Future of Legal Aid

Bambos Charalambous Excerpts

Thursday 1st November 2018 Westminster Hall

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

It is a pleasure to serve under your chairmanship, Mr Bailey. I congratulate my hon. Friend the Member for Hammersmith (Andy Slaughter) on obtaining this important and timely debate.

I will begin my assessment of the future of legal aid by outlining its origins. The first legislation to provide for legal help paid for by the state—there had been ad hoc funding for legal representation since Tudor times—was the Poor Prisoners Defence Act 1903. Payment was made only once a prisoner could establish a defence to a criminal charge. At about the same time, there was a “poor man’s lawyer” movement in east London, providing free legal advice up to but not including court. Pro bono representation was also available for divorce, but, again, that was patchy and ad hoc.

In 1944 the wartime coalition Government set up a committee, chaired by the Conservative peer Lord Rushcliffe, to assess the need for legal advice provided by the state. Lord Rushcliffe’s committee’s recommendations were accepted by the Labour Government, which stated in a White Paper that legislation would be introduced

“to provide legal advice for those of slender means and resources, so that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right; and to allow counsel and solicitors to be remunerated for their services”.

Those are the principles that underpin our legal aid system.

The Legal Aid and Advice Act 1949 provided legal representation for those of small or moderate means in all courts and tribunals where lawyers normally appeared for private clients. Since then, legal aid has been chipped away by successive Governments. Since the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the legal aid budget has been slashed by £950 million, and many people have been taken out of scope, so that they do not get funding for cases involving matters such as housing disrepair, immigration, welfare benefits and family law.

On 11 July, the Joint Committee on Human Rights produced its report “Enforcing Human Rights”. The Committee said in the report that access to justice was an essential component of the rule of law, and referred to Lord Bingham’s statement:

“Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve”.

The report was critical of the effect of LASPO, saying that it had

“deleterious and discriminatory effects on particular groups”

and

“a disproportionate impact on various groups, including disabled people, women, children and migrants.”

Let me consider each of those in turn.

The charity Mind conducted a survey of 10,058 adults in England and Wales. It found that 18% of respondents suffered from stress, depression or other kinds of mental health problems, and that people with mental health problems were almost twice as likely to have experienced legal problems. One in four of those had experienced six or more legal complaints. The fact that the vast majority of those people would find it hard to access legal aid to get the help they need is deeply worrying.

People with immigration problems are also badly affected by LASPO, which took applications for refugee family reunion out of the scope of legal aid. In the absence of legal aid, people with refugee status in the UK are vulnerable to exploitation, as they have to take out informal, high-interest loans to pay for their family reunion applications, which are often complex and not straightforward. There is exceptional case funding, but it is not feasible for many applicants to access it, due to the large proportion of applications rejected. Many people are left in a very difficult situation.

Young people are also affected. According to Youth Access research, 18 to 24-year-olds are significantly more likely to have problems, but, as my hon. Friend the Member for Westminster North (Ms Buck) said, the vast majority—84%—get no help from a professional adviser or lawyer. Of the 15% of 18 to 24-year-olds who recognise that their problem is legal, only 6% are eligible for legal aid on financial grounds.

The situation is just as bad for women. Rights for Women, in its submission to the Joint Committee on Human Rights, quoted a woman responding to a survey for legal aid who said:

“I earn a low income, yet I’ve been assessed as having too much disposable income…and when you aren’t eligible, you’re expected to pay full solicitors’ costs—there’s no help anywhere in between. I’ve had to face my violent ex-partner in court twice now, and will have to continue to do so as I simply cannot afford costs.”

Even if people are eligible for legal aid, remuneration for lawyers means that there are advice deserts across the country. Legal aid rates today are the same as in 1994, yet inflation has increased prices by 89.3% since then. I recently had the pleasure of shadowing a junior barrister at Thames magistrates court; she told me that she would get a legal aid rate of only £50 for the hearing that she attended.

The hon. Member for Bromley and Chislehurst (Robert Neill), the Chair of the Justice Committee, has already mentioned advice deserts, which were highlighted in the Committee’s report on criminal legal aid. The report warns of the decline of duty solicitors and says that very few younger lawyers are entering the profession. In Dorset, Somerset, Wiltshire, Worcestershire, west Wales and mid-Wales, more than 60% of criminal law duty solicitors are over 50. The Law Society’s heat map study suggests that criminal defence lawyers in England and Wales could become extinct if nothing is changed. Many criminal law firms have fragile finances and small profit margins. What will happen if those firms close is deeply worrying.

It is not just criminal law firms that are affected. The House of Commons Library debate pack refers to advice deserts for housing law. It states almost one third of legal aid areas have just one, and in some cases zero, law firms providing legal advice through legal aid. The truth is that legal aid is in crisis and is teetering on the brink of a precipice. It may take generations to recover, if it ever does.

The aims of LASPO were to discourage unnecessary and adversarial litigation at public expense, to target legal aid at those who need it most, to make substantial savings and to deliver better value for money. Having saved £950 million, LASPO certainly has delivered substantial savings, but at what cost? Is it delivering better value for money? Given the closure of many law firms and the spread of advice deserts, people who are eligible are left with little or no choice of solicitors who do legal aid work. Law firms specialising in the relevant area of legal aid are often overrun, and it may be impossible to get an appointment for many weeks, if at all. People may need to travel long distances to get legal advice.

The examples I have set out make it clear that, under LASPO, legal aid is not being targeted at those who need it most. The intention behind LASPO was to discourage adversarial or unnecessarily litigation, but many people who need legal aid do not have the choice—for example, people who need to challenge benefits decisions, which have a more than 50% chance of being overturned at tribunal. If the Minister has any doubt about the impact of the cuts to legal aid, I encourage her, if she has not already done so, to read the excellent book “The Secret Barrister”, which explains how our legal system is broken.

What is to be done? I ask the Minister to do three things. First, restore access to early advice so disputes can be resolved fairly and reasonably, and so people do not embark on ill-advised, costly litigation. Restore access to welfare advice so the people who are most desperate can get the advice and support they need to challenge unfair decisions. Secondly, simplify the criteria for those who need legal aid—at the moment, many people find it hard to access legal aid, and there are conflicting and competing areas of application, which do not make much sense. Finally, justice cannot be done on the cheap. Please find the money to invest in legal aid.