Oral Answers to Questions

Andy Slaughter Excerpts

Tuesday 18th December 2018 Commons Chamber

[Edward Argar]

As the hon. Lady will be aware, we have commissioned an independent review, which is being led by Charlie Taylor. I look forward to receiving his report in due course.

[Andy Slaughter (Hammersmith) (Lab)]

When we debated legal aid last month, the Minister was expecting to publish the LASPO review before Christmas. It is already eight months late, so will she tell us the date on which it will now be published? Why are we not getting it until next year? What is the reason for the delay?

[Lucy Frazer]

I am happy to take the hon. Gentleman’s question. I remind him what he said to the Law Society several months ago—that it is important to take time to review this important subject. It is important and, as I have said, we have met over 100 organisations and individuals. We finished our final engagement with organisations at the end of last month and we will publish the review early in the new year.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords]

Andy Slaughter Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 12th December 2018 Commons Chamber

[Yasmin Qureshi]

No, as we understand it, although it is envisaged that some of these tasks will be procedural, others will be very important to people whose rights are affected. We might think, for example, that requests for adjournments are straightforward, but they are not. As practitioners and former practitioners will know, they can be complicated, because when a judge decides whether to grant one, they take into consideration a host of things, so it is important that the person be appropriately qualified.

We accept that the procedure rule committee will be able to iron out some of the questions about what are judicial and what are administrative functions, but the main thing is that these people will be carrying out judicial functions and deciding some difficult issues, and it is only appropriate that they be qualified and appropriately experienced.

[Andy Slaughter (Hammersmith) (Lab)]

My hon. Friend is absolutely right. We discussed this in Committee. Interlocutory case management often has a large bearing on what happens in a case; it can alter what happens in a case and it can alter cost decisions. In their own way, such decisions are as important as purely judicial decisions. The Government’s proposal might be a false economy, so I support what she is saying.

[Yasmin Qureshi]

I thank my hon. Friend, a former shadow Justice Minister, for his intervention, and I take his point.

We acknowledge that the relevant procedure rule committee will set out the procedural requirements for who can carry out the procedures, but we also know that these committees are predominantly made up of senior judges, so this will have implications for the independence of judicial decision making.

We also believe that such a shift will not match the expectations held by members of the public on the experience and independence of those making judicial decisions about their rights.

--- Later in debate ---

[Andy Slaughter]

Let me begin by saying that it was indeed a pleasure to serve on the Bill Committee, not least because of its brevity. I think that the Minister alluded to that when she described it as a small Bill. It is a small Bill, but I am afraid it is also a rather inadequate and unsatisfactory Bill. I am not going to repeat the excellent speech made by my hon. Friend the Member for Bradford East (Imran Hussain), but he was absolutely right to say that there were no adequate safeguards, and that the nature of the delegation of functions has not been specified sufficiently for us to feel certain that we can support it.

As my hon. Friend observed, the most disappointing aspect of the Bill is that it represents just the shards, or the remains, of the legislation on this subject that we were promised. We hear a great deal about the—is it the £1 billion programme of investment in digitisation in the courts? However, the Bill goes nowhere towards addressing this. Nor does it deal with the oft-raised concerns of Members about how that is being funded and about funding through court closures.

Let me give one brief example. You will understand why I picked this example, Madam Deputy Speaker. This week I asked the House of Commons Library for a list of court closures since 2010. It gave me a list of 156 courts and buildings that had been closed since then, but one figure stood out. Hammersmith magistrates court accounts for nearly 20% of the entire saving that the Government have made during that time. Some courts have been sold for £1, but Hammersmith magistrates court was sold for £43 million. Perhaps the Government are rubbing their hands and saying what a valuable contribution that is to the reform agenda.

Let me make these points to the Minister, if the Minister will listen. I will wait until I have her attention.

A couple of years ago, the Minister’s predecessor, the right hon. and learned Member for North East Hertfordshire (Sir Oliver Heald), called me in for a tête-à-tête and showed me a planning brief for what would happen to Hammersmith magistrates court after it was sold. Apparently, it was to become a mixed housing development. The Minister may like to know that it has now been sold to the developers of an 850-bedroom hotel, who are currently awaiting planning consent.

I would like the answers to two questions, not necessarily today but at some point. First, how much did the Minister’s Department spend on drawing up that detailed planning brief and marketing it for a purpose which has now gone completely by the board? Secondly, notwithstanding the large capital receipt, does she believe that it is fair recompense for a site on which, apparently, there is to be an 850-bedroom hotel? In fact, two will be built on one site. This shows the folly of the way in which the Government are conducting their programme of investment and disinvestment. When courts are closed, the detriment to communities is obvious, and in the case of Hammersmith magistrates court the closure did not take place for operational reasons; its purpose was purely to generate a capital receipt.

The Bill will no doubt be passed today, despite our assertive opposition to it, but we will return to more serious matters on a subsequent occasion. We must subject the Bill to further scrutiny, and the Government must present the House with proposals for legislation to deal with the serious questions of how that digitisation and so-called reform programme is or is not working, and what the cost to our community is of the loss of well-established and vital court facilities.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [ Lords ] (First sitting)

Andy Slaughter Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 4th December 2018 Public Bill Committees

[Lucy Frazer]

That is a very important point. We serve the people through justice and the court system. The people who come to the courts to get justice are the people my Department is serving. In all our reform programme, we have a user-centred focus and consistently engage with users to improve our services. All the forms we have recently produced were produced with insight from users, which is why we have an extremely high satisfaction rate for the reforms we are making.

The hon. Member for Birmingham, Yardley makes an important and valid point, and I can tell her how users will benefit from this. She will have been in the House when questions were put to me about delays in the court system and about the time it is taking for certain hearings to come before the courts. We want to ensure that there are as few delays as possible and that justice is not only fair but speedily dispensed. These changes will allow functions to be operated by the appropriate people, and will enable us to get more swift, easy and quick justice for those who use our courts.

[Andy Slaughter (Hammersmith) (Lab)]

I am sure the Minister is sincere in her intention. My experience is that there is increasing delay. Part of that is caused by inexperience, perhaps because of the use of lay magistrates as opposed to district judges, who do not take command of the issue and do not timetable matters correctly. I am concerned about any decline in the level of experience. This is perhaps a question not of legal qualification but of experience in being able to manage and seize control of cases. I would rather see the greater control and scrutiny that the amendments would introduce.

[Lucy Frazer]

I am sorry if the hon. Gentleman has not experienced the appropriate level of judicial engagement or appropriate judgments in courts. I recently went to the family court in London, and I have been to courts across the country, and I have spoken to magistrates who operate in the family courts. The expertise and dedication I see is commendable. We can stand still, do nothing and just let our courts operate in the way they are operating, or we can sit back and reflect on how we can improve our court system. We are trying to do the latter through the Bill. We are trying to improve people’s experience of the courts, recognising that funds and resources are not unlimited and that we need to use them as well as we can. On listing, my Department is looking at a listing programme to ensure that lists operate as effectively as possible.

It is simply not necessary for all authorised staff exercising judicial functions to possess legal qualifications. The qualifications and experience staff need will depend on the nature of the work they carry out. Legal qualifications of the level that would be required by amendment 5 not only are far too high for the routine and straightforward case preparation tasks that we anticipate many authorised staff may carry out, but may not be the most relevant qualifications for staff in different jurisdictions. For example, it is more helpful for a registrar in the tax tribunal to be a tax professional by background than to be a legal professional. Where powers currently exist, rule committees already determine the qualifications staff need to exercise particular functions, and that works well. Such committees can focus qualification and experience requirements on what is most relevant to the work that those staff carry out.

Amendments 3, 4 and 5 would all set the bar for qualification prohibitively high and rule out a large proportion of Her Majesty’s Courts and Tribunals Service staff from giving legal advice or exercising judicial functions, even though they may have been doing either or both for a number of years.

Future of Legal Aid

Andy Slaughter 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.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

Before my hon. Friend moves on, will he give way on that point?

[Andy Slaughter]

Of course I will give way to the chair of the all-party parliamentary group on miscarriages of justice.

[Mr Sheerman]

Does my hon. Friend agree that it is those very vulnerable people who find themselves feeling that they have been victims of miscarriages of justice? The Criminal Cases Review Commission was at our meeting yesterday and it explained that a lack of resources inhibits its ability to process the number of cases it would like to. The cuts in legal aid mean that many people are faced with representing themselves in very complex situations.

[Andy Slaughter]

That is not something we discussed during the passage of LASPO, because the impact on criminal law seemed relatively mild compared with the effect on civil law, but that came afterwards. Now, eligibility restrictions and the reduced availability of legal aid practitioners as a result of cuts mean that people often go into court unrepresented, even in quite serious matters, which of course increases the risk of miscarriages of justice.

[Catherine West (Hornsey and Wood Green) (Lab)]

Does my hon. Friend agree that the impact of the Government’s policies has not fallen evenly on all members of the population and that women have been particularly affected? Often, they will represent themselves and be repeatedly brought back to court by a perpetrator, perhaps their ex-partner, and have to face the trauma all over again. That has been a particularly damaging result of the changes introduced by the right hon. Member for Epsom and Ewell (Chris Grayling).

[Andy Slaughter]

My hon. Friend is exactly right. Rightly, more attention has been focused on domestic violence than on perhaps any other single issue. Although changes have been made, they are nugatory as far as the Government are concerned. In many cases, women are still being victimised because of the changes that LASPO introduced, against the assurances given at the time.

[Debbie Abrahams (Oldham East and Saddleworth) (Lab)]

My hon. Friend is making a powerful speech. I am concerned about the impact on sick and disabled people. In some cases, up to 90% of social security claimants on the employment and support allowance, the personal independence payment or the disability living allowance have been denied access to support as a result of the cuts, but 70% of people who go on to challenge the decision, in person or with a welfare advocate, will be successful in their claim. Is that not a real injustice?

[Andy Slaughter]

The figures speak for themselves. My hon. Friend is absolutely right. I am responding to a series of powerful interventions. Across the board, matter starts have gone down from more than 900,000 at their peak in 2010, to about 140,000 in the past year. That is a dramatic fall, but in some areas, such as welfare benefits, the decline has been even sharper.

