Social Welfare Law

Lord Phillips of Sudbury Excerpts

Tuesday 25th February 2014 Lords Chamber

[Lord Gold (Con)]

My Lords, I am most grateful to be allowed to say a few words, even though I am not on the speakers list. May I first—

[Lord Phillips of Sudbury (LD)]

My Lords—

[Lord Ahmad of Wimbledon (Con)]

The noble Lord, Lord Gold, has given notice.

[Lord Phillips of Sudbury]

So have I.

[Lord Ahmad of Wimbledon]

I have not received that.

[Lord Phillips of Sudbury]

I gave my details in at 12 o’clock today.

[Lord Ahmad of Wimbledon]

If the noble Lord could take his seat. If both noble Lords intervene for just two minutes we should be able to fit both in. I was certainly not informed that the noble Lord, Lord Phillips, intended to speak.

[Lord Phillips of Sudbury]

I gave it in at 10 o’clock.

[Lord Gold]

I will be as quick as I can be. I commend the noble Lord, Lord Low, and his team for producing such a thoughtful report. I also congratulate the right reverend Prelate the Bishop of Peterborough on an excellent maiden speech.

Although I accept, of course, that LASPO has reduced the scope for legal aid, it is not a new problem that there is a gap between what legal aid will support and the needs of those who have claims or grievances. One has to draw the line somewhere and there will always be deserving cases that cannot attract funding. The reality, as we all know, is that there is a finite fund of money available. The report identifies a number of ways in which this problem might be addressed, including recommendations for further government funding. The Minister will, no doubt, tell us what government support there might be for the Low funding proposals, including the Government’s view on taxing pay-day lenders. However, at a time when the Government are still looking to cut expenditure, I am not optimistic that further funding will be available. I would therefore like to propose that much more might be done by the private sector on a voluntary basis.

Now that I am no longer part of a large legal firm, I feel better able to offer others assistance. Paragraph 8.19 of the report rather delicately suggests that law firms might consider offering some funding support. I would suggest another course, similar to that suggested by the noble and learned Lord, Lord Hope. Solicitors’ firms which undertake litigation work have been concerned for some time that, in training their young solicitor advocates, they have not been able to find sufficient cases where they can develop their skills. I know that all large firms encourage their solicitors to undertake pro bono work and a great number of legal advice centres are part-manned by young solicitors wanting to put something back into society. That could easily be extended to provide much assistance in both advisory work and, where necessary, through court advocacy, by tapping into what I think would be a willing resource. Many sets of chambers would welcome such an initiative and I am sure that the Bar and Law Society will support that.

I know that the Low report suggests that it is unrealistic to consider that pro bono help could replace publicly funded legal help, particularly as the laws and regulations can be complex. However, it is the lawyer’s stock in trade to run with something new and complex, and I have no doubt that there are sufficiently talented young lawyers around willing to help that those requiring assistance may well find themselves better represented than they might otherwise have been.

[Lord Phillips of Sudbury]

My Lords, I join others in congratulating the right reverend Prelate on his maiden speech, which, if I may say so, was wonderfully down-to-earth. I encourage him to go on doing God if he can relate the good Lord so closely to what I suspect most of us feel.

I congratulate the Legal Action Group on instigating the Low commission. I should declare an interest as one of the founders and first chair. Above all, of course, I identify myself with the congratulations to the noble Lord, Lord Low. It is a formidable piece of work in a relatively short space of time. I wish the commission as much success in pushing forward the 100 recommendations as in putting them together.

I shall concentrate on the first of the six overarching recommendations in the report. I refer to public legal education which, the report states, should be given higher priority both in school and in education for life. I fear that I shall be a bit tetchy as we have so many fine words emanating from this place and so many fine pieces of legislation hitting the statute book. Indeed, we are inundating the people of this country with laws with almost the same effect as the floods in the Somerset Levels. The truth is that so much of what we do with the best intentions ends up unimplemented, misunderstood or not understood at all. The provision of education in schools is declining and not improving. Citizenship education is not part of the inspected curriculum. It is part of the curriculum overall but it is not inspected by Ofsted. Citizenship does not have to be taught at all by academies and free schools—roughly half of schools. The number of teachers training to teach citizenship is declining rapidly, as is the number of pupils taking citizenship. That is down to 2% for GCSE citizenship and only 8% for the half GCSE. The situation could not be worse.

Section 1 of the Legal Services Act 2007 states that there should be a regulatory objective of,

“increasing public understanding of the citizen’s legal rights and duties”.

