Legal Aid

Lord Faulks Excerpts

Thursday 4th December 2014 Lords Chamber

[Lord Howarth of Newport]

To ask Her Majesty’s Government whether, in the light of criticism from the judiciary, they plan to reconsider their policies for legal aid.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, we have a good working relationship with the judiciary, and I am a strong advocate of the independence of judicial decision-making. When concerns are raised by the judiciary, the Government reflect upon them. The government policy on legal aid continues to be that limited legal aid resources are made available for the most serious cases and to the most financially vulnerable.

[Lord Howarth of Newport (Lab)]

My Lords, does the Minister acknowledge that in a judgment on 31 October the President of the Family Division made some excoriating observations, of general application, on the unjust effects of the denial of legal aid in a case where parents stand to lose custody of their child for ever? He stated that to “require” them,

“to face the local authority’s application without proper representation … would be unconscionable … it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice”.

In the words of the judge,

“the State has simply washed its hands of the problem”.

What steps is the Lord Chancellor taking to ensure that Her Majesty’s Government are not in breach of their legal obligations under the European Convention on Human Rights and the Human Rights Act to ensure that no parent facing proceedings for the removal of a child is prevented by a lack of resources from getting paid legal representation?

[Lord Faulks]

It used to be a convention that judges did not criticise politicians and politicians did not criticise judges. I do not propose to depart from that convention. What I can say is that both those litigants have in fact been able to get legal aid. There remain the exceptional funding provisions under Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act, which apply to cases in which there is said to be a violation of the convention or an EU provision. In fact there is a difference, and one should not conflate this, between scope and eligibility. Usually there is scope for these things, but the individual applicants nevertheless have to satisfy the tests of eligibility.

[Baroness Turner of Camden (Lab)]

My Lords, is the Minister aware that the Bar Council has recently reported, after a review of LASPO, that the Act means that poor people generally speaking cannot get their cases heard in courts at all? Many of them try to represent themselves, though not very effectively. It is not a very good way to celebrate Magna Carta, as we shall be asked to next year, when we have a situation in which poor people simply cannot get their cases heard at all. This is particularly true as far as employment issues are concerned.

[Lord Faulks]

Litigants in person have always been a feature of the legal system. Clearly, any judge—I speak as someone who has sat as a judge—would much rather have a case in which both parties were represented by highly competent lawyers. Unfortunately, we have had to make certain cuts. The cuts, when fully implemented, will reduce the amount that we spend from £2 billion per year to £1 billion. This still makes us one of the most generous countries in the world. We are of course listening carefully to any anxieties that people have about there being injustices. We have committed to review LASPO on a period of three to five years.

[Lord Carlile of Berriew (LD)]

My Lords, reverting to the question from the noble Lord, Lord Howarth, does the Minister agree that there will be cases in which parents will be unable to be represented on financial grounds in cases in which their children will be removed from them? Does he bear in mind that there was severe criticism in one court last week of the activities of a local authority in relation to just such an issue? Does he think that it is conscionable that there should be a single case in this country in which, because of financial indigence, parents cannot be represented in such cases?

[Lord Faulks]

I am not in a position to comment on the individual case but, in a number of cases, as the noble Lord will know, the legal aid scope remains. In cases of abuse, for example, it was retained. After careful scrutiny of the provisions by this House among others, we have tried to ensure that in all sorts of cases where it is most necessary there will still be legal aid.

[Lord Low of Dalston (CB)]

My Lords—

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[Lord Low of Dalston]

My Lords, will the Government give serious consideration to making provision for the continuation of the advice services transition fund when it comes to an end next summer? That would surely be a way to ensure cost-effective provision of a basic legal advice service and, if it is to be maintained when the fund comes to an end next summer, provision will need to be made before the election.

[Lord Faulks]

The noble Lord has frequently, before this House and elsewhere, helpfully advanced suggestions for providing legal assistance other than through legal aid. The Government are grateful for those suggestions and they continue to consider the report that he provided.

[Lord Beecham (Lab)]

My Lords, the Lord Chancellor’s fig leaf to conceal the damage he has wrought to the legal aid system was the exceptional funding scheme, which he estimated would attract 6,000 applications a year—in itself, only around 1% of the former case load. In the event, applications are running at only around 1,000 a year, of which only some 14% are granted. Will the Government urgently review that scheme, and if not, why not?

[Lord Faulks]

My Lords, in fact, the number of applications in 2013-14 was 1,520. It is extremely difficult to anticipate precisely in what circumstances exceptional funding might or might not be appropriate. A considerable number of judicial reviews are taking place with regard to the exceptional funding scheme generally and on specific cases. The noble Lord of course objects to any cuts in legal aid. It must be remembered that despite what was in the manifesto of the party opposite, it has objected to every single cut to both criminal and civil legal aid. I look forward to hearing how it will justify an additional spending of half a billion pounds; that did not feature in the debate on the Autumn Statement.

[Noble Lords]

My Lords—

--- Later in debate ---

[Lord Horam]

My Lords, would it not be better if more lawyers in the legal aid field followed the example of Michael Mansfield QC, who closed his chambers but has reopened a new set of chambers on a lower cost base? Would the lawyers not be better advised to pursue that route, which many others in the public and private sectors have had to do at great cost over the last few years? We could then get a decent service at less cost to the taxpayers within the remit of what the public can afford.

[Lord Faulks]

It is important to emphasise that nothing will change under the criminal legal aid provisions. Everyone who is accused of a crime is entitled to legal aid. I agree with the noble Lord that the way in which criminal lawyers practise, as was reflected in the report by Sir Bill Jeffrey, will mean a certain agility on their part to make sure that they can continue to provide their very high standard in a more economic way.

[Lord Scott of Foscote]

Does the Minister agree that access to justice by citizens, either to enforce their legal rights or to defend themselves against claims made by others, is an essential ingredient in promoting and maintaining in this country a healthy respect for the rule of law? Does the Minister also accept that if an individual is unable on account of his impecuniosity to assert his claims or properly defend himself against claims made by others, the consequence will be a diminution in the respect which that individual has for the rule of law and a damage to the cohesion of the rule of law in the country as a whole? It has sometimes been said that the Ritz hotel is open to all, but of course it is open only to those with deep enough pockets. Would it not be a disgrace if the same could be said of the civil justice system in this country?

[Lord Faulks]

I of course entirely accept that access to justice is an important and fundamental part of the rule of law. Nevertheless, the country has to assess where best to spend the limited amount of resources on legal aid—on which, as I have said, we still spend a considerable amount of money. We will continue to review whether improvements can be made to this, and we will continue to review the situation depending on the financial state of the country.