Legal Aid Reform

Debate between Caroline Lucas and Elfyn Llwyd

Thursday 27th June 2013 Commons Chamber

[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.

Iraq War (10th Anniversary)

Debate between Caroline Lucas and Elfyn Llwyd

Thursday 13th June 2013 Commons Chamber

[Caroline Lucas]

I will give way shortly. Let me make a little more progress.

I keep coming back to the importance of MPs—ourselves—scrutinising the decision-making process that took place at the time. In that context, I was surprised and disappointed when, back in March this year, the Foreign Secretary, for whom I have a great deal of respect, wrote what was intended, I think, to be a confidential letter to members of his party, telling senior members of the Government that they should not be drawn on the controversial issues that drew the UK into the Iraq war. They should, he suggested, wait until Chilcot had reported, but that of course might not be until the next election—who knows? We are still waiting after five years, and in any case, Chilcot does not have a monopoly on the issue, and I doubt whether he or his team would want one.

I turn now to what went wrong. There is plenty of evidence that shows that the case for war set out by the Blair Administration in 2003 was deeply flawed. Intelligence was misused, concerns expressed by experts were suppressed, and the legal and political position was misrepresented. From this arises the belief among many journalists and members of the public as well as Members of this House that they were misled into supporting the war in Iraq. In fact, when one reads the documents and listens to the testimony, it is hardly far-fetched to call it a conspiracy.

In brief, Tony Blair decided to join the US in invading Iraq and removing Saddam Hussein. He knew that the British people and their representatives were dubious about the wisdom of this, to say the least, so he used every opportunity to twist the evidence to isolate his critics and encourage his supporters. Britain was indeed spun into war. This is the foundation of the familiar position that many former war supporters now take. Often they will say, “If I had known then what I know now, I would not have supported the war”, but is that enough? Does that really explain what happened?

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

In 2005 I went out to Iraq. Then, even senior military officers were questioning the legality of their being there and having gone in. So it is not simply a matter of us doubting it. They were unsure of the legal position as well.

[Caroline Lucas]

rose—

Royal Charter on Press Conduct

Debate between Caroline Lucas and Elfyn Llwyd

Monday 18th March 2013 Commons Chamber

[Mr Llwyd]

No, I do not think so. It is a time-honoured practice for journalists always to check their sources, and they will need to revisit that aspect of their behaviour and ensure that they get it right the first time round. The proposals will not be welcome in all areas, however. The hon. and learned Member for Harborough (Sir Edward Garnier), for example, could find himself considerably disadvantaged financially if what the hon. Member for Swansea West (Geraint Davies) said were true. I make that joke in passing, weak as it was.

Lord Leveson’s report stated that statutory underpinning was necessary in order to set up a statutory recognition process and to provide for costs and damages incentives for publishers who subscribe to a recognised regulator. The Government have at least seen the merits of the latter provision, and tabled amendments accordingly. Sir Brian’s report recognised that publishers would need to be incentivised to sign up voluntarily to recognised regulators. He also recognised that there would be circumstances in which a court would determine that a publisher must give a claimant exemplary damages, albeit rarely, as a result of reckless behaviour. The cross- party amendments to which I initially put my name would have implemented Leveson’s suggestion that incentives should exist for publishers in respect of exemplary damages and costs in such situations. I am pleased that the Government saw fit to table similar amendments.

I have some concerns about the proposals before us, however. I realise that, due to the short notice for tabling amendments, it will not be possible for us to enter into a deep debate on these points, but I wish to put my concerns on the record none the less. First, the amendments to which I was a co-signatory, and which were due to be debated today and have now been withdrawn, would have ensured that any new commission that was established, as well as any regulatory body, would have been subject to freedom of information provisions. That is a crucial provision that would have ensured greater transparency in the new bodies, and I sincerely hope that the Prime Minister, or the Minister responding to the debate, will be able to give us an assurance that that will still be the case.

Secondly, I welcome the assurances from the Government that any arbitration service will be free for claimants to use. I am pleased about that. Another amendment to which I had put my name would have placed a duty on courts to take account of a defendant’s means, including readership and assets, when awarding exemplary damages. I welcome the fact that the proposals fulfil that requirement. Although the proposals do not meet every recommendation made by Lord Justice Leveson, I welcome the fact that the House has been able to reach a compromise, albeit at the eleventh hour, to get at least some reference to the royal charter in statute.

[Caroline Lucas]

The right hon. Gentleman has spoken powerfully about the perils of media concentration and the fact that today’s agreement, while welcome, is still unfinished. Does he agree that, in addition to what has been agreed today, we should call for urgent attention to be paid to measuring and tackling the concentration of media ownership, as Lord Justice Leveson recommended?

