Legal Aid

Julian Huppert Excerpts

Wednesday 11th May 2011 Westminster Hall

[Dr Julian Huppert (Cambridge) (LD)]

I hope that this debate on legal aid—a vitally important component of our legal system—will prove timely. It is opportune because although the Government consultation, which has received around 5,000 replies, has closed, the Government have not yet published their response. I hope, therefore, that the Government will have the chance to listen to concerns from both sides of the House before publishing their final recommendations. I am delighted to welcome the Minister to respond to the debate, and more particularly to listen to it. He and I spent some time debating in 2005, and although I did not always agree with his position, he showed that he would listen to an argument and I hope he will show the same character today.

One of the basic pillars of our legal system is supposed to be that the law is accessible to all, not only to those who can afford it. Members of another Committee are seeking to reform the law of libel to ensure that success goes to those who have truth on their side, rather than to those with the most money. Legal aid is the manner in which we ensure that all have a fair chance to access the law and see justice done.

The Government have been at pains to emphasise their commitment to access to justice. We would all, I hope, agree with their stated position that

“access to justice is the hallmark of a civil society.”

Indeed, many of us would go slightly further and say that it is the hallmark of a civilised society. The Green Paper that announced the proposals suggested that the Ministry of Justice believes that legal aid has expanded far beyond its original intentions. I recognise that there is often waste, and that unnecessary costs could be eliminated or reduced, but we should avoid simply caricaturing the current legal aid system.

In my opinion, as it currently stands the legal aid system seems broadly to represent what Lord Rushcliffe intended in his 1945 report. He argued that public funding for legal aid should not be limited to those “normally classed as poor”, but should also include those of “small or moderate means.” According to the Ministry of Justice, under the current legal aid system 29% of us are eligible for publicly funded advice. One could ask whether that goes far enough. Given our unequal income distribution, even the median wage could well be described as “small or moderate means” in some parts of the country.

I accept that the wider fiscal situation and the rapidly growing nature of the legal aid budget allow room for consolidation through reductions in the budget, and there is a balance to strike between access and cost. This debate is largely an opportunity to discuss how such reductions can be achieved without harming the most vulnerable people in our society. A large portion of my speech will deal with the scope of the Government’s proposals, but I also hope to draw the Minister’s attention to the viable alternatives that have been proposed. Given the number of hon. Members from all parties present in the debate, I will try to be brief to allow others to speak. I am sure that one could easily fill 90 minutes with more detailed analyses of every issue that I cover.

It is easy to forget the recent history of legal aid, and it is important to look at the context behind the debate this afternoon and remind ourselves that legal aid underwent substantial changes under the previous Government—Labour launched about 30 consultations and reviews to try to sort the system out. Since the formation of the coalition, we have had Sir Ian Magee’s “Review of legal aid delivery and governance”, and the family justice review chaired by David Norgrove, both of which are pertinent to the debate. I am glad that the Government delayed their response to the consultation on legal aid until after the interim report of the Norgrove review was published. It is always useful to get expert advice before making decisions.

Hon. Members should be in no doubt that I appreciate much of what the Ministry of Justice has done since the formation of the coalition. In general, I admire the liberal proposals on sentencing that have stemmed from the Secretary of State and his team of Ministers—they may not thank me for that praise of their liberalism. It has been particularly good to see a renewed emphasis on evidence and reinvestment in justice, moving us away from an obsession with prisons and punishment, and renewing our desire to see criminals rehabilitated. We want less crime, not just to be harsh on criminals after the event.

There are, however, problems with the Government’s proposals, many of which will be familiar to hon. Members following this debate. If they have not already done so, hon. Members might want to familiarise themselves with the excellent report from the Justice Committee—chaired by my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith)—the large majority of which I agree with. I want to focus on the effects of the proposals concerning access to advice on social welfare law, in particular with regard to immigration law, family law and children and young people. I will also highlight what I believe are the unintended consequences of the Government’s proposals for citizens advice bureaux and other organisations.

