Legal Aid

Bambos Charalambous Excerpts

Wednesday 29th November 2017 Westminster Hall

[Bambos Charalambous (Enfield, Southgate) (Lab)]

It is a pleasure to serve under your chairmanship in this important debate, Mr Robertson. I congratulate my hon. Friend the Member for Glasgow North East (Mr Sweeney) on securing it.

To get perspective on the problem of access to legal aid, we first need to remind ourselves that the Legal Aid and Advice Act 1949 came in as one of the Labour Government’s swathe of measures to help alleviate poverty in the welfare state following the 1945 election victory. Over the years, scope was increased to keep up to date with social developments, but over the past 25 years, we have seen a gradual erosion of legal aid, culminating in a full-scale attack on it via the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO, to give it its shorter name.

Let us be under no illusions: LASPO was introduced under the cloak of austerity to cut the legal aid budget. To that extent, it has succeeded, cutting the total spend on legal aid from £2.499 billion in 2010-11 to £1.554 billion in 2016-17: a cut of £945 million, or 38%, to give the percentage total. Taking areas such as some family law and welfare law out of scope is having a devastating effect on some of the most vulnerable people in our society.

Couples who split up, sometimes acrimoniously, and who disagree about access to the children are not legally represented owing to the cuts, leaving a judge in the invidious position of trying to sort out the case with limited documentation. Who knows what the impact will be on the children while the court tries to muddle through the process? This could be the most important decision in a child’s life, yet we are likely to have two aggrieved people thrown into a combative situation, with terminology and procedures misunderstood, and making matters worse for the child. Or there are instances where a vulnerable person has a valid case for claiming backdated housing benefit, but is unable to find a lawyer to help, because an application to a social security tribunal is taken out of scope, leaving the person with arrears of rent and facing eviction. We have gone from 80% of people being eligible for legal aid to only 20% being eligible. The onslaught on the legal profession owing to the legal aid cuts has resulted in legal aid firms closing, leaving legal advice deserts in more and more parts of the country, and people desperate, with little chance of getting proper representation.

In a written answer to my hon. Friend the Member for Ashfield (Gloria De Piero) on 11 September 2017, the Ministry of Justice said that nationally the number of legal aid providers had fallen from 2,991 in 2012 to 2,393 in 2017. That is a fall of 598, or nearly 20%, in five years. The firms that have survived are also struggling as legal aid rates have not increased in over 20 years. I congratulate the Law Society on its excellent recent report on legal aid, as referred to by my hon. Friends the Members for Westminster North (Ms Buck), for Glasgow North East, and for Lewisham West and Penge (Ellie Reeves).

The legal aid cuts are also impacting on barristers. Junior criminal barristers face a crazy situation whereby they would receive only £44 for doing a plea in Coventry tomorrow, when the train fare is £83 and not recoverable. Would anybody seriously do a job that would leave them out of pocket? The truth is that the legal aid cuts are a false economy and end up costing us all more in the long run. Goldsmiths University has estimated that every £1 cut in legal aid costs us all £6 in additional services provided.

So what is to be done? Hon. Friends have referred to the Bach commission’s final report, “The Right to Justice”, which was published in September this year. It made 22 recommendations to improve access to justice and redress the failure of LASPO, which has left many people unable to access justice because they cannot afford to. The 22 recommendations, as touched on by my hon. Friend the Member for Hammersmith (Andy Slaughter), include: creating a right to justice Act, which would enshrine the right of access to justice in statute and would set up a justice commission to advise, monitor and enforce that right; reforming legal aid assessment, so that anyone in receipt of a means-tested benefit is automatically eligible for legal aid; broadening the scope of legal aid, so that all social welfare law, matters relating to children, various areas of private family law, immigration and inquests, which were so eloquently referred to by my hon. Friend the Member for Lewisham West and Penge, are brought back into scope; replacing the Legal Aid Agency with an independent body that is at arm’s length from the Government; and reducing the administrative burden on providers.

