Legal Aid

Afzal Khan Excerpts

Tuesday 15th March 2022 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Dominic Raab)]

Today I am publishing the Government’s response to the independent review of criminal legal aid. Copies are available in the House. Our proposals will put criminal legal aid on a stable and sustainable footing for the future. They will help to deliver this Government’s objectives of delivering swift access to justice, and they will usher in the reform we need at this crossroads moment as we build back a stronger and fairer society after this debilitating pandemic.

Covid-19 has been exceptionally challenging across our justice system. We owe our whole legal profession—the solicitors, the barristers, the judges and the court staff—an enormous debt of gratitude for keeping the wheels of justice turning over the past two years. Thanks to their efforts, we are driving down the court backlog and returning to a more normal way of working—in the interests of victims, witnesses, and of course the wider public. I thank Sir Christopher Bellamy for his comprehensive and invaluable review, along with his panel of experts and everyone else who contributed their views.

As I said, this is a crossroads moment. Our legal aid system needs investment if defendants are to have access to the highest-quality advice and advocacy, and if we are to ensure a sustainable criminal legal profession right into the future. To that end, Sir Christopher made two headline recommendations in his review. First, he proposed an increase of 15% in the various criminal legal aid fee schemes. I have accepted this in almost all respects, except where it risks introducing perverse incentives—for example, if it were to be applied to the rate of pages of prosecution evidence.

Secondly, Sir Christopher recommended an overall increase in investment in criminal legal aid of £135 million. Our package of reforms, announced today, matches that recommendation. As part of that, we will hold £20 million aside each year for longer-term investment, including reform of the litigators graduated fee scheme, the youth court, and the wider sustainability and development of solicitors’ practice, so that the system pays more, and more fairly, for the work actually done. On top of our additional funding to support court recovery, this will take taxpayer funding of criminal legal aid to £1.2 billion—the highest level in a decade.

Let me now unpack some of this for the House. In the short term, our cash injection will give a 15% boost to police station work, magistrates court work, much of the Crown Court work of advocates and litigators, and the work of solicitors in very-high-cost cases, as well as some of the smaller schemes. While getting pay and conditions right is clearly critical, Sir Christopher also made a number of wider systemic recommendations about the future of criminal legal aid that we also intend to take forward. We will reform fee schemes so that they properly and fairly reflect the way our legal professions work in the real world today. We will increase the diversity of our legal professions, promote a more sustainable criminal defence market, and harness the power of new technology.

Supporting a sustainable, diverse and stable criminal defence market depends both on the right fees and on having an adequate supply of legal practitioners, so we propose to review the standard crime contract to reduce barriers to innovative ways of doing business. We will offer grants for training contracts for criminal solicitors, and for solicitor advocates to gain higher rights of audience, expanding the supply of high-quality lawyers in the system. The Chartered Institute of Legal Executives has helped to remove barriers to entry into the profession and, in particular, has helped to promote non-graduate routes into the law. We want to take those reforms further again. So under our proposals, CILEX professionals will be able to become duty solicitors without having to achieve additional qualifications.

Work as a duty solicitor often involves unsocial hours and lengthy travel, making it hard for those with caring responsibilities, who are disproportionately women, to pursue a career in criminal defence. We want to make it easier for everyone to work in this area, so we will explore new ways of delivering remote legal advice in police stations. As Sir Christopher highlighted, the sustainability of the criminal solicitor profession is a particular challenge, so today I am proposing to expand the Public Defender Service, focusing on areas where more capacity is needed. That means that when there is risk of market failure, we will have a more flexible range of options to address it.

Next, Sir Christopher recommended that I propose an advisory board that will help represent all parts of the profession and shape future criminal legal aid policy. We will also gather views on how and where the innovative new technology that is helping us with the backlog can be used to even greater effect.

Our proposals respond to the full range of Sir Christopher’s review. They will increase efficiency across our system and deliver swifter justice for victims and defendants by incentivising early advice and resolution where that is right and proper. They will reinforce a more sustainable market, with publicly funded criminal defence practice seen as a viable, long-term career choice, attracting the brightest and best from all backgrounds and providing a further pipeline for the judges of tomorrow. It is only right that, as we reinforce the supply and sustainability of legal practice, we look closely at those who our legal system and our legal aid system are there to support, namely those who need legal representation and cannot afford to pay for it themselves.

The thresholds for eligibility for legal aid, which have not been raised for more than a decade, need to be reviewed, and it is timely to review them as we consider our wider reforms. Today, we have launched a separate consultation on legal aid means-testing. Our proposals will ensure a fairer justice system that targets legal aid towards the people who need it most—those least able to pay and the most vulnerable in our society. No one’s income or financial situation should stop them enforcing their legal rights or defending themselves when they have been accused of a crime. That is why this Government propose to significantly increase income and capital thresholds for civil and criminal legal aid, so that even more people in England and Wales will qualify for that support.

A funding boost of £20 million means that more than 2 million more people in England and Wales will be eligible for civil legal aid each year, and 3.5 million more will be eligible for legal aid to fund their defence at the magistrates court. We will exclude disputed assets from the civil legal aid means test. That move will particularly benefit victims of domestic abuse where the abuser is controlling assets. We will also remove the financial cap on legal aid eligibility in the Crown court for all defendants, so that everyone can access the right support at the right time.

