Criminal Justice System: Equality of Access

Mike Gapes Excerpts

Wednesday 30th November 2016 Westminster Hall

[Gerald Jones (Merthyr Tydfil and Rhymney) (Lab)]

I beg to move,

That this House has considered equality of access to justice in the criminal justice system.

It is a pleasure to serve under your chairmanship, Mr Gapes. I am pleased to have the opportunity to discuss this important topic. In the past six years, many lawyers have spoken of their fears about access to justice. When they do, they are often accused of special pleading, as if only lawyers care about people being able to use the protection our laws afford us.

There is a problem in this country with the debate about access to the courts and the provision of legal aid. The Government say that our legal aid budget is generous. The Government speak about court users, who must contribute to the running of the courts, as if most people have nothing better to do than spend their lives in court or as if people relish rushing off to court as often as they can. The truth of people’s attitude is, of course, quite different. I can do no better than quote a giant of the Labour movement and labour law, Lord Bill Wedderburn. In his seminal 1965 book “The Worker and the Law”, he wrote that

“most people want nothing more from the law than that it should leave them alone”.

The truth is that most people would hope never to have to use the courts—the employee who is being underpaid or unfairly treated, the businessperson owed money by a customer who will not pay or the mother who is injured in a car accident on the school run. For those who commit criminal offences, the situation is very different, but no doubt many of them wish the law would leave them alone.

There have been cuts to legal aid funding in many areas of law since 2010. It would be wrong to suggest that cuts have been visited only on criminal legal aid, and it is important to put things in context. First came the Legal Aid, Sentencing and Punishment of Offenders Act 2012. At that time, the right hon. and learned Member for Rushcliffe (Mr Clarke) was the Justice Secretary and Lord Chancellor. The Act removed eligibility for publicly funded legal assistance from a raft of areas of social welfare law. For those seeking legal help with debt advice, there is no support—no support for housing advice, unless someone faces being made homeless, and no support for welfare benefits advice; the latter is particularly troubling. Past figures show that many appeals against the Department for Work and Pensions are successful. Between December 2014 and June 2015, 53% of those who appealed against fit-for-work decisions had that decision reversed. People would have to go to court far less if the decisions of Government Departments were better.

The cuts have given rise to a geographical concept I have never heard of before: a legal aid advice desert. The Law Society has a campaign devoted to the eradication of the cuts. There are areas of the England and Wales jurisdiction where legal aid advice for housing cases is disappearing. My constituency of Merthyr Tydfil and Rhymney shares with the neighbouring area of Rhondda Cynon Taf just a single provider of legal aid housing advice.

The figures show that civil legal aid cases have decreased dramatically since LASPO became law. In July this year, Young Legal Aid Lawyers, along with the Legal Action Group and the Legal Aid Practitioners Group, wrote to the Prime Minister. They explained that in 2012-13, before LASPO, there were 724,243 civil law cases funded by legal aid. By 2015-16, that figure had plummeted to just 258,460. As they told the Prime Minister, that is a picture of justice denied. The Act removed most private family law matters from the scope of legal aid. Divorce proceedings, child contact arrangements and financial and property disputes are no longer eligible, save where there is evidence of domestic violence.

At the time of LASPO coming into force, the Government made a commitment to review the effects of the Act within three to five years. We are squarely in that timescale now. The calls for that review to start have reached a crescendo. In recent months, the Trades Union Congress and Amnesty International have produced reports highlighting the scale of the problem. I pay tribute to both organisations for their work. It is surely time that the Justice Secretary set that review in motion. Perhaps her reason for not acting is that she is in possession of another review—a review of the effect of employment tribunal fees—that the Ministry of Justice appears to be sitting on, which we strongly suspect is because that review is critical of the fees.

In 2013, the then Justice Secretary, the right hon. Member for Epsom and Ewell (Chris Grayling), introduced more reforms. He sought to impose restrictions on the availability of judicial review; to restrict the ability of foreign nationals to receive publicly funded legal assistance; to remove publicly funded legal assistance for nearly every area of prison law; and to make further cuts to immigration law and to family law. A proposal for competitive tendering for criminal legal aid fees was also floated, but later abandoned.