[Mr Llwyd]

That is a vital issue for the health of the press, and for the health of democracy. I see that the Chair of the Culture, Media and Sport Select Committee, the hon. Member for Maldon (Mr Whittingdale), has heard what my hon. Friend has said, and he will no doubt consider the matter.

It is surely clear by now that we need, and will get, a credible alternative to the Press Complaints Commission that will work in the interests of the public and of the responsible parts of the press. In Ireland, the press has been regulated by an independent voluntary body since 2008. Although the Press Council of Ireland is not a statutory body, it is recognised in legislation—namely, the Defamation Act 2009. Interestingly, all UK papers that are also published in Ireland have joined the PCI, even those that oppose statutory regulation in the UK.

Press regulation is devolved to the Scottish Parliament, and I am aware that a panel is considering the Leveson recommendations and their application in Scotland, headed by the former Solicitor-General and senator of the College of Justice, Lord McCluskey. I understand that the First Minister, Alex Salmond, has suggested in the past that he would be keen to implement Leveson’s recommendations in full, advocating an independent ombudsman and a Scottish press council similar to the Irish model.

I welcome today’s announcements and I am very pleased that this accommodation has been reached, but I agree with the right hon. Member for Belfast North (Mr Dodds) that we must be extremely vigilant as we go along. This is the beginning of the story, not the conclusion. I am sure that people who have been aggrieved will now see that something positive is and will be happening, and I am pleased about that.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Caroline Lucas and Elfyn Llwyd

Monday 31st October 2011 Commons Chamber

[Mr Llwyd]

Yes, and I wonder about the quality of the evidence coming out of that flawed process.

I was assisted in drafting amendment 93 by the Bar Council, which has said that the effect of preventing such distressing and costly consequences is worth looking into urgently. Amendments 94 to 102 relate to proceedings involving children’s welfare. As the Bar Council has said:

“It is not understood why, under Schedule 1, the provision of legal aid is limited to proceedings relating to the children, and not the associated financial remedy proceedings. The child’s economic welfare is important in abuse cases; particularly given the higher incidence of abuse in low-income households.”

Amendments 96, 97 and 98

“would have the effect of bringing within scope…proceedings leading to an order under the Children Act 1989 section 37…and…all subsequent steps in family proceedings once a section 37 order has been made. They would also ensure…that…the person against whom allegations of abuse are made is within scope.”

Amendments 94 and 95 are consequential amendments.

The Minister said in Committee that cases involving financial provision are not a priority for legal aid. I firmly believe that all private family cases should be retained within the scope of legal aid. It is difficult to overestimate the damaging effects on children caught up in untidy, bitter and lengthy disputes. Protecting the interests of children is at the heart of amendments 99 to 102. As the Bar Council has said:

“Paragraph 13 provides for the provision of legal aid for the child parties in cases which come under subsection (1)(a)-(e), but not for the adult parties,”

which, as I have said, will

“result in unrepresented adults being forced to cross-examine expert witnesses and, in many instances, the child concerned.”

Amendments 99 to 102 would have the effect of

“bringing within scope the provision of legal aid for adult parties in such cases.”

I want to talk briefly about amendment 83, my final amendment, which deals with judicial review. I thank the Immigration Law Practitioners Association for its help in briefing me on this amendment. We know that immigration-specific exclusions have been made. In their Green Paper, the Government set out a robust defence of judicial review and the need for retaining legal aid in such cases, saying:

“In our view, proceedings where the litigant is seeking to hold the state to account by judicial review are important, because these cases are the means by which individual citizens can seek to check the exercise of executive power by appeal to the judiciary. These proceedings therefore represent a crucial way of ensuring that state power is exercised responsibly.”

None the less, the Government have compromised their position in immigration cases. My amendment 83 seeks to rectify that anomaly. In explaining why immigration cases are to be exempted from legal aid for judicial review claims, the Government say that they have drawn on the response to the Green Paper by the senior judiciary, who raised concerns about unmeritorious judicial reviews, but in so doing the Government have ignored three key aspects of the judiciary’s proposals.

First, the judiciary’s proposals were advanced only on the basis that

“careful further consideration would need to be given”

before the proposals that the Minister is now pushing could be taken up. However, no consultation has been held on those proposals. What is more, the judiciary also advanced their proposals on the basis that, in principle, legal aid should be available for appeals before the first-tier tribunal. However, the Bill removes legal aid in such non-asylum appeals. Finally, the proposals were advanced on the basis that legal aid should not generally be excluded, but instead be available where a positive decision was made in favour of granting legal aid in any individual case—for example, because the judge decided that it had merit. However, the Bill removes legal aid for such immigration cases, regardless of the merit of any individual case. All in all, this is a sorry state of affairs.