It is worth questioning the central decision at the heart of the Government’s proposals. From the off they considered it impossible to pare down any further expenditure on criminal legal aid. Like many others, I remain unconvinced that we should leave criminal legal aid entirely untouched when it accounts for more than half the total budget, even if it has previously come in for close attention. Obviously, we do not want to deny people access to justice in criminal trials, but I believe there may be further scope for savings in that area. I hope the Minister will heed that note of slight uncertainty and address it when he responds to the debate.

In other areas, my uncertainty is more than slight. One such area is family law, and I have received many representations from organisations and individuals across the spectrum, from those who need legal aid to those who provide it and almost everyone in between. I cannot over-emphasise the concerns that people have about the possible effects of the Government proposals. Time and again I have heard the same criticism: the Government have brought forward proposals without properly researching the effects of the current system, and without adequately justifying their stance. As a result, the unintended consequences of the proposals, if implemented, could be regressive and widespread.

[Annette Brooke (Mid Dorset and North Poole) (LD)]

My hon. Friend makes a strong case. Does he agree that there is a danger that people in a host of vulnerable groups, including those with mental health problems, those suffering domestic abuse—as opposed to domestic violence—those with learning disabilities, and others, could be disadvantaged in front of the law? Would it not be better to raise the bar for legal aid, and look at the situation case by case?

[Dr Huppert]

My hon. Friend raises a number of issues, some of which I will come on to talk about. There is no doubt that this issue is a challenge, and there is no easy solution with which to protect all those vulnerable groups. Ideas such as that mentioned by my hon. Friend, or those suggested by the Law Society, may provide a better option.

[Andrew George (St Ives) (LD)]

My hon. Friend makes an excellent case and I congratulate him on that. Does he agree that rather than being largely budget driven, the review should begin with an understanding that legal justice is inextricably linked to social justice? Homelessness, for example, will be narrowly defined by these changes at a time when the Government’s policies on homelessness, housing benefit and other areas are already having a disruptive impact in that area. We need a legal aid system that is flexible enough to assist those who will find themselves on the margins of society.

[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.

[Mr Robert Buckland (South Swindon) (Con)]

On the point about special educational needs, does my hon. Friend further welcome the proposals in the Green Paper to move to a system of mediation to resolve many of the problems that parents and children have in challenging decisions made by local authorities? Should not that system of mediation be put in train with any changes to legal aid so that we do not end up with the good intentions of the Green Paper being frustrated by a lack of co-ordination between two Departments?

[Dr Huppert]

I thank the hon. Gentleman for his comments. Yes, mediation can play a good role. There are a number of cases in which we need to move away from the legalistic approach to resolving problems and towards mediatory approaches. However, as I said in response to the point raised by the hon. Member for Maidstone and The Weald (Mrs Grant), mediation does not always work, and where will we get all the mediators from? We must ensure that there is a fall-back—a safety net—for people.

I cannot deal with all the issues relating to this area now. I assume that the Government have seen the briefings from the Children’s Society and the Special Educational Consortium and I hope that they will consider what they say. I am sure that other hon. Members have seen them as well.

[Andrew George]

My hon. Friend is being very patient in allowing me to intervene again. The theme underlying this is public service and its improvement. There is an important link, which must not be lost by the Government. They must ensure that those people seeking to benefit from public services see an improvement in them. We have found this in the Select Committee on Health, which has been considering clinical negligence. The removal of legal aid is proposed in that area. How can a service move on, learn lessons and improve if those who are served poorly by it do not have access to the right kind of justice?

[Dr Huppert]

My hon. Friend makes an excellent point. I hope to talk later about the effect of the Jackson changes, how legal aid will work then and the double whammy that people may face with the two changes being rolled up together.

