Future of Legal Aid

Alex Chalk Excerpts

Thursday 1st November 2018 Westminster Hall

[Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to serve under your chairmanship, Sir Henry. I start by referring to my declaration in the Register of Members’ Financial Interests. I thank the hon. Member for Hammersmith (Andy Slaughter) for securing this debate on a very important topic.

I make no bones about approaching this debate with a rather personal stake. Before I came to this place, the whole of my working life had been as a barrister practising in the criminal courts, almost invariably publicly funded by legal aid to defend or by the Crown Prosecution Service or the Serious Fraud Office to prosecute. I hope I can recognise that this is not merely an academic matter. These things affect the lives of every one of our constituents and every Member of this House, regardless of party. I hope I will be able to approach the debate in that spirit.

It is a long history that we have to review. LASPO is just one step in the changes to legal aid that we have seen over the years. The hon. Member for Huddersfield (Mr Sheerman) referred to the famous quote by Mr Justice Mathew, later Lord Justice Mathew. At the turn of the 20th century, he said that the courts of England are open to all like the Ritz hotel. I am sure the hon. Gentleman was not actually there at the time—I was not either—but it has become a stock phrase. The point, however, is that Mr Justice Mathew was being ironic; for those who did not have means, there was precious little access to the courts of England at that time.

After that period, we developed a system of legal aid over a number of years. I accept that I was to some degree a beneficiary of that system, but the system was necessary to ensure that justice was done. Thereafter, it may be argued—I think it was part of the rationale behind LASPO—that in some areas, the system did not work as efficiently as it might. I can think of rolled-up conspiracy trials that went on for about six months, where two barristers for each defendant would ask about one question a week. Frankly, that was not an expenditure that could be justified, and it was not targeting things in the right way.

The problem is that successive Governments seeking to reform—it is worth remembering that changes to legal aid did not begin with LASPO or the coalition Government; they were set in train initially, in some measure, during the Blair and Brown Governments—have run the risk of throwing out the baby with the bathwater. In cutting down on some instances of needless expenditure that went beyond what was necessary to ensure justice, there is always a risk that the pendulum will go too far the other way. Having looked at the matter and tried as a lawyer to look at the evidence, I am sorry to say that I am driven to the conclusion that that is what has happened here.

The good news is that there is an opportunity to review things. It is a shame that it has taken so long, but we would all say, “Better late than never.” I know that the Minister is absolutely committed to ensuring proper, good-quality access for all who genuinely need it. I know her personal commitment to the Bar, the rule of law and our legal system and her personal experience of it, so I know she will approach this matter in the open-minded way she did when she was in practice herself. I urge her to look at the evidence. As the hon. Member for Hammersmith said, the evidence is pretty compelling that changes are needed. I do not expect her to say what those changes are going to be today, but I hope she will take away the message that the evidence does not purely come from pressure groups of self-interested lawyers. Nothing could be further from the case.

[Alex Chalk (Cheltenham) (Con)]

My hon. Friend is making an excellent point. Does he agree that our international reputation is at stake? The legal sector is one of the most important in our economy. If we want to continue to be a country that has a global reputation, generating revenues for our economy in respect of international law, we need to ensure that we hold up equality of access to justice for all as a touchstone of our liberty.

[Robert Neill]

My hon. Friend is absolutely right. He speaks with great experience from his time in practice in serious criminal matters and from his work on the Justice Committee, to which I pay warm tribute. We cannot disaggregate the justice system. As part of our post-Brexit strategy and our “Britain is GREAT” campaign, the Minister’s Department is rightly proclaiming the value of our legal system and legal services, which is real and profound. Their integrity depends on the whole system being properly resourced and funded. It is no good simply to say that we have the best means of commercial dispute resolution and arbitration in the world. It is not enough to say we have probably the best system of civil justice across the piece in the world. It is equally important that we can say the same about our criminal justice system, our family law system and our tribunals system. They are increasingly relevant and important to the whole system.

[Robert Neill]

With his experience, the hon. Gentleman makes an entirely valid point. The Justice Committee has looked at a number of those areas over the past two or three years or so, and we have looked at aspects of access to justice in all its forms. It is partly about legal aid, but there are other matters, too. I will concentrate on legal aid because that is the subject of the debate, but his point about other matters is entirely fairly and well made.

There is a clear case that in attempting to right what was perhaps extravagance in some limited areas, we may have inadvertently done injustice to potential claimants. We need to put that right. The first area that I would suggest to the Minister is important is funding advice, as has already been observed. The legal aid change was predicated—I was there at the time, as was the hon. Member for Hammersmith, and I was prepared to take this on face value—on the idea that it would be a good thing to move away from the comparatively adversarial approach to family cases to mediation and something much more collaborative. That has to be the right thing. The Minister’s Department is recognising that in another sense with the sensible proposals to reform the divorce laws to move away from a confrontational approach. The irony is that so far as legal advice and representation are concerned, those good intentions have not been followed through.

