Criminal Legal Aid

Lucy Frazer Excerpts

Tuesday 8th May 2018 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

I congratulate the hon. Member for Leeds East (Richard Burgon) on securing this debate, which relates to the value of the independent Bar. It is therefore important for me, as a former barrister: I understand very clearly the role that advocates play in justice. The work done by the criminal Bar, day in, day out, up and down the country, is a fundamental part of our justice system. It is criminal barristers, criminal advocates, who ensure that people, often at the most desperate time of their lives, get the opportunity to have their points put coherently and effectively, when their futures are on the line, ensuring justice. I start by acknowledging and thanking criminal barristers for the hard work that they do.

The Lord Chancellor and I have heard many concerns about the wider justice system in the short four months since we took office. We take those concerns very seriously and we are committed to ensuring that there is an efficient and effective support for those who go through our court system. We want people to have every confidence in every part of their justice system. We want a system that supports victims and ensures a smooth and efficient process for litigants, and a legal profession that is enticing at every level for those who want to work within it.

Those are all important points, but the hon. Member for Leeds East has prayed against a statutory instrument. In the interests of advocates affected by that instrument, we should now focus on the issues that it raises. It is appropriate to start with four clear facts. First, this scheme was put together in close co-operation with the Bar leadership. Secondly, the scheme does not bring in a cut; at the very least, it is cost neutral, but it is more likely to give rise to an increase in expenditure, given that built into the calculations is a £9 million risk of such an increase. Thirdly, the scheme is more advantageous to the Bar overall than the one it replaces, particularly for those at the junior end. Fourthly, a clear commitment was given at the time the scheme came in that the Government would review it in 18 to 24 months. If, in the course of that review, legitimate concerns are raised about the system and a good case is made for investment, we will look at those proposals.

[Sandy Martin]

rose—

[Lucy Frazer]

I am very happy to give way.

[Sandy Martin]

I thank the Minister. If she believes that her Government’s changes to legal aid have not been damaging to the profession, will she explain why there is not one single criminal law solicitor aged under 35 in Suffolk—or indeed in Norfolk, Cornwall or Worcestershire?

[Lucy Frazer]

Like the hon. Member for Leeds East, the hon. Gentleman raises a broad point about the justice system which I will come on to. On his specific point, it is of course important to have duty solicitors across the country doing legal aid. The Legal Aid Agency regularly reviews the geographical spread of the profession.

This is a debate about a statutory instrument and it is very important, for the advocates affected by it, that we focus on it. I would now like to expand on the four points I made.

[Sir Oliver Heald]

I think everyone would acknowledge that to go out and do the job of a criminal barrister is incredibly demanding, and that the profession faces challenges of various sorts. On the negotiations on the advocates’ graduated fee scheme, great efforts were made to involve the Bar at every stage. The Legal Aid Agency put a huge amount of work into the talks, as did the Ministry of Justice. The intention was to find a better way of paying barristers, not to do anyone down. Does the Minister agree that the response to the consultation document, which was so positive, seems to have evaporated for some reason?

[Lucy Frazer]

My right hon. and learned Friend, who was a Minister at an early stage in this process, makes a very important point. The scheme we are debating today came about because both the Bar and the Government accepted that the old scheme was outdated. Advocates told us that it did not reflect the amount of time and effort they put into their cases. For example, under the old scheme there were no separate fees for the second day of a trial and there were no fees for a sentence hearing. The new scheme is the result of a two-year exercise involving the leadership of the Bar—the Bar Council—the Criminal Bar Association and the circuit leaders. When the scheme was put forward in a consultation in 2017 it was widely welcomed by those organisations.

[Maggie Throup (Erewash) (Con)]

I am not a lawyer, so it may be that I am looking at this issue in a very simplistic way. It seems that my hon. and learned Friend is saying that the professionals said that the old regime was broken, yet the Opposition seem to be arguing that they want to go back to that old regime. Can my hon. and learned Friend enlighten me on why the Opposition are opposing modernising the system?

[Lucy Frazer]

My hon. Friend makes an extremely important point, which is at the very heart of this debate. The old system is not supported by the Bar. It did not want that system. The new scheme is an improvement, so the answer to my hon. Friend’s question is that the Labour party is simply playing politics with an honourable and important profession.

[Mr Dominic Grieve (Beaconsfield) (Con)]

As the Minister knows, there is a continuing funding crisis at the Bar. The reality is that at some point the Government are going to have to face up to the very great difficulties facing the justice system. That is not the fault of my right hon. Friend the Lord Chancellor; it is the situation he inherited. I have to say that I am in complete sympathy with the stance that my hon. and learned Friend is taking this evening. The scheme was wanted by the Bar and it is clearly an improvement on the previous system. Granted there are very great difficulties with funds, but it seems entirely reasonable for the Government to proceed with it.

[Lucy Frazer]

I thank my right hon. and learned Friend for his intervention and recognition that this scheme was wanted. I hope I have conveyed that the Lord Chancellor and I recognise that where there are difficulties in the criminal justice system we will seek to ensure that we have the best possible criminal justice system and legal system. The scheme, which we are voting on today, is the right scheme going forward. The proposal that it should be revoked and annulled is disadvantageous to the Bar and is simply politics.

[Ian C. Lucas]

Why then does the Minister think the barristers are taking action?

[Lucy Frazer]

The hon. Gentleman will have to ask the barristers why they are taking action, because the new scheme is more favourable.