Lastly on the subject of special educational needs, I am sure that other hon. Members have had constituents coming to see them, as I have. My constituents take special educational needs appeals for their children very seriously. They are very concerned. A number of people have come to see me. They are terrified both about what will happen to their own children and about the future. They see education as critical to their children’s future. I could talk about other aspects, but time moves on apace.

Hon. Members may be aware that I have a passionate interest in matters to do with immigration and asylum. I chair the all-party group on refugees, as well as being a member of the Home Affairs Committee, which is chaired by the right hon. Member for Leicester East (Keith Vaz), and it is a great pleasure to see him here today. I am of course pleased that asylum will remain within the scope of legal aid, but it is extremely concerning that other immigration cases have been excluded. Even under existing arrangements, immigration legal aid providers are struggling to remain viable; if we confine legal aid to asylum, it is doubtful whether good quality practitioners will continue to be available. There is already a surfeit of poor quality lawyers and advisers working in this field, and we would all benefit from better provision because many of them are not up to scratch.

[Jeremy Corbyn (Islington North) (Lab)]

I congratulate the hon. Gentleman on securing this debate. Is he aware that many of the legal aid practitioners that used to deal largely with immigration matters in inner London have gone under? I frequently represent people at immigration appeal tribunal hearings, and I know that a disturbing number of claimants with strong cases are completely unrepresented, and that all kinds of family breakdowns and misery result. It is not necessary to invest a great deal of money in order for the most vulnerable to get reasonable access to justice.

[Dr Huppert]

I thank the hon. Gentleman for his comments. He is right. I am not an expert on the position in London, but I know the Cambridge area and I realise that there is a shortage of good people. I see that with my constituents time and again.

[Keith Vaz (Leicester East) (Lab)]

I am most grateful to the hon. Gentleman for giving way. I pay tribute to him for the work that he does as chair of the all-party group on refugees and as a member of the Select Committee.

Further to the point made by my hon. Friend the Member for Islington North (Jeremy Corbyn), if that specialism disappears—and immigration cases are dealt with by specialist legal aid lawyers—vulnerable constituents may go to unscrupulous immigration advisers, be charged huge sums, and, at the end of the day, be left with no recourse except to go to Members of Parliament, who are not really qualified to give them that advice.

[Dr Huppert]

I thank the right hon. Gentleman for his comments. I am astonished at how many constituents I see who have been poorly advised. The most extreme example was a lady who applied for asylum through a lawyer and got leave to remain, but when she went to renew her passport she discovered that the whole thing was a forgery. We are still trying to resolve that case. We need decent, good quality lawyers, not the rather shabby and disreputable people whom we sometimes see in their place.

The main point that I want to make is about the approach taken by the UK Border Agency. Its attitude is a well-known sticking point. It rarely allows scope for negotiation or mediation. It seems to take the view that it will stick to its decision until a court tells it otherwise almost regardless of the evidence. In so many cases, applications for the right to work were ignored until the agency was ordered to deal with them by higher courts.

Many applications for refugee reunion that are refused are then overturned on appeal, and it seems that the appeal system is being used by the agency as a safety net. Under the Government’s proposals, those cases would no longer be in scope for legal aid, and there will be no opportunity to fix the agency’s errors. I urge the Government to listen to practitioners and the representatives of asylum seekers and refugees. The Government should ensure that asylum support remains in scope as a high priority. They should also ensure that applications for family reunion are treated as extensions to a claim for asylum and thus be within scope for legal aid purposes.

There are certainly cases in which applicants with a poor case abuse the system, looking for appeal after appeal in a fruitless quest for victory. However, those with a strong case are also forced to jump repeated hurdles to get justice. The key solution is for the agency to get more decisions right first time, as was accepted by the Minister for Immigration, when I raised the matter in the Chamber.