[Kate Green (Stretford and Urmston) (Lab)]

I congratulate my hon. Friend on securing the debate. Does he agree that the absence of legal aid funding has driven legal aid solicitors and not-for-profit providers out of the market, which has left the door open to cowboy providers? They purport to be able to offer advice on immigration cases, for example, but that advice is poor quality, unreliable and, frankly, inaccurate, as I see repeatedly in my constituency.

[Andy Slaughter]

My hon. Friend raises that issue from a position of knowledge, as she used to serve on the magistrates bench. There is a deskilling of the professions because of the decline in the number of practitioners who can secure funds. Although informal and non-legal advice, such as that from McKenzie friends, can play its part, too often it is stepping in where proper professional legal advice is needed and, as my hon. Friend has said, it is too often being done by people who are, effectively, rogues.

It becomes wearing to hear Minister after Minister repeat the mantra that legal aid is an important part of our legal system and that all individuals must have access to justice, without ensuring that the resources are there to allow that to happen. That is a disconnect. Although I welcome the remit and engagement of the LASPO review, the feedback from those who have met the Department suggests that little action will follow the warm words we have heard. More specifically, this week’s Budget confirmed that the Department will continue to make hundreds of millions of pounds of cuts over the next five years, some of which will inevitably come from the legal aid budget. The Minister must realise that that is unsustainable and incompatible with her stated support for legal aid.

Let me try to make it easy for the Minister to say yes. In garnering public support for this debate, More United specified three asks to put to the Government to deal with some of the worst consequences of LASPO, which were: access to early advice, access to welfare advice and simpler criteria for obtaining legal aid.

Those will not be unfamiliar requests to the Minister, but they encapsulate solutions to three major and predicted calamities of LASPO. First, cutting early advice means problems fail to get sorted while they are small and manageable, with worse consequences to the individual and the state down the line. Secondly, taking welfare advice out of scope leaves those people who need help most struggling. Thirdly, restrictive and complex eligibility criteria have become an effective way of stopping even those of very limited means getting access to what legal aid is still available.

[Teresa Pearce (Erith and Thamesmead) (Lab)]

My hon. Friend is being extremely generous in giving way. During the passage of the Bill, the Government said that they believed that withdrawing legal aid for family matters would increase mediation, but research shows a 56% decrease in mediation. The Law Society says that early advice from a solicitor was a significant source of referrals to mediation in family matters. I agree with that, and I wonder if my hon. Friend does too.

[Andy Slaughter]

Yes. I will come on to mediation. My hon. Friend highlights two points: first, the lack of early advice and its consequences, and secondly, that the so-called alternatives put in place by the Government have failed, so we are left with effectively no safety net.

[Lilian Greenwood (Nottingham South) (Lab)]

My hon. Friend is starting to build up quite a case on the issue. Sally Denton, a senior solicitor at the Nottingham Law Centre, made precisely that point about the importance of early advice:

“Given the massive changes to the benefit system coupled with the evidence that most people presenting as homeless to the local authority are doing so following the end of a private tenancy and the massive crisis in homelessness it is clear that failing to enable people to access early assistance with benefits issues will result in many losing their tenancies and either being homeless…or having to be accommodated by the local authorities”.

Do these savings in one area not just create much bigger costs in another?

[Andy Slaughter]

My hon. Friend identifies the fact that by pulling away parts of the legal aid structure, the whole thing has collapsed in many areas. It is often the case that one problem, which may be housing or debt, is caused by another solvable problem, which is the lack of welfare benefits. Because they are not in receipt of welfare benefits, someone who would otherwise be eligible for legal aid may not qualify under the eligibility rules, and therefore the whole thing spirals down.

As I was saying, I have three specific requests. There are other discrete issues that I wish to mention and I will say a bit more about those in a minute, but I would like some indication from the Minister, when she responds to the debate, that at least these three specific requests are being considered as part of the review.

LASPO was billed as having four objectives,

“to discourage unnecessary and adversarial litigation at public expense; to target legal aid at those who need it most; to make significant savings to the cost of the scheme; and to deliver better overall value for money for the taxpayer.”

The Ministry of Justice predicted that the budget for the legal aid bill would be cut by £350 million. It promised that there would be innovative ways in which advice and legal services would be offered, allowing costs to be cut while still maintaining access to justice.

There was, however, little of substance. Instead, LASPO swept away 60 years of the development of legal aid, taking almost all private family law and most of social welfare law out of scope, introducing onerous restrictions on eligibility, and turning on its head the principle of a right to advice and representation. Now, matters would be eligible for legal aid only if expressly allowed by the schedule to the Act.

Later, criminal legal aid got the LASPO treatment. It did not feature in any detail in the original Bill, but subsequent secondary legislation introduced cuts of a similar scale for crime, opening up the prospect of advice deserts and, as we have already touched on, miscarriages of justice, where defendants do not meet eligibility criteria but cannot afford representation.

[Catherine West]

On the narrow point of advice deserts, does my hon. Friend agree that some London boroughs are appreciative of the Bar’s pro bono unit and the free representation it offers, and indeed, in my borough’s case, of the St James’s Church Legal Advice Centre in Muswell Hill, where the excellent Peter Thompson, who is not 21 anymore but still gives legal free aid, works? However, access to justice is a genuine issue in other parts of the country, where retired solicitors are simply unable to provide that kind of support.

[Andy Slaughter]

My hon. Friend is absolutely right. First, however good pro bono services are, they cannot replace legal aid and it would be wrong to say that they could. Secondly, I will give an example of a letter I received in preparation for this debate, which my hon. Friend the Member for Wrexham (Ian C. Lucas)—who is in attendance and is himself a distinguished solicitor—may want to comment on. It says that in north Wales only two firms are contracted to do mental health work, in an area with eight hospitals with mental health services, and only one firm is doing community care—that is, social and health care law. That situation is far from untypical.

[Ian C. Lucas (Wrexham) (Lab)]

rose—

[Ian C. Lucas]

I am grateful for the prompt from my hon. Friend; I was being a little cautious, compared with my colleagues. The dearth of advice in Wrexham, which is the largest town in north Wales, has a real impact. Even worse, until my last-minute intervention the Conservative-Independent coalition that runs the council was going to close our local citizens advice bureau. There is virtually no advice available. My constituency office has had to take on an extra caseworker to provide advice in the biggest town in north Wales.

[Andy Slaughter]

My hon. Friend reminds me to touch on the effect on Members of Parliament, which I am sure we are all interested in.

[Mr Jim Cunningham (Coventry South) (Lab)]

I congratulate my hon. Friend on securing this debate. Most advice centres are experiencing staff reductions and are underfunded. That much is clear with regard to issues such as housing and immigration. Does he agree that that is a disgrace, to say the least?

[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.

[Ian C. Lucas]

My hon. Friend touches on an important and under-appreciated point. The court system is struggling to cope with litigants in person and the judiciary, whose role it is to judge cases, is having to take on the advice aspect of the justice system. It is difficult to combine that advisory role with providing impartial judicial functions.

[Andy Slaughter]

My hon. Friend knows his business well. That is self-evidently true, and the judiciary is responding magnificently, but we are asking those people, whether in tribunals, magistrates courts, or the higher courts, effectively to do two jobs. They are asked both to be inquisitors and to represent parties—sometimes one party and sometimes both—as well as perform their ordinary functions. That is simply unsustainable in the long term.

Litigants in person can struggle to understand court procedures and their legal entitlements, and cases involving them take longer to resolve. The Personal Support Unit reports that, in 2010-11, its staff and volunteers helped people without access to a lawyer on about 7,000 occasions. By 2017-18, that number had rocketed to more than 65,000. The removal of most welfare benefits law from the scope of legal aid—which, again, we have touched on—has disproportionately affected disabled people. The number of benefits disputes cases with legal aid has fallen by 99% compared with pre-LASPO levels, from 29,801 cases in 2011-12 to 308 in 2016-17. When individuals are able to challenge benefits decisions, the majority of those decisions are overturned. Since 2013, 63% of appeals against personal independence payment decisions and 60% of appeals against employment and support allowance decisions were decided in the claimant’s favour.

[Mr Sheerman]

My hon. Friend is something of a historian in legal matters. Who was it—it may have been H.R. Greaves in his first lecture at the London School of Economics—who said:

“In England, justice is open to all—like the Ritz Hotel”?

[Andy Slaughter]

I am grateful to my hon. Friend, but I think he means that I have been around for too long.

Many Members will have seen the results of LASPO in their surgeries and I am grateful to colleagues for raising this point. Half of the MPs who responded to a survey carried out by the all-party parliamentary group on legal aid said that the volume of constituency casework had increased over the past year. More than half said they had seen a notable increase in the complexity of that work. Many MPs reported that advice agencies in their constituencies had closed, meaning that those MPs were no longer able to refer constituents onwards to get the help they needed. Some MPs even said that citizens advice bureaux were referring constituents to them because the bureaux were unable to cope with the number of people seeking help.

Fearful of falling foul of human rights law, LASPO introduced exceptional case funding. The Government projected that 5,000 to 7,000 such exceptional cases would be funded per year, but only 954 people benefited from that scheme in 2017. In almost every aspect, the consequences of LASPO have been as bad as predicted or worse, and the mitigating measures have not worked.

Unlike my constituents, the Government are not short of advice on what to do. In particular, I commend the 25 recommendations in the Bach Commission report. Those include changes to scope and eligibility; a simplification of the current rules, including for criminal matters; reform of exceptional funding; and better access to existing services, including more face-to-face advice. That report also suggests solutions to other issues of concern. The restrictions on legal aid for judicial review, the lack of representation at inquests for the deceased’s family, and the complicity of the Legal Aid Agency in refusing legal aid in cases that are embarrassing to Government, such as the prisoner book ban, are all subject to recommendations in that report. Those are serious issues, not just of inequality of arms, but of manipulation of resources by Government to avoid proper scrutiny of their actions. I hope the Minister has time to respond on those issues. If not, I suspect we will be debating them again before too long.

Many Members wish to speak, so I will conclude by reiterating our main asks for today. The first is to restore access to early advice. Lack of early advice means that simple problems are left to escalate. Larger problems cost more money to fix. Lack of early housing law advice on disrepair issues can lead to health, social and financial problems, the tab for which will ultimately be picked up by the NHS and local authorities. Prevention is better than cure. A recent report commissioned for the Law Society found that restoring early legal help would save the taxpayer money.

