Legal Aid

Earl of Sandwich Excerpts

Thursday 11th July 2013 Lords Chamber

[The Earl of Sandwich]

My Lords, I congratulate my noble friend on winning the ballot for the Cross-Bench debate and on drawing our attention to this issue. It is a situation that concerns lawyers, of course, but only in relation to a much wider constituency of clients. As a non-lawyer, I have rarely received so much material for a debate, and most of this comes from individuals whom I trust to give a fair picture of what is happening. As the noble and learned Baroness, Lady Scotland, has already said, it has been quite moving to receive briefings and advice from a range of organisations which have a genuine concern for people in need. It is as simple as that. I have the highest regard for the CAB, for example. My sister worked for it voluntarily and I know that its specialists are like personal counsellors. They are often the very last resort for people in great personal distress.

The Minister will know from his previous incarnations that organisations such as BID and ILPA not only have a good track record in their field but they are the only ones that will stand by the most vulnerable groups in society, such as refugees and the homeless. I would go further than that. In the absence of government, they are effectively the government in their particular field in that they may be the only service-providers available. Of course, one of these services is legal aid.

As the Minister is bound to point out, none of these non-governmental organisations has the responsibility that government has in a recession. We all have to recognise financial necessity on a national level but they have to deal with the finance of individuals. They know better than anyone in government what the real costs of recession are to ordinary people on the brink of survival.

All these organisations are linked by a common purpose and they are all clear about what needs to be done in forthcoming legislation. They want the Government to understand that judicial review is the key way in which people can challenge decisions by public bodies. They want the Justice Minister to reconsider his refusal to fund the initial stages of judicial review, including the critical preparation of the evidence. They want the residency test modified to extend eligibility to currently excluded groups, such as babies under 12 months of age and asylum seekers. Asylum seekers will be allowed to access legal aid while their application is pending but, once they are granted asylum, they must wait a further 12 months, even if they have already been here for more than 12 months, before they can receive civil legal aid on any new matter. This can be discriminatory because refugees fleeing persecution abroad may be denied equal access to justice for longer than those whose residency arises from other causes. These organisations also want a fairer tendering process. They want contracts to be worded to ensure that appropriate adjustments are made to meet specific cultural, geographical and financial needs. They would also like the Government to undertake a review of quality assurance schemes to help consumers of legal services to identify reputable providers.

Here, the comments of the noble and learned Lord, Lord Neuberger, on 18 June about the quality and amount of legal aid must have given the Government food for thought. Essentially his warning was about cut-price litigation leading to unrepresented litigants and worse lawyers.

All the people giving evidence to the Justice Select Committee agreed with the Law Society that a 17.5% cut in fees on top of PCT in the case of criminal legal aid was unsustainable, even for large firms. The Secretary of State seemed to accept some of the Law Society’s ideas when he welcomed the model on client choice of solicitor. However, apart from the effect on the legal firms, as the noble Lord, Lord Faulks, pointed out, there is a real risk of diminution of advice at a local level. On that, the Bar Council says:

“We are concerned that access to legal aid via the nationwide network of high street law firms will be undermined as 1,200 out of 1,600 firms will be forced to close or pull out of legal aid. The advice ‘deserts’ we already see in some rural areas will spread more widely, making it harder for millions to get the right advice and support”.

On asylum-seekers in immigration detention, mentioned by the noble and learned Lord, Lord Irvine, there are many concerns that I have no time to mention. ILPA lists challenges to detention, applications for bail, judicial reviews of unlawful detention, habeas corpus applications and applications for damages for unlawful detention. I am tempted to quote from the Bail Observation Project’s latest report expressing views on the lack of justice in immigration hearings but I suspect that the Minister will already be familiar with that report.

Finally, I was shocked to hear from the Islington Law Centre only this afternoon of some of the effects of the proposed legislation on the more vulnerable prisoners that it works with. It says:

“We note with dismay that there are no exceptions for children, and those prisoners who are accepted to have mental health problems, a disability or other vulnerability, including those who may not have legal capacity. For example, a detained child who will be unable to identify legal issues, will not have the financial resources to pay for lawyers ... Such a child or person of any age with a mental health problem or other relevant disadvantage ... will have no means by which to fully frame their complaint to the prison authority”.

That speaks for itself. I am not convinced that the Government have sufficiently taken account of the most helpless people in our communities, and I look forward to the Minister’s positive response to these concerns.