Access to Justice

Geraint Davies Excerpts

Wednesday 11th January 2017 Westminster Hall

[Several hon. Members rose—]

[Geraint Davies (in the Chair)]

Order. I think that we have five Back-Bench speakers, as well as the Front Benchers, so I will impose an immediate time limit of six minutes on speeches.

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[Sir Oliver Heald]

On a point of order, Mr Davies. The hon. Gentleman is putting forward as an assertion of fact something that is completely incorrect. Is that in order?

[Geraint Davies (in the Chair)]

It is in order, because it is a matter of debate. Back to you, Justin Madders.

[Justin Madders]

I am only referring to what the previous Minister for Justice said in evidence to the Select Committee about the report being completed, but if I am wrong about that, that is fine. What we are more interested in is the Government actually releasing it. I hope that when the Minister responds he will confirm a final date for when we will see the Government’s own internal review.

Mr Davies, your rights are only as good as your ability to exercise them. Be in no doubt that every year now, thousands of people are unable to do this. Employment rights are not just about dignity and respect in the workplace. They bring important social and economic benefits to this country. They ensure that more people can participate in the labour market without facing unfair discrimination. They give vulnerable workers more job security and stability of income. They help to encourage a committed and engaged workforce and the retention of skilled workers. They allow people to plan their life, plan for a future, knowing that if they do a good job, if their employer runs its business well, they are likely to stay in work.

What we have instead is a hire-and-fire culture where workers are seen as disposable commodities—figures on a spreadsheet—rather than real people with real lives who matter. For most people in the UK, the concept of secure employment no longer exists. Even for those who are lucky enough to avoid the pervasive traps of zero-hours contracts, agency work, bogus self-employment and the gig economy, workplace protections are now so watered down they are virtually worthless. During the referendum campaign, we saw that telling someone on a zero-hours contract or in agency work that there is a risk to their job from Brexit was futile. Until we begin to address these issues and reinstate the concept of secure employment, we will stand no chance of rebuilding our fractured society.

At the moment, we have a system where justice exists only for those who can afford it. A banker on a six-figure salary who is unfairly dismissed can still take their employer to a tribunal, while a factory worker on the minimum wage is much less likely to have the option and ability to uphold their rights. This situation is an embarrassment; it is an injustice and it must come to an end.

I will conclude with another quote from the Prime Minister, who said only three days ago:

“when you try to raise your concerns but they fall on deaf ears; when you feel locked out of the political and social discourse and feel no one is on your side, resentments grow”.

She also said that

“it is the job of government…to correct the injustice and unfairness that divides us wherever it is found.”

I say that it is time that those words were put into action.

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[Yvonne Fovargue (Makerfield) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Davies. I congratulate my hon. Friend the Member for Wolverhampton South West (Rob Marris) on obtaining the debate. I was going to go quite thoroughly into the subject of employment tribunals, but I feel that there is no need to do that. As an employment lawyer, my hon. Friend dealt with it comprehensively. However, I want to say that I managed a citizens advice bureau where we saw many people who were very reluctant to take action against their employers; any barriers put in the way will deter people from getting what is rightfully theirs. In fact, Citizens Advice recently revealed that 82% of people say the fee increase will deter them from taking a case against their employer.

The statistics bear that out. Why would someone pay £390 for a £200 wage claim when they know that only 49% of claims are paid in full? It is appalling to put another barrier in the way and impose such fees, which appear horrendous. There has been a decrease in claims. I warned when the change was first debated that a decrease would not mean success, but merely that the individuals concerned had given up, and had not gained what they were entitled to. I would be interested to know why people have not pursued ACAS claims. According to evidence from Citizens Advice, 90% of people would consider a reduced fee limit of £50 reasonable and thought that they could perhaps afford that when making a claim. I wonder whether the Minister has looked at the question of reducing the fee.

My hon. Friend the Member for Wolverhampton South West and other hon. Members dealt extremely well with the issue of whiplash. However, I am concerned about the raising of the small claim limits—and that, not whiplash, is what the consultation specifies. Why were workplace injuries included in that? What evidence is there of fraudulent claims against employers? In my experience, it is difficult to encourage people to make a claim even when the employer has been negligent, because they are extremely worried about the possible consequences. When that is coupled with the fact that if someone is unfairly sacked, there is a tribunal fee, I feel that people are beginning to lose faith in the justice system.