Secondly, we ask that the Government restore access to welfare advice. Welfare benefits law is labyrinthine, and that system is particularly difficult to navigate for people who are disabled. Recent social security reforms have led to a steep rise in inaccurate decisions and benefit sanctions. Thousands of disabled people have been left to challenge unlawful decisions without legal assistance. How many more unfair decisions would be overturned if people who had been treated unlawfully by the Department for Work and Pensions could access welfare advice?

Thirdly, we ask that the Government simplify the criteria for those who need legal aid. The Government should consider a significantly simpler and more generous scheme. The means test should be based on a simple assessment of gross household income following an adjustment for family size. In 1980, civil legal aid was available to 80% of the country. Today, that figure is thought to be under 20%. Ordinary working people who are just about managing are now considered too rich to be eligible for legal aid. Pensioners are among those worst affected by the outdated means test—even modest savings disqualify them from legal aid. The effect is that a vulnerable pensioner unlawfully denied basic care may well have to pay for a lawyer out of their own pocket. Legal aid does not only fund a lawyer, but provides protection from paying the other side’s costs.

I have been sent a huge number of individual case studies. For reasons of time, I am not going to be able to go through all of them—I would be happy to supply them to the Minister, but I am sure she is aware of the problems that arise. I have seen some heartbreaking cases involving mental capacity. Often, elderly people are removed from their own homes, sometimes forcibly, and are unlawfully detained by local authorities. They wish to go back to their homes and to criticise the conditions in which they are being kept, but because they have equity in their property which, frankly, they have no chance of raising money on, they are unable to challenge the decision. That is a fundamental breach of people’s human rights.

Cases such as those should make the Minister think again. I therefore ask her to put her well-thumbed, prepared text aside, because it does not—I know, having heard it earlier this week—address the specific point that I and others highlight in this debate. As a distinguished lawyer, I know she wants to ensure access to justice for all. She knows that even the best justice system is worth having only if it is open to anyone to use it. The requests I have made would go some way to restoring that access. I hope we get a positive response today and when the review reports next month.

--- Later in debate ---

[Lucy Frazer]

The point that it is useful to nip problems in the bud and address them at the outset, so that they do not escalate, has been made and heard. Changes were made to LASPO to ensure that legal aid was available where people were at their most vulnerable. On clinical negligence, we should make clear that legal aid is available for compensation claims in respect of neurological trauma caused to children early in life due to negligence by medical professionals. As the hon. Member for Hammersmith recognised, by putting such things in the scope of legal aid, we are protecting the most vulnerable.

The hon. Member for Oldham East and Saddleworth (Debbie Abrahams) mentioned social security claims. We are introducing significant technological changes—things such as digitisation and better communication with judges using technology—to make the tribunal system much more accessible.

Many Members, including the hon. Member for Erith and Thamesmead (Teresa Pearce), mentioned family law. LASPO rightly removed most private family matters from the scope of legal aid, but legal aid remains available for mediation in certain family disputes where parties meet the eligibility criteria. Since November 2014, legal aid has covered the costs of the mediation information and assessment meeting and the first mediation session for both parties, even if just one is eligible for legal aid.

The hon. Member for Hammersmith mentioned exceptional case funding. Let me update the figures he gave. The number of people making applications and the number of applications granted have both increased. Some 746 applications for ECF were received in the first quarter of 2018, of which 59%—390—were granted. That is the highest proportion and number of grants since the scheme began.

The hon. Gentleman and the hon. Member for Ashfield (Gloria De Piero) both mentioned domestic violence. Legal aid is available to those seeking protection from an abuser in domestic abuse cases, and it was granted in more than 13,000 cases last year.

The hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) raised important points about Wales. She has asked parliamentary questions on a number of matters, and I am happy to meet her to discuss the issues she has raised.

I was interested to hear the points by the hon. Member for Enfield, Southgate (Bambos Charalambous) about children. I was pleased to meet him earlier this week to discuss some of those issues.

It is important to set out where legal aid is available, but we recognise the impact of the changes made by the coalition Government in 2012, which many Members rightly highlighted. As all hon. Members know, my Department is looking at the impacts of LASPO. The hon. Member for Hammersmith said he is looking for positive news, but as a former shadow Justice Minister, he knows as well as I do that it would be wrong to pre-empt the outcome of the review. We will respond at the end of the year.

I am happy to set out the process, which I outlined at the APPG on legal aid earlier this week. The evidence-gathering process has been comprehensive. My officials met more than 80 individuals and organisations from across the justice system to gather evidence, and they held two rounds of consultative group meetings with organisations, representatives and academics from across the justice system. At a third round of meetings, we will examine opportunities to consider further legal support. Officials will meet the Family Justice Council to discuss its concerns and recommendations in further detail, and are due to have a second meeting with the Civil Justice Council to explore its recommendations further.

I have held a number of instructive roundtables with those who have used our justice system, both with and without legal aid. I have met a number of Members of the House of Lords—last week I sat down with Lord Bach and other members of his commission on access to justice, and I have met Lord Low. Last week, I met the Equality and Human Rights Commission. I have also met many parliamentarians, and individuals from the advice and third sector who work with the most vulnerable in our society.

Alongside those meetings, much material has been submitted throughout the review, and we are considering that. It is clear that there are many issues to consider, from the stage at which advice is sought to types of provider and methods of provision. Many experts highlighted the value that technology can bring to individuals to navigate their rights in the court process.

We now use technology in every part of our lives, and justice should not be immune from that advancement. That is why, through the courts reform programme, the Government are investing £1 billion in updating our justice system for the 21st century. That programme is helping people to access court better, at the same time as changing outdated back-office systems. People can now apply for divorce online, we are trialling online applications for probate, and people can be updated about their social security claim through their mobile phone. Our reforms help vulnerable witnesses to give pre-recorded evidence so they do not need to see their attacker in court, and they enable those who find it difficult to travel due to disability or age to take part in proceedings by video link. That investment will transform how people experience the justice system with digital services, making justice more accessible and straightforward as well as using taxpayers’ money wisely.

[Andy Slaughter]

I sense that the Minister is drawing her remarks to a close, but I wonder whether she will address a few more of my points. First, online and telephone services are valuable, but some people need face-to-face services. Will she look at that? Secondly, I know there is a separate review going on in relation to the representation of deceased people’s relatives at inquests. Does she know what stage that has reached? Will it report, or will it form part of the same review?

Finally, will the Minister look at the independence of the Legal Aid Agency? There are serious concerns that, in specific cases or more generally, there has been interference in the agency’s decisions because it is not sufficiently at arm’s length from the Government. We may need to deal with that as a discrete issue, but anything she can say to reassure us on that would be helpful.

[Lucy Frazer]

I am happy to answer those points. We did not need to commit to looking at inquests, because LASPO made no changes to the inquests system, but the Government recognise that it is an important part of access to justice and we are looking at it. However, that is not the same review; it is running alongside the legal aid review.

Will the hon. Gentleman remind me of his first point? On his third point, the Legal Aid Agency is independent.

[Andy Slaughter]

On inquests, I simply wanted to know, if the review is separate, when it is likely to report. My first point was about face-to-face advice.

[Lucy Frazer]

Ah, yes. Of course it is important to consider all methods of provision. We have the telephone gateway, and many advice centres are looking at digital methods of offering advice. We do of course fund face-to-face advice at the moment in the provision of legal aid, and it forms an important part of giving advice.

As I mentioned, we are in the process of carrying out a legal aid review. All today’s contributions, along with the previous debate in this Chamber secured by the hon. Member for Westminster North, yesterday’s meeting with the APPG and the contributions and submissions in the other meetings we have held, are an important part of that process. I thank all hon. Members who spoke for their contributions, which we will take on board.

[Andy Slaughter]

It is good to see you in the Chair, Mr Bailey, for the second part of the debate. I hope you have enjoyed it as much as I have. I will not abuse the position of having time left to speak for more than the two minutes normal for the response. I am grateful for that time.

I am grateful to everybody who has spoken and for the responses we had from the Front Benchers. There is so much consensus in the room that one might wonder what all the fuss is about. I know most of the speeches came from the Opposition, but there was an authoritative contribution from the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Robert Neill), several interventions from the hon. Member for Cheltenham (Alex Chalk) and the contribution from the Minister. We have heard unanimity on the importance of legal aid, as well as an appreciation of how it needs to work and why it is not working at the moment.

Perhaps that is not surprising. As Members of Parliament we are perhaps in a unique position to see the usefulness and the essential nature of legal aid, from the top and the bottom. We see it in our surgeries, where people bring us increasingly legal problems and we think about how we can resolve them. People have not been well served by the system but are now doubly not being well served in having their grievance addressed. Many colleagues gave examples about areas such as housing and welfare benefits.

A lot of points were made about the contribution of legal aid to the rule of law, whether in ensuring that those accused of criminal offences and threatened with the loss of their liberty have proper representation to avoid miscarriages of justice, or about the broader principle—not simply an individual’s cause being addressed—of policing good behaviour and ensuring that the institutions that we all rely upon give a proper service and do not let down the people they know. Those institutions could be anything from the Department for Work and Pensions to the NHS. Those are essential functions.

The problem is that many of us do not have confidence that the real damage that LASPO has done so far will be addressed. I understand why the Minister cannot say more today, but I hope that she found it useful to hear the comments that have been made. She knows what we are looking for. However the money has to be found and however persuasive she has to be with her colleagues in the Department and in the Treasury, she knows that the savings achieved so far are way in excess of what was intended or predicted, but she also knows that the collapse in service has been far greater than was provided for. That in itself should give the opportunity to make good some of the worst deficiencies that have occurred since then.

I am grateful to everybody who has spoken today. I am also grateful to those from Hammersmith and Fulham Law Centre who have attended the debate. I know that they will be taking the message back to many of their fellow practitioners that we are listening, we are engaged and hopefully we are informed, but it is the Government’s response that we are waiting on before, as the Minister said, the end of the year.

Question put and agreed to.

Resolved,

That this House has considered the future of legal aid.

Civil Liability Bill [Lords]

Andy Slaughter Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 23rd October 2018 Commons Chamber

[Gloria De Piero]

We are again confronted with the reforms in the Bill, which will cost the NHS at least £6 million a year and taxpayers at least £140 million a year, the Government admit. Even they accept that it will result in more than 100,000 injured people not pursuing a legitimate claim that they could pursue now; we say the figure is far higher. Insurers, meanwhile, will get an extra £1.3 billion of profit every year. The Government say that they will hand 80% of that to consumers in the form of reduced premiums, but they have said that before, and insurers have saved over £11 billion since the last Government reforms in this area, in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Despite a brief dip in 2012-13, premiums are now higher than ever.

