Legal Aid: Post-Implementation Review

Karen Buck Excerpts

Tuesday 4th September 2018 Westminster Hall

[Ms Karen Buck (Westminster North) (Lab)]

I beg to move,

That this House has considered legal aid and the post-implementation review.

It is a pleasure to introduce this important debate under your chairmanship, Sir Christopher.

We cannot have meaningful rights without the means of enforcing them, and we cannot have meaningful justice if people have no way of accessing it. Legal aid lies at the heart of both those assertions, which is why I very much welcome the Government’s review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 six years on, and the opportunity to ask the Minister about the review’s process and substance. If she is unable to answer all my questions—I suspect she may not be able to—I would be grateful if she agreed to write to me so that we have answers on the record.

A few weeks ago, the Joint Committee on Human Rights, of which I am a member, published its report, “Enforcing human rights,” as a contribution to the wider debate. It stated:

“Access to justice is fundamental to the rule of law. We are concerned that the reforms to legal aid introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) have made access to justice more difficult for many, for whom it is simply unaffordable.”

Six years on from the Act’s passage, it is clear that the system is in crisis. Cuts to the Ministry of Justice were higher than to any other Department, at 40%. The impact of cuts on that scale is simply unsustainable.

The review of the changes must provide answers—not rhetorical answers and warm words, but practical solutions. Such solutions were set out in the Committee’s report, as they have been in expert report after expert report by bodies from the Bach review—I pay particular tribute to Lord Bach—to the Law Commission, and in evidence from the frontline of civil and criminal law. Solutions were also set out in excellent briefings for the debate from the Legal Aid Practitioners Group—I particularly praise the work of the extraordinary Carol Storer, who has been in charge of the LAPG for the past decade, and her team— the Equality and Human Rights Commission, to which I will make particular reference, the Law Society, Mind, the Families Together coalition, the Children’s Society, the Coram Children’s Legal Centre and many others.

I will ask about some of the specific points arising from all those briefings, but let me first ask about the review process. The review is currently under way, with a deadline of the end of this month for the submission of evidence and engagement with stakeholders. I put on the record my appreciation for officials’ engagement with the all-party parliamentary group on legal aid, which I chair, but there are a number of wider concerns about the transparency of the process.

No minutes have been published of the meetings that have been held. We understand that no independent research has been commissioned either. Will the Minister confirm whether that is the case? Will she also confirm that the report will definitely be published by the end of the year? How long does she estimate it will take the Government to respond? Critically, what will happen next? Will the review be affected in any way by Brexit? How long will the response take? What steps will be put in place to safeguard the current situation and prevent more providers from closing before there is an opportunity for recommendations arising out of the review to be implemented?

Let me return to the substantial issues that confront us in the post-LASPO world. We hope that many will be addressed by the review, and hopes are high, given the pressure under which many legal aid services are operating. LASPO narrowed considerably the scope of legal aid, with the result that it is no longer available for most private family, housing, debt, welfare benefit and employment matters. LASPO also changed the financial eligibility criteria for legal aid, including by increasing the amount that people have to contribute from their income and by removing automatic eligibility for people on means-tested benefits.

I could have filled my allocated time with any number of comments made to me by individual lawyers prior to the debate, but I picked one at random relating to housing, which I am particularly concerned about. I was contacted this morning by Russell Conway, a housing lawyer with Oliver Fisher, who said:

“Legal Aid lawyers are hanging on by the skin of their teeth. Worse still large numbers of clients cannot get access. Yesterday I turned away 10 prospective housing clients as their cases were no longer within scope”.

The latest statistics relating to the provision of legal aid confirm exactly that. Total legal aid expenditure has fallen by £600 million since 2013. The number of legal aid and controlled legal representation claims fell from 188,643 to 92,124—in other words, they halved. Mediation starts more than halved, and the number of providers has plunged by 800 in criminal law and 1,200 in civil law. It is no wonder that when the Joint Committee looked at the impact of LASPO on access to justice, concerns about advice deserts—parts of the country where advice and representation are close to non-existent—featured strongly.

In summary, legal aid is no longer available to many of those who need it. Even those eligible for help find it hard to access it, and major gaps in services are not being addressed. As is so often the case, the most disadvantaged and the disempowered bear the burden. To take just one group, important research by the mental health charity Mind found that half the people facing legal problems that were removed from the scope of legal aid by LASPO have mental health problems.

As LASPO removed significant areas of law from the scope of legal aid, exceptional case funding was brought in as a safety valve for more complex cases, such as where funding is deemed necessary to prevent a breach of human rights. Exceptional case funding was expected to support between 5,000 and 7,000 cases a year, but there were only 70 successful grants in the year after LASPO was introduced. Although that funding has picked up to some degree, it clearly has not fulfilled its intended function. We need to be reassured that addressing it will be core to the review.

