Criminal Legal Aid Reforms

Kate Green Excerpts

Wednesday 4th September 2013 Westminster Hall

[Karl Turner]

My hon. Friend makes my point for me. He is right: Members of Parliament are not competent to give legal advice. One option that had been open to us was to signpost people to citizens advice bureaux and other pro bono clinics, but due to budget cuts—local authorities and charities being slashed—they have closed or are buckling under the pressure of reduced resources and vastly increased referrals. Local authorities are desperately struggling to provide advice services as they try to absorb cuts of more than 30%, while charities and authorities up and down the country are being forced by the Government to withdraw vital funding for local projects simply to ensure that they can sustain basic, statutory obligations.

During the first attack on civil legal aid, my party’s Front Benchers and I were accused of scaremongering. Since implementation, however, 600,000 people have been denied access to advice on many aspects of civil law. There has been a 30% fall in the number of providers of civil legal aid and a 12% fall in providers of criminal legal aid, yet the most recent consultation paper, “Transforming Legal Aid: Delivering a more credible and efficient system”, which was published on 9 April, goes beyond anything that anyone could have imagined. The proposals can only damage the legal aid system yet further.

The proposals aim to save £220 million from legal aid spending by 2018-19, but the Government have not said from which year’s spend that money is meant to be found. Many of my colleagues in the profession believe that the proposals will cost the taxpayer more money in the long run—a valid point to make. A common misconception promoted by the Government is that legal aid is the principal cost, but as the right hon. Member for Haltemprice and Howden (Mr Davis) rightly pointed out in his contribution to the Backbench Business Committee debate, the cost of our legal aid system is just three quarters that of similar systems in many other European countries. The President of the Supreme Court—no less—supports that notion. He said that the bill for legal aid increased substantially between 1965 and 2000, which I accept, but it has since been cut and projections show that it will continue to decrease over the coming years.

I am persuaded that in some areas there may be further savings to be made, but I do not believe that the proposals are the way to achieve such savings. At the Justice Committee session at which the chairman of the Bar Council, Maura McGowan, QC, Michael Turner, QC, and others gave evidence, Michael Turner suggested savings of a surprising £2 billion. The Government should be prepared to sit down with the professionals, the practitioners and the people who are expert in the area to discuss where those savings might be made.

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

I congratulate my hon. Friend on securing the debate. Is it not the case that some of the motivation for the proposals has nothing to do with savings? The Lord Chancellor himself has acknowledged that, for example, restricting access to legal aid for prisoners is a simple matter of ideology.

[Karl Turner]

My hon. Friend makes a valid point and I will develop it in a moment. She is right to raise the issue, and many people argue that the changes are a false economy because costs will increase. Matrix Chambers and Bindmans LLP have pointed out that the Government’s proposed savings are nonsense. They believe that costs—I suspect that they have done proper research—will increase by £24 million if the proposals go through. I agree with Bill Waddington, chairman of the Criminal Law Solicitors Association—

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[Karl Turner]

Of course. My hon. Friend highlights the point that victims of crime suffer again because funding for charities that represent the interests of victims of crime has been severely slashed under the coalition Government.

[Kate Green]

On victims of crime, does my hon. Friend not also agree that with access to a good, trusted legal adviser, many defendants will plead guilty early, saving pain to the victim as well as cost to the system?

[Karl Turner]

In my experience, for what it is worth, my advice to a client was based on the evidence. If that was overwhelming or strong, and if, in my opinion, the defendant needed to plead guilty, they were advised accordingly. I think solicitors and barristers will always act in the best interests of the client.

May I address the caricature that the Government have peddled, which is that all lawyers earn salaries like that of the Prime Minister’s very wealthy brother? It is not true. The vast majority of legal aid lawyers, up and down the country, earn a modest wage; often, they will take home less than a nurse or a teacher. I wonder what information the Government have on that issue, because I think that the Bar Council could provide them with information about average salaries at the Bar, and that the Law Society could assist as well.

A very important point, and perhaps an unintended consequence, is that the proposals will prevent many young people from black and minority ethnic backgrounds, less advantaged backgrounds, and poorer backgrounds from coming into the professions. This is not a plea for the so-called fat cat lawyers, but, as John Cooper, QC, put it:

“This is recognition, before it’s too late, that if the proposals go through we will be complicit in excluding many young people from less advantaged backgrounds from becoming part of what can only be described as the National Health Service of the Law”.

I also want to deal with the misconception that all people seeking legal aid are old lags. I have dealt with that briefly, but the Government seem to suggest that such people do not deserve representation. Of course, there are repeat offenders who are found guilty, or who plead guilty to a further offence, but just because someone has previously been convicted of burglary does not mean—cannot mean, surely—that they are automatically guilty of the further alleged offence. They might not be.