I could say more about that, but I want to give a brief example of the impact that the Government’s proposals may have on service providers, and I shall then allow others to speak. I have spoken to service providers about the possible impact of the proposals on various vulnerable groups. I have received comments from a range of organisations and individuals that provide support. I wish that I could have talked to all of them, but I shall focus on the role of Citizens Advice, as I suspect that all Members will appreciate the vital role that it plays in our constituencies, not least in preventing the flood of case work that we all receive from becoming even more torrential.

Citizens Advice has produced detailed briefings showing the unintended consequences of the Government’s proposals on social welfare law work. Its cost-benefit analysis makes a strong case for retaining and even strengthening its role. For instance, its research found that for every £1 of legal aid spent on housing advice, the state potentially saves £2.34; on debt advice, the state saves £2.98; on benefits, it saves £8.80; and on employment advice, it saves £7.13. With impressive understatement, Citizens Advice suggests that the Ministry of Justice

“gets a good return from expenditure on legal help in these areas.”

It estimates that if funding were no longer available for these categories of law, at least £172 million of additional costs would accrue for both state and society.

What effect would the proposals have on the Citizens Advice service more widely? More than half of the bureaux surveyed in December last year said that the changes to legal aid scope and the reduction in fees would pose a real risk to the continuation of their local advice service as a whole. Again, I do not need to remind Members of the havoc that that would wreak in our communities, or of the large amount of extra work that would almost certainly come our way as a result. In passing, I praise the excellent work done by Rachel Talbot and the staff of the Cambridge citizens advice bureau, who are always there to help me and my constituents. I also praise Cambridge city council, which last year provided it with a 25% increase in grant. I wish that all councils did that, rather than pulling resources from such a vital public service.

Time is running short, but I wish to raise two brief points. The first, raised earlier by my hon. Friend the Member for St Ives (Andrew George), is about the effect of combining the legal aid proposals with Lord Jackson’s proposals on clinical negligence cases. Lord Jackson was clear about it. He said:

“I stress the vital necessity of making no further cutbacks in legal aid availability or eligibility…the maintenance of legal aid at no less than the present levels makes sound economic sense and is in the public interest”.

Will the Government take account of that plea, and avoid a double whammy? Legal aid changes and the Jackson proposals together would mean that those who have suffered through error would not be able to continue with their cases.

Secondly, I flag up a concern raised with me by Andy McGowan, the access and funding officer of Cambridge university students union. He is one of those rare people on free school meals who got to Oxbridge—the Government would like to see more of them—and he wants to practise as a criminal legal aid solicitor; he is driven by a motivation that I am sure we would all endorse to help the most vulnerable in society. He asks how he can fund the legal practice course in the absence of the training contract grant scheme, knowing that he will be unlikely to be as well paid as those lawyers for whom money is the principle motivation. If we lose people like Andy from the profession and from public service, we will create a less fair future for many years to come.

It is not my intention to attack the Government’s proposals without offering an alternative. That is not a helpful or effective way of approaching such debates, and I am always disappointed when others do not say clearly what they would do differently. There is clearly much in the Government’s proposals that is sensible. I cannot claim to be an expert on legal aid, and I have relied heavily on the hard work of many other people in preparing this speech. I am grateful to them for all that they do to preserve what is good about the present system, and for their wider struggle to provide access to justice for all, especially for the most vulnerable. The case that I have attempted to build draws on the research and evidence of others. The same is true of the alternative that I offer the Government.

The Law Society, which for a long time was officially responsible for legal aid, has continued to play a major role in shaping the debate on this important subject. It has produced an alternative set of proposals that aim to go beyond the savings that the Government have set out. It projects savings of £384 million, which could even reach slightly more, yet at the same time it claims to be able to protect the vulnerable about whom I have said so much. The Government are duty bound to look seriously at those proposals and, if they are workable, to adopt them. If the Government are serious about access to justice, they must listen to those who know what is necessary to provide it.

I look forward to hearing what other hon. Members have to say, and to the Minister’s response. I hope that he will signal a willingness to modify the proposals in the light of the concerns that have been raised.

[Several hon. Members]

rose—