Legal aid

Karen Buck Excerpts

Tuesday 14th December 2010 Westminster Hall

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

I am delighted to have secured this important debate so soon after the publication of the legal aid Green Paper. It is a mark of how significant such issues are that there is a good attendance in the Gallery and that a number of Members of Parliament are present hoping to make a contribution.

Members of Parliament have a particular interest in legal aid, particularly in the broader context of advice services, because we are part of the family of advisers. That was brought home to me during my first week as an MP when, at my very first surgery, a gentleman asked me for assistance in having his wife deported. I was not able to refer that case to a partner legal aid firm.

Over the course of 13 years, I have made extensive use of, and am enormously grateful to, private firms, law centres and other advice centres in my constituency and elsewhere, and I will pay tribute to them by name. Paddington law centre is an excellent local facility that has assisted thousands of people in the community. The London borough of Westminster is often used as a byword for prosperity and the great institutions of central London, but in fact it includes a number of the most deprived wards in the country. Westminster citizens advice bureau is another superb organisation and I had the pleasure of attending its annual meeting a couple of weeks ago. Other organisations include the North Kensington law centre, the migrants resource centre, the Mary Ward centre—that is not in my constituency, but it is an important local organisation—Just for Kids Law, to which I will refer in a moment, and many private practices, as well as the Central London law centre and the Brent private tenants rights group, which is just over the border and provides an important service to tenants.

Those professionals in the sector provide, for the most part, a service to many of the most vulnerable and distressed people in society, and they do so for what is a challenging level of remuneration in a professional context. We hear—sometimes rightly—about the eye-watering sums of money paid in legal aid in some criminal cases. I understand that such cases cause public concern, but as in so many areas of public policy, we are being driven by policy making by anecdote. We need to address extreme examples and issues, but, overwhelmingly, legal aid practitioners are not well remunerated and they do an excellent job at astoundingly good value to the public purse.

[Mr David Lammy (Tottenham) (Lab)]

My hon. Friend says that those professionals are not well remunerated. Does she agree that they are not even as well remunerated as many of the senior police officers and teachers in our constituencies? Their average income is between £28,000 and £40,000 in London.

[Ms Buck]

My right hon. Friend makes a good point. It is true that legal aid practitioners who take on institutions in the public sector, and sometimes the private sector, are significantly less well paid than those professionals who make the public policy decisions that they challenge.

It is important to put on the record the fact that the previous Labour Government took decisions that bore down on legal aid expenditure. Not everyone will have agreed with those decisions—they may have challenged them—but there was a healthy debate. It must also be accepted that had Labour been re-elected, there would have been cuts in the legal aid budget. It is not the case, however, that the unfolding policy of the Labour party would have placed the pressure, which we now see emerging, on civil, family and social welfare law. Those are the areas of concern that I want to address.

It is critical to protect criminal legal aid. If it is not available at the right level and provided by quality professionals, justice will be denied. It is very important to protect a proper criminal legal aid budget. I pay tribute to Lord Bach, the former Minister with responsibility for legal aid, who looked at ways in which to bear down on exceptional costs in the criminal legal aid budget without sacrificing the principles of access to justice. I think there was consensus on that.

My concerns are about the manner in which the legal aid Green Paper attacks—and it is an attack—the legal aid budget. It bears down particularly severely on civil cases, including family and social welfare, and takes a number of areas out of the scope of aid entirely. Such areas include children and family cases in which domestic violence is not a stated factor, education, immigration where a person is not detained, clinical negligence, welfare benefits, employment, debt and some areas of housing. As a consequence, more than 500,000 people each year are less likely to receive help. Not only will that have an effect on those people unable to access legal aid services, but it will destabilise and possibly destroy such services in many areas and make it extremely hard for public services to be held to account when they are at fault.

[Chris Leslie (Nottingham East) (Lab/Co-op)]

My hon. Friend makes her case powerfully. The cuts are atrociously harsh on civil cases. Nottingham law centre in my constituency says that last year it helped 1,300 people avoid housing repossession. I am exceptionally worried about the impact on homelessness and the potential for people to lose their homes. This is important stuff.

