Legal Aid Reform

Caroline Lucas Excerpts

Thursday 27th June 2013 Commons Chamber

[Sarah Teather]

I think there are critical issues involving choice.

[Caroline Lucas (Brighton, Pavilion) (Green)]

rose—

[Sarah Teather]

I will struggle if I try to give way to everyone. May I at least respond to one intervention before I accept another?

I intend to speak about the residence test rather than about criminal legal aid, but I know that a number of Members—including the hon. Member for Kingston upon Hull East (Karl Turner), who supported the application to the Backbench Business Committee, and my hon. Friends the Member for Redcar (Ian Swales) and for Leeds North West (Greg Mulholland)—want to refer to it specifically.

[Caroline Lucas]

rose—

[Jake Berry (Rossendale and Darwen) (Con)]

rose—

[Sarah Teather]

I will give way first to the hon. Lady and then to the hon. Gentleman, but after that I must make some progress.

[Caroline Lucas]

I wanted to intervene early in the debate to crush the myth that this is about savings. It should be made absolutely clear that no money will be saved. Indeed, a barrister at Matrix Chambers has suggested that, rather than saving £6 million—which, in the great scheme of things, is not very much in any case—the changes are likely to generate on-costs of about £30 million.

[Sarah Teather]

I entirely agree with the hon. Lady. She was referring, of course, to the changes in civil rather than criminal legal aid. I think that the costs are likely to be significantly greater, especially if people remain in detention or cannot be released from hospital.

--- Later in debate ---

[Mr Llwyd]

The hon. and learned Gentleman is absolutely right and I could not have put it any better.

One of the most contentious aspects of these so-called reforms is the removal of the client’s right to choose. Instead people will be allocated a provider, regardless of the complexities of the case or whether they have any particular needs or vulnerabilities.

[Caroline Lucas]

The right hon. Gentleman will know that the clause in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 that guaranteed the right of the individual to choose was deemed to be incredibly important and now is being completely ignored. Does he agree that there is a very real risk that the public simply will not have confidence in a system where the defendant’s lawyer is chosen by the very state seeking to convict them?

[Mr Llwyd]

That is a very important point, because it was considered vital in the civil context and yet curiously not even regarded as being of passing interest in the criminal context, where people risk their livelihood, liberty and everything else.

Comments made recently by the Justice Secretary in the Law Society Gazette make one rather suspicious that there is something ideological in the calculated removal of choice. He said that he does not believe

“that most people who find themselves in our criminal justice system are great connoisseurs of legal skills”

or to paraphrase—as we have heard—they are “too thick to pick”. These condescending comments display a sinister lack of compassion for the vulnerable in society and a cavalier disregard for these individuals’ best interests.

Denying an individual the right to choose their legal representation is arguably in breach of the European convention on human rights, article 6 of which sets out specific rights for criminal defendants including that they should be informed of the offence they are accused of in a language they can understand.

A loss of expertise will also follow, unfortunately; the point made by the hon. and learned Member for Harborough (Sir E. Garnier). It will deprive the legal system of practitioners, firms, solicitors and counsel with specialist knowledge of particular cases and areas of law. In the event of price-competitive tendering being introduced to the so-called market, the quality of service will be considered at only a preliminary stage of the process. The final stage of bids will be determined on price considerations only. Even at the starting price, following three previous cuts to legal aid fees over the last eight years, the Government have specified that bids must be at least 17.5% lower than the current rates.

The first casualty of this race to the bottom will be the quality of service. Astonishingly, as has been said, providers will be paid the same unit price for preparing each case regardless of the offence and regardless of a push for either a guilty plea or trial. This presents a conflict of interest, but the Justice Secretary has said that he is sure the professionals can be relied on to act in the best interest of the client—but the professionals will no longer be around; that is the point. They will have been priced out of the market altogether.

The proposals provide that daily payments to solicitors, for example, will be reduced after a second day. There are many reasons for delays in court—interpreters not turning up, people speaking the wrong language, change of court date at the last minute, Crown Prosecution Service witnesses and so forth—but the individual lawyers are now apparently to be penalised. With 400 remaining providers, advice deserts will develop in rural areas.

At present, there are 249 law firms in Wales undertaking some form of criminal work. Under these proposals, only 21 contracts will be awarded to provide legal aid criminal services in Wales. Providers will be expected to service work across large distances without any additional payment for travel costs. There will be no guarantee of work after the initial three-year contracts have come to an end. It is difficult to imagine small local firms being able to survive. With them will go knowledge of the local area, local police, courts and agencies and local access to justice. Instead, we shall have Eddie Stobart, Tesco, G4S, the Co-op and so forth. There is even talk of call centres. The prospect of tendering cases out to “Stobart Law” or “Tesco Law” fills me with absolute dread. It will mean an attack on the criminal Bar and will make a cataclysmic impact on the future of our criminal judiciary.

