Future of Legal Aid

Ian C. Lucas Excerpts

Thursday 1st November 2018 Westminster Hall

[Andy Slaughter]

My hon. Friend is absolutely right. First, however good pro bono services are, they cannot replace legal aid and it would be wrong to say that they could. Secondly, I will give an example of a letter I received in preparation for this debate, which my hon. Friend the Member for Wrexham (Ian C. Lucas)—who is in attendance and is himself a distinguished solicitor—may want to comment on. It says that in north Wales only two firms are contracted to do mental health work, in an area with eight hospitals with mental health services, and only one firm is doing community care—that is, social and health care law. That situation is far from untypical.

[Ian C. Lucas (Wrexham) (Lab)]

rose—

[Sir Henry Bellingham (in the Chair)]

I think the hon. Member for Hammersmith (Andy Slaughter) has prompted an intervention.

[Ian C. Lucas]

I am grateful for the prompt from my hon. Friend; I was being a little cautious, compared with my colleagues. The dearth of advice in Wrexham, which is the largest town in north Wales, has a real impact. Even worse, until my last-minute intervention the Conservative-Independent coalition that runs the council was going to close our local citizens advice bureau. There is virtually no advice available. My constituency office has had to take on an extra caseworker to provide advice in the biggest town in north Wales.

[Andy Slaughter]

My hon. Friend reminds me to touch on the effect on Members of Parliament, which I am sure we are all interested in.

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[Andy Slaughter]

That is particularly important to my hon. Friend and he makes a very good point. We have been briefed by both Mencap and Mind on today’s debate. It will not surprise anyone that Mind said that people with mental health problems are twice as likely as members of the general population to experience legal problems and four times as likely to experience complex legal problems—in other words, problems that extend across a number of different disciplines. As was predicted, those are the people who are worst affected.

Even as the Bill was being published, alarm bells were being rung, and not only by Opposition Members. I had the pleasure of leading for the Opposition in Committee on LASPO. We heard not only from experts and users of the system but from the Government officials. The impact assessments that accompanied the Bill predicted that people with protected characteristics would be disproportionately affected by the cuts.

The official MOJ line was:

“The wide-ranging availability of legal aid can lead people to assume legal action is their only option, even where early practical advice could be of more help to them and avoid them needing a lawyer at all.”

Gillian Guy, the chief executive of Citizens Advice, said the money available was not enough and that we were losing precisely the swift and practical advice offered by CABs and advice and law centres. She added that Citizens Advice research suggested that every £1 spent on early advice saved around £9 later, partly by avoiding unnecessary and expensive tribunal hearings.

Richard Hawkes, the chief executive of Scope, said:

“To cut legal aid at a time of unprecedented changes to welfare support would mean disabled people who fall foul of poor decision-making, red tape or administrative error being pushed even further into poverty as they struggle to manoeuvre the complicated legal system without the expert support they need…This could result in a ticking timebomb of poorly prepared and lengthy tribunals and appeals, choking the courts and not saving money, but actually costing the government far more in the long term.”

The Government were warned. Did the predictions of doom come to pass? We know that they did. In fact, LASPO has cut far more deeply than had been billed. The stated aim was to reduce the legal aid budget by £350 million, but last year spending was £950 million less than in 2010, at £1.6 billion, as against £2.55 billion in 2010-11, with similar percentage falls in both civil and criminal legal aid.

While waiting for the Government review of LASPO—it was promised for between three and five years post-enactment, but we are now nearer six years post-enactment—we have not been short of expert opinion on its effects. Reports by the Justice Committee, the National Audit Office, the Public Accounts Committee, the Joint Committee on Human Rights, the Bar Council, the Law Society, the Bach Commission and the Low Commission have been consistent in highlighting the serious failings of LASPO. In 2017, the Bach Commission found that

“the justice system is in crisis. Most immediately, people are being denied access to justice because the scope of legal aid has been dramatically reduced and eligibility requirements made excessively stringent. But problems extend very widely through the justice system, from insufficient public legal education and a shrinking information and advice sector to unwieldy and creaking bureaucratic systems and uncertainty about the future viability of the practice of legal aid practitioners.”

In 2015, the Justice Committee published its verdict:

“Our overall conclusion was that, while it had made significant savings in the cost of the scheme, the Ministry had harmed access to justice for some litigants and had not achieved the other three out of four of its stated objectives for the reforms. Since the reforms came into effect there has been an underspend in the civil legal aid budget because the Ministry has not ensured that many people who are eligible for legal aid are able to access it. A lack of public information about the extent and availability of legal aid post-reforms, including about the Civil Legal Advice telephone gateway for debt advice, contributed to this and we recommend the Ministry take prompt steps to redress this.”

Advice officers around the UK began looking for alternative sources of funding so that they could continue working with clients who would soon find themselves ineligible for legal aid. However, with local authority budgets cut, few sources of funding were available. Many agencies closed and private firms found that it was no longer economic to undertake legal aid work. As we have heard, whole areas of help have been removed from scope, leaving millions unable to get advice or representation. There has been an almost complete collapse in early legal advice. That means that cases now escalate and are resolved only after becoming much more complex, traumatic and expensive, if they are resolved at all.