In addition to implementing the recommendations, we need to repeal LASPO and make sure that legal advice is provided earlier and quicker, along the lines of the old green form scheme. We also need to embrace technology and educate the general public as to their rights, and we need to ensure that the legal aid system is fit for purpose, so that we do not get miscarriages of justice because of the cuts, or see the decimation of the legal profession that does legal aid work. We should never forget that the legal aid scheme was designed to help the most vulnerable in our society, and right now the system is failing them.

--- Later in debate ---

[Dominic Raab]

I welcome the hon. Gentleman’s intervention and hope he accepts the figure showing that the spending in England and Wales per capita is 13% higher. I agree with him on a point that the hon. Member for Glasgow North East did not take up: this is not just about how much money is spent, but about how the resources are allocated. Indeed, the question of access to justice is broader than purely the administration or funding of legal aid, so on that point, I accept what he said.

In truth, the legal aid scheme has been the subject of regular change since its inception. Spending has increased substantially, and all Administrations—Labour, the coalition, and Conservative—have sought to exercise control over spending in recent times. I think we all agree that we need to exercise control over legal aid and other precious public services in order to ensure that the finite, precious resources go to those who need them most.

The most recent reforms were part of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which came in the context of huge financial pressure on the country’s finances. The reforms were founded on the principle of ensuring that legal aid continues to be available for the highest priority cases—for example, when an individual’s life or liberty is at stake, when someone faces the loss of their home, in domestic violence cases, or when children may be taken into care—and in achieving that, delivering better value for money for taxpayers by reducing the cost of the scheme and discouraging unnecessary litigation. Again, although this has not been mentioned today, in some cases—not all—going to court is not the right thing to do, and I will touch on that if I have time later.

I appreciate that the changes in LASPO were contentious. They were subjected to a significant amount of rigorous scrutiny at the time, as the hon. Member for Hammersmith (Andy Slaughter) said. They were debated extensively and amendments were made before the legislation was approved by Parliament. It has been several years since the implementation of those landmark reforms, so it is absolutely right to take stock. That is why we recently laid before the House a detailed, post-legislative memorandum summarising how LASPO was implemented and making a preliminary assessment of its impact. In addition, my predecessors made a commitment to the House to conduct a detailed post-implementation review of the changes to establish to what degree the reforms had achieved their objectives. It is right that we are now fulfilling that pledge.

As hon. Members have acknowledged, that appraisal will cover each issue that has been subject to a previous commitment by Ministers in this House. The Lord Chancellor recently announced the start of the process. That will be led by officials, but I am keen to listen to interested parties, including hon. Members from across the House. Given the importance of the reforms, it is right that we take time to gather the necessary evidence and views of experts on the impact of the changes.

The hon. Member for Westminster North (Ms Buck) asked me about the detail of the review. I will write to stakeholders shortly to invite them to participate in a series of expert panels to consider and sift through relevant evidence to inform our review, which will be comprehensive. I want to ensure that we get the review right. Of course, I will not pre-empt or prejudice the outcome of the review—I am sure she expected me to say that—but we will publish our findings by the summer recess. One or two hon. Members asked about that.

We must acknowledge that the financial pressures in which the LASPO reforms were introduced remain with us today. The proportion of departmental spend on legal aid remains broadly the same today as it was prior to 2010. We in the Government have the responsibility to ensure that taxpayers get the best value for money, as well as deal with the challenges and fixing the problems of the legal aid system as and when they arise.

That is why I recently announced our changes to the fee scheme for criminal litigators in the Crown court. Defence solicitors do incredibly valuable work and we want to remunerate them fairly for it, but since 2013-14 there has been a rise of more than £30 million in the annual spend on that work. That is primarily attributable to a costs judge ruling that changed what we were paying for beyond the initial policy intention. We do not accept that that reflects an increase in the work done by defence solicitors and do not think that the rise reflects value for money for taxpayers, so it is right that we acted to address that.

We have targeted the action to the 2% of Crown court cases—the most expensive cases—in which the problem was identified. Effectively, the change involves a shift in policy so that more remuneration is for work that is actually done and not just for the amount of paperwork that is produced in court. It is absolutely right that solicitors are properly paid for work that is reasonably done through the scheme. At the same time, as the quid pro quo for putting the proper reforms in place to ensure that the precious, finite resources go to those with the greatest need, we announced our intention not to pursue the suspended 8.75% fee cut, which would have affected all solicitors. Those two parts of the jigsaw will make sure that we get this right. As I mentioned, this is not just about the money that goes in, but about ensuring that we get the best use out of it.

