thanks to Greater Manchester Law Centre and others for that vital work. It is not right for the third sector to pick up the pieces of the Government’s mess. These issues are not new and have been festering for a decade of Tory austerity. Since 1986, there have been progressive reductions in the scope of civil and criminal legal aid, along with strict financial requirements for eligibility, culminating in LASPO in 2012.

As a result, legal aid is now accessible only to less than a quarter of the population, and only for criminal defence and some very limited areas of civil law. Civil legal aid is usually available only in the direst circumstances where specific criteria are met, such as domestic violence, discrimination or risk of homelessness. Even when those conditions are met, there is no guarantee that a person will be granted legal aid. More than a third of women who have experienced domestic violence are unable to satisfy the Government’s strict requirements for providing proof, and are therefore denied access to legal aid. That is worsened by the fact that there is no remuneration to firms for assisting clients in gathering necessary evidence. As a result, victims must face their abusers in the family court without legal advice or representation.

Legal aid providers have also suffered considerably. Legal aid fees have not increased in more than 20 years, making it unsustainable for many firms to take on legal aid work, creating a shortage of legal aid lawyers, whose capacity to take on these cases is severely limited. The number of criminal legal aid litigators has fallen by almost 30% since 2012-13 in the north-west. The case for civil legal aid provision is even more dire, with what the Law Society describes as “advice deserts” appearing throughout the country. That means that even those who are eligible for legal aid face regional barriers to accessing it. The impacts of that can be felt across the justice system.

To put that in perspective, there are more than 47,000 outstanding criminal cases in the north-west courts. Furthermore, since 2020 there have been more than 5,000 ineffective trials in our region. Those are trials that do not go ahead as planned because of the action or inaction of the defence, the prosecution or the court, including unavailable counsel. That means that there are thousands of victims, witnesses and defendants in the north-west left without justice.

In December 2021, Sir Christopher Bellamy QC, chair of the independent review of criminal legal aid, published his report and recommendations on criminal legal aid in England and Wales. The Law Society has called on the Government to act on the review’s recommendations as quickly as possible, but they have so far failed to do so. The recent decision by the Criminal Bar Association to ballot in direct response to the Government’s failure to respond to the Bellamy review should be a cause for great concern. By the end of March, the Government will have had the Bellamy review in their lap for some four months. Victims, defendants, witnesses and criminal lawyers cannot wait any longer, because the backlog will remain stubbornly high the longer the Government take to act and risk the complete collapse of the criminal justice system.

Criminal advocates have suffered a drop of 40% in real-terms earnings for prosecuting and defending criminal cases over the past decade. That has been a result of cuts to legal aid rates across a range of offences, including murder and rape. There has also been a failure to pay anything for the dozens of extra hours a week undertaken by criminal barristers to meet the demands of the massive backlog of trials that the courts themselves are buckling under. The Government’s repeated stubbornness on fees has caused publicly minded criminal barristers and solicitors to walk from their chosen careers, meaning that their victims are being denied justice. We cannot reduce a record backlog of nearly 50,000 criminal trials if there are not enough lawyers to prosecute and defend.

Ultimately, cuts to criminal and civil legal aid while the Tories have been in power have contributed to a crisis in our criminal justice system and risk creating a two-tier legal system. Under those circumstances, people in the north-west are at a substantial disadvantage against the parties with access to legal advice and representation, undermining the core principle of equality before the law. Without adequate legal aid, victims are denied justice and criminals left to walk our streets.

The erosion of access to legal aid represents a threat to the rule of law. It does not matter what legal rights an individual has on paper if they do not have the means to vindicate them. The Government pay lip service to levelling up the country. When will they level up access to justice?

[The Parliamentary Under-Secretary of State for Justice (James Cartlidge)]

It is a pleasure to serve under your chairmanship for the first time, Ms Fovargue. I pay tribute to the hon. Member for Salford and Eccles (Rebecca Long Bailey) for calling this very important debate. I think we all agree on the importance of this subject. I pay tribute to colleagues for their words and to the hon. Member for Manchester, Gorton (Afzal Khan), who I enjoyed meeting as part of the engagement on the criminal legal aid review. In particular, I also wish to put on record my thanks to all the practitioners and everyone working in the courts in the north-west throughout the criminal justice system who helped us keep justice going during the pandemic. They were very challenging circumstances for all of them and particularly in the early months for those who were there face to face and in person, at a time when there was a great fear about the consequences of doing so.

