Criminal Legal Aid Reforms

Julian Huppert Excerpts

Wednesday 4th September 2013 Westminster Hall

[Dr Julian Huppert (Cambridge) (LD)]

I congratulate the hon. Member for Kingston upon Hull East (Karl Turner) on securing the debate. Many Members will remember that my hon. Friend the Member for Brent Central (Sarah Teather) led a well-attended debate on legal aid reform in June, which focused on civil legal aid and was helpful in moving the debate forward. Those of us with an even better memory might remember that two years ago I held a debate in this place on legal aid reform, before the previous legislation was passed.

We will not have time to touch on some things, such as the residency test, which I still consider pernicious, but I wish to talk through a whole range of issues. We accept, as I think everyone must, the principle of making savings. It has been accepted, I think, across the board. The Labour party’s manifesto at the last election stated:

“To help protect frontline services, we will find greater savings in legal aid”.

The question is how to do that.

As co-chair of the Liberal Democrat committee on home affairs, justice and equalities I wrote formally, with my colleagues, to the Lord Chancellor, and we received a detailed response to our suggestions. Sadly, I will not have time to go through all the suggestions or every aspect of the response, but I was pleased that he said:

“It is important to note that I have yet to make any final policy decisions.”

He is absolutely right not to have done so, and I am sure that he will listen carefully to the concerns we are all expressing. He also referred to a short period of further consultation, which I think we would all welcome.

The Lord Chancellor also talked about working closely with the Law Society. I was at the Law Society yesterday and had the opportunity to talk to it about some of the new proposals. I hope we will be able to come up with something that it will find not necessarily ideal but an acceptable way forward. As has already been said, the society’s suggestions for savings are definitely worth looking at; it has an improved model.

Our biggest concern as a committee was the lack of choice. When a scheme including that was tried in Scotland in 1998, under a different Government, there was substantial dissatisfaction with the representatives. It was clear that getting rid of choice did not work then, and I am pleased that the Lord Chancellor has taken the right decision to abandon that approach.

We must also look at quality. We saw the problems with the bulk contract awarded to Applied Language Solutions—now Capita—for interpreting services. It did not provide the quality that was needed, and we must avoid anything like the same problems again. The Lord Chancellor said that quality was

“critical to any future model of procurement”,

and that must be absolutely explicit. We do not want cut-price justice; we must ensure good quality, and that includes the smaller firms that many colleagues have spoken about. An idea that I have suggested is to encourage firms to work together in consortia rather than to have large bidders. There will be a firm operating in one town that can work happily as part of the same contract with one in a town somewhere else, in Cornwall, Cambridgeshire or wherever it might be. It does not make any sense that such firms should have to bid against each other. I hope that the Lord Chancellor has considered that and will respond in detail, with some helpful ways forward.

Judicial review is an important remedy. It is essential to have ways in which the state can be held to account at local government and national level. The proposals will not save a huge amount of money. I look forward to detailed suggestions about how to deal with cases of suggested misuse of the system without affecting the vast majority of cases that are important and which form a clear safeguard.

A particular concern has been put to me by several lawyers doing judicial review cases: because of the requirements for payment only when permission has been given, in a really strong case—for example, when a local authority that is failing to provide the care it should, gives up and settles at the point that there is a claim for judicial review, because it knows that it will lose—there may be no opportunity for the lawyer ever to be paid. I did not know until recently that a local authority will quite often settle, subject to not having to pay the fees. If the Government and the local authority will not pay the fees, the people with the strongest cases will never get paid. That is clearly not right and must be addressed in some way, because I am sure that it is not what the Government want to happen.

It is important to have a system of legal aid for prisoners. There may well be some trivial cases, but there are some incredibly serious ones. By all means, let them go through a complaints system that has to be used first, but if that is unsatisfactory, there must be a proper legal route and support for prisoners. The change will not save much money, so it should not be done purely for ideological reasons.

We can do much in relation to savings, as has been touched on. The use of restrained funds, with appropriate judicial control and capping, would be a fantastic way forward. It seems odd to pay for legal aid for people who have money, but not allow them to spend it. That would be one way to save a substantial amount of money. That can be used in some cases—the Home Office has access—so let us make sure that it is available here.

I support the idea of dealing with high cost fraud cases by having a form of compulsory directors insurance or some other scheme—I do not mind about the exact details—so that we are not paying in cases where there is another substantial source of money. That would enable great savings.

Lastly, there could be more efficiency savings in how courts operate. The system too often does not work: the late arrival of prisoners due to transport failures has caused delays for a third of defence solicitors; half of solicitors have been delayed because the prosecution did not follow disclosure rules; and there are unnecessary adjournments and listing failures. The court system does not operate as efficiently as possible, which costs us money in legal aid. We could provide better justice for less money.

I look forward to the Minister’s response and the Lord Chancellor’s final decisions. Yes, we can save money, but it must not be at the cost of justice.

[Kate Green]

rose—

--- Later in debate ---

[Jeremy Wright]

I am afraid that I do not agree with the hon. Lady, because we are not talking about changing that presumption of innocence. What we are saying is that people with the means to pay—sometimes, very substantial means to pay—should not have access to taxpayer-funded subsidy for their legal fees if they are, in the end, found guilty. If they are found innocent in the end, the amount that they have paid for their legal fees will be considered for refund. That is important, but it is not about a presumption of innocence, which remains intact, as—of course—it should.

I will say something about prison law, because that is an issue that many people have raised. The hon. Member for Stretford and Urmston (Kate Green) asked some sensible and detailed questions about it. If she will forgive me, I must say that in the five minutes I have left to me I will not have the opportunity to respond to those questions, but I will write to her about the specific points that she has made.

However, my hon. and learned Friend the Member for Harborough is entirely right that the nature of the case that is being considered and that may be litigated is crucial. It is not the case that every instance of grievance raised by a prisoner should be litigated through the courts. Also, the changes that we are proposing say that it is important that when a prisoner’s liberty or the length of their sentence are considered, they should still have access to legal aid. However, there are a whole range of other complaints that can be more properly and more effectively dealt with through other methods, rather than involving the courts and costly lawyers.

I will also say something about the residence test, because the right hon. Member for Tottenham and others expressed concern about it. Again, I think that in principle it is right that those who have a strong connection with the United Kingdom should have access to taxpayer-funded legal aid, and that those who do not have a strong connection to the United Kingdom should not have access to it. There are exceptions to that principle, which we have made clear. For example, these changes will not apply to refugees or asylum seekers. In general, however, applying that principle is the right thing to do, and I think that it will have the support of the public.

Judicial review has also been referred to. We absolutely support the principle of judicial review. Those who have spoken up in favour of it were right to do so; it is a crucial tenet of our system that the public should be able to hold Government to account through the judicial review system. However, it is equally important that that system should not be abused, and we simply have to face up to the fact that there has been a huge increase in the number of cases pursued through the judicial review process that are not found to have merit.

It is important that the crucial pre-court phase does not cover the initial preparatory work on a judicial review case. In that phase, lawyers should think carefully about whether a case has merit, and they should have something at stake when they do so. That is the basis for the proposals that we are making.

[Dr Huppert]

Can the Minister just clarify the position about really strong cases, where the case does not proceed because it is won so quickly through a settlement?