I want to mention the advice deserts, particularly in housing law, which my hon. Friend the Member for Wolverhampton South West also covered. Many small providers—including not-for-profit providers—are giving up their contracts as unviable. That has recently happened in one case in my area. Where are people to go about housing issues, such as severe disrepair, that they cannot get dealt with and that are giving them health problems? People can only have a housing claim if their case is at the severe end. How are people to get justice and avoid further illness, which will put more strain on our already overstretched health system, if they cannot get advice at a place they want to go to and can afford to travel to?

There is a risk that the civil legal aid system is becoming unsustainable. Will the Minister commission an independent review into the system’s sustainability? It is at risk of falling over. Even with sufficient providers, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 reduced the possibility of obtaining early advice on housing and family law. Having been the manager of a citizens advice bureau, I cannot stress enough that early advice relieves the pressure on families, who will probably go to other services if they do not get it, which means they will put pressure on local authorities, housing associations and medical professionals. That is why it saves money. In the case of welfare benefits, £8.80 is saved for every case of early advice; in the case of housing advice, more than £5 is saved. Leaving everything to the last minute is simply the wrong way to deal with people’s problems, not only for them and their families, but for the state.

We must ensure that ordinary people are given an even chance in the justice system. Where is the equality of arms that solicitors always talk about? We need to ensure that people can receive the compensation they are entitled to, and timely advice—the right advice as to whether their claim is viable. I have often found that telling someone at an early stage that they did not have a case prevented them from going as a litigant in person. If they cannot get such early advice, they will be clogging up the court system. Many of the most recent reforms have had the opposite effect and deterred people from getting what they are entitled to. I agree with the hon. Member for Croydon South (Chris Philp) that we need to stop the cold calling. If the proposed changes to the small claims limit are included with the range of proposals, in addition to what has already happened to take access to justice away from ordinary people, I do not believe that people will any longer have faith that ours is a fair and just society.

[Geraint Davies (in the Chair)]

We are making good time. I invite Stuart McDonald to speak from the Front Bench on behalf of the SNP.

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[Geraint Davies (in the Chair)]

Just so you are aware, Mr McDonald, I have allowed up to 10 minutes for Front Benchers, so you have a reasonable amount of time left.

[Stuart C. McDonald]

Thank you, Mr Davies. The first concern is about the massive restrictions on appeal rights, previously introduced by the coalition Government and now replaced by an administrative review scheme that the chief inspector of borders and immigration said was operating very poorly. The second concern is about the difficulties in accessing legal aid-funded solicitors. As an important example, that includes unaccompanied asylum-seeking children who are transferred under the national transfer scheme, who may find themselves moved to a part of the country where there is simply no face-to-face advice available. A third challenge is the lack of legal aid—in contrast to Scotland—for too many immigration and asylum issues, including for too many children, detainees, mentally ill and other vulnerable persons. All that is exacerbated by a difficult fee remission scheme. Finally, I highlight the slow speed of justice, with huge waiting times for a hearing at the asylum and immigration tribunal.

The scale of the problems caused by all these cuts and changes is hard to be precise about, even if the anecdotal evidence is very worrying. The Government have so far refused to measure the number of people appearing as party litigants at the asylum and immigration tribunal. That prevents us from properly assessing what is going on as a result of Government policy. The Lord Chancellor and Secretary of State for Justice is receiving representations from the Joint Council for the Welfare of Immigrants on this matter, and I hope that she will listen.

In conclusion, the Government can talk about sustainably funding the justice system, but if funding decisions are preventing access to justice, then justice itself is not being sustained.

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[Richard Burgon]

I agree that this is a matter of the utmost urgency; I also agree that such a detrimental impact on some of the most vulnerable people and minorities in our society is never a price worth paying.

In 2013, the then Justice Secretary, the right hon. Member for Epsom and Ewell (Chris Grayling), introduced other reforms. In summary, they involved restrictions on the availability of judicial review; restrictions on the ability of foreign nationals to receive publicly funded legal assistance; removing publicly funded legal assistance for nearly every area of prison law; further cuts to immigration law and family law; and cuts to fees for litigation in criminal cases. However, plans to tender criminal defence representation to competition were abandoned.