The Government have moved a little on the Bill, and in Committee the Minister confirmed what he intimated on Second Reading: that vulnerable road users will be exempted from both the Bill and the small claims limit. That is welcome. As Labour has done repeatedly throughout the process, we will attempt today to make the Bill fairer still by setting out some key amendments.

New clause 1 would ensure that the whiplash small claims limit could be increased only in line with inflation based on the consumer prices index, and it follows Lord Justice Jackson’s recommendation that increases should come in £500 increments and only when inflation justifies them.

One of the most disappointing aspects of this package of reforms is the Government’s attempts to sneak through key changes to the small claims track limit through the use of statutory instruments. Today we want to give those changes the scrutiny they sorely deserve and put them in the Bill.

Whereas the threshold for getting legal representation for personal injuries is currently £1,000, the Government are trying to raise it to £2,000 or £5,000, which will make a massive difference to someone injured through no fault of their own. That position is supported by a raft of experts, including some in the Minister’s own ranks—the Tory Chair of the Select Committee on Justice for one. The White Book, which I took the trouble of sharing with the Minister in Committee, shows that there was an effective 20% increase in the small claims limit in 1999 when special damages were removed from the calculation of the limit. I note that the Lord Chancellor conceded in his letter to the Chair of the Justice Committee dated 15 August 2018 that 1999 is the correct date from which to calculate an increase.

It is worth pausing at this point, since the Government now accept that there was a significant change in 1999, to understand what that change meant. An example is given in paragraph 26.6.2 of the White Book:

“a claim for £4,000 for loss of earnings and other losses, plus a claim for £800 for damages for pain and suffering, is a claim which would be allocated to the small claims track”.

In layman’s terms, a claim may be made for under £1,000 for pain and suffering, but when losses and expenses are added in it could be considerably greater. The example in the White Book suggests that, if an £800 pain and suffering award has a losses and expenses claim of £4,000, although the total value of the claim is £4,800, it still falls into the small claims track. We are talking about claims far in excess of the small claims limit.

Lord Justice Jackson, in his review of civil litigation costs, all the recommendations of which the Government accepted and implemented in the 2012 Act, said in paragraph 1.3 of chapter 19 of his 2009 review:

“Personal injuries litigation is the paradigm instance of litigation in which the parties are in an asymmetric relationship.”

In words that we all understand, this is David versus Goliath. Sir Rupert Jackson went on to say that

“the only reason to increase the Personal Injury small claims limit would be to reflect inflation since 1999”

and that

“I propose that the present limit stays at £1,000 until inflation warrants an increase to £1,500”.

He could not have been clearer, yet the Government appear to have plucked the proposed £2,000 limit out of thin air.

The new clause states that the CPI, which is used for the uprating of pensions and benefits paid to injured workers, should be used to calculate the small claims limit. Even the Chief Secretary to the Treasury agrees that CPI is the way to go. She said earlier this year to a House of Lords Committee:

“CPI is a much better measure of inflation…we are seeking to move away from RPI”.

The Governor of the Bank of England agrees, too. He has said:

“We have RPI, which most would acknowledge has known errors. We have CPI, which is what virtually everyone recognises and is in our remit.”

It is perfectly clear what we need to do: enshrine CPI as the key measure in the Bill.

[Andy Slaughter (Hammersmith) (Lab)]

I congratulate my hon. Friend on getting the Government to admit that the increases are arbitrary and not linked to inflation in any way. Is it not the case, therefore, that the only reason for the increases is to prevent injured people from getting representation and thereby preclude people with meritorious cases from getting the damages that they deserve?

[Gloria De Piero]

My hon. Friend is absolutely right. Even if we use RPI, the Government still do not get to their proposed £2,000 new small claims limit. Instead, using the flawed RPI from 1999 would take the £1,000 to roughly £1,700. That is what we on the Labour Benches suspect is going on here.

--- Later in debate ---

[Chris Philp]

Of course the £10,000 small claims track limit applies to a far wider range of issues than simply whether a fridge functions or not. The hon. Lady mentions as an example the question of culpability for a road traffic accident. Given that we are talking about much less serious types of injury if the limit is, say, £5,000, determining responsibility for that road traffic accident does not need to be an enormously complicated procedure. For those of us who have been involved in such road traffic accidents, the minor ones we are talking about here, determining responsibility is not a highly complicated matter. I accept that, in much more difficult cases where very serious injuries have been suffered, one must of course take a lot more legal care and attention. For very minor injuries, however, where by definition the accident is a minor one, I suggest that determining responsibility and culpability does not need to be an extremely complicated matter.

[Andy Slaughter]

With the greatest respect, I do not think that the hon. Gentleman knows what he is talking about. Given of the relatively low levels of compensation for injury, the effects of a £5,000 injury can be quite severe and debilitating over a period of time. The complexity of personal injury cases, which involve expert evidence and issues of causation, means that they are in a different category. Even the Government accept that, so he is batting on a rather poor wicket.

--- Later in debate ---

[Chris Philp]

I give way to the hon. Member for Hammersmith (Andy Slaughter).

[Andy Slaughter]

The proportion of fraudulent claims is about 1%. If I understand the hon. Gentleman’s argument correctly, he is saying that all meritorious claimants should be debarred from proper representation so we can identify that 1%, because it is too difficult for the Government to legislate. Is not the truth of the matter that the Government, as always, are joined at the hip to the Association of British Insurers, and are simply legislating in its interests?

[Chris Philp]

I disagree with all three things that the hon. Gentleman has said. First, as I said earlier to the right hon. Member for Kingston and Surbiton (Sir Edward Davey), the Government have no intention at all of preventing legitimate claims from being made. The Government are keen to facilitate those claims, and the online claims portal will help with that. There is categorically no intention of disbarring, preventing or in any other way inhibiting legitimate claims from being made.

Secondly, the hon. Gentleman referred to the 1% fraudulent claims figure. The reason the reported figure, which in my submission is dramatically under-reported, is so low is that insurance companies are, quite wrongly, choosing to settle those claims—even suspicious claims, even claims without merit—without defending them, because the cost of defending them, which is about £10,000 or £15,000, far exceeds the value of the pay-out. So the 1% figure cited by the hon. Gentleman goes nowhere close to reflecting the true scale of fraudulent claims in this area.

--- Later in debate ---

[Andy Slaughter]

I did not intend to speak, therefore I will be brief. The House is being treated to ad hoc speeches, which are always a delight. They sometimes benefit from a little knowledge of the subject, I gently say to the hon. Member for Hitchin and Harpenden (Bim Afolami). I also urge him not to be quite so credulous of what insurance companies tell us because experience shows that they always say that premiums will go down, and sometimes they go down and then up again, and sometimes they do not go down at all.

I also wonder about the hon. Gentleman’s question of whether we can expect everything to be done in a single Bill. I would argue that the two main things that the Bill will do are to prevent people with meritorious claims and those with often serious injuries from getting into court, and, if they get there, to reduce the legitimate level of damages that they can expect to receive. Would not it be better to have a Bill that deals with a matter that probably everybody in the Chamber thinks is right to tackle: strengthening defences against fraud? There has already been some change in legislation to make it easier to defend fraud cases, yet one may ask why insurers still do not instruct lawyers—whom they are able to employ, unlike claimants, perhaps, after the Bill is passed—to defend those cases. Why do they not insist on medical evidence? Why do they in fact encourage fraud? Why does a proportion of insurance companies’ profits come either from selling information on, which perpetuates claims management companies, or from owning claims management companies themselves?

The problem with the Bill is that it has the wrong targets. I made that point earlier when I intervened on the hon. Member for Croydon South (Chris Philp). All Labour Members can be brief because he substantially made the case for why this is a bad Bill, as the right hon. Member for Kingston and Surbiton (Sir Edward Davey) said.

However, the hon. Member for Croydon South said that the limit should be £10,000, as if personal injury claims were the same as simple money claims, which no one has ever argued. We are arguing about a difference in what the limit should be. In employers’ liability cases, the difference is relatively small, but the difference in road traffic accident cases is substantial: between what inflation would provide—around £1,500 as a small claims limit—and £5,000, which the Bill proposes.

The Association of Personal Injury Lawyers said about the Bill:

“Claims under £5,000 are not minor, and an increase in the small claims limit will cover far more than soft tissue injuries. These claims could include a brain or head injury, injuries to the eyes, a collapsed lung, or fractured cheekbones. This is a disproportionate response to the stated aim of dealing with whiplash claims.”

That must be right. We are talking about people who are in a vulnerable condition, having suffered personal injury. As has been said, the inequality of arms is apparent not just in the courtroom but in the background to the case, particularly in the case of employees who take on their employers. That is often done with the assistance of a trade union, lawyers and other advisers. We should not replace that tried and trusted system with McKenzie Friends—whether unpaid or unpaid— who often do more damage than good to the clients they intend to represent. I urge the Minister, even at this stage, to listen not only to Opposition Members but to some Government Members and particularly to the Justice Committee.

I went through the painful experience of the stages of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and I have therefore heard many of the arguments trotted out before. We went from a situation whereby legal aid was available for personal injury to no win, no fee cases, and now to qualified one way costs shifting—QOWCS. It is increasingly difficult even for those with the most meritorious cases to get representation. There is not the same availability of representation as there was.

The review of the law post-LASPO is due to report shortly. It will cover not only part 1 but part 2 of LASPO, and if we had waited, we could have seen the effect of the reform to civil litigation, but no, the Government wish to take a sledgehammer to crack a nut. The overwhelming majority—estimates are around 90% of road traffic claims—of cases will be taken out of a costs regime. That means that all those people have to sink or swim on their own. No one, not just the lawyers here, truly believes that it is easy for many people who have suffered accident and injury to navigate through the court system, particularly when they are opposed by an insurance company, with all the resources that it has.

The Bill will not benefit the motorist or the interests of justice. Above all, it will not benefit people who, through no fault of their own, have suffered often serious injuries. It is disgraceful that the Government are legislating once again in the sectional interests of the insurance industry and against those who have suffered injury.