At the same time, we will remove means-testing entirely for legal proceedings brought by parents whose children are facing the withdrawal of life-sustaining treatment. At the worst time in any parent’s life, those parents must and should have access to proper advice and representation, and they should not be expected to shoulder the burden themselves.

The proposals I have set out today represent a major investment in our legal aid system. They will ensure our justice system is fair, fit for the future and supported by a thriving and diverse legal profession, and that it delivers swifter and fairer justice across our society. I commend this statement to the House.

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

I thank the Justice Secretary for advance sight of his statement. I could not agree more that we owe our whole legal profession—solicitors, barristers, court staff and judiciary—a debt of gratitude for keeping the wheels of justice turning over the last two years. I pay tribute to their hard work in helping deliver justice for victims. I also put on record my thanks to Sir Christopher Bellamy and the rest of the team for their work.

Today’s announcement and response to the Bellamy review is welcome, particularly the Government’s commitment to increase legal aid rates by the 15% that Sir Christopher Bellamy recommended. The proposed restructure of the fee schemes will benefit members of the public and the profession alike. Similarly, we welcome having an independent advisory board to keep policy matters pertaining to criminal defence under review. Can the Justice Secretary outline the membership of the advisory board? Will he ensure that it is both representative and diverse, to help deliver meaningful change?

We will study many of the other measures that the Justice Secretary has mentioned, including the reforms of the duty solicitor scheme, in more detail. However, if the Government accept that criminal legal aid is in a perilous state, the same is surely true of civil legal aid, where decades of cuts and underfunding have crippled practitioners, and we are seeing the same recruitment and retention crisis. Urgent investment is necessary, and the Ministry of Justice has yet to publish any details on the civil sustainability review. We are suffering from 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, and victims are paying the price. Between 2012 and 2020, annual legal aid spending fell by 27% in real terms, largely as the result of changes under the Legal Aid, Sentencing and Punishment of Offenders Act 2012. That is £4.2 billion over a seven-year period—an average of £600 million a year. Essentially, we have a position where it is simply not financially viable to be a legal aid provider in many areas of law. The Government have accepted that to be the case in criminal law, but the maths is no different in civil law. There is no doubt in my mind that the legal aid sector has survived purely on good will, and I know that at first hand as a former lawyer. Chronic underfunding has brought the criminal justice system to its knees and created advice deserts across the UK. The steps outlined today are too little, too late.

There can be no surprise then that the profession has voted with its feet. Just a few days ago, 94% of the membership of the Criminal Bar Association voted to take industrial action. That will have a disastrous impact on the backlog in the criminal courts that existed well before the beginning of the pandemic. The Government may find the profession does not accept their response, their appreciation of the urgency or the time it will take to implement. Can the Lord Chancellor set out when the recommendations will take effect? Victims have waited long enough.

While the means test review for both criminal and civil legal aid is welcome, it is of little use to the public if they are eligible for legal aid but cannot access the provider base. Advice deserts are a direct result of the negative impact caused by reductions in legal aid funding. There is no justice if there is no access to justice.

The Justice Secretary claims this is a major investment in the criminal justice system, but make no mistake: it is the absolute bare minimum, and it does not fix a decade of Tory austerity. It fails victims at every turn. 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 uphold them. The Government pay lip service to levelling up the country. When will they level up access to justice?

[Dominic Raab]

I thank the hon. Gentleman for what he said about the criminal legal aid proposals and the means test review. The announcement today is principally about criminal legal aid, and if I have understood him correctly, he backs us on all the criminal legal aid proposals.

Can I be clear in relation to the CBA ballot? If the hon. Gentleman welcomes our proposals, presumably he would agree, as I hope would others across the House, that it is totally unwarranted for the CBA now to proceed with strike action.

The hon. Gentleman asked about timing. On criminal legal aid, we will consult for 12 weeks. I would expect him to agree that we should follow the normal public law principles to have that consultation, otherwise we are exposed to a greater risk of judicial review.

[Afzal Khan]

indicated assent.

[Dominic Raab]

The hon. Gentleman is nodding, and I am pleased that he does support that, even if some of his colleagues do not. We will then introduce a statutory instrument so that the proposals enter into force in October.

The hon. Gentleman talked about cuts to legal aid. I remind him that a previous Justice Secretary, Jack Straw, had plans to cut almost £200 million a year from the legal aid budget in 2009, as was made clear by the noble lord Lord Carter, who said,

“we had to break the hold of the criminal practitioners and force them to restructure so we could get more control over the costs of provision”.

In relation to our criminal legal aid proposals, we are ensuring that we have a sustainable system that supports practitioners but, above all, supports victims, witnesses and the society that we want to build after the pandemic.

I gently remind the hon. Gentleman that there will be 2 million more people with access to civil legal aid, which he mentioned, and 3.5 million more people with access to criminal legal aid in the magistrates courts. I thank him for his pretty fulsome support for the criminal legal aid proposals. I urge him to reflect on and recall the Labour party’s proposition before the 2010 election. I hope that he will be clear that it is totally unwarranted for the CBA to now proceed with strike action.