The right hon. Member for Epsom and Ewell asserted, without providing evidence, that the legal aid bill was spiralling. He also asserted, without providing evidence, that the public had lost confidence in the legal aid system and that campaigners were using judicial review as a tool to block his Government’s unimpeachable legislative programme. We can debate whether the economic argument was ever really made out. However, those reforms were a further restriction on access to justice. Worse still are the restrictions on judicial review, which can only be characterised as a flagrant set of measures to reduce Government’s accountability to the people.

During the past six years, we have witnessed a curious sight little seen before. Outside the Old Bailey here in London and outside courts across the country, we have seen the strange sight of gowned and bewigged lawyers protesting against cuts to legal aid. That, in turn, gave rise to more curious sights still: a huge and grotesque papier mâché likeness of the right hon. Member for Epsom and Ewell being carried aloft around Parliament Square, and the barrister and former Tory MP Sir Ivan Lawrence taking to a platform erected in Old Palace Yard to call on the legal profession to strike. If 2016 has been the year that saw old certainties undermined, perhaps we should have seen it coming from that moment alone.

The question is, what brought criminal lawyers to that point? The profession has not seen a rise in fees for more than 20 years. While it is abundantly clear that many QCs have done and continue to do well from legal aid, the position is very different for the majority of junior barristers. Some reported at the time not being paid for their work or paying more in travel to get to court than they would receive for the court appearance itself. Solicitors firms throughout that time have had to do much more with much less.

The profession told of a real and present fear that it simply could not take more cuts. Diminishing fees would mean greater case loads and pressure to accumulate more clients and devote less time to those cases, all in order to stay afloat. For some professionals, that would mean compromises in quality and integrity that were a bridge too far, and they feared that firms willing to stack ’em high and sell ’em cheap would prevail.

It was rumoured that long-established and trusted law firms would disappear and that those that had been a presence on the local high street and had served their local communities for decades would be replaced by warehouses of inexperienced and exploited paralegals. It was also rumoured that removing those firms from the high street would leave no physical presence, which would be replaced with a faceless website and call centre run by G4S, Tesco or even Eddie Stobart.

The Government abandoned their restructuring of criminal legal aid and opted for more cuts. Mr Grayling imposed a reduction of 17.5% on solicitors’ fees, a huge reduction in resources that would have serious implications for any business. The cut was to be introduced in two stages: an initial 8.75% reduction last year with a planned further cut of 8.75% cut in April this year. The second cut was postponed for one year by Mr Grayling’s successor, Mr Gove.

[Mike Gapes (in the Chair)]

Order. The hon. Gentleman is aware that we normally refer to hon. Members by their constituencies, not their names.

[Gerald Jones]

I am sorry, Mr Gapes.

It is hoped that the new Justice Secretary will shortly confirm that there will be no further reduction, but the warnings from lawyers to the Government have continued. They have warned about the future of the justice system, miscarriages of justice, and two-tier justice with one law for the rich and another for the poor. That is the peril we risk creating if ordinary people are denied proper legal representation.

Wealthy defendants in criminal cases sometimes seem to have unlimited resources and create the mistaken impression that justice can be easily bought or easily evaded. That may be unpopular. People convicted of the most serious offences may have benefited from legal aid. Newspapers often howl with outrage at the sums involved, but such cases are often the longest and most complex. The answer is not to deprive people of representation. If the state and the public choose and demand that certain activities are to be criminalised, a cost is involved. It is the mark of a civilised society.

We must ensure that those who want representation are represented. Only then can we be confident they are properly tried, and properly acquitted or convicted. A proper trial means competent prosecution and defence, and since 2010, the Crown Prosecution Service too has seen significant restraint. Its budget has been cut by around 25% and its staff has been reduced by 2,500. The Government will say this has not led to any problems and cannot be blamed for trials collapsing, cases being dropped or disclosure of important evidence being missed, but the truth is that the service is stretched and that has implications for access to justice.

Access to justice does not apply only to those accused. Victims of crime also need access to justice. They must be confident that their case receives the attention it deserves, that it is adequately resourced and that it is handled with care and expertise. Austerity has made access to justice more difficult for thousands of people, not just for the reasons I have given. Yes, the Government have cut legal aid and the budget for the Crown Prosecution Service, but they have also closed courts around the country. In February, it was announced that 86 courts and tribunals would be closed, but it was reckoned that 97% of citizens would be able to reach their required court within an hour by car. That is fine for those who have a car and drive, but what about those who do not? Many people rely on public transport and for them the journey time is greater. With those closures and greater travelling times comes a diminution in the principle of local justice.