Legal Aid Reform

Dominic Raab Excerpts

Thursday 27th June 2013 Commons Chamber

[Sarah Teather]

I think the hon. Gentleman is absolutely right. Those in what was originally a category of people needing legal aid will still have problems after being denied it, and will arrive at all our surgeries seeking our help with problems that still exist and are still insurmountable.

[Mr Dominic Raab (Esher and Walton) (Con)]

I thank the hon. Lady for giving way; she is being very generous. Does she know whether the family of Jean Charles de Menezes would have qualified for legal aid under the new residence test? That is a very esoteric but important category which ought to be protected.

[Sarah Teather]

I understand that the family of Jean Charles de Menezes would not have qualified under the new test. As the hon. Gentleman says, that was an incredibly important case which had huge implications for policing policy, and it is for precisely that reason that we need to be careful about identifying categories of this kind.

A number of Members have said that the changes will not save money. That, I think, is the point. The Government are apparently not seeking to save money with the changes in the residence test; they say that their purpose is to shore up public confidence in the legal aid system. However, I do not think that the public will continue to have confidence in a system that denies access in certain cases, including the one that was referred to by the hon. Gentleman.

Particularly unjust, in my view, is the position of those who, having gained refugee status, will be forced to wait 12 months before becoming eligible for legal aid. I think it extremely unlikely that we would be complying with article 16 of the Geneva convention if we proceeded with that proposal. Many of the people involved are very vulnerable, and there is frequently a gap in communication between the Home Office and those who should be seeking care for them in the form of housing or benefits. Many would face a period of homelessness if lawyers did not intervene to ensure that local authorities do their duty.

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[Ian Swales]

I agree with my hon. Friend. I repeat: private companies will seek to maximise their profits. I advise anyone who doubts that to check the financial incentives in the GP out-of-hours contracts and then look at what has happened to the number of people attending hospital accident and emergency centres.

I will now deal with contracting. This time last week, I was in Westminster Hall discussing the court translation services debacle—a true horror story. The response from the Under-Secretary of State for Justice, the hon. Member for Maidstone and The Weald (Mrs Grant), showed breathtaking complacency about the overall effect on and cost to the courts system. She even seemed to be content with a present failure rate that is five times greater than the one contracted for. In addition, as has been noted, early results coming in on the new civil legal aid arrangements show more court cases, not fewer, and many cases doubling in length owing to inadequate representation. Again, I ask whether the Ministry is counting the full costs.

The most lucrative business in this country now seems to be winning Government bidding rounds, then—ideally—selling the contract for a quick profit, as we saw with the court translation service, or taking fat fees and getting other people to do the work, as we see in the Work programme.

[Mr Raab]

Will the hon. Gentleman give way?

[Ian Swales]

I am running out of time.

The Ministry has touching faith that many groups of lawyers will come together to bid; in fact, it will be largely the same magic circle of outsourcers, who hover like vultures around the award of almost every public contract—with the rumoured addition this time of a supermarket and a haulage company. One company likely to win work, of course, is G4S, with which the Secretary of State will be familiar from his previous job. G4S’s success in winning work in this sector raises the spectre that a person could be arrested, then have G4S legally representing them at the police station; providing the civilian staff processing them there; transporting them to court; representing them there; owning the court in which that person is tried; tagging them if they are on bail; and, if they are found guilty, transporting them to a G4S prison—oh, and it is quite possible that when they are released, G4S will be in charge of their rehabilitation. The potential perverse incentives in that chain are mind-boggling. I urge the Ministry of Justice to ensure that its contract packages meet its stated aims. The Ministry’s record on contracting is appalling. How will it be different this time?

I end with two questions for the Minister. First, if he or a member of his family were arrested, would he be happy with the new arrangements? Secondly, has he heard the right hon. Member for Sutton Coldfield (Mr Mitchell) express delight that he has just found the cheapest lawyer to fight his case against the Metropolitan police? I doubt it. Equal access to justice is a cornerstone of our society. The Minister has a lot to do to convince this House that that remains an objective of his Department and that it is competent to deliver it.

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[George Hollingbery (Meon Valley) (Con)]

As there are only five minutes available to me, I hope hon. Members will understand that my arguments are unlikely to be in any great detail, and I will not take any interventions. I should point out that I am a complete outsider to the issue, having no legal qualifications at all.