That is honoured in the breach. The citizens of this country are falling further and further behind what we legislate in their name and, often, for them as individuals. We kid ourselves unless we own up to that and put as much energy and enthusiasm into implementation of the excellent ideas behind the report as we have put into this debate.

There is so much to do to give, in particular, the poorest and least capable any sense of what is available for them by way of the law. I entirely agree with the comments made about the crucial, essential need for advice on where it is most needed. We are hypocrites if we do not ensure that. Again, I commend the noble Lord, Lord Low, and his excellent commission and hope that this is a beginning, not an end, a determination, not an elegant manifesto.

--- Later in debate ---

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

My Lords, I begin by congratulating the noble Lord, Lord Low, on securing this debate and restating my belief, and the Government’s belief, in publicly funded legal services as an integral part of the justice system. All speakers have made valuable contributions to this debate but I am sure that noble Lords will forgive me if I single out the right reverend Prelate the Bishop of Peterborough for his excellent maiden speech. It is clear from his description of the wide variety of people and situations which he encounters in his diocese that he will be able to bring many valuable insights into our debates. I am very glad to welcome him.

Notwithstanding the Government’s continued commitment to the justice system, any discussion on legal aid funding must focus on the spending that taxpayers fund and must recognise the financial realities we continue to face. As noble Lords are aware, legal aid was introduced more than 60 years ago. It has expanded very considerably in scope to become, arguably, something it was never intended to be. The Government were, until recently, spending scarce resources—in effect rather encouraging people to take their problems straight to court rather than trying to achieve successful and often enduring resolution of disputes in different ways.

The Government were forced therefore to take a fresh look and did not embark on the reform programme lightly. However, the fiscal challenge and the spending review settlement required all departments to look critically at where they were spending money, the effectiveness of those interventions and whether they could continue to be justified. A conscious decision was taken, following the public consultation that led to the LASPO Act, that spending the limited taxpayer funding available to the Ministry of Justice on social welfare law matters, when the majority of problems in this area did not require legal expertise to resolve, could not be justified. This and other difficult choices were scrutinised, amended and debated by Parliament after a thorough and wide-ranging public consultation.

People do not always need lawyers in cases involving divorce, employment, education disputes and debt problems, and courts should be a last resort rather than a first one. These are the types of problems that can and should be resolved before tribunals or similar bodies, which are designed to be accessed by unrepresented individuals. However, with the introduction of the LASPO Act—and this is often forgotten—we safeguarded legal aid to ensure that it was targeted to those who needed it most, for the most serious cases, in which legal advice or representation is justified.

We estimate that following the introduction of LASPO around £50 million will still be available in legal aid for social welfare law, which will fund community care and other high-priority debt and housing cases. For those who need or choose to go to court, but who fall outside the scope of the legal aid scheme, there are other resources available in other forms. There are a diverse range of services available that recognise and match the differing needs of individuals, helping them to navigate the system and resolve their problems. I accept that the challenge is to ensure that relevant services continue to be available in a sustainable way. We have seen industries innovate and modernise to address changing needs and environments. It is essential that the advice sector does so too. The noble and learned Lord, Lord Hope, spoke of the increased use of technology. There is also the support for legal initiatives. My noble friend Lord Gold referred to pro bono contributions from young solicitors.

However, the Government have recognised the various pressures that the not-for-profit advice sector would face, as different funding sources were affected as a range of organisations reviewed their funding positions in the light of the changing fiscal environment. That is why the Cabinet Office led a review looking at the long-term sustainability of the not-for-profit advice sector. The Advice Services Review report, published in October 2012, acknowledged that the Government have a role in supporting the sector to adapt to the new funding realities but also made it clear that advice providers would need to take the initiative and change the way they work, adopting often a more collaborative approach with partner organisations across the sector to ensure the long-term sustainability of supply.

In fact, the Government did not wait for the outcome of that report. Since 2010 the Government have provided significant additional support over and above their usual funding to a range of front-line advice organisations such as Shelter, CABs and law centres that provide direct advice to clients on matters such as social welfare law, to help them adapt and make the transition to the new funding climate. This includes providing half of the £68-million advice services transition fund, launched in November 2012 and administered by the Big Lottery Fund, which was referred to by the noble Lord, Lord Low. This fund has provided a total of 228 grants of between £50,000 and £350,000, which are specifically available during 2013-15 to help the sector to address immediate need and help to strengthen organisations for the demands that lie ahead.