The right hon. Member for Surrey Heath (Michael Gove) then became Justice Secretary and, thankfully, reversed some of his immediate predecessor’s worst policy blunders. He also postponed a planned further cut of 8.75% to the fees of criminal solicitors until April 2017, which is now just around the corner. I am sure it would be welcomed, both in the House and outside, if the Minister confirmed today that that 8.75% cut will not happen.

When the right hon. Member for Epsom and Ewell was in post as Justice Secretary, he wrongly asserted that the legal aid bill was spiralling. He claimed that the public had lost confidence in the legal aid system and he dismissed many who rely on judicial review to hold the state to account as “left-wing campaigners” using the courts as a “promotional tool”. He provided no objective evidence or serious substance for those claims. He, too, holds responsibility for the crisis in access to justice that we face.

When my right hon. Friend the Member for Islington North (Jeremy Corbyn) became Leader of the Opposition in 2015, he promoted and set up an independent review, the Bach review, into access to justice. He has long understood the place of legal aid and access to justice in a civilised society, as we all do in the Opposition. The Bach review is considering how the justice system should operate in the 21st century: it should harness new technology without compromising fairness or due process. The Government need to act now to reverse their most botched reforms, so that access to justice is no longer “unaffordable to most”.

[Geraint Davies (in the Chair)]

You have 10 minutes, Minister, if you are to allow a minute for Mr Marris at the end.

[The Minister for Courts and Justice (Sir Oliver Heald)]

I congratulate the hon. Member for Wolverhampton South West (Rob Marris) on securing this debate, and I thank Members who have contributed to it. Some important points were made. However, regarding the hon. Gentleman’s criticism that the impact assessment on the whiplash changes does not show a saving, I must say that it makes it very clear that the saving is £1 billion, which, of course, accounts for the £40 cut in premiums for every motorist in the land that I mentioned. Are we to sacrifice that simply to uphold a threshold that has been in place for so many years, since 1991, and in the interests of solicitors?

The hon. Gentleman very fairly made the point that he was from Thompsons Solicitors. I think that the Labour party spokesman, the hon. Member for Leeds East (Richard Burgon), is also from Thompsons. There was one other who did not reveal himself, but I suspect that it is the hon. Member for Ellesmere Port and Neston (Justin Madders). They are the three musketeers of the Thompsons world. Anyway, it is a very fine firm, and I have to confess that I have been instructed by it on one occasion in the past, and it prepared the brief very well.

My hon. Friend the Member for Croydon South (Chris Philp) made a very important speech, explaining the industrial nature of the problem we face with these whiplash claims and the dubious practices that go with it. For those from Scotland, such as the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), the Scottish National party spokesman, it will be hard to understand this claims culture; Scotland does not have it. It is hard for people to understand it if it has not developed in their part of the UK. It has got to the point at which it is a massive problem. I will cover the point made about employment fees in a moment.

My hon. Friend the Member for North Warwickshire (Craig Tracey) made a very knowledgeable speech. He pointed out that we have to consider not just the pure whiplash claims, but those that are whiplash-related—those described as a back or neck injury, but that are, in effect, whiplash cases. That, of course, explains the figures that I outlined earlier.

It has been a good debate, and I wanted to make the point at the start that the Government are committed to ensuring that the justice system works for everyone. I will describe some of the actions that we are taking. The SNP spokesman made the good point that this is not just about legal aid; it is also about simplifying procedures and changing the way that the legal system works. Of course, that is what we are doing. The Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals jointly announced plans that are about renewing and transforming our justice system. Of course, we are putting in a massive investment of £1 billion to reform and digitise our courts, to make sure that this vital public service reflects modern needs and expectations.

The reforms will deliver swifter justice and, I hope, a less stressful experience for those involved. We will get cases out of court that do not need to be there, whether by using online procedures or through more alternative dispute resolution. We will apply the full force of judge and courtroom only in those cases that require it, and will strip away unnecessary hearings, redundant paper forms and all the duplication in the system, because we have the best legal system in the world but it also needs to be the most modern. That is what we aim to achieve. The guiding principle is to have a system that is proportionate and accessible, and is there for the vulnerable, victims of crime, members of the public, legal professionals, witnesses and litigants. We want a system that is a statement of our values as a country and leads the world.