[Ms Buck]

I am grateful to my hon. Friend for raising that point and I will return in a moment to the issue of housing and homelessness.

Funding for judicial review is retained within the legal aid Green Paper. However, in many cases it is not based upon the legal help that allows for an effective judicial review. I have been told that retaining judicial review but withdrawing so much legal aid is as useful as having a flight of stairs between the first and second floors of a building when there is nothing between the ground floor and the first. Judicial review emerges from a wider pool of cases and there will be inadequate tests of the law if legal aid is withdrawn.

As we know from the Green Paper, eligibility for legal aid is to be further reduced. Over recent years—this is already a trend—the proportion of the population eligible for legal aid on a sliding scale of contributions has fallen from about half of the population to about a third. The Green Paper further lowers the level at which people are asked to contribute from their assets, and increases the percentage level of contributions from earnings. Moreover, for the first time, those on social security benefits should, it is suggested, be subject to a full asset test. Will the Minister write to me and state whether the Department has calculated the cost of such an exercise? Taken together, all those measures prompt the question of whether even those who are potentially entitled to legal aid can afford to take up that entitlement, and what that will mean for access to justice.

Members of the public are being asked to insure themselves to cover future legal aid cases. However, since those who lose out are, overwhelmingly, low-income households, it is extremely unlikely that they will be able to find money for a hypothetical eventuality, rather than for the daily struggle to house, heat and feed themselves. There is nothing wrong with taking out insurance in principle—it should be encouraged—but is it realistic to ask low-income groups to insure against eventualities that are simply not as foreseeable as those risks that lead people to insure their homes and cars?

The loss of legal aid will mean that most, if not all, of the 500,000 people affected will lose access to advice and representation. That figure will include many of the most vulnerable categories of people. The legal aid consultation itself acknowledges that in respect of issues such as debt, welfare benefits and education, people with disabilities are likely to be disproportionately affected. For example, 63% of legally aided clients in the sphere of welfare benefits assistance are disabled.

The excellent briefing produced for this debate by the National Association of Citizens Advice Bureaux states that

“alternative sources of advice are simply not available, suitable or accessible for the overwhelming majority of our client group”

and

“the voluntary sector and pro bono does not have the capacity to fulfil the need currently met by Legal Aid in terms of the volume of people or the specialism required for more complex cases.”

Will the Minister say, either now or later, whether the Department has carried out a full capacity assessment to assure us that voluntary and pro bono facilities are available to fill the gap that will be created by the proposals in the Green Paper?

[Kate Green (Stretford and Urmston) (Lab)]

In the context of my hon. Friend’s remarks about the impact of the proposals, does she agree that yet again we are seeing a disproportionate impact on women, especially, of course, in relation to family cases?

[Ms Buck]

That is absolutely right, and I will deal with family law in a moment.

[Dr Julian Lewis (New Forest East) (Con)]

I do believe that the legal aid budget in this country is huge in comparison with those in other European countries, but I have had representations from the New Forest citizens advice bureau to say that it has two part-time caseworkers and it is wondering where its most vulnerable clients will go if that service is cut back in parallel with cutbacks in legal aid.

[Ms Buck]

I am very grateful to the hon. Gentleman for raising that point; it will be one of the issues that I address. There is an argument in addition to the argument about how much we fund legal aid by. There is consensus that the budget cannot expand indefinitely, but there are still issues about the speed at which and the manner in which legal aid funding is withdrawn and the impact that that could have on providers.

I think that value for money was also at the heart of the hon. Gentleman’s remarks. Is it not the case that expenditure on legal aid and advice services does provide value for money, because it ensures that public services and others operate effectively and well, that errors are corrected and that public law is constantly challenged? It also helps people to redress wrongs and ensures that the take-up of benefits and other services is done properly.

