Future of Legal Aid

Alex Cunningham Excerpts

Thursday 1st November 2018 Westminster Hall

[Andy Slaughter (Hammersmith) (Lab)]

I beg to move,

That this House has considered the future of legal aid.

It is a pleasure indeed to serve under your chairmanship, Sir Henry. I am delighted that we have three hours to debate the important and complex subject of the future of legal aid. Let me begin by thanking the Backbench Business Committee for allowing the time, the many hon. Members in attendance and the cross-party group, More United, which has championed this issue and pressed successfully for this debate.

We are in Justice Week, the aim of which is to show the significance of justice and the rule of law to every citizen in our society and to register the importance of an effective justice system beyond the usual audience of professions and practitioners. That aim is reflected in the many representations and briefings we have received in preparation for this debate. They have come not only, as one might expect, from the Law Society, the Law Centres Federation, LawWorks and the Equality and Human Rights Commission, but from Mencap, Mind, Oxfam, Amnesty International, Youth Access and the Refugee Council. The message is that legal aid is important to everyone, but particularly to the poorest and most vulnerable.

I extend my thanks to those organisations not only for their help for today, but for the work that they do every day to support the justice system and those who need to navigate it. Indeed, I extend thanks to all the legal aid lawyers outside the House, not least my own local law centre in Hammersmith and Fulham, which is ably led by Sue James, last year’s legal aid lawyer of the year. I extend thanks also to those in the House who do the same, not least the Chair of the Select Committee on Justice, the hon. Member for Bromley and Chislehurst (Robert Neill), and the chair of the all-party parliamentary group on legal aid, my hon. Friend the Member for Westminster North (Ms Buck).

My final thanks are as follows. It would not be right to let a debate on this subject pass without acknowledging the work of Carol Storer, the director of the Legal Aid Practitioners Group for the past decade, who is leaving this month. There will be other opportunities to mark her outstanding contribution as an advocate and organiser for the whole legal aid community, but I know that hon. Members on both sides of the Chamber will have benefited from her skill and knowledge and been on the receiving end of her charm and persuasion.

I am sure that the Minister will have good news for Carol and all those I have mentioned when she responds both today and in the post-implementation review of part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012—hereinafter LASPO. It was good to hear the Minister confirm this week at the APPG that the review will be published before the end of the year. I know by that she does not mean, “By way of written ministerial statement on the last sitting day.” Obviously, that will not be the case, because it is going to be good news and the Government will want to boast about it.

This is a complex and many-faceted subject, and I will not be able to cover all areas and concerns, so let me start with my requests to the Minister, because I do not want them to get lost. We have just heard from the Chair of the Select Committee on Health and Social Care, the hon. Member for Totnes (Dr Wollaston), that cuts to prisons are causing serious deterioration in the health and welfare of prisoners. We should not be surprised. The Ministry of Justice budget will be cut by almost half in little more than a decade of continuing austerity. It is the biggest cut to any Department, and it is a relatively small Department, with only three major areas of spend. Inevitably, all three areas—not only prisons and probation and the courts service, but legal aid—are going through debilitating change. My first request to the Minister is that she tackle the funding issue head on. No one is saying that all the cuts since 2010 will be reversed, or that the clock will be turned back, but if the Government wish to honour their stated objectives for LASPO, and in particular,

“To target legal aid at those who need it most”,

they must put something extra in the pot.

[Alex Cunningham (Stockton North) (Lab)]

My hon. Friend will remember when we sat on the Bill Committee and warned of the intended and potentially unintended consequences of the cuts and changes being made. Does he agree that the nightmare for people desperately in need of legal aid for everything from housing to medical negligence cases has been worse than expected, and that justice has certainly been denied to them?

[Andy Slaughter]

Yes. I will come on to the actual, rather than the predicted, effect of LASPO. Without spoiling the surprise, we will find that the Government have overachieved in cutting budgets and underachieved in every other respect.

--- Later in debate ---

[Andy Slaughter]

I absolutely agree. Pre-LASPO, my own law centre employed eight solicitors across a range of, mainly, social welfare law, but now it can afford to employ only two solicitors. It is only through the generosity of the local Labour council—against the backdrop of its own budget cuts—and that of charitable trusts that it is able to top up that number with further practitioners. Even the previous position, however, was insufficient for the need, as I well know, and the current position is almost unsustainable.

[Alex Cunningham]

Mencap mentions very specifically in its briefing the distress faced by people with disabilities who cannot get the support they need, and who drop out of the social security and care system because there is no one to speak for them. Even if they qualify for assistance, they cannot find the specialist lawyers they need. Mencap says that that is happening across the country. Does he agree that the Minister needs to look at increasing provision, and also needs to assess whether the necessary specialist lawyers are available in the system to help people?