The Ministry of Justice itself has worked collaboratively with relevant partners in the sector to ensure that clients continue to be supported even after the introduction of LASPO. In the lead-up to the introduction of LASPO, the MoJ developed a targeted communication strategy to raise awareness of legal aid changes and, in particular, to signpost clients not eligible for legal aid to relevant alternative sources.

My officials also worked closely with other government departments, legal aid providers, advice organisations and relevant third-sector partner organisations to raise awareness and enable them to provide effective information about legal aid changes themselves and details about alternative sources. As part of this, we developed and introduced a new and simple online service. Those words are easy to utter but, having actually tried out this service, I can confirm that it is genuinely simple and can be accessed by those who are not sophisticated in these matters. It is considerably simpler than, perhaps, buying an air ticket from a budget supplier. People can check whether they might be eligible for legal aid. Where they might not be, this service will signpost them to alternative sources. To date, over 194,000 clients have used the site to look for assistance, and we continue to work with legal aid providers and advice organisations on improving awareness.

I turn to the excellent report itself, provided by the noble Lord, Lord Low, and his committee. I have read it with great interest. There are a number of important factors about it. I particularly applaud that it does not simply seek the reinstatement of the status quo ante but rather explores a range of different possibilities. It will be a considerable source of assistance to all the parties as they prepare for the election. The colleague of the noble Lord, Lord Beecham, Andy Slaughter, has said that he will be mining the report for ideas. I know that there have been meetings at No. 10 and that there the noble Lord has met my ministerial colleague with responsibility for these matters, Shailesh Vara. It is an important document that will provide food for thought and inspiration for the way forward.

I welcome the fact that the report does not duck the fact that there are fiscal challenges facing this Government, which necessarily means that fewer resources are available and that hard decisions will have to be made about how they are spent. I also welcome the recognition that the advice and legal aid services sectors are in a period of transition and innovation, which, as the report states, offers scope for agencies to work more collaboratively and in more cost-effective ways in order to help their clients’ needs.

I assure noble Lords that the Ministry of Justice recognises the importance of encouraging decision-makers to get it right first time—a point made in the report and by the noble Baroness, Lady Grey-Thompson, in the course of her speech—and of ensuring that we continue to innovate and improve the current system, as suggested in the report. I can confirm that the Ministry of Justice works closely with other government departments to improve decision-making. We are also considering the recommendations referring to the way in which Her Majesty’s Courts and Tribunals Service hears appeals. The Ministry of Justice has published a strategic work programme for those tribunals that describes how we are working to improve the system in line with efficiency, fairness and accessibility.

We have also established the Administrative Justice Forum, an independent body made up of a range of people who have direct contact and can represent views. We have made considerable progress in the improvement of feedback mechanisms on decision-making to the Department for Work and Pensions, with the introduction of telephone case management and the employment tribunal.

The noble and learned Lord, Lord Woolf, drew an appropriate analogy to his work on access to justice and how that changed the culture and the way that we looked upon the resolution of disputes. That was referred to by the noble and learned Lord, Lord Hope, as well. I am glad to see that the judiciary is referred to specifically in the report of the noble Lord, Lord Low, as providing significant innovation in dealing with litigants in person, which are a reality that we have to face. I refer in particular to paragraph 4.12 of the report. This is the world in which we live: judges would no doubt prefer not to have litigants in person, but they are responding well, using modern technology in assistance to make the system more user-friendly for those who do not have the benefit of legal advice.

There was a great deal of complaint made by the noble Lord, Lord Bach, who I recognise has been a persistent champion of those needing social welfare law. He has also opposed almost every other cut, but I accept that he has made a particular feature of this area. He was critical of the use of the exceptional funding scheme and said that the Government were not, in fact, providing exceptional funding in the way that it was envisaged. I endeavoured to answer questions on that when they were raised in a Parliamentary Question recently. The position is that we think it is working; no doubt the forms might be improved, but we have to provide funding where there is a potential breach under the European convention or EU law. That is the position; that is what is provided by the Act.

There are many other features to which I would like to respond, but time does not permit me to do so. We acknowledge the many useful observations made during this debate and there is a great deal of value in what was suggested in the report itself, particularly in regard to the administrative justice and tribunal system. The Government will, of course, carefully consider these suggestions in the future and continue to incorporate them into our strategic work where it is appropriate to do so.

[Lord Phillips of Sudbury]

Can the Minister give any reassurance at all to the many who have spoken about public legal education, particularly in schools?

[Lord Faulks]

I cannot give any formal reassurance as to whether public legal education will be part of any schools curriculum. It is clearly an important feature in the report and is something that will be considered along with other matters.