The National Association of Citizens Advice Bureaux, among other organisations, convincingly argues that there is a very poor business case for what the Government propose. Taking so much social welfare out of the scope of legal aid will undermine value for money. It is argued that between £2 and £10 is saved for every pound invested in the legal aid budget. An analysis based on data from the civil and social justice survey and on Legal Services Commission outcomes data estimates a saving of £2 for every £1 spent in relation to housing, £3 for every £1 spent on debt advice, £8.80 for every £1 spent on benefits advice and £7 for every £1 spent in relation to employment. That is besides the benefit to the individual; 80% of social welfare legal aid cases record positive outcomes for the clients.

It is impossible in a limited time—I want other hon. Members to have an opportunity to contribute to the debate—to pay proper attention to every area of civil law affected by the proposals, so I shall make just a few remarks on the areas that cause me greatest concern.

In relation to family law, no one disputes the value of mediation or the fact that in cases that go to court, the court action can have an extremely damaging impact on the families. However, relying on mediation is not always an option. It is not always the case that both partners are prepared to go to mediation. Also, it implies that there is a willingness to compromise and that the compromise should be somewhere around the middle of the argument about child welfare, maintenance or whatever. That ignores the fact that in many instances, one partner or the other has behaved excessively badly or is making unrealistic demands; indeed, it encourages them to make such demands.

Good and powerful cases have been raised by the Legal Aid Practitioners Group, and I shall read the details of two into the record as examples. One case study states:

“I am advising a client who is seeking contact with his children. The children’s mother has remarried and has a new child with her husband. She seeks to marginalize our client from the children’s lives, has denied contact, refuses to engage in mediation and has moved to a secret address. The case requires a preliminary application to ascertain the children’s whereabouts and once identified an application for contact. Clearly mediation is impossible and without early advice the client will have absolutely no idea how to re-establish contact with his children. His options would be to try to find them through any means available to him which would not be helpful or to give up which would deny the children the right to have a relationship with their father. With early advice, the application for disclosure would be made by solicitors and once the children’s whereabouts were identified a tactical attempt to negotiate and encourage mediation…would take place. This particular client has some learning difficulties and to navigate the court system as a litigant in person would almost certainly be impossible and any attempts made would be hugely time consuming.”

The other case study states:

“I am advising a client. He has 4 children and has shared residence for all those and is very active in their lives. We have helped him in the past with residence issues with the benefit of legal aid…He is now facing an application by one of the Mothers to take his 14 year old daughter to New Zealand where the Mother has a 2 year work contract. If this is allowed, from seeing his daughter half the week he will be lucky to see her in the holidays and will not be able to afford air fares…In future this client will have to deal with this on his own. This will lead to him probably giving up on fighting the application.”

Even in cases in which domestic violence is not an issue, without legal aid there are real dangers that individuals, particularly those who have difficulty in being sufficiently articulate or confident to navigate the courts system, will lose access to their children.

[Margot James (Stourbridge) (Con)]

The hon. Lady is making a very powerful case, but given that she has said that civil, family and social law are bearing the brunt of the proposed cuts, I wonder whether she will comment—or the shadow Minister, the hon. Member for Hammersmith (Mr Slaughter), will comment later—on where her party would have made the cuts had it been re-elected. As she mentioned, cuts would have been made had Labour been re-elected. The cuts proposed are less than 20%. If criminal law is to be protected, where does she or the shadow Minister suggest that the Government make the cuts? The speed and manner of the cuts seem to be the main criticism. We would like to see more detail.

[Ms Buck]

As I said, the previous Labour Government had already made cuts to the legal aid budget, which were highly controversial. Many hon. Members who are in this Chamber made fierce representations on that point. I have already said that there were areas, particularly very high-cost criminal cases, in which the Government intended to go further. Ministers were also examining ways in which the civil and social welfare budget could be protected within the global legal aid budget, because it was understood that in many cases, savings in that area would lead to a false economy. Therefore I will not be drawn into an argument about equivalence of cuts and into coming out with every figure, because I dispute the basis of what the hon. Lady has said.

One of my greatest concerns is about the proposed cuts in relation to education. The Government’s intention is to take education out of the scope of legal aid. Given the often unfulfilled statutory duty on local authorities to ensure that young people receive an education, that is bound to hit the most vulnerable the hardest.