[Mr Simon Clarke (Middlesbrough South and East Cleveland) (Con)]

I rise to support the Bill and speak against new clauses 1 and 2 because, whether through ending rip-off energy bills, freezing fuel duty or increasing the personal allowance for income tax, the Government’s constant focus has been to make sure that the consumer is at the heart of their work and to reduce the cost of living for millions of people.

I am therefore pleased that Ministers have identified another area in which the cost of living is artificially and unfairly inflated. At a time when our cars and roads are safer than ever, one would expect the price of motor insurance to come down. Instead, the opposite has happened. Since 2010, there has been an almost 50% increase in the cost of comprehensive insurance premiums, and a near 80% increase in the cost of third-party fire and theft insurance premiums.

--- Later in debate ---

[Mr Clarke]

My hon. Friend speaks with the authority of not just a Select Committee Chair but someone who thinks deeply about these issues. There are safeguards built into the Bill, precisely to ensure that we achieve the robust, balanced and responsive framework that good legislation should aim for. I noted earlier that the Lord Chancellor will have a duty to keep all the relevant legislation under review on a triennial basis, so there will be checks to ensure that compensation thresholds do not become wildly out of kilter. Indeed, part of the reason why the Bill is necessary is that the thresholds have been allowed to drift for a very long time without being amended. That has led to a more dramatic uplift than is customary or than I would ever hope to see in future. We want to ensure that we always have a rolling programme rather than dramatic changes, which unfortunately affect more people than a more staged mechanism would. However, that does not mean that there is not a case for acting, so unfortunately I cannot support amendment 2.

[Andy Slaughter]

I will speak only briefly, because a number of the points to be made in this debate are the same ones that we made in the previous debate. There is no logic or sense to the Government’s rationale; they simply want to minimise the damages paid to litigants who have legitimate and in some cases serious injuries.

The noble Lord Woolf has been quoted several times. The Woolf report led to progressive and now legendary reform of the civil justice system, so he very much knows what he is talking about on this issue as on so many others. He said that the tariff

“results in injustice and it is known to result in injustice. Indeed, no one can deny that it results in injustice. There has never been a case where legislation deliberately introduces injustice into our law. It may be that it is only in regard to small claims, but surely it is important that we pause before we do that.”—[Official Report, House of Lords, 12 June 2018; Vol. 791, c. 1620.]

I agree that the Government should pause, and I would say that there is an objection in principle to the tariff in this case. No good reason has been given why this should not be a judicial process rather than an administrative or politically affected process.

There is also an issue of quantum to consider. The proposed sums in the tariff are derisory for what are often quite serious injuries lasting for periods up to 24 months. An injury that lasts for two years is likely to be serious and is certainly a persistent one that will cause a lot of pain and suffering. It has been pointed out that at the lower end of the spectrum—nought to three months, which still includes cases of pain and discomfort lasting a significant time—the proposed sum is £235. The Law Society’s briefing compares that with the amount of compensation that somebody might get for a flight that has been delayed for three hours, which could be considerably in excess of that amount. As well as the matter of principle, there is the point that the actual financial compensation is being minimised for no good reason.

[Kevin Hollinrake (Thirsk and Malton) (Con)]

The hon. Gentleman talks about injustice. Is it not an injustice that many motorists are paying inflated insurance premiums because some people are getting an unreasonable level of compensation for their injuries? Is that not what the Bill is intended to prevent?

[Andy Slaughter]

It is not, because I do not know what the hon. Gentleman means by an unreasonable level of compensation—

[Rebecca Pow (Taunton Deane) (Con)]

Will the hon. Gentleman give way?

[Andy Slaughter]

Please give me a moment to answer the first point, then I will willingly give way.

I do not know whether the hon. Gentleman is saying that it is unreasonable because these injuries are exaggerated or fraudulent, or that people should not be compensated according to accepted judicial tariffs. Nobody has ever said—that I know of—that the levels of compensation that are awarded under the Judicial Studies Board guidelines are over-generous in this country. What we are doing is simply taking those realistic—some would say, rather parsimonious—levels and reducing them by a substantial degree, so I think the point is nonsense, frankly. However, I give way to the hon. Member for Taunton Deane (Rebecca Pow), who will make a much more sensible point, I am sure.

[Rebecca Pow]

On that point, from the general public’s point of view, there is a consensus that people are taken for a ride over all these claims. Many of them are encouraged to go into this system of claiming when perhaps they do not necessarily have a great case. A great deal of money is made through the legal system, and people want to see fairness. My hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) is absolutely right: most people’s motor insurance is going up and up to compensate. Does the hon. Member for Hammersmith (Andy Slaughter) agree that that is not fair? What we are trying to do with the Bill is to introduce fairness to a system that frankly—many people would say—has got out of control.

[Andy Slaughter]

I congratulate the hon. Lady on getting a helter skelter of nonsense into one intervention, with every prejudice and false statement that has been made in the tabloid press about these matters for about the last 10 years—well done on that. I could make a long speech dealing with the specific issues of—[Hon. Members: “Go on!] We have got time, haven’t we? No, I will not. I could go into detail about some of the myths about whiplash and soft tissue injuries and what is actually happening in relation to accidents, the insurance industry and premiums, because I have been an observer of that for a long time. However, let me limit myself to a fairly narrow point.

I have listened to the arguments from Government Members, and they are just non-sequiturs, frankly. We have heard that insurance premiums are the issue. Let us imagine that we give the benefit of the doubt there, which I certainly do not, and say that premiums are likely to fall significantly and that that is a factor relating to claims rather than to insurance companies’ profits, the other activities that they indulge in and the way that their businesses are run. I do not accept that, but let us assume that we do for a moment.

The hon. Member for Cheltenham (Alex Chalk) is no longer in his place, but he made a surprisingly illogical—for him—intervention. He said, “Look, people will still get special damages.” Of course they will get special damages, but special damages are what the name suggests—they are to compensate for specific items of loss. Why should the fact that someone still gets compensation for their loss of earnings or their medical bills, or something of that nature, mean that it is right to diminish their compensation for pain and suffering and loss of amenity? These are all non-sequiturs. The worst calumny of all is to say, “We are reducing the level of damages from slightly mean levels to absolutely parsimonious levels because of fraud”, which is exactly what we heard in relation to the small claims limit. So many members of the senior judiciary and indeed, of Select Committees, including not just the Justice Committee, but the Transport Committee, have said that it is plain wrong to say that because there may be instances of fraud, of which very few are identified, all litigants should suffer by having their damages reduced.

[Victoria Prentis (Banbury) (Con)]

I understand what the hon. Gentleman is saying about quantum, but I would be interested to know, theoretically, whether he objects to the idea of tariffs being appropriate for this sort of compensation. I remind him that Lord Brown said

“I am in broad agreement with the whole idea of tariffs for injuries, certainly for lesser injuries, and indeed even of reducing awards in respect of a number of these lesser injuries.”—[Official Report, House of Lords, 10 May 2018; Vol. 791, c. 306.]

Does the hon. Gentleman agree that tariffs can be appropriate with, for example, criminal injuries compensation?

[Andy Slaughter]

There is an element of semantics going on here. We have guidelines at the moment. Judges do not pluck figures out of thin air. They look at the guidelines and hear submissions, or they would have heard submissions when representation was available—it seems it no longer will be—and they make a decision, but they have discretion around the individual circumstances of the case. That is a basic and fundamental principle of law, but one that we are deviating from. I cannot say strongly enough that that is wrong.

To add insult to injury—if I may put it that way—rather than taking the average in the guidelines and having a rough rule of thumb that someone will get a bit more or a bit less than their individual case deserves, or going for an average and calling that a tariff, we are saying that a tariff should be a tiny percentage of the current award. This is nothing but an attempt to say, “We do not wish to pay out money in this way. We wish to diminish both the ability to make a claim and the compensation paid.” Whatever one’s view on fraud, the massive majority of cases will be meritorious and honest cases in which people have genuinely suffered injury.

I will conclude with the words of the former Lord Chief Justice of England and Wales, Lord Judge, on Report in the other place:

“What I cannot accept is a solution which means that a dishonest claim is handled in exactly the same way as an honest one. We cannot have dishonesty informing the way in which those who have suffered genuine injuries are dealt with. That is simply not justice. There should not be any idea that an honest claim for a whiplash injury made by the victim of a car accident should be less well compensated than an identical injury suffered by someone at work.”—[Official Report, House of Lords, 12 June 2018; Vol. 791, c. 1600.]

That is what the Government are doing in the Bill and what is so inherently unfair, and they are doing it at the behest of special interests. They may genuinely believe that there is a problem to be resolved with whiplash. I could dispute that—we could go on for a lot longer than we are today—but even if they are right, there are other, better and fairer ways to tackle that issue.

[Bambos Charalambous]

Is my hon. Friend aware that under the criminal injuries compensation scheme someone gets £1,000 for a whiplash injury lasting six to 13 weeks but that under this tariff scheme the proposal is for £470 for three to six months?

[Andy Slaughter]

My hon. Friend, who knows far more about these matters than I do—and more, I suspect, than many on the Government Front Bench—is quite right. He draws attention to the fact that there is no logic in the system.

I feel a bit sorry for the Minister as he has to push these proposals forward; he is normally a very logical and fair man. It is difficult to speak at the Dispatch Box having been given a brief of this quality. When parliamentarians of his stature and of the stature of the hon. Member for Cheltenham, with his spurious points about special damages, are reduced to this level, and when Government Back-Bench Members are hauled in here, as we saw in the previous debate, to make speeches only to be told to stop making them because they are talking such arrant nonsense, one does despair. I hope even at the 11th hour that the Government might take pity on us, listen to the wise voices in the other place and support us on these amendments.

[Kwasi Kwarteng (Spelthorne) (Con)]

A number of the things that the hon. Member for Hammersmith (Andy Slaughter) suggested as being completely outrageous many of his constituents and certainly a lot of mine would completely agree with.

The Transport Committee, of which I was a member for three years, looked at this issue, and it was apparent even then that whiplash was a peculiarly British phenomenon. On the continent, particularly Germany, they do not have nearly as many whiplash injuries. I suggested at a previous stage of the Bill that this had nothing to do with the physiognomy of Germans as against that of British people. I made the point very clearly that I did not believe that their necks were more robust than good old-fashioned British necks. It was a flippant way of making a salient point: this is a national issue. In Britain, we seem to suffer from these injuries a lot more than people in other countries.

