Ministry of Justice: Legal Aid Spending

David Lammy Excerpts

Thursday 22nd October 2020 Westminster Hall

[Mr David Lammy (Tottenham) (Lab)]

It is a pleasure to speak under your chairmanship, Ms McDonagh. I congratulate the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), on securing the debate, and I associate myself with the remarks of my hon. Friends the Members for Westminster North (Ms Buck), for Hammersmith (Andy Slaughter) and for Enfield, Southgate (Bambos Charalambous), and those of the hon. Member for Newbury (Laura Farris), in particular, to whom I am very grateful. I declare an interest as an associate tenant at Doughty Street Chambers, which uses legal aid.

The right to a fair hearing is a human right guaranteed by the Human Rights Act 1998 under article 6. Just like the right to no punishment without law, the right to freedom of expression and the right to participate in free elections, it is a fundamental part of our democracy. A legal verdict is not fair if one side is able to pay a team of expensive lawyers to fight on their behalf while the other is left to make their case on their own. That is why paragraph 3(c) of article 6 states that if a party

“has not sufficient means to pay for legal assistance”,

they should get

“it free when the interests of justice”

require it, and they do require it. In this country we have legal aid, which gives assistance to people who are unable to afford representation.

Too often, legal aid is not given to those who deserve it. Consider the case of Zane Gbangbola. On the evening of 7 February 2014, seven-year-old Zane and his mother and father went to bed in their Surrey home. Due to circumstances that remain unexplained, Zane tragically died in his sleep and his father was left paralysed for life. The 2016 inquest into Zane’s death found that he died as a result of carbon monoxide poisoning caused by the use of the petrol pump used to remove water from their flooded home. However, numerous doubts have been expressed regarding the verdict reached by the coroner from both sides of the political spectrum, including the local Conservative council.

Over the course of the past seven years, Zane’s mother and father, Kye and Nicole Lawler, have fought tirelessly for answers to what caused his death. One of the reasons justice does not appear to have been reached in this case is that Zane’s family were denied legal aid after the case was deemed not to be in the public interest. It is completely unjust that the family, at the time of their greatest need, were left to present their case with just one crowdfunded lawyer against a team of six QCs. Extraordinarily, the coroner was also given his own legal team. Of all those present at the inquest, Zane’s parents were the only ones not to have a barrister in some way funded by the public purse.

Access to the justice system and the ability to enforce our rights should be open to every person, regardless of their wealth, social class or background. Legal aid has long provided this for many of us, and for many of the most vulnerable people in society at their most vulnerable moments, but legal aid spending and access to justice has reduced significantly since the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. A review of the Act published in February 2019 moved in the right direction, but there is still so much more to do.

Two years since the post-implementation review, recommendations on early advice, legal aid, means tests and support for litigants have not been implemented in full. The impact of LASPO, combined with the 8.7% cut to criminal legal aid providers in 2014, as well as inflation and small profit margins, have resulted in the contraction of the market for both criminal and civil legal aid.

The criminal legal aid review is designed to look at the sustainability of the profession, but we do not have time to wait for action. The report is not likely to be published until 2022. By then it will be too late to save money, or to save many firms that are going out of business. Already in June 2020 there were 124 fewer criminal legal aid firms than the 1,271 there were in 2019, a drop of almost 10% in the past year and far fewer than the 1,861 firms that existed in 2010. How many more firms are the Government prepared to lose? Without urgent steps there is a genuine risk of the system collapsing on itself.

Between 2010 and 2016, net spending on legal aid fell by an eye-watering 38% in real terms, from £2.6 billion to £1.6 billion. It has since increased slightly, to £1.7 billion, out of the Ministry of Justice total budget of just more than £10 billion. As the Chair of the Select Committee put it, it is just a fraction of a fraction.

To put that £1.7 billion into perspective, last night Serco CEO Rupert Soames revealed to UK taxpayers that his outsourcing company had £1.2 billion per year of Government funding. That is even before its failed £12 billion experiment with track and trace. Labour has repeatedly called for access to legal aid to be a priority for this Government, especially during a time when people are so vulnerable.

As a result of LASPO, large areas of civil legal aid are deemed out of scope. This leaves thousands of people each year without the representation they need. When legal aid was first introduced by Clement Attlee’s Government after the second world war, around 80% of people were eligible for it. By the 1990s, that figure had dropped to 45%. Today it is a miserly 20%.

In 2020, most housing, employment and family disputes do not get legal aid. This causes real injustice. In 92% of domestic violence cases in the family courts in 2019, one or more parties was left without legal representation. But it is not just for adversarial cases that we need legal aid. It is a crying scandal that those who were deported and detained as a result of the Windrush scandal could not access legal aid.

At a time when the court backlog is approaching 50,000, we cannot expect legal aid practitioners to weather the coronavirus storm with warm words alone. Even before the pandemic, there was a 45% reduction in prosecutions over the past decade, but since the crisis began, many areas of legal aid work have been nearly cut in half. There has been a 41% decrease in police station attendances, a 45% decrease in applications received for representation in the Crown courts, and a 42% decrease in applications received and representations made in the magistrates court.

When asked what support this Government would offer to keep the professions functioning, the Minister responsible pointed to unbilled work. He stated that legal aid providers were sitting on hundreds of millions of pounds for unbilled work, interim payments and hardship payments. This, he explained, was why legal aid providers were being hung out to dry. Legal aid providers were essentially told to pull themselves up by their bootstraps in the worst crisis since the second world war. The implication behind that was that they were not working hard enough to claim unbilled work.

Even if we accepted the dodgy maths, is the total that the Minister pointed to enough to keep a vital part of our democracy functioning? The Minister’s statement was made back in May, when the Government pretended that they had a grip on the crisis. Now we know that the crisis will go on right through 2021, what will happen when the unbilled payments are billed? Will the Government finally rethink? The breaking point is likely to arrive early in 2021, especially when the volume of completions in the Crown court remains so low. The legal aid profession has received little support, if any, during the covid-19 crisis, and that must change.

Much of this debate has been financial. It is about CLAR 2—the second criminal legal aid review—LASPO, court backlogs, funding cuts and legal aid, but if we zoom out of the detail, this is a debate about the type of society that we want to build. There are two paths we can go down. The first is to continue on the route that the Government have set, letting legal aid collapse and allowing advice deserts to grow. A new legal wild west would result, and how someone does in legal disputes will depend not on their right to a fair trial but on how deep their pockets are compared with the person against them. The vast majority of the public will be unable to pay for representation in any serious legal matter. The wealthy 1% will be able to bully and buy their way to the verdict that they desire. That is a vision not of a democracy but a plutocracy—a society controlled by people of great wealth or income. It is a step back to pre-enlightenment, a period we should have long left behind.

However, there is room for hope. The second option is to give legal aid the support it needs, restoring it to where it was as a public service back in 2010. By doing so, we can build a better society at the heart of a real democracy founded on justice, fairness, equality and opportunity for all. I know that is a society worth fighting for.