Legal Aid Reform

David Lammy Excerpts

Thursday 27th June 2013 Commons Chamber

[Mr David Lammy (Tottenham) (Lab)]

I am very grateful, Madam Deputy Speaker. I seek your forgiveness for being on the move, but I was consulting colleagues about whether, given the importance of this debate, a vote of this House might be required, and whether I could invite colleagues to join me in the No Lobby after this debate. That would, of course, require Tellers.

Why is this so important? It is important because the Secretary of State has caricatured this debate as being solely about producers and suppliers of legal services. He has sought to suggest that it is about fat-cat lawyers and their fees. He also sought to suggest that this follows in a long line of reform to legal aid over the last 10 years and that ultimately it is about saving £220 million of taxpayers’ money. I think it is hugely important that Members are able to assert that that is not the case.

These are profound changes that would completely unsettle our constitutional arrangement, which begins with Magna Carta, where it was said we should not sell justice, deny justice or delay justice to anyone. When this House last met to discuss issues of such importance, the subject was the suspension of habeas corpus. On that occasion, the House met for three days, there was huge debate, we sat through the night, and then the House was able to vote. It is a travesty that the Secretary of State is not present, and that the Government seek to make such a profound change in our country by secondary legislation. That is why I urge Members to follow me into the No Lobby after the conclusion of this general debate.

[John Hemming (Birmingham, Yardley) (LD)]

Does the right hon. Gentleman agree that the removal of people’s choice of advocate is a very profound change?

[Mr Lammy]

It is absolutely the case that in our system the choice of lawyer is fundamental and essential. In fact every democratic country we can think of enables that choice. That this Government should seek now to say that someone facing criminal charges cannot choose, and therefore have confidence in, the person to be charged with preserving their liberty is a huge exception to the democratic system we have sought to preserve for so long. Of course it will lead to huge miscarriages of justice.

[Mr Henry Bellingham (North West Norfolk) (Con)]

I am very grateful to the right hon. Gentleman for giving way and I hope he gets extra time for taking a second intervention. I hear what he has to say, but does he agree that whoever was in power at the moment, having to make difficult choices, would almost certainly have to look at what is one of the most generous legal aid systems in the world and make savings to that budget? Does he agree that the problem is not so much the principle of the savings but how this is being done and the fact that there needs to be consultation on a number of specific points that, to be fair, the Government have agreed to reconsider?

[Mr Lammy]

The hon. Gentleman is right. It is totally unacceptable that the Government have sought to rush this measure through after a speedy consultation that lasted less than two months. It is wrong that there should not be a vote in the House and it is wrong to caricature previous changes to legal aid as having any relationship with these changes. When I was legal aid Minister, changes were made to scope in personal injury in an attempt to take out those who were caught up in speeding or traffic cases in the legal aid system. We introduced fixed fees to maintain costs. We introduced online and phone systems for free legal advice to limit costs. Those were the sorts of changes we introduced; we did not attempt to charge and make an attack on judicial review.

Judicial review is so important. Most people in this country feel that public authorities are benign until they have a disabled child, or one with special needs, and seek to challenge the local authority or the school, until they have an elderly relative in a care home and abuse goes on in that care home, or until they live in the path of High Speed 2 or Crossrail. There are people in this country who would seek to use judicial review and it is a travesty that this Government would run a coach and horses through it for £6 million.

The hon. Member for North West Norfolk (Mr Bellingham) mentioned savings and savings can be made in other ways. Tagging a defendant costs £13.41 in Britain, but £1.22 in America. Let us find the savings through cheaper procurement. Let us find the savings in the court system. Let us not rip up a democratic, constitutional system that we have had for so many years and that has served us well.

We have heard that the parents of Jean Charles de Menezes would not have received legal aid under the changes being made to the residence system. In fact, after these changes, babies in our care system aged under one would not get legal aid, even though children sometimes need access to it. There are many headlines at the moment about Jimmy Mubenga, a young man who lost his life in a deportation case. His family would not get legal aid. Is that really the kind of country we want to live in? Is that what we want to arm our Foreign Secretaries with when they are trying to speak powerfully to foreign Governments who seek to oppress their citizens? It cannot be, so I ask the Department to think again about the decision and to think very hard about the changes it is attempting to railroad through Parliament.

Those are the reasons it is important that we have the opportunity to vote. It is deeply concerning that it has taken senior Back Benchers going to the Backbench Business Committee to bring this discussion to the House in the first place. I cannot think of an occasion in the past few years when that has happened on such a major issue. I ask the Secretary of State to be mindful of the petition signed by thousands of people because they, too, are concerned about the situation.