Both the Equality and Human Rights Commission and the Joint Committee on Human Rights raised grave concerns about discrimination cases, the implications for human rights and the disproportionate impact of legal aid cuts on access to justice for people with protected characteristics, including disabled people, children and migrants. I hope the Minister will join me in welcoming the Equality and Human Rights Commission’s report and the inquiry it announced yesterday. Although the timing of that inquiry means that its results will not feed directly into the Government review, I hope she reflects on what the commission is doing and why.

The Equality and Human Rights Commission drew attention to how the removal of most welfare benefits law from the scope of legal aid disproportionately affected disabled people. It flagged up the fact that the number of benefits disputes cases in which legal aid was granted fell by 99% post-LASPO, from 29,801 in 2011-12, to just 308 in 2016-17. When individuals are able to challenge benefits decisions, the majority are overturned. Since 2013, 63% of appeals against personal independence payment decisions and 60% of appeals against employment and support allowance decisions have been decided in the claimant’s favour.

The Equality and Human Rights Commission also drew attention to the fact that the removal of most private family law from the scope of legal aid affects women disproportionately, and of course the removal of most immigration law impacts people from certain ethnic minorities. As the EHRC report states, many of the areas of law removed from the scope of legal aid cover issues central to domestic and international human rights protections. Restrictions on the availability of legal aid carry the real risk of preventing the enjoyment of fundamental rights and freedoms, especially when the practical effect of such measures is to hinder, dissuade or deny access to legal redress where individual rights have been violated.

The EHRC cited specifically the effects in family law or immigration cases that may involve violations of the right to respect for family life under article 8 of the European convention on human rights; in education cases where the removal of provision presents barriers to justice for those seeking redress for breaches of the right to an education, which is protected by article 2, protocol 1 of the convention; and in social welfare law cases, the removal of many of which from the scope of legal aid carries implications for the UK’s international obligations under the international covenant on economic, social and cultural rights.

The Minister will be very aware of the concerns that have been raised about the operation of the civil legal advice mandatory telephone gateway, which is often the only way for a victim of discrimination to access the legal aid system. Somehow, just 16 people have been referred to face-to-face advice in the past five years, despite more than 18,000 discrimination cases coming through the telephone gateway and an estimate that the referral rate would be 10%. Why does the Minister think that is?

Is the Minister able to say how many people with protected characteristics, including mental health problems, have been denied legal aid since the introduction of LASPO? Will the LASPO review include an assessment of the impact of legal aid reforms on groups with protected characteristics? What assessment has the Department made of the number of those people with protected characteristics who have been forced to represent themselves in court since the introduction of LASPO? Will the review consider reintroducing to the scope of legal aid those issues most commonly experienced by vulnerable individuals?

Powerful evidence of how LASPO affects children has been submitted by the Children’s Society and Coram Children’s Legal Centre, among others. They and I greatly welcome the MOJ’s decision to bring back into scope non-asylum immigration advice for unaccompanied and separated children’s immigration matters before the end of 2018, yet many other children and young people with outstanding immigration matters—particularly children with parents, and young people who are over 18—will continue to miss out.

The Government estimated 8,500 cases involving claimants aged 18 to 24 and around 43,000 cases involving claimants over 25 would go out of scope for immigration and asylum matters. No data were available on how many dependent children would be affected within those cases and I do not believe there has been any assessment since then. Is the Minister aware of such information? If not, will she ensure that such an assessment is carried out, so that we have accurate data on which to plan?

We know that the status children have can change easily and sometimes frequently. The lack of legal aid available for families to resolve their immigration status can mean children fall in and out of services, leaving them exposed to considerable risk. Undocumented children are often excluded from accessing mainstream benefits, secondary NHS healthcare and local authority homelessness assistance, and their parents are sometimes not allowed legally to work. Children in such families, care leavers and young adults who are over 18 with unresolved immigration issues are at serious risk of destitution and, at worst, abuse and exploitation, as a result of hardening immigration policies and cuts to legal aid.

That is just the situation today. It could soon get worse. There is a critical need to plan for a post-Brexit future, as millions of European economic area nationals, including children, need to settle their status in the United Kingdom. Although little is known about the immigration system post-Brexit, restrictions on the movement of EEA nationals are likely to mean that more children and families will become subject to immigration control in this country and therefore will need to regularise their status. That will include thousands of EEA children in local authority care and care leavers. Making legal aid available to those cases will be critical to protecting children’s rights.

