Access to Justice

Richard Arkless Excerpts

Wednesday 11th January 2017 Westminster Hall

[Richard Burgon (Leeds East) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Davies. I thank my hon. Friend the Member for Wolverhampton South West (Rob Marris) for securing the debate and for his typically persuasive speech. Such speeches are what earned him his reputation as a fantastic lawyer and then a fantastic MP. I certainly agree with his description of access to justice as a pillar of the welfare state—how right he is.

I pay tribute to all hon. Members who have spoken today from all parties, not only for their contributions, but for the work they do in their constituencies. Each and every Member of Parliament in Westminster Hall today—and of course, in the main Chamber earlier—has experience of attending advice surgeries, to which constituents come who are unable to get the legal representation they so desperately need. That is often why they end up at our advice surgeries. Sadly, much of that is because of the Conservative Government’s cuts to legal aid since 2010.

My hon. Friend gave a comprehensive analysis of the problems with the Government’s proposals for the small claims limit. I will not retread the ground that he covered, but to pick up on a point made by my hon. Friend the Member for Makerfield (Yvonne Fovargue), this is not just about so-called soft tissue claims. I recommend that all Members on both sides of the House, including the hon. Member for Croydon South (Chris Philp), read the full title of the consultation, which is: “Reforming the Soft Tissue Injury (‘whiplash’) Claims Process: A consultation on arrangements concerning personal injury claims in England and Wales”. It is not just about whiplash claims and includes injuries in the workplace, as other hon. Members have said.

I am concerned that the proposals will affect the lower-paid most adversely. In assessing claims, their value includes the lost wages arising from any injury, so those who are paid higher wages might more easily surpass the £5,000 limit, leaving the lower-paid less likely to be able to cover their costs. To borrow a phrase used by the hon. Member for Croydon South, I consider that to be morally corrosive.

It is almost a year to the day since the publication of the annual report to Parliament from the Lord Chief Justice, Lord Thomas, in which he said:

“Our system of justice has become unaffordable to most.”

That is as clear and authoritative a judgment on the state of access to justice as could be hoped for. The reasons for that assessment are clear: employment tribunal fees, LASPO—the Legal Aid, Sentencing and Punishment of Offenders Act 2012—and “Transforming Legal Aid”.

It was the coalition Government who introduced employment tribunal fees. As I have said before, I will never forget the first time I lodged an employment tribunal case after they introduced those fees, when I was an employment tribunal lawyer at Thompsons. The message flashed up on the employment tribunals service website: “Customer, please enter your credit card details”. It says a lot about the Government’s view of workers seeking justice that citizens attempting to assert their workplace rights are viewed as consumers or customers. Employment tribunal fees have resulted in a 70% reduction in the number of cases.

[Richard Arkless (Dumfries and Galloway) (SNP)]

The hon. Gentleman makes a passionate and persuasive argument. Does he agree that if the purpose of hiking employment tribunal fees was to get rid of vexatious claims in the system, it has failed entirely? The win-loss ratio is exactly the same as it was before the fees were hiked. That is the evidence that the Justice Committee heard, and it makes the policy redundant.

[Richard Burgon]

The hon. Gentleman is correct. I put it to hon. Members that the real purpose of introducing employment tribunal fees was not to reduce vexatious claims, but to reduce claims full stop. Employment tribunals received about 60,000 cases in the year before fees were introduced, but that fell to below 20,000 the year after. As my hon. Friend the Member for Ellesmere Port and Neston (Justin Madders) indicated, that is not because of a reduction in illegal or unfair treatment by employers in that time—if only!

In June 2016, the Justice Committee released its report on court and tribunal fees, which complained that it was

“unacceptable that the Government has not reported the results of its review one year after it began and six months after the Government said it would be completed.”

Unbelievably, seven months later, the Government continue to sit on a review of the fees. We can only suppose what the reason for that is, but perhaps the Minister will enlighten us.

LASPO, which was enacted by the coalition Government, removed most social welfare law cases from eligibility for legal aid assistance. Those seeking assistance for debt advice, housing—apart from in homelessness cases—and welfare benefits advice were left with few places to turn, as my hon. Friend the Member for Makerfield knows from her experience running a citizens advice bureau. The barrier that has been put up in such cases has hurt some of the most vulnerable people in our society. The lack of benefits advice is of particular concern because many appeals against the Department for Work and Pensions succeed. Between December 2014 and June 2015, 53% of those who appealed “fit to work” decisions had them reversed. Removing advice on such cases risks people missing out on benefits to which they are eligible.

Last year, the Law Society launched its campaign to end legal aid deserts—areas of the country in which legal aid advice for housing cases is disappearing. In a Westminster Hall debate on 30 November 2016, the Minister denied that such legal aid deserts exist. I wonder whether he has told the Law Society that its research is wrong. In July last year, Young Legal Aid Lawyers, the Legal Action Group and the Legal Aid Practitioners Group wrote to the Prime Minister, highlighting the huge drop in civil legal aid cases since LASPO. In 2012-13, before LASPO, 724,243 civil law cases were publicly funded, but in 2015-16 there were just 258,460. They described that, correctly in my view, as

“a picture of justice denied”.

Last week, the Justice Secretary’s own actions confirmed the need for a review. LASPO removed most private family law matters from the scope of legal aid, which naturally led to an increase in people representing themselves, as has been described. The increased number of litigants in person led in turn to violent and abusive people cross-examining their victims—usually their former partners—in court. Recently, the senior family court judge, Sir James Munby, said:

“I have been raising since 2014 the pressing need to reform the way in which vulnerable people give evidence in family proceedings. I have made clear my view that the family justice system lags woefully behind the criminal justice system.”

Well, last week that reform was promised: apparently the Justice Secretary will review the situation. That is as good as an admission that the legal aid reforms to the family courts have caused the problem that now needs a solution. Although the Government’s initiative would be a step in the right direction and provide some measure of comfort to victims of domestic violence, it is no substitute for both parties in family proceedings having representation.

When the coalition Government passed LASPO, they committed to reviewing its effects in three to five years, and we are now well within that timetable. The review ought to have begun a long time ago—the words of the Lord Chief Justice last January, which I quoted earlier, make that clear. However, that is not the only barrier to access to justice that has been erected and maintained by the Government.