The Government seek to justify the new exclusions for judicial review in immigration cases by stating that public funding is not merited in cases that have

“already had…one full oral hearing,”

yet the provisions exclude legal aid even where there has been no oral hearing. The Government have effectively reversed their position that holding the state to account was of especial importance—hence the need to retain legal aid for judicial review. As a consequence, legal aid will not be available to hold the state to account at any stage, because immigration applications and appeals are also being removed from the scope of legal aid—a Catch-22 situation, or perhaps “Kafkaesque” would be a better description.

To remind ourselves, the changes will affect cases involving non-asylum claimants who face removal from the UK, and therefore from their families, homes and communities. Such claimants include trafficking victims receiving rehabilitative care and treatment; British children and spouses facing permanent separation from their parents or partners; children who have lived in the UK for many years—sometimes all their lives—facing removal to countries that they have never seen and do not know, and where they do not speak the language; adults who have lived in the UK for many years, and sometimes decades, facing removal to countries that they do not know; and victims of torture and other trauma who are no longer at risk of persecution in their home countries, but who are reliant on professional care and treatment.

The position now advanced by the Government is not supported by their stated principles or by the position advanced by the senior judiciary, and would leave a powerful agency of the state—the UK Border Agency—free from effective judicial oversight when exercising powers to remove people from their families, homes and communities, including where doing so will harm their welfare, health or life prospects. For those reasons, sub-paragraphs (5), (6) and (7) of paragraph 17 of schedule 1 have no place in any legislation with any regard for human rights or humanitarian issues.

[Caroline Lucas]

I rise to speak to my amendments 23 and 113. I shall be brief, because we have much business to get through, but let me say at the outset that I support Labour’s amendment 74. However, I still want to speak to my amendment 23, because I am yet to hear anything from the Government to explain why there is such resistance to ensuring that the definition of “domestic violence” set out in the Bill reflects the working definition currently used across Departments, including the Home Office and the Ministry of Justice, and by the UK Border Agency.

In a debate earlier this month, the Minister for Equalities assured me that the Government had

“not sought to change the accepted definition of domestic violence. We are including all forms of domestic violence, physical and mental, in legal aid criteria.”—[Official Report, 12 October 2011; Vol. 533, c. 136WH.]

That commitment is incredibly important to thousands of women in my constituency who have experienced physical and emotional violence, as well as those who have suffered sexual violence, and to all women across the country who desperately need legal aid to try to protect themselves from domestic violence. However, I fail to understand why, having made that commitment, the Government are using a definition of abuse in the Bill that departs from the current, widely accepted definition. My fear—and that of many campaigners working on the issue, including the women’s institute, Rights of Women and Gingerbread—is that using a different definition will weaken protection for women and result in legal aid being unjustly denied in some domestic violence cases.

In the debate on 12 October, the Minister for Equalities pledged to continue to support the robust cross-departmental approach to tackling violence against women and girls—a position also detailed in the Government’s strategy, published last year. However, surely having the same definition of “domestic violence” in use in all relevant legislation and across all Departments is the cornerstone of a joined-up approach. Problems can arise for women if a robust cross-departmental definition is not adopted. For example, in the case of Yemshaw v. London borough of Hounslow, the local authority refused to recognise Ms Yemshaw as homeless as a result of domestic violence, because, although she had been subject to emotional, psychological and financial abuse by her husband, she had not experienced physical abuse. Not until the case reached the Supreme Court was Ms Yemshaw recognised to have experienced domestic violence and thus deemed to be eligible for housing assistance. I appreciate that the definition in the Bill addresses mental abuse, but the key point is consistency. Responding effectively to domestic violence relies on clarity, uniformity and consistency. There is a perfectly good definition already in widespread use, so let us include it in the Bill. If not, may we please have a much more rigorous response from the Government about why not?

Let me say a few words about amendment 113, the purpose of which is comprehensively to preserve legal aid in immigration cases for a person subject to domestic violence. It is also designed to highlight the inadequacy of Government amendment 59, which fails to provide legal aid for a specific group of individuals, namely those subjected to domestic abuse whose immigration status is dependent on their partner, where they have not been granted limited leave to remain for a probationary period at the end of which they may apply for indefinite leave to remain.

In July, the Minister undertook to bring forward a Government amendment that would bring immigration cases involving domestic violence within the scope of clause 10. Of course that is welcome, as was the Minister’s undertaking to consider the first part of my amendment 113, which he made when he got up to speak quite some time ago. What I would love to know from him is exactly when and how he is going to consider it. We are now in the last few days of debate on this really important Bill. At this stage, for Ministers to say that they are going to consider provisions in some unspecified way is simply not sufficiently reassuring.