--- Later in debate ---

[Alex Chalk]

It is a pleasure to follow my hon. Friend the Member for Dudley South (Mike Wood).

Whether we sit on the Government Benches or the Opposition Benches, the first thing that hon. Members have to recognise is that we do have a problem in this country; of that there can be no doubt. Other hon. Members have mentioned the statistics, but they bear repeating. In 2005-2006, there were 460,000 or so road traffic accident-related personal injury claims. Just a decade later, that number had soared by 40-odd per cent. to 650,000. There must be concern that the circumstances exist in our country to create an unnecessarily fertile ground for spurious and unfounded claims. What are those circumstances? They include the fact that instead of challenging whether a whiplash claim is dishonest or otherwise unfounded, insurers will take a commercial decision to pay out, because that will be in their interest. As other Members have indicated, the effect of that is that ordinary people living on modest incomes are finding themselves having to pay more for their car insurance than would otherwise be the case.

It is a great mistake to say, as some do, that a car is a luxury—to say, “You don’t need your car; alternative transport methods should be satisfactory.” For plenty of my constituents, that simply is not the case. We currently have a big issue in Cheltenham with the closure of Boots Corner, a key arterial route through the town. One argument made by those who favour closing off the road is that people can get around on bikes. That might be okay for some people, but for plenty of my constituents—including nurses, people ferrying around their children, and people with disabilities—it is not. We have a duty in this House, wherever we stand, to drive down the costs of living for hard-working people and their families.

We have to be clear on what the legislation is not about. A lot of the points made by Opposition Members are motivated by the best of intentions. I have served on the Justice Committee with several Opposition Members, and they have shown great distinction—if I may be so bold—and argued vigorously and passionately for the principle of access to justice and on employment tribunal fees, to which the hon. Member for Lewisham West and Penge (Ellie Reeves) referred. But that is not what this legislation is about. It is important not to set up straw men to knock down. Were this debate about LASPO, access to justice and ensuring that people could get early legal advice and assistance, I would have an awful lot more sympathy, but in fact is far more restricted, calibrated and proportionate.

First, this debate and the provisions in the Bill are not about people who sustain whiplash injuries and whose pain, suffering and loss of amenity last beyond two years. If they do last for longer than two years, the case of course falls outwith the tariff system. Secondly, this debate is not about special damages. Let us consider a run-of-the-mill case in which somebody is involved in an accident, makes a whiplash claim because they have a sore neck, spends time off work and incurs taxi fees going to and from the doctor and various other fees. Such special damages would not be subject to any kind of tariff and could be claimed in the normal way. In other words, if someone was off work for, say, nine months, the mere fact that their general damages for pain, suffering and loss of amenity had been capped would not in any way preclude them from seeking the full extent of their special damages. That is why it is important to draw a distinction.

[Andy Slaughter]

I should say that I have secured a three-hour Westminster Hall debate on the LASPO review, access to justice and all such matters on 1 November. I look forward to having the hon. Gentleman join us and to his being fully supportive of my speech.

On this issue, the hon. Gentleman may want to address specifically the issue of the level of the tariff. I hear what he is saying, but what about the level of damages, which cannot in any way compensate for what are in many cases real injuries?

[Alex Chalk]

I am grateful to the hon. Gentleman for making that point about LASPO, because if I may say so he is on stronger ground on that territory and I look forward to attending his debate and making some observations. That debate truly is about a cardinal principle that we in this Chamber should all share: whatever a person’s circumstances, they should be entitled to access to justice. It would be quite wrong, though, to conflate that debate with the one we are having.

On the tariffs, I do not suggest that this is the case for the hon. Gentleman, but there cannot be synthetic outrage. If someone has suffered pain, suffering and loss of amenity to the extent that their symptoms endure beyond two years, they are entitled to get whatever the judge thinks appropriate. We are dealing with claims that, although not insignificant, are towards the lower end of the spectrum. That needs to be borne in mind.

Legal Aid: Post-Implementation Review

Andy Slaughter Excerpts

Tuesday 4th September 2018 Westminster Hall

[Andy Slaughter (Hammersmith) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Christopher, and to take part in this important debate. I congratulate my hon. Friend the Member for Westminster North (Ms Buck) on securing it, on her excellent speech setting out the main issues and on her continuing work as the chair of the all-party parliamentary group on legal aid.

There is no doubt that part 1 of the landmark piece of legislation that is LASPO rolled back 70 years of development in social welfare law. I have nothing complimentary to say about the Government—not even about the review, because it was one of the concessions that was wrung out of them during the passage of the LASPO Bill. Even then, they left it until the last possible moment—five years on from the implementation of the Act—before introducing it. I wonder what we will see from the review. I appreciate that work is being done and that substantial work is being carried out by practitioners and others to influence the Government. I am interested in hearing from the Minister how much money there will be and how seriously the Government are taking the review.

The legislation was very controversial at the time, with double-figure defeats in the other place. The fact that we ended up with only nugatory changes had nothing to do, I am sure, with my lack of eloquence as shadow Justice Minister, and more to do with the coalition Government’s substantial majority. The Liberal Democrats deserve a mention. I dwell on the number of times they waxed lyrical about the importance of legal aid but voted time and again to destroy it as part of the tawdry deal—perhaps that is why we see none of them here today.

Since 2013, we have moved on, and favourable decisions in our higher courts have restored legal aid in some respects—on prisoner law, on exceptional case funding, and on non-asylum immigration by unaccompanied and refugee children. There have been accompanying decisions in analogous fields—a Supreme Court decision showed that the disgraceful fees for employment tribunals were unlawful. Such decisions are important and benefit large numbers of people, but they only scratch the surface.

Opposition has crystallised around certain areas regarding eligibility for early funding, particularly in housing and law on family reunion. I hope there will be specific concessions when the review takes place in those areas and perhaps in others. The Legal Aid Agency’s lack of independence was raised in Committee, and we have seen a series of High Court judgments about unlawful patterns of behaviour on behalf of the Legal Aid Agency. The way the system is run is quite shocking.

Rather than dwell on the details, which my hon. Friend the Member for Westminster North has dealt with expertly, I will talk about the profundity of the changes that the legislation has brought in. It has, of course, affected millions of vulnerable people and people with protected characteristics, which we see in the number of successful appeals in welfare benefits cases. If people have the ability—cynically, the Government hopes that many people do not, or can no longer get advice—to get before a tribunal, they often succeed. Two thirds of appeals are succeeding in many cases.

We can look at what happened with what was supposed to be the safety net—the telephone gateway that provided ready access for exceptional case funding, which has not been used at all. There was only 2% of the anticipated demand for exceptional case funding in its first year. I know that has grown since, but it is still at very low.

We have advice deserts all over the country—areas where there are single practitioners, or sometimes no practitioners, which applies to entire counties for certain areas of law. How can the Government defend their record? It is about the day-to-day effects on individuals seeking justice or redress legitimately and not being able to get it. The Minister, who is a senior practitioner, should be ashamed of that, as should her colleagues.

The effects go far beyond that. Legal aid was often at the forefront of important test cases in establishing and developing the law. That has gone in many cases. I cannot emphasise enough that having an effective system of justice, and particularly challenging the decisions of the state and other powerful institutions, promotes good behaviour. It stops bad landlords and bad employers doing what they want to do, because they know that they are subject to legal challenge. Again, that has gone. I am sure that that is deliberate on the Government’s part, but they should dwell on it.

It affects the operation of the whole justice system. The courts are now overwhelmed with litigants in person. With all due respect to litigants in person, in complex areas of law, particularly when there is an inequality of arms and the other side is represented and they are not, or even when there are two litigants in person, it is very difficult for justice to be done. What a difficult and insidious position that puts the tribunal in, where the established adversarial process of law, which has grown up over several hundred years in this country, is suddenly turned into an inquisitorial one, where the judge has to suddenly act in the role, effectively, of both counsel and an interventionist, rather than simply as somebody who is keeping order and arbitrating in proceedings. The Minister may think that I am exaggerating, but the rights of defendants in the courts have been established over many hundreds of years, and an important part of that has been established through legal aid in civil justice, as it was previously in criminal justice, over that time.

I wish I could be in two places at once, because I would like to be taking part in the debate on the Second Reading of the Civil Liability Bill. That is another strong attack on the justice system in this country, where another swathe of claimants will be prevented from getting justice by arbitrary decisions by the Government. That says to me that the Government have not learnt their lessons from LASPO, and therefore it is very unlikely that the review will get us where we want to go.

I would love to be proved wrong, but in fact we are seeing the effect not only of the lack of representation and advice, but of the huge, swingeing cuts in the Courts and Tribunals Service, which have led to court closures, the inability of courts to function properly and the inability of the prison system to function properly, which was referred to in the main Chamber today.

The Minister took over at a rather difficult time, when the fruits of austerity were becoming apparent across the Ministry of Justice which, as my hon. Friend the Member for Westminster North said, has suffered the largest cuts of any Department over the last seven or eight years.

I made my opening speech in a political debate and it lasted for a mere three hours—you would not consider that to be a long speech, Sir Christopher. However, the point I wanted to emphasise was that legal aid was an important part of the welfare state settlement. It was about looking after vulnerable people; it was about providing a safety net; and it was about providing justice and equality for people. That is how important it is to our society and that is what LASPO has destroyed.

When the Minister replies, she may not be able to deal with all the points that my hon. Friend has made. However, I hope that when the Government give their response to the review, they will dwell on that point, as well as on the individual points and the individual cases that are crying out for justice.

Civil Liability Bill [Lords]

Andy Slaughter Excerpts

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons
Tuesday 4th September 2018 Commons Chamber

[Ellie Reeves]

My hon. Friend is absolutely right. The proposals constitute an attack on working people who, through no fault of their own, are injured in the workplace.

If the Government are intent on fraud reduction, why are those who are genuinely injured faced with receiving a fraction of what they would currently receive? Most injured people would happily give the money back if it meant that they were no longer injured.

Under the proposed tariffs, people will be given more compensation if their flight was delayed for three hours than they would receive after an injury lasting for three months. The idea of a £235 maximum payment for a three-month injury is not only laughable, but a clear assault on any reasonable definition of access to justice. The move to a tariff system helps no one but insurance companies, while customer premiums continue to rise. There are no measures in the Bill that would make it incumbent on insurance companies to pass on savings that are currently calculated to be £1.3 billion. I know that the Minister has suggested that the Government will table an amendment—as promised in correspondence with the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Robert Neill)—but it is disappointing that that afterthought has not been included in the Bill thus far.