I note the contribution of the hon. Member for Redcar (Ian Swales). His tract on the procession of G4S throughout the legal system was particularly persuasive. It is not something that had occurred to me before, but I think it is a cause for real and serious worry.

At the heart of the Government’s proposals lies the question of what is the best method of delivering savings without threatening the quality of justice dispensed. That is the question that exercises us today. Oral evidence given to the Justice Committee on 11 June made plain very real concerns from the legal profession about the proposals. Quality was high among those concerns for completely understandable reasons, but it must be a little worrying that some of the organisations representing the profession are refusing to engage with the process of designing the quality thresholds with which the contracts will be let. I understand their concerns and I understand that these are fundamentals changes being mooted, but I hope that at some stage those organisations will reconsider their position. It seems to me that it is not incompatible to be implacably opposed to the changes, but still to co-operate with the design. Surely to do so ensures that, should the argument be lost, the system will be as good as it can possibly be.

The Justice Committee’s session also threw up evidence from the profession that there were other areas where it felt that savings could be made, and should be made, first. Principal among these were the court system, and persuasive evidence was given that there are huge costs within the court system driven by other agencies and factors outwith the control of those providing legal representation. I have some sympathy with the argument that says that to reform the cost of representation without dealing with those factors misidentifies at least some of the source of the expense incurred.

Michael Turner, the Chairman of the Criminal Bar, gave in his evidence three compelling examples of how fees can escalate owing to factors wholly outside the control of those representing defendants. Although I can see that the pressing need to make savings and the time scale that might be involved in reforming the court system create difficulty for the Minister, I would like to hear from him about any plans that are in hand to deal with these issues.

The witnesses also made clear their concern that with some 13,000 responses to the public consultation, a response date of early September to an exercise that ended in June seems, shall we say, ambitious. Finally, although those who appeared before the Justice Committee seemed reluctant to explain alternative proposals that might meet the available budgets, I have to assume that such have been made and hope very much that the Minister can confirm that they will receive careful consideration, if indeed they have been received.

[Mr Raab]

Will my hon. Friend give way on that point?

[George Hollingbery]

Just once.

[Mr Raab]

My hon. Friend is very generous, in his own sober and stoic way.

Among the various alternatives that have been put forward, I have received a number of concrete suggestions about tighter court management of delays caused by the Crown Prosecution Service, and the idea of higher fees in commercial cases. Does my hon. Friend agree that such additional aspects ought to be considered by the Government?

[George Hollingbery]

Indeed. I thank my hon. Friend for his intervention. It was exactly such issues that Michael Turner brought up in his evidence and it seems that there are genuine savings to be made there, as well as costs incurred by those representing, which cannot be controlled by them. That is a very important point.

In the interests of timeliness, I shall move purely to the representations that have been made to me by my constituents. I have received 40 letters from constituents on legal aid and there are one or two specific, rather than general, issues that I would like to draw to the Minister’s attention. The first is about representation, which has been brought up in the Chamber today.

I met Robert Ashworth of Saulet Ashworth LLP in Portsmouth and although he did not agree with the Government’s changes, the point he made to me that people should be able to choose their representation seemed to be a good one for the following reasons. He believes there are considerable hidden cost savings in certain types of, shall we say regular, clients in having a trusted solicitor whose recommendations will be accepted without debate. A case in point would be a recommendation, after due thought by the solicitor and the representative, to offer a guilty verdict. If accepted, this can clearly lead to a large saving across many budgets. He believes, and I accept the core of his argument, that such savings might be lost to the system under the new arrangements. I know that he submitted his views to the Government during the consultation. I hope that the Minister will acknowledge that there is an issue to be considered.

The second issue that has been raised with me relates to rural sparsity. One of the concerns that has emerged from the consultation is that rural areas might be disadvantaged as a result of the proposals. In Derbyshire, Cumbria, Wales, parts of Norfolk, and indeed many other parts of the country, it is very likely that the contracts awarded will cluster in or around a small number of larger towns. In my own backyard, the Isle of Wight is a plain example, as my hon. Friend the Member for Isle of Wight (Mr Turner) has pointed out. That might limit access to justice, given the geographic scale of some of those areas. Once again, I hope that the Minister will offer some indication that that factor has been recognised.