Fundamental to our legal system must be the presumption of innocence. Denying people’s liberty is one of the strongest powers of the state. It is vital, therefore, that that can be done only when a court of law is presented with evidence, for and against, by highly skilled and trained lawyers.

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[Karl Turner]

The right hon. Gentleman makes an extremely valid point, which I, again, want to address briefly in my remarks. I disagree with many aspects of the proposals—the right hon. Gentleman is correct—but as my hon. Friend the Member for Stretford and Urmston (Kate Green) said, denying prisoners access to legal representation simply goes against everything that a civil society should represent.

Defending prisoners is not a vote winner, but we live in a civilised society, and I believe that prisoners must have the right to legal representation. The reforms will essentially mean that justice stops at the prison gates and that prisoners are denied legal representation, if the Government plans go ahead. As colleagues have said, denying prisoners access to justice in the way that the consultation proposes seeks to save £4 million. In times of austerity, it would be flippant to say that that is peanuts, but actually, when I think about it, those efficiency savings come at what cost? For goodness’ sake—it seems incredible to me.

[Kate Green]

It is likely that the proposals will save nothing in the round, because they will lead to more inefficiencies inside prisons, as people will be kept in higher-security conditions, when they need not be, for longer, and as there will be greater difficulty in managing discipline and behaviour in prison as a result.

[Karl Turner]

Absolutely. My hon. Friend makes a valid point.

I think that this next point was the one made by the right hon. Member for Haltemprice and Howden (Mr David Davis). I am also concerned that the proposals to introduce a residency test will see victims of human trafficking denied access to legal representation and will prevent many cases from being brought against the Government when they are accused of wrongdoing abroad. The new proposals will mean that families such as that of Jean Charles de Menezes would not have been able to fight the case for their dead son, who was wrongly shot by armed police.

I also disagree with the proposals to reform judicial review. They will mean that an individual will no longer be able to hold public bodies to account. Shelter, for example, provides specialist social welfare law advice—on housing issues, in particular—to about 15,000 people each year, under various legal aid contracts. However, it is clear that the proposals will prevent it from doing that.

The Government proposals limit funding for judicial review to only those cases where permission to proceed is granted by a judge. That must severely limit Shelter’s ability to help people. None of us in this place can imagine the prospect of losing our homes. It seems incredible that the Government, in their plans, seek to attack the most vulnerable people at the time when they need assistance the most.

Clearly, the Lord Chancellor has thought about the proposals since the Backbench business debate. Following absolutely overwhelming criticism from many Opposition Members and Government Members, I was very pleased to see the Secretary of State U-turn on the accused having the right to choose their lawyer. However, we do not know what the impact of that will be, because as far as I understand it, the Lord Chancellor is still keen to press ahead with what he thinks is a workable system of PCT. I suspect that it is not workable; I do not think it ever has been.

The client choice issue was designed to assist with PCT, in the sense that it would be attractive for large corporations to bid for contracts on the basis that they are getting a vast client base, but I am not sure what the impact of that will be and how the proposals will change things as a result. I hope, however, that the Lord Chancellor continues to listen, and that he will concede that PCT, in any form, is not suitable for allocating legal aid contracts. Legal aid contracts should not simply go to bidders who are willing to do the work for the lowest price.

As I have said, I am concerned about many aspects of the proposals, but I want to focus, in the time remaining to me, on chapter 4 of the consultation document, which is about PCT in relation to criminal legal aid.

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[Sir Edward Garnier]

I rather thought that was the point I was making. If we cut one Department or one aspect of expenditure, it has a knock-on effect on another, which is why I referred to the closure of magistrates courts. It saved one Department, through the Courts Service, a certain amount of money, but impacted on the police forces that had to transport defendants from, for example, Market Harborough to Leicester, some 15 or more miles away. Such discussions are perennial. That is not to say that we should not have them, but nobody should be surprised when the Government and the Opposition stand against each other in this way.

The consultation is to be responded to at some stage in the future, whether it is tomorrow, as the hon. Member for Kingston upon Hull East suspects, or some other date, we do not know—the Minister may be able to give us a sneak preview of what is going through the mind of his Secretary of State—but I hope that it has not yet been printed, because there are plenty of things about which the Lord Chancellor needs to think before he responds. I, unlike the chairman of the Criminal Bar Association, have had the joy of meeting the Lord Chancellor: once in his office in Parliament and once in his office in the Ministry of Justice. I have always found him an entirely reasonable person to talk to. It will be interesting to see quite how much of what I invited him to consider ends up in the response to the consultation document; no doubt, in due course, we shall see.