To be clear, I believe that legal aid and legal advice play an incredibly important role in upholding justice and the rule of law, which are both vital tenets of our constitution. The hon. Member for Salford and Eccles spoke about the importance of legal aid in the context of democracy. Access to justice is a fundamental right, and the Government are committed to ensuring that everyone can get the timely support they need to access the justice system.

We usually spend around £1.7 billion annually on legal aid, which provides crucial support for the most vulnerable in society, ensuring that they can effectively access justice when they need to. While that amount was lower in 2020-21 due to the impact of the pandemic—after all, the number of cases being heard collapsed for several months—we put in place measures to support practitioners and are working to reduce the court backlog. We expect to have returned to an annual spend of more than £1.7 billion on legal aid by the end of the current financial year.

Legal aid services are delivered in England and Wales through solicitor firms; not-for-profit organisations, some of which we have heard about today, operating in Liverpool in particular; telephone operators; and barristers, most of whom are contracted by the Legal Aid Agency to do legal work. The LAA makes provision for legal aid services throughout England and Wales to ensure that individuals can access advice where they need it. It regularly monitors the provision of legal aid services in England and Wales. Where issues arise, it takes the necessary action to ensure that service provision reflects local need—for example, by merging duty schemes or conducting localised supplementary tender activity to ensure that appropriate provision is in place.

Before I turn to the wider actions we are taking on civil and criminal legal aid, I want to answer specific points raised in the debate. The hon. Members for Liverpool, Riverside (Kim Johnson), for Manchester, Gorton, for Birkenhead (Mick Whitley), and for Liverpool, Walton (Dan Carden) all referred to the courts’ backlog. Of course, that is incredibly important. I am the Minister responsible for court recovery. I understand the great anxiety out there. Cases have been taking a long time. We faced an extraordinary impact on the ability of courts to hear cases, particularly where there are juries in the criminal courts because of social distancing, but we are now recovering and are seeing a reduction in the backlog.

The hon. Member for Liverpool, Riverside spoke about funding for the backlog. We announced £477 million of additional funding in the spending review settlement primarily for Crown court recovery, which I think shows our commitment to addressing the backlog.

[Afzal Khan]

In light of the extra funding, what support is the Minister giving to make sure that throughout the system police officers, who prepare some of the files, are also recruited?

[James Cartlidge]

I am grateful to the hon. Gentleman for asking that. It gives me a chance to express how pleased I am with the recruitment of police officers. We are on target to achieve 20,000 extra police officers. In my county of Suffolk, we are going beyond the numbers that we expected, so it is very positive in terms of police recruitment.

The hon. Member for Birkenhead mentioned the Judicial Review and Courts Bill. I appreciate that there are aspects of that Bill to do with judicial review and so on that are not directly backlog issues—they are more principles of law, particularly public law—but there are important measures in the Bill that will help us to deal with the backlog, not least the measures that will see more cases moving from the Crown court to the magistrates court. That will have a significant impact, freeing up potentially 2,000 days in the Crown court where we can hear cases—those serious indictable offences of murder and rape that we have heard about—so it is a very important measure included in that Bill.

I have the greatest respect for colleagues, particularly in Merseyside, on the issue of Hillsborough. I understand: this was a trauma for the city. The hon. Members for Birkenhead and for Liverpool, Riverside and others have consistently argued for more action on that, and I understand where they are coming from. They speak with great passion; this was a terrible event. The IPA was mentioned, which is a very good point. We recognise the fundamental importance of placing the bereaved at the heart of any investigation that follows a large-scale disaster and ensuring that bereaved people are supported and given a voice throughout the processes that follow.