The hon. Member for Westminster North raised the issue of domestic violence, as did the shadow justice Minister, the hon. Member for Ashfield (Gloria De Piero). Domestic violence is absolutely abhorrent; it appals every one of us in this place, I am sure, and it is an absolute priority for this Government. We are completely clear that genuine victims of domestic violence and abuse must have access to the help that they need, including access to legal aid. That is why we retained legal aid for protective injunctions. Legal aid was granted in more than 12,000 protective injunction cases last year. In addition, in cases involving child arrangements and financial matters, funding is available for those who will be disadvantaged by facing their abuser in court.

As the hon. Lady mentioned, we are considering the findings of the further internal review of the evidence requirements. I will make an announcement on that shortly, which I am confident—or at least, I hope—will receive support from all parts of the House. She also asked who would be consulted. That is of the greatest importance and we are working very hard to get this into the right kind of shape, engaging Rights of Women, Resolution, Women’s Aid and the Law Society, so that we can be confident that we are doing everything we can to protect and support genuine victims.

Although it is right to ensure that those who are most in need of legal aid are able to access it, we should acknowledge that the courts are not going to be the right solution in non-domestic violence cases in other areas. I am thinking particularly of some family law disputes, which the hon. Lady mentioned. In many family law cases, the challenge is to see them not go to court. I accept the point about mediation not being as successful as we had hoped, but the answer is to renew and revive the efforts to achieve greater use of alternative dispute resolution in some cases. That is not just because of the financial implications, but because of the trauma of going to court—not for lawyers, but for the many people affected by such cases. I think that needs to be emphasised.

We need to do more to promote alternative dispute resolution, so we have protected legal help in many cases. Last year, we spent £100 million on early legal advice and assistance in civil and family cases. In other areas, we have introduced a telephone helpline to provide legal advice in certain categories of case to allow individuals to access advice quickly and easily. Last year, there were more than 20,000 instances of advice being obtained usefully and helpfully through that system. We have also developed a user-friendly digital tool—as the world becomes more digital, it is right that the justice system strives to catch up—to make it clear to people when legal aid is available to them.

When an alternative route is more appropriate, people should feel empowered to pursue it without having to find a lawyer at great expense, whether that is to themselves or the taxpayer. For instance, in cases involving separating couples, mediation can be less stressful and quicker than going to court, and it is often far cheaper than using a lawyer. Critically, it can help to reduce conflict after separation and the trauma of that, often on both sides, which in some cases litigation will make worse, not better.

The Government are committed to promoting mediation and its benefits, and legal aid remains available for these cases. In the 12 months to June 2017, a full or partial agreement was reached in 62% of publicly funded cases in which both parties engaged in mediation. Of course, as hon. Members have mentioned, citizens can and do represent themselves in court, in some cases irrespective of whether legal aid is available or whether they are privately funded. Litigants in person are not a new feature of our justice system. People involved in litigation are engaged in a variety of disputes and have a wide range of needs and capabilities. We recognise that for some people, representing themselves in court is purely a matter of choice, but for others it can be very challenging and demanding.

[Bambos Charalambous]

Is the Minister aware that there is a piece in this week’s Law Society Gazette about rewriting civil procedure rules to accommodate litigants in person, who may not fully understand court procedures in civil proceedings?

[Dominic Raab]

I have not seen that article, but we are constantly looking to ensure that the court system is as amenable as it can be to litigants in person. Contrary to what the shadow Minister suggested, a range of support is available for that; we have ensured that persons without legal representation can get help and support. Since 2015, the Government have invested £5 million of funding to support litigants in person through the litigant in person support strategy, which works with a range of partners across the advice, voluntary and pro bono sectors to provide practical support, whether that is online self-help resources, access to free or affordable legal advice or representation where possible. Personal support units provide trained volunteers who give free and independent assistance to people facing proceedings without legal representation in civil and family courts and tribunals. More personal support units have opened in courts to provide direct support and information to litigants in person, and there are now 20 such centres in 16 cities.