Reform of the legal aid budget is tough. Its sheer scope and size mean that it just is not possible that it can escape savings. The industry itself might come forward with a comprehensive and deliverable package of change that recognises that reducing budgets is unavoidable and timeliness is essential. If it does, I hope and expect that the Minister will give the proposals due consideration. However, although I recognise that the Government’s proposals will lead to considerable change in the industry, they currently appear, at least to an outsider, to be the only game in town. I believe that, if handled correctly, they can be the right way forward, although, crucially, they must protect the quality of outcomes at the same time as saving money.

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[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.

[Mr Raab]

Will my hon. Friend give way?

[Robert Neill]

I have given way twice, so my time is running out. I am sure that my hon. Friend will forgive me.

There might be different means by which the same objective can be achieved. It might be possible to have some form of panel system. It might be possible to have a different approach to police station work, where there is a strong argument for saying that firms need a guaranteed volume of work to make the business case sustainable, as opposed to the preparation of litigation and the ongoing court work in both the magistrates court and the Crown court. It is not unreasonable to say that choice has to be provided in the context of affordability. We must not be afraid to say that.

We must recognise that the number of people seeking work at the Bar and in the solicitors’ profession has grown greatly, frankly to an unsustainable level. The profession has to recognise that too many people are chasing a diminishing work load. The number of cases that go to court has reduced by broadly a third since I came to the Bar, whereas the independent Bar and the solicitors’ profession have become about three times as large. Something has to give. Let us sit down sensibly and find ways in which that can be achieved.

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[Mr David Davis (Haltemprice and Howden) (Con)]

My name is on this motion not because I do not think we need to control the cost of legal aid—we do—but should it be done in this way and at this speed? I think not. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 is barely complete, and has had no assessment. The consultation was extremely brief and we understand that the Government intend to place contracts in the autumn. Frankly, without primary legislation, the likelihood is that this business will be challenged in the courts. We will have more haste and less speed on the delivery of savings.

I want to deal with some fundamental points. This is not, as has been intimated, about the protection by silver-tongued lawyers of serial offenders: in the Crown courts in contested cases, half are found not guilty. What we are talking about, therefore, is providing justice to the innocent and to victims.

[Mr Raab]

Does my right hon. Friend agree that one of the discrete risks of allowing large firms to swallow up small firms may be a loss of small specialist firms capable of demanding the trust of specific local communities —in particular, practices representing victims such as in the Stephen Lawrence case and others?

[Mr Davis]

My hon. Friend makes a good point that I will return to later. He is exactly right—this is one of the likely unintended consequences of what is being proposed in the consultation.

In their efforts to cut legal costs overall, the Government are overlooking a far bigger cause of waste in the system than legal aid, namely the sheer inefficiency of the Crown Prosecution Service. In 2011-12, more than 123,000 prosecutions failed after charge because either no evidence was presented or the case was eventually dropped. The cost to the service, the courts and aborted defences was measured in tens of millions of pounds, not to mention the stress faced by people who were, presumably, innocent.

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[Steve Brine (Winchester) (Con)]

I wish to make a few short remarks about the “Transforming Legal Aid” consultation, which has sparked such lively debate in this House and across the profession, to put it mildly. I qualify my comments by making the point that I am a member of the Select Committee on Justice, as is the hon. Member for Feltham and Heston (Seema Malhotra), whom I follow. The Committee is conducting a mini-inquiry into these proposals. Representatives of the profession have been before us already, and we will see the Lord Chancellor on Wednesday next week. So I have to say that I do not recognise some of the knockabout from the Opposition about the Lord Chancellor somehow being absent on this one. Members from across this House will be very welcome to come along when he comes before the Committee—we have never been so popular.

Some claims have certainly been made about these proposals in the past few months, one of which was made at the Committee’s first hearing on the subject, on 11 June: that the proposals will spell the end of the independent judiciary in this country, no less. That is quite a claim, but I do not think it is true and I do not think it helps the debate. Concerns certainly exist about the reduction in the number of those at the Bar if these proposals go ahead—future judges are, of course, drawn from these people. That point has not been aired enough in this debate so far, so perhaps the Minister will touch on it and allay the fears. Another point that has been made is that the effect of the proposals will be a fundamental change to the criminal justice system, and that is certainly true.