Following a 2018 consultation on the establishment of an independent public advocate function, we are carefully considering a way forward. We note the Public Advocate Bill promoted by the hon. Member for Garston and Halewood (Maria Eagle), which is an important contribution to the debate, along with Bishop James Jones’s report on the Hillsborough families’ experiences, to which we will respond soon. In terms of timing—the hon. Member for Birkenhead knows this is primarily a Home Office responsibility—the Government remain committed to responding to Bishop Jones’s report. We have worked closely across Government and with key stakeholders to carefully consider Bishop Jones’s points of learning, and we will publish a response in due course. I am sorry that I cannot say more than that at this moment.

The hon. Member for Liverpool, Walton spoke about a moving constituency case. He hit the nail on the head—this is about our constituents, their experience of the legal system and their access to it. To turn specifically to civil legal aid sustainability and the steps we are taking, I emphasise that we are in the middle of lots of engagement on criminal legal aid, as the hon. Gentleman knows. He has been a part of that. We are also continuing to engage with representative bodies and providers of civil legal aid to increase our understanding of the system. We are considering civil legal aid broadly, looking at a range of factors, from the current remuneration rates to the pipeline into a career in legal aid, as well as the ability of providers to offer legal aid services into the future.

I want to mention some specific points on housing, because I recognise that is a particularly important point in the constituencies represented in this afternoon’s debate. As part of our work considering civil legal aid sustainability, we have recently consulted on proposed changes to the housing possession court duty scheme—the HPCDS—to ensure the sustainability of the service and ensure that it meets the needs of the people using it. The HPCDS offers vital emergency, face-to-face advice and advocacy to anyone who is at risk of losing their home. The consultation proposals would amount to a more than £7 million investment in this vital service.

The key changes would remodel the delivery of the HPCDS to become a new housing loss prevention service, incorporating both the existing service of advice and representation at court and the early legal advice before court; expand the scope of legal aid so that providers of the scheme can offer early legal advice on social law matters to individuals facing possession proceedings; contract for individual courts rather than larger geographical areas; and allow providers to claim for the court duty fee in addition to a legal help fee for follow-on work, which is important for remuneration. Finally, the changes would introduce a set attendance fee for all schemes that is double the existing nil session payment. That is also important for renumeration. Officials at the Ministry of Justice are currently reviewing the responses to the HPCDS consultation and the Government intend to publish their response shortly.

The hon. Member for Salford and Eccles made a point about our early legal advice pilot. I am glad that she welcomed it, although with some caveats, it is fair to say. We are due to commence such a pilot later this year and I am bringing forward the statutory instrument on Thursday. The pilot is being funded with £5 million from Her Majesty’s Treasury’s shared outcomes fund. One of the areas selected for the pilot is Manchester, I am pleased to say. Participants will receive comprehensive legally aided advice covering housing, debt, and welfare benefits.

The early legal advice pilot signifies an important step in delivering a key commitment made in the Ministry of Justice’s legal support action plan, which was published in 2019. The pilot is intended to test whether early legal advice leads to early problem resolution and saves money in the long run. I appreciate that the hon. Member for Salford and Eccles said, “We all know that already”, but, unfortunately, when we go to the Treasury, we need definitive evidence. The pilot will hopefully help in that regard. We intend to use the findings of the pilot to inform future policies relating to legal aid services for social welfare law matters.

To be eligible for the pilot scheme, individuals will live, or be habitually resident, in the areas of Manchester City Council or Middlesbrough Council. Manchester and Middlesbrough were identified as areas with potentially high levels of legal need, and it was felt that the people living within these areas would be most likely to benefit from early legal advice. Our decision was further supported by the Government’s levelling-up agenda, which informed our preference for the pilot to take place in the north-west and north-east. The early legal advice pilot scheme is part of our wider ambition to test what works and for whom, so we can ensure that legal aid is available for those who genuinely need it.

We are reaching the end of a review of the legal aid means test and will publish a consultation shortly. The review has been assessing the effectiveness with which the means test protects access to justice. This includes reviewing the income and capital thresholds, the passporting provisions for people receiving certain benefits, and the level of contributions applicants are required to pay towards their legal costs. We have already made changes ahead of publication of the review. In December 2020, we removed the £100,000 cap on the amount of any secured debt that may be disregarded when assessing the value of an interest in a property.