The caricature that implies that those who are caught up in the criminal system are thick and therefore do not need a choice of lawyer is a disgrace coming from a Secretary of State for Justice. For legal aid lawyers to be caricatured as fat cats when their average salary is less than that of nurses and teachers in this country and when we are talking about high street firms in Bristol, Swindon and Brixton—places as different as that—is unacceptable. This is not about the producer, but about the citizen and the consumer. It is about hard-fought battles that have taken place in this Chamber over many years. I ask the Government and hon. Members to join me in the No Lobby after the debate.

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[Robert Neill]

It seems to me that the Secretary of State has adopted a careful and measured approach. What the hon. Lady says is thoroughly misleading. I am sorry to say that she does herself no service by making such a thoroughly meretricious point.

This matter has been the subject of great public debate. I have referred to the former Lord Chancellor’s speech in 2009, in which he made specific proposals, including bringing in fixed fees and graduated fees as a precursor to best value tendering. He may not have delivered on those proposals, but the ideas have been out there for a long time.

The Lord Chancellor has met the chairman of the Bar Council and the president of the Law Society. It is right and wise that he chooses temperate interlocutors. He has been most willing to engage with Members of this House who are interested in legal matters. The hon. Lady therefore does herself a disservice to characterise the process as rushed.

[Mr Lammy]

The hon. Gentleman is doing a fair job of coming to the defence of the Government, but does he really believe, as a member of the criminal Bar, that it is right to withdraw choice from defendants? That is the fundamental question.

[Robert Neill]

The right hon. Gentleman had no difficulty serving in the Government of Tony Blair, who observed in 2003 that it was time

“to derail the gravy train of legal aid”.

He might like to think about his own background before he criticises anybody on the Government side of the Chamber.

Of course choice is important, but if we are to have a sensible and intelligent approach to choice, we must recognise that when choice is funded by the taxpayer, it should not come with a completely blank chequebook. It is legitimate to look at the way in which choice is delivered. We should link to the question of choice the important commitment to a proper quality standard. I hope that the Bar Council and the Law Society will work with the Ministry of Justice to develop a quality standard to ensure that the lawyers who come forward under this scheme are not just acceptable, but really good and able.

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[Mr Davis]

If the hon. Lady will forgive, I am very tight on time. I will give way if I can a little later.

That does not tell the whole story, however. Time and again, we see trials delayed and extended by CPS incompetence. In my part of the world alone, the newspapers are littered with cases of lawyers not turning up, evidence not being presented and cases being adjourned again and again. I suspect we all have constituency cases just like that. This happens right across the country. We should not pretend that the legal aid system is a model of efficiency, but when it comes to finding savings and better, effective justice across the whole system, we should look first at the CPS itself before we let the axe fall again on legal aid.

I am yet to be convinced—this addresses the point made by my hon. Friend the Member for Esher and Walton (Mr Raab)—by Government assurances that the quality of legal aid providers will be guaranteed by a state body. This debate comes barely a week after the Care Quality Commission scandal. That demonstrates how difficult it is to guarantee the quality of complex intellectual services, which, of course, justice is. We should notice that even where the state has direct control—namely, the CPS and the Serious Fraud Office—it cannot guarantee quality there either. A judge in a recent murder case described the CPS lawyer as “completely inadequate”. The judge said that the lawyer cited old law, did not understand the current law, fell out with the prosecution team, and then simply did not show up on the following Monday. As a result, the trial had to be held six months later. If we cannot guarantee our own system and our own service, how are we going to guarantee 400 private operators around the country?

[Mr Lammy]

Does the right hon. Gentleman also recognise a Conservative idea that competition can drive down costs?

[Mr Davis]

The right hon. Gentleman is almost taking the words out of my mouth. I cannot believe that a Conservative Government are going to mandate how many companies and providers there should be. I know of no example in the world where a Government mandated the number of companies and then improved the efficiency of provision—not one. This is a Soviet proposal that I do not want to see. I do not mind if there are better ways of finding efficiency—as has been said, that is what we must find—but please do not lay down laws like that.

I wish briefly to discuss a couple of other troubling issues in the consultation document, the first of which is the 12-month residency test. That could deny justice to people who have suffered because of the actions of the UK Government—under UK jurisdiction—which we are responsible for resolving. Just to mention cases in which I have been directly involved, I can cite those of Binyam Mohamed, Serdar Mohamed, Yunus Rahmatullah, who is still in Bagram prison, and Baha Mousa. We are talking about: people who were subject to torture in which Britain was complicit; an innocent man beaten to death by British soldiers; people who have been rendered—and still are—to other countries; people who have been handed over to our allies—[Interruption.] From a sedentary position, my hon. Friend the Member for Esher and Walton mentions de Menezes, who was shot, although accidentally, by the British Government. All those people would be denied their justice. More important, given that in many of those cases the person is deceased, the British people would not know about the misdemeanours of their own Government.