Will the post-implementation review take account of the likely issues on the horizon, to ensure that they future-proof our system of access to justice and ensure that there is consistency in access to legal aid, to help to resolve the range of complex immigration circumstances and protect children, young people and families? Does the Minister know how many children in families and young adults have been affected by cuts to immigration legal aid since 2012? What assessment has she made of the availability of immigration advice regulated by the office of the Immigration Services Commissioner as a result of LASPO? What assessment has she made of the need for advice in areas where regulated immigration advice has dried up as a result of LASPO? What steps will she be taking to ensure that action is under way to deal with the issue of advice deserts?

The withdrawal of legal aid for initial legal advice in many areas of law can result in the escalation of relatively minor problems into more complex issues. There is a clear link between receiving professional legal advice early and resolving a problem sooner. Research commissioned by the Law Society using data from the legal needs survey found that on average one in four people who receive early professional legal advice had resolved their problem within three to four months, while one in four people who did not receive early legal advice had resolved their problem within nine months.

Lack of early legal advice can cause problems to escalate unnecessarily, potentially increasing the burden on the courts and increasing costs to the public purse. That has a clear impact on access to justice and the rule of law. The Government anticipated that people with legal problems in areas taken out of scope by LASPO would use alternative means of resolution. When removing legal aid for family matters, for example, the Government predicted that there would be increased uptake in mediation as an alternative, so that families could resolve their problems outside court. In fact, there has been a decrease of 56% in mediation assessments in the year after the reforms and the number of mediation cases that started fell by 38% in the same period. It may be that solicitors providing early advice referred people to mediation, so that removing access to such advice from a solicitor resulted in fewer, rather than more, cases being resolved that way. Has the Department conducted such research into the extent to which people have found alternative means of resolving disputes or obtaining representation? What research has been carried out or commissioned within the review looking at the cost of displacement to other services?

One obvious area of displacement is the rise in the number of litigants in person—people representing themselves in court. LASPO has resulted in an increase in litigants in person in family law proceedings, with 19,000 more unrepresented parties in 2016-17 than in 2012-13—up from 42% to 64% of such cases. Litigants in person often struggle to understand their legal entitlements and the complexities of court procedures. As the National Audit Office found, litigants in person are less likely to settle cases outside court, likely to have more court orders and interventions, likely to lack the knowledge and skills to conduct their cases efficiently, and create additional work for judges and court staff, which can make court listing processes less efficient. The Joint Committee on Human Rights report welcomed the fact that the Government are considering the impact of the increase on litigants in person, both in terms of outcomes for the individual concerned and on the court system. Has the Minister considered the recommendations of our report? Will she ensure they are reflected in the LASPO review?

Finally, the Joint Committee on Human Rights heard compelling evidence about the extent to which pressures caused by the reforms in legal aid impact on legal aid professionals. By damaging morale, and undermining the legal profession’s ability to undertake legal aid work, access to justice, the rule of law and the enforcement of human rights in the UK are further undermined. In the area of criminal law, data suggest that in five to 10 years’ time, there will be insufficient criminal duty solicitors in many regions of the country, leaving those in need of legal advice unable to access their rights.

I will quote just one message from the many that I was sent before this debate. A lady wrote to me to say that she has been a family lawyer and latterly a mediator for 35 years. She continued:

“Since 1996, I have been mediating under the legal aid scheme. I have always done legal aid work, as a solicitor as well as mediator…I will leave it to others to give facts and figures…I just want to put in a plea for the people who provide these services. We, the mediators, are paid the same rate as we received in 1996. This is no pay rise for 22 years…This has the consequence that services are not viable any longer. I have not had a pay rise for 22 years and carry on out of the goodness of my heart. Unless this issue is addressed, even if legal aid is reinstated in many cases, there will…not be the lawyers or the mediators to provide the service at all.”

Let us recognise that reality and praise those people who work so hard, frequently in very stressful environments and for precious little money, despite all the rhetoric about fat cat lawyers.

How is the review addressing the issue of future provision? How will any restoration of services be guaranteed when no new providers are operating in certain parts of the country? How many firms does the Minister estimate do not see a future for legal aid in their future business plans? How many legal aid lawyers expect to retire and how will they be replaced? What immediate steps are being taken to try to encourage young lawyers who want to do legal aid work to obtain training contacts and pupillages, and to overcome the reluctance of those with student debt burdens to enter into this work? Truthfully, it is impossible to wholly separate the impact of LASPO on those who need advice and representation from the needs of the people who provide that service. I hope that the Minister will reassure me that the review is considering the issue of pressures on those working in the sector and recruitment and retention, not just nationally, but across all parts of the country.

I doubt that many people working in legal aid will have been reassured by the contract debacle this weekend. It would be helpful if the Minister said something about how that is going to be swiftly resolved. Almost every aspect of the legal aid debacle was predicted and objected to at the time, hence the large number of defeats in the other place—only very minor, although welcome, adjustments have been made since. There is an opportunity in this review to learn from what has gone wrong and to put it right. The moment must be seized before it is too late.