As has rightly been observed, early access to legal advice and a solicitor would point people in the direction of mediation. We can invest significant money in having much more public education so that people can assist themselves, but it may be just as cost-effective—I suspect it would be more cost-effective—to restore some measure of early advice in those family cases. Any good solicitor worth their salt will rightly advise their clients to adopt that course of mediation if it fits the circumstances of the case. Restoring the position there would be a sensible investment to save.

[Alex Chalk]

Does my hon. Friend agree that sometimes the best advice that a lawyer can give at an early stage is, “For goodness’ sake, don’t litigate”? If that good advice is given at an early stage, we can have a reasonable expectation that the courts will be properly allocated to deal with those disputes that they should be dealing with.

[Robert Neill]

Again, my hon. Friend is absolutely right. What he says applies not only to family work, but to any form of civil litigation and, in truth, to criminal work, too. When I defended people, I regarded it as my first and principal duty to give them an honest assessment of their prospects of successfully defending a charge.

--- Later in debate ---

[Robert Neill]

I take the hon. Gentleman’s point, and I agree that there was nothing malign in the intent. The changes were made at a time when the coalition Government were under considerable financial pressure because of the situation that we inherited. I have much sympathy with that, but to adopt the phrase of John Maynard Keynes, “When the facts change I change my opinion—what do you do, sir?” The Government need to do that too, because the evidence has been built up, and it is powerful.

For a number of reasons, it was thought necessary to introduce the LASPO reforms at some speed. They were probably not fully worked through, there was no chance to do sufficient impact assessments, and they were not tested. Again, it was not for a malign reason. At the time, there was a compelling budget imperative to get on with it, but it created unintended consequences. As the Prime Minister has observed, we are getting to a stage where, thanks to the Government’s good economic stewardship, we might be able to loosen the purse strings a little in some areas. That gives us the chance to adopt that Keynesian approach and adjust our conclusions to the fresh evidence that has come before us.

Early advice is essential. We have talked about family work and its importance in the criminal system. Any lawyer will advise his client, if the evidence against him or her is overwhelming, of the advantageous discount in sentence for an early plea. Proper advice by specialist lawyers saves time and money, and saves witnesses in criminal cases from the trauma of having to go to court. We should not forget that either, as it is an important part of the system.

Early advice is also important in cases of housing and debt, and related matters. People have come to my surgery, in a comparatively prosperous part of suburban London, having been in effect served with an eviction notice because they did not understand the court papers. Bailiffs were literally coming to the door. We cannot expect people who often have multiple problems in their lives necessarily to be able to resolve such things on their own.

We can certainly make the civil justice system easier to navigate. The reforms to an online court, for example, and better means of entering pleadings and dealing with smaller-sized claims are all perfectly worthy and worth while. However, ultimately, even if a computer can process the pleadings efficiently and effectively, it cannot advise someone on whether there is merit in their claim, whether they have a defence to an action brought against them or how they might best compromise the matter so that they do not, for example, end up on the street or saddled with significant debt. All those things require the legal element, and I suggest that there would be a saving in reinstating some funding there.

I keep in touch with many friends and colleagues at the Bar who now sit on the bench. I sometimes reflect that my career took a wrong turn somewhere along the line. The truth is that anyone in the judiciary—whether from the High Court or, perhaps even more significantly, down to circuit judges and district judges, who shoulder the vast volume of the work, as well as magistrates—will say that the amount of time that is now taken up by litigants in person is placing a serious burden on the system. I go to my local county court and talk to the district judges and the county court judge. Exactly the same thing can be seen at the magistrates court, and I have no doubt that it is replicated across the country.

It is generally thought that a litigant in person will take about three times as long to deal with a case than lawyers would, if they were involved. The upshot is that we are saving cost at one end of the system but piling it on in another part. The net benefit to the public purse is nil—perhaps even negative.

[Alex Chalk]

My hon. Friend has been so generous. Does he agree that one of the pillars of our world-renowned legal system is the integrity, skill and impartiality of our judges? It is no secret that they feel quite put upon at the moment, not least on pensions and other matters. Their time is being taken up with extremely complex issues where it is harder for them to achieve justice. Does he not agree that we should take that extremely seriously, so that we continue to have a pipeline of the brightest and the best?

[Robert Neill]

That is right. We could probably have a debate on judicial recruitment and retention.

[Alex Chalk]

Put in for it.

[Robert Neill]

Perhaps we should, and perhaps I will encourage my hon. Friend to join me in doing so.

Litigants in person are a real pressure on the totality of the court system, because if courts are being clogged up by cases that are being slowly presented—where the judge has to hold the litigant by the hand to take them through steadily and ensure that there is no miscarriage of justice—that uses up the time of the court building and the court ushers. It puts pressure upon listing, and means delays in other cases coming on. There are more likely to be adjournments because people will not have prepared the bundles properly or got their evidence together. That is all wasted cost in the system, which some early investment would save.

Those are key areas where more could be done. We perhaps need to look, too, at some areas in relation to tribunals—an increasingly important area of jurisdiction. Not all tribunal cases, of course, need legal representation, but they increasingly deal with more complex matters and more complex areas of law and of fact where it makes sense, for exactly the same reasons, to have proper legal advice.

