Legal Aid

Helen Grant Excerpts

Wednesday 11th May 2011 Westminster Hall

[Dr Huppert]

I thank my hon. Friend for his valuable contribution to the debate. He is right: social justice lies at the heart of much of what is happening. The lack of social justice in this country, and the widening disparity between the rich and poor, already existed under the previous Government. That disparity is a sorry blight for us all and affects much of public policy. We know that one of the worst problems is the effect that social injustice and deprivation have on health. That is a much more fundamental problem to be solved than exactly what happens in an A and E hospital, and the same goes for the examples provided by my hon. Friend.

Family law particularly concerns me. I am indebted to a number of people for drawing my attention to the issue, and I would particularly like to thank Jo Miles, a Fellow in Law at Trinity college Cambridge, where I used to be a Fellow. She has made great efforts to produce evidence-based assessments of the proposals in the Green Paper, and she has also been in touch with Ministers.

The Green Paper’s reforms for family law constitute a radical reduction in the number of private family law issues for which legal aid will be available. That policy is based on two premises. To say those are outright false is perhaps going too far, but they are questionable and not well justified. The premises are first that spending on legal aid fuels litigation, and secondly that mediation is the clear alternative.

In some cases, there is no doubt that lawyers on each side—I declare an interest as a non-lawyer—ramp up the case to earn fees, and make a tense situation worse for the individuals as well as expensive for the state and of course for the side that does not have legal aid. However, it is not clear that that is common or regular. In fact, it is probably because clients can currently see a solicitor that litigation is avoided in many cases. Solicitors can play a very important role in guiding their clients towards agreed resolutions or advising them that their case is too weak to fight. Without professional guidance, badly founded and prepared litigation conducted by the client in person will surely follow and grow. That will mean an inevitable and probably substantial rise in the number of litigants in person in the family courts and the associated costs. I have seen no evidence for the Government’s assumption that there will be no significant impact on court operating costs. I strongly suspect that what is saved in legal aid may simply be spent in court costs.

The result will be that, as ever, those with money will have access to justice. Those who do not have the cash and who also lack the energy and resources to litigate by themselves will simply not have access to justice. Those who have not been able to enforce the other party’s private law responsibilities will have to fall back on the state for housing and other support—another cost to the Exchequer.

Therefore, the removal of public funding from the areas of family law that we are discussing may have the opposite effect on the finances to that which is intended. On a related note, it may also hamper successful mediation. Studies have shown that one of the main reasons why mediation has been successful has been the threat of litigation. That encourages people to adopt sensible positions and so to settle. Will that still work in the absence of litigation as a plausible threat?

[Mrs Helen Grant (Maidstone and The Weald) (Con)]

I declare an interest in the debate, having been a legal aid family lawyer. I want to pick up the point about mediation. Does the hon. Gentleman agree that mediation can be quite useful, but it is no panacea and frequently fails when there is an imbalance of power, which is often the case in family matters? I am concerned that the Government’s proposals rely on mediation. I am concerned also about where all the mediators will come from and who will pay for them.

[Dr Huppert]

I thank the hon. Lady for her comments and bow to her greater expertise in this area. She is absolutely right. There is no doubt that mediation is fantastic, but it does not solve every problem. It is a great thing where it works. Where it does not work, there must be alternatives. She also raises the important point about the number of mediators. We are trying to turn to more and more mediation and arbitration in relation to a range of areas of law, and there is a real question about how we can train enough people.

I hope that the Government will revisit their proposals on reducing the scope of family law. We share the objective of controlling costs while preserving access to justice. I hope that the Government will be able to reach a better balance than they did in their original proposals.

Let me now turn to another element of family law, which has had almost as much attention from the same organisations—domestic violence, which my hon. Friend the Member for Mid Dorset and North Poole (Annette Brooke) mentioned. That is a blight that is far more common in our country than many of us would like to believe. It is a very private crime and therefore difficult to measure, but estimates based on available data, such as the British crime survey, suggest that as many as one in five adults have experienced it in some form.

The Green Paper takes a narrow view of what domestic violence constitutes and how it can be evidenced. The Government seem to be counting only physical violence under the definition of domestic violence and then only where relevant legal proceedings have been started or orders obtained in relation to it. There are a couple of concerns about the consequences of that. First, it provides a perverse incentive for people to allege domestic violence just to gain access to funding for their other issues. In other words, it will encourage court proceedings. It is not clear whether that would involve people admitting what is actually happening or would lead to false allegations, but either way, it will increase court proceedings. Secondly, a huge amount of research shows that many victims of domestic violence do not disclose their abuse at all. For all sorts of reasons, they are reluctant to take legal proceedings in relation to the abuse. We should not make that harder.

All that would be bad enough. I hope that I need not convince anyone here that domestic violence cannot refer simply to physical violence. We must all be concerned about people suffering the threat of violence and mental torment. I hope that the Government will take seriously the criticisms that they have received on that point and will clarify and strengthen their definition of domestic violence so that those at risk have access to justice and are protected.

