Civil Legal Aid

Lord McNally Excerpts

Thursday 19th May 2011 Lords Chamber

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

The noble Lord, Lord Bach, tempts me. I am thinking of Murder in the Cathedral by TS Eliot:

“The last temptation is the greatest treason: To do the right deed for the wrong reason”.

My objectives in politics, like those of most people in this House, are of course of a moral kind. I did not come into politics to hurt the poor but there is the fact—in this I am not playing the usual party political game—that when we came into government we also came into the biggest financial crisis that this country had faced in 80 years. The noble Lord, Lord Bach, knows full well—because his own Government were planning cuts—that whoever the Ministers were going to be, they would be faced with tough, hard decisions.

To govern is to choose and every department has had to make tough decisions. I do not resile from these. If you are in a department which has only three big-ticket items—prisons, probation and legal aid—and you are asked, as part of the contribution to economic recovery, to find £2 billion in savings, you will have to look at those three big-ticket items. In looking at legal aid, we have tried to look in the most compassionate way at the scope of the areas that we cover. I have answered questions before on this subject. If part of your government system is targeted on the poorest sections of your community and you cut that budget then you are going to hurt those sections of the community. That is the same thing that is happening with local authorities around the country and other departments in looking at their various budgets. It is too easy and I have to say that even with the noble Lord, Lord Bach, at the end, not one of the speakers actually put forward a hard choice as if they were at this Dispatch Box. It is all right to say that we have plans to raid criminal legal aid, or the Law Society is going to shift the cost on to the drinks industry, or—I think the jargon is “the polluter pays”—that it will be spread around Whitehall, but even spreading it around Whitehall leaves the Exchequer with the need to save the money.

I do not doubt the passion that has been expressed today and some very valid points have been made. I will try to deal with specifics as I go through. We are still in consultation. I cannot say that the consultation is going to produce some Pauline conversion at the last moment. As I say, we have made a commitment to savings and we intend to deliver them. What we have tried to do is to look at the whole philosophy of the system of legal aid, which a number of speakers acknowledge had grown and expanded since its introduction in 1949. I went to see the noble Lord, Lord Hutchinson—Jeremy Hutchinson from the Liberal Benches—who is now, I think, 96. He is in splendid form, although he no longer attends the House. He was part of the generation that created the legal aid system. He said to me that their hope then was to create the parallel legal system to the National Health Service. I do not doubt that that what was behind, and is behind, the legal aid system. We share that. The consultation that we put out has produced nearly 5,000—4,800—responses in total. I cannot give the detailed government response today. We will be announcing that in the next few weeks. I can assure the House that the various points made today will be fed back into that consultation.

Before addressing the particular points made in the debate, I wish to reiterate briefly some of the considerations the Government bore in mind in making these proposals. The context of the Government’s overall reform is, as I have said, to tackle the deficit we inherited on entering office. Last October the spending review set out the scale of the challenge facing the Ministry of Justice. However, as the Government have stressed, we know that our policy cannot be determined simply by dealing with the deficit—nor are we doing so. There is considerable potential for reform within the justice system. Our legal structures and our legal aid system are capable of reform. Therefore, financial considerations and the need for reform come together.

There are many reasons why we believe it is necessary to reform legal aid, many of which have been acknowledged today. Since the modern legal aid system was established, its scope has been widened far beyond what was originally intended. By 1999, legal aid funding was available for virtually every type of potential issue, including some that should not require any legal expertise to resolve. The scheme now costs more than £2 billion a year, making it one of the most comprehensive schemes in the world, even taking jurisdictional differences into account. We need to understand that even after reform we will still have one of the most expensive schemes in the world.

In developing our legal aid reform proposals, we went back to basic principles to make choices about which issues are of sufficient priority to justify the use of public funds, subject to people’s means and the merit test. The proposals in the consultation paper aimed to take into account the importance of the issues at stake, the litigant’s ability to present their own case, the availability of alternative sources of funding and alternative routes to resolving the dispute, as well as our domestic and legal obligations.

To focus financial support on the areas where it is most appropriate and most necessary, the proposed reforms involve significant change to the scope of legal aid funding. We did not propose any change to the scope of criminal legal aid, and it was also proposed that legal aid will still routinely be available, as a number of colleagues have said, in civil and family cases where people’s liberty is at stake, or where they are at risk of serious physical harm or immediate loss of their home.

For example, we proposed to retain legal aid for asylum cases, for debt and housing matters where someone’s home is at immediate risk, and for mental health cases. Legal aid will still be provided where people face intervention from the state in their family affairs that may result in their children being taken into care and for cases involving domestic violence—I note the comments that have been made on that—forced marriage or immigration cases where the appellant’s liberty is at stake. We also proposed that legal aid should be available for cases where people seek to hold the state to account by judicial review, and for cases involving discrimination that are currently in scope. Legal help to bereaved families in inquests would also remain in scope.

However, prioritising those areas requires that we make clear choices about the availability of legal aid in other areas. We therefore proposed to remove from the scope of the scheme issues that are not, relatively speaking, of sufficient priority to justify funding at the taxpayer’s expense. We proposed to cease providing legal aid support for private family law cases unless domestic violence, forced marriage or child abduction is involved. Too often, the long drawn-out acrimonious nature of court proceedings exacerbates disputes between couples, rather than solving them. Under our proposals, we would continue to provide funding for mediation to encourage couples to use more effectively methods to resolve issues between themselves, rather than using the courts. We are not proposing mediation as a cure-all in place of litigation, and I will say more on that shortly.