As my hon. Friend the Member for Erith and Thamesmead (Teresa Pearce) said, the Government argued that removing legal aid for most private family law matters would increase the uptake of mediation so families could resolve their problems outside court. They predicted an increase of 9,000 mediation assessments and 10,000 mediation cases for the year 2013-14. Instead, there was a decrease of 17,246 mediation assessments in the year after the reforms, and the number of mediation cases fell by 5,177 in the same period. One reason for that was the withdrawal of firms from those areas of law, leaving no one to signpost litigants to mediation.

The removal of legal aid from most areas of family law has had a disproportionate effect on women. In a survey carried out by Rights of Women and Women’s Aid, 53% of respondents took no action in relation to their case because they could not apply for legal aid. It is becoming so difficult for victims of domestic violence to obtain legal aid that last year, the Government were forced urgently to review the criteria for legal aid in such cases. Time limits preventing victims of domestic violence from obtaining legal aid for court hearings were scrapped and rules were relaxed to accept evidence from victim support organisations. Despite that, there are still concerns that too many women are falling through the cracks and not getting the help they need.

A dramatic increase of litigants in person following LASPO has created a severe strain on the court system which, to quote the retiring Director of Public Prosecutions this week, is already “creaking” under the effects of significant cuts and court closures.

[Ian C. Lucas]

My hon. Friend touches on an important and under-appreciated point. The court system is struggling to cope with litigants in person and the judiciary, whose role it is to judge cases, is having to take on the advice aspect of the justice system. It is difficult to combine that advisory role with providing impartial judicial functions.

[Andy Slaughter]

My hon. Friend knows his business well. That is self-evidently true, and the judiciary is responding magnificently, but we are asking those people, whether in tribunals, magistrates courts, or the higher courts, effectively to do two jobs. They are asked both to be inquisitors and to represent parties—sometimes one party and sometimes both—as well as perform their ordinary functions. That is simply unsustainable in the long term.

Litigants in person can struggle to understand court procedures and their legal entitlements, and cases involving them take longer to resolve. The Personal Support Unit reports that, in 2010-11, its staff and volunteers helped people without access to a lawyer on about 7,000 occasions. By 2017-18, that number had rocketed to more than 65,000. The removal of most welfare benefits law from the scope of legal aid—which, again, we have touched on—has disproportionately affected disabled people. The number of benefits disputes cases with legal aid has fallen by 99% compared with pre-LASPO levels, from 29,801 cases in 2011-12 to 308 in 2016-17. When individuals are able to challenge benefits decisions, the majority of those decisions are overturned. Since 2013, 63% of appeals against personal independence payment decisions and 60% of appeals against employment and support allowance decisions were decided in the claimant’s favour.

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[Robert Neill]

My hon. Friend is absolutely right. He speaks with great experience from his time in practice in serious criminal matters and from his work on the Justice Committee, to which I pay warm tribute. We cannot disaggregate the justice system. As part of our post-Brexit strategy and our “Britain is GREAT” campaign, the Minister’s Department is rightly proclaiming the value of our legal system and legal services, which is real and profound. Their integrity depends on the whole system being properly resourced and funded. It is no good simply to say that we have the best means of commercial dispute resolution and arbitration in the world. It is not enough to say we have probably the best system of civil justice across the piece in the world. It is equally important that we can say the same about our criminal justice system, our family law system and our tribunals system. They are increasingly relevant and important to the whole system.

[Ian C. Lucas]

The hon. Gentleman is making an excellent speech and an excellent point. May I add that we need to have a local justice system that works right across the country? Towns and rural areas also need access to justice for people in those areas. One of the real problems with the Government’s running of the justice system more broadly is that local justice has been profoundly undermined by lack of provision and court closures.

[Robert Neill]

With his experience, the hon. Gentleman makes an entirely valid point. The Justice Committee has looked at a number of those areas over the past two or three years or so, and we have looked at aspects of access to justice in all its forms. It is partly about legal aid, but there are other matters, too. I will concentrate on legal aid because that is the subject of the debate, but his point about other matters is entirely fairly and well made.

There is a clear case that in attempting to right what was perhaps extravagance in some limited areas, we may have inadvertently done injustice to potential claimants. We need to put that right. The first area that I would suggest to the Minister is important is funding advice, as has already been observed. The legal aid change was predicated—I was there at the time, as was the hon. Member for Hammersmith, and I was prepared to take this on face value—on the idea that it would be a good thing to move away from the comparatively adversarial approach to family cases to mediation and something much more collaborative. That has to be the right thing. The Minister’s Department is recognising that in another sense with the sensible proposals to reform the divorce laws to move away from a confrontational approach. The irony is that so far as legal advice and representation are concerned, those good intentions have not been followed through.

As has rightly been observed, early access to legal advice and a solicitor would point people in the direction of mediation. We can invest significant money in having much more public education so that people can assist themselves, but it may be just as cost-effective—I suspect it would be more cost-effective—to restore some measure of early advice in those family cases. Any good solicitor worth their salt will rightly advise their clients to adopt that course of mediation if it fits the circumstances of the case. Restoring the position there would be a sensible investment to save.