Joining those thoughts together, I commend to the House the Justice Committee’s reports on access to justice, and on courts and tribunal fees. Although fees are separate from the legal aid regime, the unintended consequence of some of those changes was remarkably similar in making access to justice for deserving—that is the key bit—claimants more difficult. Finally, we recently wrote a report on criminal legal aid. I will end on that—it may be the subject on which I have spent most of my life.

We cannot have a situation where it is extremely difficult to get high-quality young lawyers to go into criminal work. The integrity of our system, to which my hon. Friend the Member for Cheltenham (Alex Chalk) referred, is seen most visibly in the way in which we deal with criminal cases. If the state, no doubt for good reasons, thinks it necessary to bring charges against an individual to be tested in our courts, it is only right and proper that that individual, having had the resource and power of the state brought against them, has as a matter of equality of arms and basic fairness the ability to defend themselves. To do that properly, they must be able to access lawyers who are as good, as well trained, and as competent as those who prosecute.

To do that, we have to be prepared to remunerate people. We cannot have a situation where criminal barristers are worse off, as they are under some aspects of the advocates’ graduated fee scheme at the moment, if they take on a complex and demanding case—for example, a multi-handed rape—as opposed to a single-handed offence of the same kind, because the extra work is simply not reflected in the fee. Those are precisely the cases— I did many of them myself—where experienced and sensitive advocates on both sides are critical. We are in danger of damaging the supply chain, as far as that is concerned.

It also cannot be right that the system does not remunerate defence lawyers for looking at the unused material in cases. Some of the main cases where miscarriages of justice have occurred, as you will know, Sir Henry, from your experience in these matters, are where there has been a failure in disclosure. Usually it is, as is often the case here, a result of unintended error. Although I have come across one or two cases where I could not say that that was the case, things genuinely go wrong, and it must be possible, in terms of the fairness of a trial, for the defence lawyers to be able to look through the unused disclosed material to ensure that there is nothing that might be exculpatory to their client.

That is only right and proper, and prosecutions have collapsed in high-profile cases because that was not properly done. People have been saved by the integrity of members of the independent Bar, on both sides, who took the opportunity, even though they were not going to be paid for the hours, to go through the unused material and highlight matters that meant that the prosecution could not safely proceed. It seems only right and just that the solicitors and barristers who were on legal aid on those matters should be paid for doing that, because we want to ensure that it is done properly. Let us face it: as those cases highlighted, the sooner it is done the fewer wasted hearings and adjournments, which have bedevilled some of those high-profile cases, there will be. It is not only the right thing but the common-sense thing to do.

We also need to recognise that early advice from solicitors at the police station is critical in criminal cases. Striking evidence was given to the Justice Committee inquiry that the average age of a police station duty solicitor is 47. Young people are not coming into the role because it is simply not remunerated well enough.

That all leads me to the conclusion that Lord Kerr got it right in his Supreme Court judgment on the Unison case. His view, to which I am driven by the evidence, was that regrettably, however good the intentions, the current arrangements under LASPO have adopted too transactional an approach to justice. He said that litigation is not merely a private transaction between parties; it also involves a greater public good. In that case, which was about employment tribunals, it involved the exposure of bad working practices and improvements that might stem from it, but the principle applies to any type of litigation. There is a public good in access to the courts that goes beyond the right—itself important—of the parties themselves to have access to justice. It is a bigger thing—a point that takes us back to our commitment to the rule of law, which my hon. Friend the Member for Cheltenham referred to.

I therefore urge a Keynesian approach on the Minister. Keynes was not always wrong, and he was certainly right about this. If we believe in following the evidence, as we all do in any legal process, and if the evidence indicates that things have gone too far the other way and we have the chance to change them, there is no shame in admitting that. It would be honest politics, good government and entirely consistent with the spirit that the Minister and her ministerial colleagues seek to bring to our approach. Where we can put things right, it is better to accept the position, act on the evidence and ensure that we have a better basis for legal funding and access to justice.

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[Ms Buck]

Absolutely. I would love every Member of this House to watch that video and to be made aware of the case being made.

We know what is happening to legal aid providers. Law centres lost 60% of their income from legal aid post LASPO, and in the immediate aftermath we lost eleven law centres. I pay tribute to my own centre, Paddington law centre, which provides such an essential service. I also commend North Kensington law centre—this country’s first law centre, which I used to represent but is now just outside my constituency—for doing such extraordinary work in the aftermath of Grenfell.

Law centres are indispensable; they are an integral part of effective community life. The Chair of the Justice Committee was absolutely right to draw attention to the fact that justice is not a private transaction. These services—particularly law centres, but not only them—are part of a healthy community and a strong civic life. The consequences of undermining them go far beyond the individuals concerned.

[Alex Chalk]

Does the hon. Lady agree that there is a lesson for us in this place, too? There is no point in our standing up, making speeches, passing legislation and pontificating grandly if the laws that we give effect to are ultimately not capable of being enforced. Is that not a crucial point?