The Government further proposed to remove from the scope of the civil legal aid scheme claims of clinical negligence, where, in many cases, alternative sources of funding are available, such as no-win, no-fee arrangements. Again, I note the points made on that. We also proposed to remove from scope the categories of employment, education and immigration, some debt and housing issues, and welfare benefits. There would be exceptions for some of these cases where there is a risk to anyone’s safety or liberty, or a risk of homelessness, or discrimination. In many of these cases, the issues are not necessarily of a legal nature, but require information, practical advice or other forms of expertise to resolve.

We recognised that there would be some cases within the areas of law that we proposed to remove from scope where international or domestic law would require funding by the taxpayer. We therefore proposed a new exceptional funding scheme for excluded cases. However, I say to my noble friend Lord Faulks that we will take a very hard look at issues on the international side. There will not be an open cheque-book on that.

We are looking at the impact of the reforms on existing claimants and various groups who would no longer have access to legal aid. We recognise that the proposals would have some impact on existing claimants or various groups if issues no longer fell within the scope of legal aid. However, that does not mean that people would be unable to resolve their issues. Straightforward mechanisms are often available to assist. For example, legal representation is not currently available in many tribunals, such as on employment matters, because they are designed to be used without legal aid. We published initial impact assessments and equality impact assessments alongside our consultation. Partly in answer to the point raised by the noble Lord, Lord Touhig, we will update the impact assessments when we publish the final response.

There is limited evidence about the impact of the proposals on case length for litigants in person, and the findings are mixed. However, we are seeking to simplify the procedures, forms and guidance available to those using the courts in person.

We recognise that mediation may not be appropriate for all individuals but it is important for them to consider it as an option, and we are currently making its use easier for individuals. When successful, mediation may hold considerable advantages, as it can be a cheaper, quicker and less acrimonious process than contested court proceedings.

Public funding for family mediation has been made available for more than a decade and this has proved to be a successful policy. On 6 April, we introduced a pre-application protocol for family mediation information assessment meetings. Any individual—self-funded or public-funded—will be expected to consider mediation before beginning proceedings. However, family proceedings in relation to domestic violence or emergency proceedings are expressly outside the scope of this requirement. This is a big step forward in improving awareness and encouraging take-up of family mediation.

On civil mediation, the Government are currently consulting on the paper, Solving Disputes in the County Courts: Creating a Simpler, Quicker and More Proportionate System. The proposals are to require all those involved in cases below the small claims limit to attempt settlement through mediation before being considered for a hearing, and to introduce mediation information and assessment sessions for claims above the small claims limit. We recognise that we cannot, of course, compel parties to settle but we can create a better environment within which settlement can be explored. The consultation closes on 30 June.

Perhaps I may now turn to some of the specific issues that I have not covered. The noble Baroness, Lady Sherlock, asked for a time lag. I am not sure that that can be done but I shall feed that suggestion back to colleagues.

The question of clinical negligence was raised by my noble friend Lord Faulks and by a number of other noble Lords, including my noble friend Lord Thomas of Gresford. This will undoubtedly be a matter for some debate when legislation reaches the other place and this House. Confidence over whether CFAs will cover that area will, I am sure, be hotly debated, and we can certainly consult Lord Justice Jackson again on that.

The noble Lord, Lord Dubs, was concerned about forced marriages. I had better double-check my notes before I sell the pass on this but I think that forced marriages will remain within the scope of legal aid. We propose to keep legal aid for those cases, including the power to waive the upper financial eligibility. I hope that helps.

I fully acknowledge the point made by the noble Lord, Lord Hart, about the pro bono help from the legal profession. The question of advice deserts was raised; we will look at that as a concern.

To the noble Lord, Lord Haskel, I say that “polluter pays” is a neat option, but in the end the Treasury wants its money.

We are looking at the evidence given by the Law Society on the point mentioned by the noble Lord, Lord Beecham, and will give consideration to it and publish our responses in due course.

I take the point that my noble friend Lord Thomas made about people inserting domestic violence to get themselves in scope; that would have to be advised on.

The noble Baroness, Lady Sherlock, emphasised the need for advice. We differ on whether the advice needed is always legal advice—whether we force people into legal advice.

I go back to the noble Lord, Lord Faulks, to say that we will look hard at requests under the human rights issues, and the Government want funding only on serious and significant cases. I will also feed back his concerns—they were expressed by others as well—about clinical medical negligence.

To the noble Baroness, Lady King, I say that the consultation paper was clear. I was passed it; it is around here somewhere. That document clearly states that we were going to take clinical negligence out of scope. If she sees a contradiction, I will be happy to talk to her about it. I too received her letter; there will clearly be a campaign on that issue.

The noble Earl, Lord Listowel, asked for assurance about children who need separate representation in family cases. Yes, we propose to keep legal aid for children where they have been made a party for the case in family proceedings.

The noble Baroness, Lady Kennedy, took some cheap shots at my friend Jonathan Djanogly, who is a very good solicitor.

I give full deference to the advice of the noble Lord, Lord Crisp, a former Permanent Secretary. However, in his long and distinguished career, I am sure that he too must have sat there with a Treasury demand notice and a programme of cuts to be pushed through.

The noble Lord, Lord Touhig, made a point on special educational needs tribunals, which have been designed to be easy and accessible. We are considering the points he made during consultation.

I am now being tugged at; my time is up. If points were made on which I have not had a chance to reply, I will write to colleagues. I agree with the noble Lord, Lord Bach; this has been an extremely timely debate, because we are still in consultation. It has been extremely useful, because those who have contributed have done so from real expertise and commitment. We are listening. We have some tough decisions to take and we will not flinch from them, but neither will we ignore common sense when it is offered to us.