The Government say that they are listening to those who have concerns about their policy agenda. It is true that, following the Justice Committee’s report on the small claims limit, they have postponed their changes until 2020, but the purpose of that delay is by no means a rethink of policy or agenda. These changes are still coming, and their effect will still be felt whether the package of measures is presented this year, next year, or the year after that. The Bill, which is being rushed through on the quick, will leave us with a textbook example of a change in the law with ramifications that we will not truly understand until much further down the line. By that point it will be too late: the damage will have been done, and access to justice will have been eviscerated for many.

We must not forget that Conservative Governments do not have the best track record on justice matters. The Conservatives were repeatedly warned before proceeding with their legal aid reforms in 2012, but the effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have gone further and deeper than was ever intended, with the number of civil legal aid matters initiated falling by 84% between 2010 and 2017. The changes in employment tribunal fees that were introduced under another Tory Lord Chancellor—which have since been found to be unlawful—caused a 68% fall in the number of single cases received per quarter by employment tribunals between October 2013 and June 2017. That was yet another ideologically driven Tory attack on access to justice.

[Andy Slaughter (Hammersmith) (Lab)]

We have just been debating in Westminster Hall the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the legal aid cuts. A sustained attack on access to justice has been going on since 2010: the Government have not learnt since then. Is the Bill not just another sustained attack on victims, restricting people from getting a fair trial in the courts—as my hon. Friend says—in the interests of no one except the insurance companies, which are major donors to the Conservative party?

[Ellie Reeves]

My hon. Friend is absolutely right. Had it not been for this debate, I would have attended that important Westminster Hall debate on LASPO and cuts in legal aid.

It is predicted that the Bill, and secondary legislation changes in, for instance, the small claims limit, will deter about 350,000 people from pursuing claims for injuries that were not their fault. Such a vast reduction in the number of cases is not something in which to take pride, but these measures will fail the genuinely injured. A recent survey by Unison showed that 63% of its members would not proceed, or be confident to proceed, with a claim without legal representation, but as a result of the Government’s package of measures, that is precisely what injured people will be faced with.

We cannot find ourselves, a year or two down the line, in a rabbit warren of even more legal advice vacuums, with stories aplenty of access to justice denied as a result of the enactment of the Bill and the forthcoming changes in the small claims limit. We must not be left with an ill-thought-out package of measures and regulations that will leave genuinely injured people with a severely limited ability to access justice.

--- Later in debate ---

[Andy Slaughter (Hammersmith) (Lab)]

I will be brief because a number of my colleagues have made important points that I do not need to repeat and because I have not been here for the whole of the debate. The reason for that is that I wanted to take part in the debate in Westminster Hall on the review of the Legal Aid, Sentencing and Punishment of Offenders Act. There is a certain symmetry to the two debates going on at the same time. The onslaught by this and the previous Government on victims and access to justice really began with the LASPO Act. It continues with this Bill.

The measures on road traffic accidents and the change to the small claims limit are basically unfair. A tariff will be introduced in respect of certain types of injury but not others. The tariff will be at a level that is far below—for a year-long injury, about £2,000 below—what would be set by a judicial authority. There seems to be no basis, fairness or logic for doing that. Why should there be two tiers for different types of injury? If the reason is what we have heard about fraud, I think even the ABI would admit that a small minority of cases are fraudulent, so why should the legitimate cases be punished because of the small minority that are fraudulent?

I used to be a personal injury practitioner and most of my work was done for insurance companies. I was always very happy to run a fraud defence and to cross-examine on that basis. Insurance companies usually were not. They preferred to settle; their eye was always on the bottom line. The Minister made a point earlier about there being a conflict between what insurance companies are up to here, but I do not think there is a conflict. Insurance companies want to depress both access to justice, in terms of people getting meritorious claims into court, and the value of that claim, which the Bill does very efficiently for them—I am sure they will be very grateful for it—but if they can make money wearing another hat through claims management companies or the passing on of information, they will be happy to do that as well. Yes, they are commercial organisations in that way, but the eye of the Justice Minister—I would have thought rather better of the Minister—should be on ensuring fairness.

Another basic unfairness is the increase to the small claims limit. It is not on the face of the Bill, but it is integral to this range of measures. I refer to the increase to £2,000 in relation to employer liability, where no fraud is ever alleged or at least only in very rare cases, and the increase to £5,000 in relation to road traffic accident claims. There is no basis for that. These are complex claims. That has been accepted in a bipartisan way. I am sorry that the House is dividing on party lines, with the honourable exception of the Chair of the Justice Committee. I hope that, in Committee, the Minister will listen more carefully to some of the reasons that have been given.

We are deprofessionalising the justice system. People will no longer be able to get representation for even quite complex legal matters and serious injuries. The judicial arm is being removed by the introduction of the tariff and the medical role is also being downgraded, because there is no proper medical definition of whiplash and a number of quite serious soft tissue injuries are likely to be included.

We have heard time and again that there are abuses that need to be corrected. Pre-medical offers are a recipe for fraud, as is cold calling—I am not sure why certain people are saying that that should not be outlawed. It should. Why are those easy targets, rather than the rights of victims, not being tackled? In employer liability cases, trade unions can effectively represent their members by taking cases to court with representation. Unison says that two thirds of people whom it has helped said that they would not have felt confident enough to pursue their claims without such support.

Finally, I turn to the personal injury discount rate. I hope that the Government will be more open to agreement and consensus on that. Tiny changes can significantly affect the damages awarded to or life experiences of very severely disabled people. I urge the Government to look again at the level of risk, which can affect awards over a lifetime, and to look carefully at the issue of the expert panel, allowing it a greater role.

Criminal Legal Aid

Andy Slaughter Excerpts

Tuesday 8th May 2018 Commons Chamber

[Richard Burgon]

It is not the Criminal Bar Association’s scheme. The CBA has serious concerns about the controversial aspects of the scheme. If the scheme were fine, 90% of criminal barristers would not have voted to take this action. It is clear that something has gone wrong and that the Government have backed these barristers into a corner rather than forging the consensus we need.

The Government’s scheme fundamentally changes the way in which criminal defence advocates are paid for carrying out publicly funded work in the Crown court. The new fee system means that the vast majority of cases will now receive a flat fee for a case, so that a case with 250 pages pays the same as a case with 5,000 pages. A rape case with a single complainant and defendant will have the same fee as a rape case involving multiple victims and multiple defendants. That disincentivises lawyers from undertaking complex cases, which often require weeks of preparation.

[Andy Slaughter (Hammersmith) (Lab)]

My hon. Friend is making a powerful speech. The main losers in this are senior-level junior practitioners, who prepare and research complex cases. There is no fee for looking at prosecution disclosure, which means there is a greater chance of miscarriages of justice. Is this not completely misconceived in the way it has been put together? As he says, it will simply lead to cases either not being taken or not being prepared to the standard that they should be.

[Richard Burgon]

My hon. Friend makes a powerful point. We cannot tolerate a situation where either the guilty walk free or the innocent go to prison.

The scheme fails to recognise the growing work required to deal with the increasing amount of evidential and unused material. Advocates are expected to consider that material without specific payments, however much additional material is served. That is especially worrying, given the fact that a series of trials, including rape trials, have recently collapsed because of failings in the disclosure of evidence.

Despite Government promises of cost neutrality, the CBA says that the scheme amounts to a £2 million cut, and no future-proofing is built into it, resulting in a year-on-year inflationary cut. The new scheme does not address the damage caused to the system by substantial real-terms cuts to legal aid rates over recent years of 40%. As a result of these reductions, there are pressing concerns about the ability to retain younger barristers and recruit the next generation into criminal defence work. After two decades without any sort of basic cost-of-living pay rise, criminal law is no longer an attractive career option for young solicitors or young barristers entering the system saddled with debt, and others are leaving because of the increasingly unreasonable demands made on them to do more and more for less and less.

--- Later in debate ---

[Lucy Frazer]

The hon. Gentleman will have to ask the barristers why they are taking action, because the new scheme is more favourable.

The consultation was broadly welcomed by the organisations I mentioned earlier. I would like to provide just one quote among many. When the consultation was put forward in 2017, the then chair of the Bar Council said:

“The suggested scheme is a fairer way of rewarding advocates for their work”,

and that it is a

“a positive example of the Ministry of Justice participating in constructive dialogue with the profession”.

As with any consultation, suggestions were made to improve the scheme. It was said, for example, that it was not right that the initial scheme proposed was to be cost-neutral as against 2014-15. Concerns were also raised that it may have an adverse impact on junior advocates. The Ministry of Justice listened to those concerns and increased the amount in the scheme in line with the costs at the time, which increased the funding by £9 million. This allowed it to improve the scheme for junior advocates. The MOJ also assesses that the scheme will cost significantly more—approximately £9 million more—than anticipated.

The new scheme in this statutory instrument is better than the one it replaces. With this motion, which calls for the new scheme to be revoked, the hon. Member for Leeds East is disadvantaging those he professes to support. He says that it is a threat to our justice system, but the motion is playing politics. It puts party politics above supporting the right outcome. With the motion, the Labour party and those who intend to join them today are using the Bar and justice as a political tool for their own ends.

[Andy Slaughter]

Minister, that is a silly thing to say, because the motion reflects the disquiet that has been expressed by the Bar. The hon. and learned Lady does not have the curiosity to ask barristers why they are unhappy; perhaps one reason is that the scheme was an alternative to a further 8.5% cut, which would have caused mayhem in the criminal courts. It is just robbing Peter to pay Paul. Why does she not go back and ask the Bar who the losers are now, what the problems are and how they could be reformed, and why does she not take this away and look at it again?

[Lucy Frazer]

I am sorry if I misrepresented the position earlier. I have spoken regularly to a number of organisations that represent the leadership of the Bar. Over the last week, my Department has gone to chambers up and down this country. We have talked to them to understand their concerns about the scheme and to try to understand what position they prefer. We are extremely engaged in talking. The point I am making is that the new scheme is a better one. It was supported by the circuit leaders, the Criminal Bar Association, the Bar Council and the Young Barristers’ Committee, and about 15 press releases all support that position.