Our legal aid system is important. The coalition Government faced unprecedented financial challenges; it is all very well people talking as though there were no pressures, but there were huge financial pressures at the time, and the Government had to reform. They concentrated legal aid on the most important areas—on cases where an individual’s liberty or home is at stake; where children might be taken into care; or where there is domestic violence. Although the reforms were substantial, it is right to follow through on our intention, which we set out at the beginning, which is that there should be a proper review. We have said that it will take place by April 2018 at the latest. We are well within the period during which we could start the review, and we will announce our intentions on it in the coming period.

I want to emphasise that we have made sure that litigants in person get help and support. Since 2015, we have provided £3.5 million to the litigants in person support strategy, through which we are working closely with the advice sector, voluntary partners and the pro bono sector; they are enhancing the local signposting of local and national legal support services and co-ordinating their work. We have seen a fast-expanding number of personal support units. The citizens advice bureaux do a fantastic job, and I pay tribute to the hon. Member for Makerfield (Yvonne Fovargue) for mentioning them. We also have many pro bono providers and local law clinics. This strategy has momentum, and it is wrong for the hon. Member for Wolverhampton South West to say that the result of having litigants in person is longer cases. That is not what the evidence shows; in fact, the average length of a civil case is becoming shorter, year by year.

I want to make family court processes safer for victims of domestic abuse, and our recent announcement contributes to that. It is right to have a system in which the victims of domestic abuse do not face cross-examination by their abusers. That sort of cross-examination is illegal in criminal courts, and we would like to see it outlawed in family courts. I have mentioned alternative dispute resolution.

Both the hon. Members for Ellesmere Port and Neston, and for Wolverhampton South West, mentioned employment tribunal fees. The Government are reviewing the impact of the introduction of fees in those tribunals. There is not a report gathering dust on my desk or anything like that; we are completing the work. I explained all this when I appeared before the Justice Committee recently. The work that we are completing is about the categories in the discrimination field; we are looking at the implications for each of those groups. We are getting to the point at which we will soon be able to produce a report; it will not take much longer. I said that I would produce it as soon as possible in the new year and I meant it.

Since it has been mandatory to go to ACAS, it has been resolving far more cases. The effect is that there are now 92,000 cases going to ACAS, whereas previously there were only 23,000. There used to be about 17,000 cases that did not then go on to the tribunal; now, it is something like 45,000 cases, so ACAS is having a big effect in this area. I understand the frustrations of those who say that the review has taken too long, but it will be comprehensive and it is not far away.

We face whiplash cases on an industrial scale. The number and cost of those cases, and their adverse impact on the price of motor insurance, is a concern for Government. There have been huge improvements in car safety, so how can it be that 770,000 road traffic accident claims were made in 2015-16, compared with only 460,000 in 2005-06, with around 90% of the claims in 2015-16 being whiplash-related? That figure is too high and the Government must take action to tackle this issue and protect consumers.

The previous Prime Minister held a Downing Street summit on this issue and we have recently made changes, such as introducing the new MedCo system, which improves the medical expert side of things. There was also a recent consultation on raising the small claims limit for personal injury claims to £5,000, and on damages for road traffic cases involving whiplash—soft tissue injury. If we can save £40 per head on motor insurance policies, clearly those are issues that we should be consulting on and considering very seriously. Also, it is worth bearing in mind that the £1,000 limit for these cases was set in 1991, more than 25 years ago. Since then, the small claims limit for everything else has gone up to £10,000, so the review is very much needed.

Finally, to provide reassurance to Members, people can still employ a lawyer to help them with a case that is in front of the small claims court, and they can try to reach an agreement with their lawyer about how their case is funded. Of course, the point is that they cannot recover costs, but there is no ban on taking legal advice, though clearly people would need to look at the economics of that. The other point to make is that if someone has a complex case that should perhaps be dealt with by the county court in its full setting, that is possible; they can make an application to that court, which can transfer—

[Geraint Davies (in the Chair)]

Order.

Motion lapsed (Standing Order No. 10(6)).