That brings me to my final point, which is about judicial review. I sympathise with Ministers who find it irksome that we have so many judicial reviews, but the Government are in danger of getting themselves a reputation for wanting to act above the law. Irksome as it is, judicial reviews are what keeps British Governments honest—it does not matter of which party or of which origin, they keep the Government honest. I say to the Government that before they strike down these things at their own convenience, they should think again, come back more slowly and present this House with some primary legislation we can then be proud of.

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

May I first of all declare an interest? For many years, I practised family and criminal law, both as a solicitor and barrister, and many of the cases were legally aided.

The effects of these reforms will be extremely detrimental to solicitors and their practices. Inevitably we will have advice deserts and this will impinge even more on the situation in Wales, where there is a requirement to provide services through the medium of Welsh. The Justice Secretary, sadly absent, has admitted that the Ministry only considered this factor a month into its consultation and his impact assessment does not even mention the Welsh language.

The consultation process in general so far has been nothing short of a sham allowing professionals only six weeks to get up to speed with proposals that will fragment the professional world they inhabit. To add insult to injury, the Government intend to introduce these reforms by secondary legislation without proper scrutiny by Parliament. This is scandalous. Unless these plans are stopped now and quickly, there will be no turning back.

[Mr Lammy]

I was in Wales at the weekend and was struck by the major rurality issues in that part of the UK. Is the right hon. Gentleman concerned that the loss of high street lawyers in rural areas could damage access to justice?

[Mr Llwyd]

Undoubtedly so and, as one who used to practise in a small town, I speak with a little authority. The right hon. Gentleman is absolutely right.

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[Jane Ellison (Battersea) (Con)]

Before I make some brief remarks on behalf of the many members of the legal profession and the general public who have approached me, may I say a word to the House on behalf of the Backbench Business Committee? The Committee granted this debate to the hon. Member for Brent Central (Sarah Teather) and the right hon. Member for Tottenham (Mr Lammy) as a general debate with no Division to allow for a wide-ranging and frank discussion, which I think all Members would agree the House is having. We are also extremely mindful of the fact that the debate is over-subscribed and the House needs to give more time to this subject. Does the right hon. Gentleman want to intervene on me at that point to say anything?

[Mr Lammy]

The hon. Lady is a member of the Backbench Business Committee, and I wonder whether she is saying more time could be made available for us to return to this topic and have a vote. I am also mindful that the shadow Secretary of State has not yet spoken, however, and that I may not need to press this debate to a Division.

[Jane Ellison]

I hope it is possible not to do so, for the reason I have just explained. There is also a short, but important, debate to follow.

--- Later in debate ---

[Jeremy Wright]

I note that the right hon. Gentleman did not take the opportunity to share where he was the last two times, but I suggest that we might want to move on.

This is an important debate, as hon. Members from all parts of the House have said. Before I try to respond to a number of the specific points made—the House will understand that the time constraints we face mean that I will not be able to respond to everything, and I apologise for that in advance—let me say something about the context of these reforms.

It is right to say that the previous round of legal aid reforms, culminating in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, will have already removed about £320 million from the legal aid budget by 2014-15, but those proposals were primarily focused on civil legal aid scope and eligibility. Alongside those changes, we have made sweeping reforms to the central administration of the legal aid system. We have strengthened accountability and introduced a more rigorous approach to financial management by creating the Legal Aid Agency. But the successful delivery of that programme has not eliminated the need for reform. In order to meet the ongoing financial challenges facing the justice system, which many who have spoken have recognised, the Government have had to look again at the cost of civil legal aid, as well as turning their attention to arguably the most difficult part of the legal aid reform agenda: the reform of criminal legal aid.

[Mr Lammy]

The saving the Government would make by looking at civil legal aid is £6 million in relation to judicial review. Does that really make it necessary to run a coach and horses through judicial review?

[Jeremy Wright]

The position is, as I have just said, that the bulk of the work done under the 2012 Act dealt with civil legal aid and the bulk of the work being done under these proposals will deal with criminal legal aid. The total value of the savings that these reforms would make if fully implemented as currently proposed would be £220 million by 2018-19. That is a significant figure, given our financial circumstances.

Many hon. Members have questioned the need for further reform, while others have said we should go much further. My hon. Friend the Member for Huntingdon (Mr Djanogly) made an interesting speech about more radical options we could pursue. The answer is simple: criminal legal aid accounts for £1 billion of the overall legal aid budget, and in the current financial climate, the Government, being committed to eradicating the deficit and the national debt, cannot overlook such a sizeable portion of Government spending. We have had to make extremely tough choices in other areas, and it would not be right to exclude this one.