I am indebted to Just for Kids Law, a specialist organisation in my constituency, for the information that it has provided and for its assistance with a number of cases that I have referred to it. Last year, Just for Kids Law took 34 cases, with two thirds having a satisfactory outcome. These are cases of children without a school place and cases in which there are serious disputes in relation to children who have or who require statements of special educational needs. Given that the latest figures for my borough show that we have 364 children without a school place at this point in the school year, the need for representation for parents is extremely clear.

I shall give a couple of examples of cases, from Just for Kids Law’s caseload, which would receive no representation in future.

“E…is a highly gifted boy who is on the autistic spectrum. His father was offered a job in New Zealand so the family emigrated and E…started Year 7 there. Regrettably there was no special educational needs provision for him and he was so severely bullied that, by August, his parents had withdrawn him from school and made arrangements for the family to return to the UK. They had kept in regular contact with their local authority, however, when they returned in January 2009, there was no place available...After six weeks at home with his mother he was provided with a Personal Tutor for two hours per week. His behaviour was rapidly deteriorating and he started self harming. He told JfK Law he…wanted to go to school like everyone else and didn’t want to end up”—

in a dead-end job. Just For Kids Law made representations to the local authority and, when that was unsuccessful, issued urgent judicial review proceedings. After two mediation meetings with the local authority lawyers, he was eventually offered a place at a specialist autistic centre that integrates into a mainstream school. Without representation at every stage, it is likely that that child would have ended up with no school place and no provision, with catastrophic consequences for him.

The second example states:

“R…was permanently excluded from school in 2006. He has special educational needs and had been receiving specialised support”

for his behavioural problems, which had been successfully managed in reception and year 1, but in year 2 his behaviour worsened. Instead of referring him for an assessment for a statement of special educational needs or asking for the local authority’s advice the school permanently excluded him. His mother felt that was because her relationship with the head teacher had broken down. Just For Kids Law advised the mother at the governing body appeal, which she lost.

“JfK Law then appealed to the Independent Appeals Panel…and made representations that it was not lawful to exclude a child because of the breakdown in relationship between a Head Teacher and the mother, the school should have dealt with the problem by way of a “managed move” to another school that could meet his needs….The IAP agreed with JfK Law’s representations”

and overturned the permanent exclusion, which is no longer on the child’s record. That is a case about a very vulnerable family.

We have referred to housing and homelessness. The Government intend to retain provision in cases of people at risk of imminent homelessness, but, perversely, they are taking debt and other areas of financial advice out of scope. Those issues are almost always the preliminary problems that lead to homelessness.

[Mike Weatherley (Hove) (Con)]

Brighton and Hove is expecting a reduction of 80% in legal aid cases—down to only 280 cases per year. Although we all agree that we should make some cuts, does the hon. Lady agree that we need to monitor that level of reduction carefully?

--- Later in debate ---

[Ms Buck]

I absolutely agree. I am extremely concerned. In other areas of public policy, we are seeing reductions in housing benefit expenditure and entitlement, which are coming in next year. There is, apparently, a rise in homelessness. There are major changes in housing policy, some of which were announced yesterday, which will lead to homeless households being discharged into the private rented sector, with all the associated risks of that. Yet, at the same time, the representation and advice available to people at the most critical stage of their path through the housing system is being removed. I am sure that the consequences of those changes in policy and the reduction in legal aid representation will be catastrophic for highly vulnerable families, many of which include children with disabilities and special needs. I predict that the changes will explode the budgets associated with local authority responsibilities under the Children Act 2004, as many cases will be referred to local authorities. Once again, this is a false economy.