These proposals will, I am afraid, seriously undermine the rule of law. Why is it, then, that the Council of Circuit Judges vehemently opposes these plans? Why is the Judicial Executive Board similarly opposed? Why is Lord Neuberger, until recently the President of the Supreme Court, vehemently opposed? Why? It is because they are right. The Justice Secretary—a non-lawyer—knows better than the finest legal brains in the British Isles. It is time to reconsider, and if this consultation is not to be a sham, the Government must reconsider.

--- Later in debate ---

[Caroline Lucas (Brighton, Pavilion) (Green)]

I congratulate the hon. Member for Brent Central (Sarah Teather) on securing this important debate.

When the Bill that became the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was being debated, I genuinely thought that things could not get much worse—that the Government would not go any further in what appears to be a crusade to dismantle universal access to justice—but I was wrong. Since then we have had the deeply worrying Justice and Security Act 2013, and now we have these proposals for secondary legislation that will deny access to legal aid to some of the most vulnerable and disadvantaged in our communities. Like many other hon. Members, I have been lobbied extensively by my constituents who share my passion about the importance of a justice system that supports the right to a fair trial. Yet that right is being fundamentally undermined, with precious few opportunities for MPs to scrutinise the details or to object.

Much has already been said about the impact of price competition tendering. I simply point out that many legal experts in my constituency have told me that if the changes go ahead, then cost becomes the determining factor, not quality, with the inevitable result of a huge loss of knowledge and expertise that will never be recovered. One of them notes that the effect will be more delays in court and a detrimental impact on victims and defendants in the criminal justice system. The system is already under immense pressure and only works because of committed judges, court staff, probation officers, barristers and solicitors who do what needs to be done out of professional duty and pride. Another expert issues this stark warning:

“PCT will in all likelihood destroy the independent criminal bar. A Bar that is held in the highest esteem throughout the world and which continues to adapt to a changing landscape.”

A constituent who works as a defence solicitor describes the likely impact of another proposal—namely, people having no choice about who represents them and the creation of a single fixed fee payable regardless of whether an individual pleads guilty. He says:

“The right to a fair trial will no longer be assured. Innocent people will end up in jail. Vulnerable and high maintenance defendants will be left unrepresented. The high maintenance clients will create delays and inevitable injustices in the Court and the vulnerable or weak will have inadequate protection from the police looking to meet their government imposed disposal stats.

In practice this will mean them accepting cautions at the police station and pleading guilty at court for offences they haven't committed. The police will have ‘solved’ many crimes. But it is unjust, and with criminal records, those affected will be prevented from becoming teachers, lawyers, doctors and MPs.”

I want to end with a few words about the judicial review process. Like many other hon. Members, I am deeply concerned about these proposals utterly undermining the JR process, which is one of the most important ways of achieving public body accountability. Environmental cases, social welfare cases, and cases about library closures, schools and so on were all done by way of judicial review. A consortium of non-governmental organisations working with refugees and migrants has commented:

“In our opinion the proposed change would result in an increase in unlawful decisions relating to access to services with disastrous effects on the individual and/or an increase in the number of individuals who seek to ask the court to intervene without the assistance of a properly qualified representative. This is not in the interests of justice.”

The homelessness charity, Shelter, has also raised concerns:

“Judicial review is the main mechanism Shelter uses to ensure local authorities meet their legal duties to help homeless people.”

It has stated that the proposals to limit legal aid funding for judicial review will have a significant impact on the ability of people on low incomes to question council decisions and, ultimately,

“will make it even more difficult for us to help homeless families find a place to stay for the night.”

The environmental charity, WWF, warns:

“These measures will significantly affect our ability to protect the environment… Individuals and civil society groups should not be denied their fundamental constitutional right to check an abuse of power and protect the environment on the basis of costs-cutting.”

Moreover, the Coalition for Access to Justice for the Environment has found no evidence to support the claims that the changes are justified because the Government are overwhelmed by judicial reviews on planning issues. That is not the case, nor are there any data to support a credible claim that judicial review is a significant impediment to economic progress.

If the planned changes go ahead, they will seriously damage public access to justice, the equality of citizen and state before the law, and our ability to hold the Government accountable.