A number of points need to be borne in mind. The first is the important constitutional point the hon. Member for Kingston upon Hull East addressed and my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) mentioned, by implication this morning and on an earlier occasion in the Backbench business debate. Access to justice and representation, particularly in cases against the Government or the authorities, are hugely important. If we deny them, we undermine an aspect of the civilised nature of this country. I am not sure that that is what the Lord Chancellor has in mind, but we are necessarily fearful that it could happen.

Reducing expenditure on prisoners’ cases as a blanket policy is of course worrying, but if we are preventing public money from being spent on people complaining about whether they have one blanket or two or whether they get this or that pornographic magazine, I do not think I will lose much sleep. There will clearly be cases involving prisoners, the downtrodden, asylum seekers and so forth for which legal aid will be essential to see that justice is done and the Government are not oppressive.

[Kate Green]

Does the hon. and learned Gentlemen agree that the cases prisoners bring are not necessarily trivial? They may be to do with a prisoner’s mental health, mothers wanting to be with their babies in mother and baby units or children and young people in custody who desperately need legal representation if, for example, they do not have access to proper programmes in their sentencing plan.

[Sir Edward Garnier]

I thank the hon. Lady for that intervention. Her point is not controversial. The argument against it, and perhaps against my points, is often made the basis that there are far too many people taking judicial review proceedings about trivial and silly cases on pornography or whatever it might be. Those cases need to be got rid of, but the cases she mentions need to be dealt with properly.

Constituents drew to my attention a problem that the changes, if they go through as advertised, will cause for not only the future representation of defendants, but the administration of our justice system. At the moment, thousands of criminal barristers, and this may be true of criminal solicitors as well, are doing the most complicated cases, particularly child abuse and sex crime cases, which can in my view be prosecuted and defended only by professionals who have experience of such cases. They are not paid huge sums of money. They are the senior juniors: 35 to 40-year-old juniors at the Bar, who are the potential QCs—silks—and Crown Court judges. If we push those people away from the profession, we will not be able to develop the judges and senior members of the profession of the future. Perhaps that consequence has not occurred to the Lord Chancellor, but I know that it will have occurred to my hon. Friend the Minister, because he is a former criminal barrister of huge thoughtfulness and experience.

If we push those people away, we are in danger of utterly changing how we deliver the criminal justice system. I have had any number of constituency members of the legal profession coming to me, and they do not live in vast houses or drive Bentleys. They live in small houses on little executive estates, drive second, third and fourth-hand cars, and send their children to state schools. They are not rich; they do a difficult job for little money. They do it because they have a vocation and because they think it is right that innocent and guilty criminal defendants alike are represented.

I will stop there because I have overrun my time by far too long. I urge the Minister to take the points that I have gently put to him with the seriousness that the constitution requires.

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[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—

[Julie Elliott (Sunderland Central) (Lab)]

rose—

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

I want to speak briefly about the impact of the proposals on prisoners. I raised that in the debate we were able to have before the summer, when the Minister did not have time to respond to all the questions asked. I will quickly highlight two or three points.

The representation of prisoners inside prisons on such matters as resettlement, categorisation and access to health care treatments and programmes is classed as a form of criminal legal aid, but in practice the skill set required and the nature of the lawyers carrying out that work makes it much more akin to civil public law. That deeply concerns me, because where there will still be an entitlement to access legal aid in prisons—that will be severely curtailed, in any event—it is likely that the national or international firms receiving many of the contracts will simply lack those skills. I ask the Minister to comment on how that expertise will be protected under the contracts.

I am particularly concerned about children and young offenders. Thankfully, the number of young people in custody is falling. I pay great tribute to the Youth Justice Board and the criminal justice system for that achievement. Young people, in particular, need good quality representation with a specialist advocate who is used to working with children and can recognise that they often arrive in prison in particularly difficult and chaotic personal circumstances. The advocate needs to have the time to build a relationship with the child or young person, and I am very concerned that we could lose that for young offenders. I wanted to ask the Minister about that in the debate earlier in the summer. I am keen to hear from him that special arrangements will be put in place to protect the interests of children and young offenders, and I really hope that he can say something reassuring.

As time is so limited, I will make my final point, which is a similar one about older prisoners and those who are disabled or very unwell. They form an increasing part of the prison population, as the Minister will know. I have a constituency case of a prisoner who is very unwell, has disabilities and, as a result, is unable to participate in the programmes that are part of his sentence plan. That means that he cannot be moved, on successful completion of his programme, to a lower-security prison. That is mad for the Prison Service, and it is bad and unfair for him. I again invite the Minister to say what special arrangements could be put in place for such particularly vulnerable and disadvantaged disabled and older prisoners.