Legal Aid and Civil Costs Reform

Lord Bach Excerpts

Monday 15th November 2010 Lords Chamber

[Lord Bach]

My Lords, I thank the Minister for repeating the Statement made in another place by the right honourable and learned gentleman, the Lord Chancellor, and for allowing me an advance sight of the Statement; but I have to say, thanks to the very comprehensive briefing that has clearly been given to two newspapers over the past 24 hours, we have had the chance of looking at the Statement more than in just the past few minutes.

The Green Papers on cutting legal aid and reducing civil costs are among the most important published by the Government to date. Legal aid, as the Minister said, is one of the pillars of the welfare state that were set up by the post-war Labour Government. It plays a crucial role in tackling social exclusion, especially in difficult and hard times such as these, and ensures, or does its best to ensure, that everyone can obtain access to justice in both the criminal and civil fields, regardless of their means.

Under successive Governments, the legal aid budget has grown to the point where it now stands at more than £2 billion per year. That is not sustainable, especially in the current economic context. Indeed, the previous Labour Government had moved to cap the legal aid budget and to reduce it. We also planned to turn the Legal Services Commission into an executive agency, and the then Opposition—both parties that now make up the Government—supported us. Why have the Government not introduced legislation to achieve that aim? It was quite clear that that was a necessary step to take as quickly as possible. They have not done so, thus far; when are they planning to do so?

In recent years, we brought the principle of fixed fees into civil and family legal aid cases. That principle has applied to criminal cases for some time past. We introduced means-testing into the magistrates’ courts and this year into the Crown Court. Indeed, on the very day that the general election was called, we signed off cuts to advocates’ fees in higher courts without any support from the parties opposite; so much for the accusation that the then Government were somehow economically irresponsible.

We took those decisions because we recognised the need to reduce the legal aid budget, and it should be said that many of our actions were taken in the teeth of opposition from the legal profession, as one would of course expect, and from the parties that then made up the Opposition—by that I do not mean just the Liberal Democrat party. Let me make it absolutely clear to the House that had we been in government today, we would have announced, perhaps not today but earlier, further cuts to legal aid. That is a reality that we have to acknowledge.

The crucial question, however, is where those cuts are to be made and how the money that is left—still a large sum—will be spent. Our policy was, and is, to control the legal aid budget and to get value for money for the taxpayer while optimising services for people who need support the most. That is why we concentrated so much of our investment on what is described, perhaps a little uncomfortably but accurately, as social welfare law legal aid, by increasing it over the years and—even towards the end, when we were cutting back other parts of the legal aid budget—making sure that we protected it at all costs. That is because we argue that legal aid, delivered in the form of legal advice and delivered early, has the power to change lives and, of course, save huge amounts of public money further down the line.

The housing possession court duty scheme, for example, still saves thousands of people from repossession. It delivered a social and financial good. Are the Government committed to preserving that and similar schemes? What balance do the Government intend to strike between the needs of criminal legal aid and civil legal aid? Everyone knows that, over the years, criminal legal aid has had the majority of the spend. Do the Government believe that that should continue?

The Minister said that the Government propose in the Green Paper to reduce fees paid in civil and family cases by 10 per cent across the board. That proposal is, on the face of it, disturbing. Does it mean, for example, that when a fixed fee is paid for advice from solicitors who practise social welfare law, or from the not-for-profit sector—whether it be the CAB or law centres—solicitors in that field will lose 10 per cent on each piece of new advice that they give? This will make life very difficult indeed for those lawyers, who by no stretch of the imagination can be described as rich. I ask the noble Lord to answer that question, if he would be so kind.

I turn to another serious point that I should like to ask the Minister about: the proposal that all clients with £1,000 or more disposable capital should make a minimum contribution of £100 to their legal costs. Full ineligibility is extremely worrying. We as a Government increased civil legal aid eligibility rates by 5 per cent last year to deal with the unfairnesses that the recession had meant for those who needed that vital piece of advice. However, the Government’s proposal in the Green Paper reduces eligibility a great deal more than that, and we are concerned that it will take many people who cannot afford the private insurance that the Green Paper talks of away from getting the legal advice that they need and deserve. Does the Minister agree that that is likely to happen if civil legal aid eligibility is reduced by so much? Will that not harm what we all want: access to justice?

One other disturbing part of the Statement talks about some housing, social welfare and debt cases being taken out of the scope of legal aid, although some will be left in, apparently. Can the Minister help by telling us which cases in those categories will be taken out of scope and which will be left in?

I turn briefly to the important and massive report of Lord Justice Jackson on civil legal aid costs. Before we respond in detail, we will consider that report carefully, as we will consider the Green Paper on legal aid. I remind the Minister and ask a question about what Lord Justice Jackson said at paragraph 4.2 of chapter 7 of his final report, on page 70. He stated:

“I … stress the vital necessity of making no further cutbacks in legal aid availability or eligibility”.

He is talking about civil legal aid and continues:

“The legal aid system plays a crucial role in promoting access to justice at proportionate costs in key areas”.

Do the Government agree with what Lord Justice Jackson wrote in chapter 7 of his report?

The basic test that we will apply to both Green Papers is whether the proposals will deliver a saving to the public purse while ensuring that no one is denied access to justice simply because of their means.