The consultation was broadly welcomed by the organisations I mentioned earlier. I would like to provide just one quote among many. When the consultation was put forward in 2017, the then chair of the Bar Council said:

“The suggested scheme is a fairer way of rewarding advocates for their work”,

and that it is a

“a positive example of the Ministry of Justice participating in constructive dialogue with the profession”.

As with any consultation, suggestions were made to improve the scheme. It was said, for example, that it was not right that the initial scheme proposed was to be cost-neutral as against 2014-15. Concerns were also raised that it may have an adverse impact on junior advocates. The Ministry of Justice listened to those concerns and increased the amount in the scheme in line with the costs at the time, which increased the funding by £9 million. This allowed it to improve the scheme for junior advocates. The MOJ also assesses that the scheme will cost significantly more—approximately £9 million more—than anticipated.

The new scheme in this statutory instrument is better than the one it replaces. With this motion, which calls for the new scheme to be revoked, the hon. Member for Leeds East is disadvantaging those he professes to support. He says that it is a threat to our justice system, but the motion is playing politics. It puts party politics above supporting the right outcome. With the motion, the Labour party and those who intend to join them today are using the Bar and justice as a political tool for their own ends.

[Andy Slaughter]

Minister, that is a silly thing to say, because the motion reflects the disquiet that has been expressed by the Bar. The hon. and learned Lady does not have the curiosity to ask barristers why they are unhappy; perhaps one reason is that the scheme was an alternative to a further 8.5% cut, which would have caused mayhem in the criminal courts. It is just robbing Peter to pay Paul. Why does she not go back and ask the Bar who the losers are now, what the problems are and how they could be reformed, and why does she not take this away and look at it again?

[Lucy Frazer]

I am sorry if I misrepresented the position earlier. I have spoken regularly to a number of organisations that represent the leadership of the Bar. Over the last week, my Department has gone to chambers up and down this country. We have talked to them to understand their concerns about the scheme and to try to understand what position they prefer. We are extremely engaged in talking. The point I am making is that the new scheme is a better one. It was supported by the circuit leaders, the Criminal Bar Association, the Bar Council and the Young Barristers’ Committee, and about 15 press releases all support that position.

[Mr Iain Duncan Smith (Chingford and Woodford Green) (Con)]

I am very pleased to see my hon. and learned Friend in her place, with her knowledge and background. I will, of course, support the Government tonight, because I agree that this motion is playing politics with an issue, but I have a concern, which I have raised with her before. Following on from the comments of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), I hope that after this the Government will address one of the problems that they face with the junior Bar, particularly here in London. I know, because my son is one of them, and he would tell us that those we want to encourage to come to the Bar, who would diversify the Bar, cannot afford to do so. This is a big crisis for us, otherwise we will end up yet again with a narrow Bar. I wonder whether the Minister might urge her colleagues and hon. Friends to think about that, because it is those who will come through to be the judges of the future.

[Lucy Frazer]

My right hon. Friend makes a really important point about recruitment at the Bar. The Ministry of Justice is of course concerned about this issue, but it is not just a problem for the MOJ. When I went to the Bar, Bar fees for the course were £5,000, and they are now £15,000. Asking people to pay that sort of money is a barrier to access when the chances of their getting a pupillage and a tenancy are limited.

I will highlight three points to show why asking to revoke the scheme, as the shadow Secretary of State is asking, disadvantages the Bar. First, he is saying by doing so that he does not want the additional funds that the new scheme is likely to produce, as against the old scheme. Secondly, he is asking junior barristers to go to sentence and other hearings for no fees. Thirdly, he is asking to retain a scheme that calculates fees on the basis of page count, which is wholly outdated.

As I suggested, it was right to focus on the statutory instrument, but it would be wrong not to correct some of the many inaccuracies and misrepresentations in the hon. Gentleman’s speech, which focused on broader issues. He made several comments about disclosure without even mentioning either that the Attorney General’s review is due to report this summer or the national disclosure improvement announced by the CPS and the National Police Chiefs Council on 26 January. He talked about recruitment and failed to mention my points about fees. He said that recruitment was falling—there is anecdotal evidence for that—but failed to mention that the number of pupillages at the Bar went up in 2016-17 to its highest level since 2013. Very importantly, it is good to note that there were more women than men in 2016-17. In fact, the total number of barristers at the Bar now in practice stands at 16,435 and is incrementally increasing year on year.

The hon. Gentleman sought very quickly to broaden out the debate by talking about cuts, but he failed to identify why the coalition Government had to make the cuts they did across the board after 2010. It was because the Labour Government overspent and increased our debt and deficit. A few weeks ago, I went to a school in my constituency to explain how Governments spend their money. I identified the different Departments of State, and we looked at the proportion of spending for each. If interest was a Department of State, it would be our fourth-biggest in terms of expenditure, and that is because of the unreasonable and irresponsible decisions taken when Labour was in office.

The hon. Gentleman also talked about court closures. When 41% of courts and tribunals used less than half their available hearing capacity in 2016-17, it would be wrong not to look at our court estate. All the money from the sales is reinvested into the court estate, into our court buildings and court structure, and into technology, and that is alongside our billion-pound reform of the court process. I know that he is in favour of strikes of any kind, whether they are legal or illegal and whether or not they disadvantage ordinary members of society. I know that he favours disruption, demonstration and discontent over careful, constructive and collaborative processes, but the Conservative party believes in justice and that those who need representation should be entitled to it. We will continue to work with the profession to help them to protect the rule of law and the vulnerable people who come through our courts.

[Several hon. Members rose—]