--- Later in debate ---

[Robert Neill]

My hon. Friend makes an important point; it was in fact the last point I was going to make. If we are to win this debate on fairer funding, we need to get back to a more honest awareness of the realities of remuneration. The press have something to answer for in that regard. It is all too easy to talk about fat-cat barristers and the occasional £1 million-plus fee, which usually relates to a case that lasted about 18 months and was of a highly complex nature. Those sorts of cases are not around any more, for a raft of reasons, and those reports wholly misrepresent the position of the vast majority of barristers, who are working on really modest take-home incomes. Above all, we forget the level of deductions that have to be taken out. My hon. Friend’s point is an entirely fair one. I want to see more money in the system, but that will only come from having a strong and well-managed economy. I want to see more money in the system, but I do not think that this is the right way to go about it.

[Andy Slaughter]

The Chairman of the Select Committee is making a very good case, but he does not seem to be persuaded by his own advocacy. If this scheme corrects some of the anomalies of the previous scheme, it does so only by reducing the brief fees overall to below a level that was already extremely low. The purpose of annulling the statutory instrument is to make the Government go back and renegotiate on that basis. Does the hon. Gentleman not accept the logic of that?

[Robert Neill]

I do not accept that logic, persuasive though it might be, because annulling the SI would simply put us back on to the old scheme. I would prefer to bank what we have—imperfect though it is—and move on, pressing the Government to move more swiftly than Ministers currently intend to do on the review of the scheme, and starting to talk urgently, at the earliest possible date, with the Bar Council and the Law Society about what could be changed. I want improvements as much as Opposition Members do, but I happen to think that taking an unduly partisan approach does not serve the overall purpose of the matter.

An independent Bar, and an independent and robust solicitors profession, are a critical part of the rule of law. That is what it comes down to, and I do not accept that this is necessarily a welfare state issue, although I understand the point that the hon. Member for Leeds East (Richard Burgon) made. Ultimately, this is about ensuring the rule of law. That is the most important thing, and the system does have to be properly funded. I say with some regret to Opposition Members that, although I have sympathy with many of the points made by the Bar and the solicitors in their evidence to us, annulling this SI is not the right route to go down. I would prefer a more consensual, evidence-based approach, and a calmer one. I hope that once this debate has passed, we will all be able to get down to that.

Joint Enterprise

Andy Slaughter Excerpts

Thursday 25th January 2018 Commons Chamber

[Lucy Powell]

I fully agree with my right hon. Friend the Member for Tottenham (Mr Lammy), but I will try to make some progress.

There was a political context when the joint enterprise law began to be overused and extended in its use during the 1990s and the noughties, but there is a different political context today. As my right hon. Friend has just said, we now more clearly understand the consequences of disproportionate and unfair applications of the law against certain groups. I am pleased the Government recognised that when they launched the Lammy review and in the Prime Minister’s recent comments on “burning injustices”—I hope she can live up to that rhetoric.

Practice and the law have been far too slow to catch up with the changing mood in the country. I will briefly discuss what the Supreme Court ruling does and does not say, and what still needs to be addressed. First, the ruling is clear that the law governing secondary liability has taken a “wrong turn” and has resulted in the “erroneous” application of the law. However, it also sets out that, in order for appeals to be heard “out of time,” a substantial injustice test, not the usual unsafe conviction test, will be applied. Yet the substantial injustice test was not clearly set out in the ruling and has never been set out by Parliament. The substantial injustice test has subsequently been tested through case law and is now an almost impossibly high bar for people to clear. That is why, nearly two years on, there has yet to be a single successful appeal awarded by the Court of Appeal.

Finally, in our opinion the Supreme Court failed to address another question put before it: does joint enterprise over-criminalise secondary parties?

What needs to change in the law—first, what needs to change going forward, and secondly, how can we put right some of the injustices of the past? It is clear that joint enterprise continues to be overused and is disproportionately used against groups of young men, particularly those from black and ethnic minority backgrounds. I saw that at first hand in a recent case in which 11 young black men from Moss Side faced charges of murder. Seven of them were convicted of murder and four were convicted of manslaughter. The youngest was only 14 and many of them were not previously known to the police. As research by Manchester Metropolitan University has shown in its study “Dangerous Liaisons”, more than half of all those serving life sentences are children or young adults, and more than half are from a black and ethnic minority background.

[Andy Slaughter (Hammersmith) (Lab)]

Will my hon. Friend give way?

--- Later in debate ---

[Andy Slaughter (Hammersmith) (Lab)]

I have had the privilege of working with JENGbA, and particularly with Gloria Morrison, for seven or eight years, and I am pleased that the organisation is now located in my constituency. However, I am sorry that we have not made more progress—by “we”, I mean the House and the Government. As we have heard, JENGbA has a phenomenal record of representing 800 families in these difficult cases. I have a number of constituents serving long sentences who were convicted before the Jogee judgment and are therefore potentially subject to review; I am sure many other Members do too, given the numbers.

Before coming to those points, let me say that these matters are not easy. I am sure that we all also have constituents who have been the victims of violent crime. As my hon. Friends the Members for Sunderland Central (Julie Elliott) and for Poplar and Limehouse (Jim Fitzpatrick) said, we are concerned that people should be punished suitably for crimes that they have committed. There are famous cases, including those of Garry Newlove and Stephen Lawrence, in which joint enterprise played a part in the convictions. When very serious offences are committed, particularly murder, and there are victims and grieving families, it is perhaps only human nature to want to bring people to justice. The difficulty has arisen because, particularly where there are large gangs or groups, it is more difficult to identify who the actual perpetrators are. The danger of a miscarriage of justice is therefore all the greater.

Several Members have referred to the history of what has variously been called common purpose, secondary liability or joint enterprise. My hon. Friend the Member for Ealing North (Stephen Pound) said that the offence was originally developed by the common law to deal with the social evil of duelling, almost as a matter of public policy rather than law. The leading case of Swindall and Osborne in 1846 was about two cart drivers encouraging each other in a race, one of whom killed a pedestrian. It is easy to see in such cases how one can attach guilt to the person who is not the primary perpetrator. My hon. Friend also mentioned the celebrated Craig and Bentley case, in which many factors were involved. On Sunday, it will be 65 years since the execution of Derek Bentley. It is 25 years since he was pardoned, and 20 years since his sentence was quashed. Bentley, who was 19, was hanged, but the actual perpetrator, Chris Craig, was not, because he was under 18.

However such cases were resolved, it is fairly easy to see the principle of joint enterprise at work, but, as has been pointed out by my right hon. Friend the Member for Tottenham (Mr Lammy) and others, we are now dealing with a number of new factors. There is the huge preponderance of people from black and minority ethnic communities who are convicted, there is the number of young people convicted, and there is, simply, the number of people who are engaged. It is, I think, wrong to say that not much attention has been paid to the issue; it is a question of what the outcomes have been. The Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Robert Neill), and his predecessors have produced a number of telling reports.

The Crown Prosecution Service guidelines have been reviewed, although they may still be imperfect, and, of course, there has been the Jogee judgment. That judgment is perhaps unsurprising. As we heard from my hon. Friend the Member for Brentford and Isleworth (Ruth Cadbury), before Jogee the level of the mental test for secondary participants was lower than the one applying to primary offenders. That had to change, and it has changed. There is, therefore, a possibility of review, but—I think the courts are cognisant of this—there is also the issue of floodgates. Will there suddenly be a huge number of cases to review because of a correction of the law—not a change in the law, but a declaration of what the law should have been all along? Many Members have said, “So be it”, but it is up to the Government to decide how the position is to be dealt with, and I am afraid that the Government have been wanting in that regard.

After Jogee, in November 2016, the then Secretary of State wrote to the Justice Committee:

“We have concluded that no further review of the law is necessary at this time.”

As far as I know, that is still the Government’s position, although we may hear otherwise from the Minister today. Let me say to the Minister that that is wrong. We need such a review. That will not be easy, because this is a complex and difficult offence and because there are arguments on both sides, but the law gets itself into a mess in exactly these areas. When I was a shadow justice Minister between 2010 and 2015, I urged my party, if it were subsequently to come to power, to look at some of these difficult issues. I am thinking of not just joint enterprise, but inchoate offences and, indeed, homicide. A number of common law offences that have developed over a period may not be fit for purpose in the modern world. I hope that we shall hear some positive answers from the Minister today. Reviewing the law in this respect cannot be left to the courts or the prosecuting authorities. Sooner or later, either this or a future Government will have to do it.

My final point—another JENGbA point—concerns evidence and statistics. I cannot believe that we are not collecting proper statistics. It is clear from the statistics that are available that a high proportion of people are convicted of homicide on the basis of joint enterprise. According to some estimates, the proportion who are sentenced is approaching 50%. Two years ago, I asked a parliamentary question on the subject. My question was:

“To ask the Secretary of State for Justice, how many people have been convicted under joint enterprise in each year since 2010.”

The answer was as follows:

“Such information is not held centrally and could only be obtained at disproportionate cost.”

That, too, is quite wrong. If we are to deal sensibly with this difficult and sensitive matter, we must have the facts.

It would be wonderful to hear from the Minister today that there will be a review, and that the Government will refer the matter to the Law Commission, as was indicated by the Chair of the Justice Committee. It would certainly be welcome to hear that there will be a proper collection of statistics, so that we have a sound basis on which to introduce reform.

Oral Answers to Questions

Andy Slaughter Excerpts

Tuesday 23rd January 2018 Commons Chamber

[Mr Speaker]

While the hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) was ploughing through her question, the hon. Member for Hammersmith (Andy Slaughter) was doing his customary knee exercises, from which I hope he greatly profits. I call Mr Andrew Slaughter.

[Andy Slaughter (Hammersmith) (Lab)]

Thank you very much, Mr Speaker.

Has the Secretary of State seen the investigation published at the weekend by The Sun into new allegations of misconduct by the west London coroner, including bullying, sexism and homophobic conduct towards staff? Despite previous findings of serious misconduct, three-year delays in issuing death certificates, secret inquests being held at night and important case papers being lost, he has been cleared by the Secretary of State to return to work. Will the Secretary of State meet west London MPs and council leaders to discuss this crisis?

[Mr Gauke]

I thank the hon. Gentleman for his question. I know that the Under-Secretary of State, my hon. Friend the hon. Member for Bracknell (Dr Lee), who is responsible for coroners, will be happy to meet him.