There is a particular issue about those people—normally women—who are in the UK on a spousal visa with no access to public funds and are subjected to domestic violence. I have met such people in the Cambridge women’s refuge. I am delighted that the Government are taking some steps to support them—for example, by extending the funding for the Sojourner project, which I hope will continue even longer. Everyone will work together to help such people. There will be legal aid funding for them to obtain an injunction against their ex-partner, and the UK Border Agency will fast-track their visa application—but there will be no support for them to apply for the visa that unlocks their future support. Surely that is not right.

Women will be disproportionately affected by the changes in legal aid. They are more often the recipients of it and less often have their own finances in place. Children and young people will also be disproportionately affected, partly because women make up the majority of primary care givers, although of course not all. I have received a considerable amount of evidence from a number of organisations suggesting that the proposals could deny many thousands of children and young people access to justice. The Liberal Democrat youth policy includes a commitment to providing young people with access to specialist support and advice on their legal rights and responsibilities—something that I hope would attract universal support. I therefore urge the Government to think again more carefully about their proposals for young people. They are clearly a group of people who are generally vulnerable and less able to represent themselves. It seems to me, then, that the current scope of legal aid should remain available to children and young people even if it must be reduced somewhat for adults. In addition, we should try to target funding and support better towards that demographic group in the future.

Similar concerns apply in relation to disabled people, whether young or old. For example, the Government plan to remove legal aid relating to matters of special educational need. The Government sought to justify that proposal in the Green Paper because there are alternative sources of support, they do not consider parents and carers bringing SEN appeals to be particularly vulnerable and they believe that the education of children should not be accorded the same level of priority as other, more critical issues. The last point is the most concerning. The coalition Government have taken some good steps to support families with disabled children—for example, the SEN Green Paper from the Minister of State, Department for Education, my hon. Friend the Member for Brent Central (Sarah Teather), is a great step forwards. However, the change that we are discussing in this debate would send entirely the wrong message to those families. Access to education is a right for all children and is a vital mechanism for removing some of the barriers facing disabled children and young people.

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

It is a great pleasure to serve under your chairmanship, Mr Weir. I will truncate my remarks because other Members wish to speak.

I do not wish to trump the hon. Member for South Swindon (Mr Buckland), but I have 35 years’ experience of family and criminal legal matters, and I have been publicly and privately funded. However, I totally agree with most of what he said, and when people agree across the House, there is obviously something to worry about because there is a problem. The hon. Gentleman laid out some important facts. Like me, he is a member of the Justice Committee, and he made several of the points I was going to make.

I really wish that the Government would slow down. Many of their proposed changes, including those we are discussing today, are being rushed, and there is not adequate time for real consultation. Yes, there have been 5,000 consultees in this case, but the consultation has been a rushed job, and it has left a real fear out there. For example, Desmond Hudson, the chief executive of the Law Society, has said:

“If the government persists with these proposals it would represent a sharp break from the long-standing bipartisan consensus that effective access to justice is essential to underpin the rule of law.”

To that I say, “Hear, hear.”

Given the time constraints, I will confine myself to family law, although I recognise that there are problems in relation to immigration law, welfare law, housing law and many other parts of the social welfare legal system. As has been said, a mistake has been made, albeit one whose consequences were not imagined at the time. The way in which the qualification criterion relating to violence has been framed is utterly unworkable. As a practitioner, like the hon. Member for South Swindon, I have seen accusations made for various reasons, and it is as sure as the fact that I am standing here that people will make accusations of violence simply to avail themselves of a legal aid certificate, that being the only way in which they will be able to get representation.

Victims of violence may be brought to court by those seeking to continue their control over them. As has been said, we need to look at the definition. It could cover abuse, including mental abuse and all kinds of other dominant abuse. It will not always be male on female, but it will mostly be. To use European parlance, there will be an inequality of arms, which will, in effect, mean that if one party can afford a lawyer, and the other party is honest enough to say that there has been no violence, that party will not avail herself—it will probably be a woman—of any assistance. That must be wrong.

I accept, by the way, that mediation is a good step forward in some ways. It has been tried for many years in relation to a great number of issues, including some that are as far from the one we are discussing as multimillion-pound shipping contracts; indeed, it seems that London is the mediation capital of the world, and good luck to the lawyers involved. However, the issue before us is an entirely different kettle of fish.

I have received dozens, if not hundreds, of letters from lawyers practising in this field. Every time a lawyer claims that the loss of legal aid will damage members of the public, that is thought to be special pleading on behalf of the lawyer. Let us cut to the chase: legal aid lawyers have not had an increase in fees for the past 11 years, so anyone wanting to become a fat cat would not open a legal aid practice. As a lawyer yourself, Mr Weir, I suspect that you know that, too, although you should not get involved in the debate. This is not a question of self-serving special pleading; the people we are talking about are dedicated to providing a service, and as anyone will know if they have been in court when there has been the possibility that a family will be permanently broken up and one party will never see the children again—I have been in court on such occasions—such cases are very fraught and emotionally charged.

[Mrs Grant]

The proposals also rely on judges, chairmen of tribunals and magistrates having the time to give advice to litigants in person. Does the right hon. Gentleman agree that that time simply does not exist? Judges already have back-to-back lists. To give an example from Kent, there is already a five-month waiting list to see a judge for parents who are being denied access to their children. That is totally unacceptable for any parent.