[Andy Slaughter]

That is particularly important to my hon. Friend and he makes a very good point. We have been briefed by both Mencap and Mind on today’s debate. It will not surprise anyone that Mind said that people with mental health problems are twice as likely as members of the general population to experience legal problems and four times as likely to experience complex legal problems—in other words, problems that extend across a number of different disciplines. As was predicted, those are the people who are worst affected.

Even as the Bill was being published, alarm bells were being rung, and not only by Opposition Members. I had the pleasure of leading for the Opposition in Committee on LASPO. We heard not only from experts and users of the system but from the Government officials. The impact assessments that accompanied the Bill predicted that people with protected characteristics would be disproportionately affected by the cuts.

The official MOJ line was:

“The wide-ranging availability of legal aid can lead people to assume legal action is their only option, even where early practical advice could be of more help to them and avoid them needing a lawyer at all.”

Gillian Guy, the chief executive of Citizens Advice, said the money available was not enough and that we were losing precisely the swift and practical advice offered by CABs and advice and law centres. She added that Citizens Advice research suggested that every £1 spent on early advice saved around £9 later, partly by avoiding unnecessary and expensive tribunal hearings.

Richard Hawkes, the chief executive of Scope, said:

“To cut legal aid at a time of unprecedented changes to welfare support would mean disabled people who fall foul of poor decision-making, red tape or administrative error being pushed even further into poverty as they struggle to manoeuvre the complicated legal system without the expert support they need…This could result in a ticking timebomb of poorly prepared and lengthy tribunals and appeals, choking the courts and not saving money, but actually costing the government far more in the long term.”

The Government were warned. Did the predictions of doom come to pass? We know that they did. In fact, LASPO has cut far more deeply than had been billed. The stated aim was to reduce the legal aid budget by £350 million, but last year spending was £950 million less than in 2010, at £1.6 billion, as against £2.55 billion in 2010-11, with similar percentage falls in both civil and criminal legal aid.

While waiting for the Government review of LASPO—it was promised for between three and five years post-enactment, but we are now nearer six years post-enactment—we have not been short of expert opinion on its effects. Reports by the Justice Committee, the National Audit Office, the Public Accounts Committee, the Joint Committee on Human Rights, the Bar Council, the Law Society, the Bach Commission and the Low Commission have been consistent in highlighting the serious failings of LASPO. In 2017, the Bach Commission found that

“the justice system is in crisis. Most immediately, people are being denied access to justice because the scope of legal aid has been dramatically reduced and eligibility requirements made excessively stringent. But problems extend very widely through the justice system, from insufficient public legal education and a shrinking information and advice sector to unwieldy and creaking bureaucratic systems and uncertainty about the future viability of the practice of legal aid practitioners.”

In 2015, the Justice Committee published its verdict:

“Our overall conclusion was that, while it had made significant savings in the cost of the scheme, the Ministry had harmed access to justice for some litigants and had not achieved the other three out of four of its stated objectives for the reforms. Since the reforms came into effect there has been an underspend in the civil legal aid budget because the Ministry has not ensured that many people who are eligible for legal aid are able to access it. A lack of public information about the extent and availability of legal aid post-reforms, including about the Civil Legal Advice telephone gateway for debt advice, contributed to this and we recommend the Ministry take prompt steps to redress this.”

Advice officers around the UK began looking for alternative sources of funding so that they could continue working with clients who would soon find themselves ineligible for legal aid. However, with local authority budgets cut, few sources of funding were available. Many agencies closed and private firms found that it was no longer economic to undertake legal aid work. As we have heard, whole areas of help have been removed from scope, leaving millions unable to get advice or representation. There has been an almost complete collapse in early legal advice. That means that cases now escalate and are resolved only after becoming much more complex, traumatic and expensive, if they are resolved at all.

As my hon. Friend the Member for Erith and Thamesmead (Teresa Pearce) said, the Government argued that removing legal aid for most private family law matters would increase the uptake of mediation so families could resolve their problems outside court. They predicted an increase of 9,000 mediation assessments and 10,000 mediation cases for the year 2013-14. Instead, there was a decrease of 17,246 mediation assessments in the year after the reforms, and the number of mediation cases fell by 5,177 in the same period. One reason for that was the withdrawal of firms from those areas of law, leaving no one to signpost litigants to mediation.

The removal of legal aid from most areas of family law has had a disproportionate effect on women. In a survey carried out by Rights of Women and Women’s Aid, 53% of respondents took no action in relation to their case because they could not apply for legal aid. It is becoming so difficult for victims of domestic violence to obtain legal aid that last year, the Government were forced urgently to review the criteria for legal aid in such cases. Time limits preventing victims of domestic violence from obtaining legal aid for court hearings were scrapped and rules were relaxed to accept evidence from victim support organisations. Despite that, there are still concerns that too many women are falling through the cracks and not getting the help they need.

A dramatic increase of litigants in person following LASPO has created a severe strain on the court system which, to quote the retiring Director of Public Prosecutions this week, is already “creaking” under the effects of significant cuts and court closures.