There are many other things that I would like to say, but I will conclude simply by referring back to the argument of the impact of the cuts on providers. Of course, we have to start from the point of view of the client. The client is the most important, not the provider. However, if a client cannot access a provider, if there is an advice desert and no one within 50 or 100 miles or a reasonable distance for people to afford to get to, then justice is denied to that person. If staff contracts are lost, money withdrawn from a law centre, firm or citizens advice bureau on the piecemeal basis indicated in the proposals, and services are removed—the hon. Member for New Forest East (Dr Lewis) gave a good example—at a time when local authorities are facing record cuts in expenditure, many such services will go under. They will collapse in an unplanned way. There will not be a coherent pattern of advice services, because no one has overall control of ensuring that that happens.

[Mark Tami (Alyn and Deeside) (Lab)]

I thank my hon. Friend for giving way and apologise for my late attendance; I had dreadful problems with my computer. I received an e-mail from Flintshire CAB, which is very worried about losing the equivalent of five posts—a total of £170,000. It deals with some of the most vulnerable people in our society, who are often the same people who end up coming to see Members of Parliament. It is worried that the cuts will devastate the area.

[Ms Buck]

That is absolutely right. I shall now sit down to listen to examples from, possibly, both sides of the Chamber. I urge the Minister to ask his colleagues to think again about how the changes are being implemented. The dangers are that they will lead to advice deserts and reduced access to justice for many cases—500,000—involving the most vulnerable people. They will lead to the perverse consequence of greater expenditure in many other areas of public services and, because the providers will not be held to account efficiently by lawyers, worse public services. I hope that the Minister will hear not only what I have to say but what other Members have to say, and go back to the Department to ask for an urgent review of the Government’s proposals.

--- Later in debate ---

[The Solicitor-General]

I want to make two points. First—yes, of course the Government are doing so, and that is the point of the consultation. I hope that the right hon. Gentleman will participate in that consultation. Secondly, citizens advice bureaux are funded not just by central Government, but by other funding streams. Some are funded by as many as 15 funding streams.

That is not a complete answer to the right hon. Gentleman’s question, but I will throw back to him, as a former Treasury Minister, a question: where do we find the money at a time when we are spending £120 million a day on interest alone? We have to make difficult choices.

I accept that none of the answers that the Government come up with during this period will provide anybody with complete satisfaction. Nobody will leave this debate and go home for Christmas dancing in the streets about what I have said. However, we have to be realistic and face the hard choices that the previous Government have left us.

[Ms Buck]

I thank the Solicitor-General for giving way. I was in error in my introduction to the debate in not welcoming him, given that he has graciously stepped in to cover the Minister whose area of responsibility legal aid is, the Under-Secretary of State for Justice, the hon. Member for Huntingdon (Mr Djanogly).

I would just like to ask the Solicitor-General to ensure, when he passes the message about this debate on to the Under-Secretary that he says that I would like an answer to one of the questions that I posed. The assumption underlying the Green Paper is that there is some mythical capacity in the voluntary and pro bono sector to deal with the areas of service where legal aid will be withdrawn. If we accept that there are cuts that will have a major impact on services, does the Solicitor-General agree that we have to be honest about the implications of those cuts and not effectively massage them away by saying that, somehow, somebody mythical will pick all this up? What estimate have the Government made of that capacity?

[The Solicitor-General]

The Government have commissioned an impact assessment, which I believe was published at the same time as the Green Paper. However, let me do a deal with the hon. Lady. First, of course I accept that we are facing difficult choices and I do not shrink from them. Secondly, however, does she accept my point that not every problem in life that our constituents face and that we encounter as constituency MPs has to be dealt with by a lawyer? Not every problem—be it debt, housing, family-related or some other area of dispute—has to be tackled by a lawyer. We need to refocus our attention to find solutions.

I do not shrink from saying that this is a difficult area, or from saying that sometimes the state will have to provide legal assistance. However, we have to narrow the scope or ambit of the taxpayers’ responsibility for providing legal advice and legal representation. That does not mean that others in other parts of the community cannot come forward and provide the assistance that, as has been so clearly indicated by other Members, is so desperately needed.

I am sorry that this type of debate really requires rather longer time than we have had today. Nevertheless, I hope that the hon. Lady will take the debate outside into the wider community, so that the Government can have the benefit of hearing her views and those of her colleagues between now and next February.