The rule change will benefit a significant number of applicants for civil legal aid, including survivors of domestic abuse, with many more eligible for legal representation in family proceedings. Last month we removed the means test for legal representation at inquests, available through the exceptional case funding scheme, and for legal help at an inquest for which representation is granted in order to ease the burden on bereaved families at such a difficult time.

As hon. Members know, we have just completed a wide-ranging review of the long-term sustainability of the criminal legal aid market. In light of early findings, in September 2020 we injected up to £51 million per annum into the criminal legal aid system through payments for reviewing unused material, sending cases to the Crown Court and increasing funding for cracked trials and paper-heavy cases.

In December 2020 we launched the second phase, an independent review led by Sir Christopher Bellamy QC, to consider the sustainability of the criminal legal aid system in its entirety. The criminal legal aid independent review—CLAIR—was published on 15 December 2021. Sir Christopher has undertaken a whole-system review of criminal legal aid provision in England and Wales and has considered a vast amount of evidence from a wide range of sources. We recognise the importance of remuneration in delivering the long-term sustainability of the market and are considering Sir Christopher’s recommendations very carefully. Given the detail covered by Sir Christopher, it is right that it receives full and thorough consideration. We aim to publish the Government’s response no later than the end of March 2022, alongside a consultation on our related policy proposals.

The hon. Member for Manchester, Gorton made the point that many people want that timescale to be accelerated. I understand that. In all the engagement I have held with the Bar Council, the Law Society, the Criminal Bar Association, individual practitioners and other groups that represent practitioners, I have expressed my understanding about where they are coming from in wanting urgent action. We all see that. However, I do not think anyone disputes it is a wide-ranging review covering the criminal justice system in the round, and we cannot rush that. More importantly, we, as a Government, have to abide by public law principles and to be careful that any consultation does not risk being unlawful by not giving everyone adequate time to contribute. I would stress that point particularly.

On the specifics of legal aid provision in the north-west, let me give some numbers. In the north-west, including Merseyside, there are 231 criminal legal aid provider offices, with 166 provider firms, and 337 civil legal aid provider offices, with 213 provider firms. The LLA remains confident there is enough provision of services in the north-west for criminal justice, but, as I said earlier, where issues arise the LLA takes the necessary action to ensure appropriate legal aid provision is in place. For example, the LLA launched a tender in December 2021 in 10 areas, three of which are in the north-west—Cheshire, Trafford and Wigan—for new housing possession court duty contract holders. The outcome of the tender is yet to be finalised and the results will be published in due course.

While legal aid is central to access to justice, it is part of a much broader picture. Since launching our legal support action plan in 2019, we have been exploring several changes across the full breadth of legal support, focusing on what works for the people who need it. The Government are passionate about the importance of giving people access to the right support to enable them to resolve legal problems earlier.

One such example is the £3.1 million litigants in person grant, which was launched in April 2020. The grant is funding 11 projects across England and Wales that deliver advice on a national, regional and local scale to litigants in person at different stages of their problem, within several areas of civil and family law. Through the legal support for litigants in person grant, local services in Greater Manchester and north Lancashire are delivering an integrated regional advice and information network that services the needs of litigants in person from two community hubs, one in each county. These hubs support people across a broad range of areas including employment, family, immigration, housing, debt and welfare benefits. Linked to that is the importance of law centres, which were mentioned by several hon. Members. They will know that during the pandemic we made available £140,000 for the Greater Manchester Law Centre and £120,000 for the Merseyside Law Centre, as well as £60,000 in 2020 and £36,000 in 2021 for the Vauxhall Community Law and Information Centre, and £80,000 for the Equality and Employment Law Centre in Liverpool

Additionally, we are working to improve signposting services to enable early access to legal support. Last year, in collaboration with the Department for Levelling Up, Housing and Communities, we launched an online guided pathway pilot to help people living in rented accommodation.