Many hon. Members have said that we should look for savings in other areas of the criminal justice system. My hon. Friend the Member for Meon Valley (George Hollingbery) made that point, as did my hon. Friend the Member for Dewsbury (Simon Reevell), my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), my hon. Friend the Member for Waveney (Peter Aldous) and the hon. Members for Hackney South and Shoreditch (Meg Hillier) and for Leeds North West (Greg Mulholland). All of them were right about the importance of looking at other areas. I think we heard some good suggestions today, and of course the Government will look in all those areas for savings, too, but that does not get us away from the need to keep the legal aid budget under proper scrutiny.

The package of proposals on which we have consulted is intended to ensure that our legal aid system commands the confidence of the public—that is important—and remains financially viable both now and in the years ahead. We are looking carefully at the 16,000 responses to the consultation, and, with reference to what my hon. Friend the Member for Brent Central said, I can reassure the House that I and my ministerial colleagues will treat everything said in this debate as important contributions to that process. We will listen carefully to what has been said today as well as to what was said in the consultation.

We are duty bound to ensure, however, that taxpayers’ money is spent only where it is justified and only on those who genuinely need the state’s assistance. The taxpayers, who fund the legal aid scheme, have every right to demand that their money be well spent and to ask important questions. They have a right to ask why the taxpayer should be paying the legal costs of the very wealthiest Crown court defendants up front; why the taxpayer should be paying for criminal legal aid for claims made by prisoners that can be better resolved by other means—I will return in a moment to prisoner law— and why the taxpayer should pay the legal costs of those with no strong connection to the UK.

As others have said, our legal aid budget is disproportionately high. My hon. Friend the Member for Bromley and Chislehurst (Robert Neill) made that point very effectively. We have an extremely good legal system—it is greatly admired and, as others have said, it contributes significantly to our society—but that does not mean that it should be immune to the realities that the Government face. Efficiencies have to be made, and reform is the mechanism for achieving them.

[Mr Lammy]

No one is suggesting that there should not be reform. Has the Minister considered the fact that 45% of criminal legal aid goes on high-cost cases, many involving bank fraud? Why does he not ask the banking industry to come up with an insurance scheme and take that out, rather than dismantling the whole system?

[Jeremy Wright]

The right hon. Gentleman is right that very high-cost criminal cases are an important area for us to focus on, and we propose to take about 30% of the cost of those cases out of the system, but he would be wrong to assume that those cases, on their own, could achieve the savings we need to make. We need to look more broadly.

I want to turn to the particular proposals and concerns that hon. Members have concentrated on. Many Members have focused on the effect of the proposals on smaller firms and on the issue of price competitive tendering. In 2011, we said that competitive tendering would likely be the best way to ensure long-term sustainability and value for money in the legal aid market. Some Members were concerned that this was a new idea suddenly springing into the political landscape, but of course that is not the case. Indeed, the right hon. Member for Tooting (Sadiq Khan)was gracious enough to point out that the idea was first considered under his Government. In March 2010, the last Government produced a Green Paper entitled, “Restructuring the Delivery of Criminal Defence Services”. Among other things, it said:

“Currently the criminal defence service is highly fragmented, with a large number of small suppliers and relatively few large suppliers….We believe that these market trends are not sustainable. Therefore we believe a future tendering process would ensure a more consolidated market, with a smaller number of more efficient suppliers, required to undertake the full range of the services we need.”

That is what the Labour party thought in 2010, and lest we should run away with the thought that it has changed its view since then, let me quote from what I am sure is a very well-read blog written in October 2011 by the right hon. Member for Tooting. He said—as, to be fair, he also said today—that:

“I recognise that cuts need to be made…I would have carried through a new scheme for contracting of solicitors for criminal legal aid and lowered criminal defence advocate fees in the Crown Court…This more efficient contracting of legal services from solicitors has bizarrely not been implemented by the coalition government”.

So he criticises us for not doing it, then he comes here and criticises us for proposing to do it.

Another point that has been made repeatedly today is the effect that the proposals could have on smaller firms. I need to make it clear that the proposed competition model would see the number of contracts, not the number of firms, reduced from 1,600 to 400. Our proposals do not prescribe how many lawyers should be available or how those that have the contracts should divide up the work allocated to them.

The matter of client choice has also been raised by many hon. Members today. We have listened carefully to the concerns that have been raised not only in the debate but by those who responded to the consultation. Let me reassure the House that quality-assured duty solicitors and lawyers will still be available, just as they are now. The Legal Aid Agency will need to ensure, as part of the tendering process, that all providers are capable of delivering the full range of criminal legal aid services across their procurement areas. That is also true in relation to the points raised about rural sparsity and about the Welsh language.

We have a number of things to consider, and we will consider them carefully. We will come back with our conclusions in the autumn. I am grateful that the debate has taken place today and for all the contributions that have been made. We will consider them properly and respond accordingly in the autumn.