Many Members still wish to speak in this debate and I know that they will discuss many of these fundamental changes and what they might mean, so I wish to focus on the issue of choice. It has been repeatedly raised with me by constituents, as it has been raised by other hon. Members who have spoken this afternoon. During the consultation, a practising barrister in my constituency sent me what I thought was a useful case study—and one that I hope will show the human side of this point. Under the current system, he explained, a young man with profound mental health problems was again arrested for having a knife in a public place. My constituent, an experienced solicitor, whom the young man knew and trusted, was called. He had the defendant’s previous psychiatric reports on file and even his psychiatrist’s number in his phone. The defendant was questioned by the police and advice was tendered. A number of appearances in the magistrates court led to the case being committed to Crown court, at which point my constituent was instructed, as he had been before, and updated psychiatric reports were obtained.

Following various pre-trial hearings to sort out reports, a two-day trial was held, at the end of which the young man was acquitted and further psychiatric treatment was ordered by the judge. Happily, according to my constituent, the young man is now on the right medication, and has a diagnosis of Asperger’s. He even has a job for a couple of hours a week. My and my constituent’s concern is that under price competitive tendering, the duty solicitor, who almost certainly would not know the defendant, might well advise a guilty plea, with an alien barrister, either in the magistrates court or at first appearance in the Crown court. My constituent tells me that the fee is the same for a guilty plea as it is for a short trial, so what is the incentive to have a trial?

There is a huge potential conflict of interest for the advocate, says my constituent, with the young man possibly being sent to prison, resulting in devastating consequences for him and the state. I think he makes a powerful point. Putting aside the arguments about a reduction in choice in relation to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the European convention provisions on the right to a fair trial, which I understand opponents of the proposals will bring forward, if they are pursued, Ministers must address PCT and the choice issue, so that we do not throw the baby out with the bathwater and lose this fundamental right.

Hon. Members might know that Winchester is the home of the western circuit—or, more precisely, the chambers there have for centuries been the major providers of legal advice and advocacy for the large area they cover. The depth of specialist knowledge available across the circuit is its strength and benefits those whom I and others in the area represent. Many members of the western circuit will recognise the example I just gave and share the concern that many of us have about the future of specialisms.

[Mr Raab]

My hon. Friend is making a powerful speech. The aim of the reforms is to cut the number of firms from 1,600 to 400. On the four to five-year tendering periods, does he share my concern about the countervailing risk that we might see a small number of large firms snuff out the competition, creating a monopoly and leaving no incentive to compete on quality?

[Steve Brine]

I am not sure that that is the aim of the reforms, but it might be one of the consequences. I am concerned that without such competition, at the end of the contract period, a firm would be in an incredibly strong position to say to the Government, “Well, this is what we want to continue”.

PCT is seemingly not that popular, but I wonder whether it has to be the start and end of this conundrum. It might be the future, but perhaps not now and not to this very tight time scale. As we have seen this week, there is no money left. Clearly, savings must be found—we are told £220 million—so what is to be done? My right hon. Friend the Lord Chancellor has rightly said that we have one of the best legal professions in the world, and he is dead right that in a time of major financial challenge, the legal sector cannot be excluded from the Government’s commitment to getting better value for our constituents’ money. I asked the chairman of the Criminal Bar Association at a Select Committee evidence session whether he took at face value the Secretary of State’s assertions that we needed to make significant savings, and the response was this:

“There is at least £100 million that can be saved by plugging the gaps in the system. As we have also pointed out, if he wants real savings to the taxpayer and listens to the proposals that we have put forward, he can have himself £2 billion for a legal aid budget. The real sadness, for us, is that we are just not being listened to.”

I disagree with that. They are being listened to. The very fact that this debate is happening on the Floor of the House is proof of that. I suggest that the Criminal Bar Association, the Bar Council and others get these proposals into my right hon. Friend’s hands and give him some options.

I do not accept that this country faces a choice between well-funded public services that we cannot afford and terrible public services that we can. We need sustainable public services that we can afford in the long term, and that is as true in legal aid as anywhere else. It is true that we have one of the best legal professions in the world—a lot of it resides in my part of the world—and I want to see it live within its means. It is open to reform, but we might need to think, slow down, find initial savings and then reform the system in a way that leads to reliable savings in the long term. I still think that the Government and the profession can jump together on this one, if they slow down and talk. I remain ever the optimist that we can do that.