Legal Aid

Robert Buckland Excerpts

Wednesday 11th May 2011 Westminster Hall

[Dr Huppert]

I thank the hon. Lady for her comments and bow to her greater expertise in this area. She is absolutely right. There is no doubt that mediation is fantastic, but it does not solve every problem. It is a great thing where it works. Where it does not work, there must be alternatives. She also raises the important point about the number of mediators. We are trying to turn to more and more mediation and arbitration in relation to a range of areas of law, and there is a real question about how we can train enough people.

I hope that the Government will revisit their proposals on reducing the scope of family law. We share the objective of controlling costs while preserving access to justice. I hope that the Government will be able to reach a better balance than they did in their original proposals.

Let me now turn to another element of family law, which has had almost as much attention from the same organisations—domestic violence, which my hon. Friend the Member for Mid Dorset and North Poole (Annette Brooke) mentioned. That is a blight that is far more common in our country than many of us would like to believe. It is a very private crime and therefore difficult to measure, but estimates based on available data, such as the British crime survey, suggest that as many as one in five adults have experienced it in some form.

The Green Paper takes a narrow view of what domestic violence constitutes and how it can be evidenced. The Government seem to be counting only physical violence under the definition of domestic violence and then only where relevant legal proceedings have been started or orders obtained in relation to it. There are a couple of concerns about the consequences of that. First, it provides a perverse incentive for people to allege domestic violence just to gain access to funding for their other issues. In other words, it will encourage court proceedings. It is not clear whether that would involve people admitting what is actually happening or would lead to false allegations, but either way, it will increase court proceedings. Secondly, a huge amount of research shows that many victims of domestic violence do not disclose their abuse at all. For all sorts of reasons, they are reluctant to take legal proceedings in relation to the abuse. We should not make that harder.

All that would be bad enough. I hope that I need not convince anyone here that domestic violence cannot refer simply to physical violence. We must all be concerned about people suffering the threat of violence and mental torment. I hope that the Government will take seriously the criticisms that they have received on that point and will clarify and strengthen their definition of domestic violence so that those at risk have access to justice and are protected.

There is a particular issue about those people—normally women—who are in the UK on a spousal visa with no access to public funds and are subjected to domestic violence. I have met such people in the Cambridge women’s refuge. I am delighted that the Government are taking some steps to support them—for example, by extending the funding for the Sojourner project, which I hope will continue even longer. Everyone will work together to help such people. There will be legal aid funding for them to obtain an injunction against their ex-partner, and the UK Border Agency will fast-track their visa application—but there will be no support for them to apply for the visa that unlocks their future support. Surely that is not right.

Women will be disproportionately affected by the changes in legal aid. They are more often the recipients of it and less often have their own finances in place. Children and young people will also be disproportionately affected, partly because women make up the majority of primary care givers, although of course not all. I have received a considerable amount of evidence from a number of organisations suggesting that the proposals could deny many thousands of children and young people access to justice. The Liberal Democrat youth policy includes a commitment to providing young people with access to specialist support and advice on their legal rights and responsibilities—something that I hope would attract universal support. I therefore urge the Government to think again more carefully about their proposals for young people. They are clearly a group of people who are generally vulnerable and less able to represent themselves. It seems to me, then, that the current scope of legal aid should remain available to children and young people even if it must be reduced somewhat for adults. In addition, we should try to target funding and support better towards that demographic group in the future.

Similar concerns apply in relation to disabled people, whether young or old. For example, the Government plan to remove legal aid relating to matters of special educational need. The Government sought to justify that proposal in the Green Paper because there are alternative sources of support, they do not consider parents and carers bringing SEN appeals to be particularly vulnerable and they believe that the education of children should not be accorded the same level of priority as other, more critical issues. The last point is the most concerning. The coalition Government have taken some good steps to support families with disabled children—for example, the SEN Green Paper from the Minister of State, Department for Education, my hon. Friend the Member for Brent Central (Sarah Teather), is a great step forwards. However, the change that we are discussing in this debate would send entirely the wrong message to those families. Access to education is a right for all children and is a vital mechanism for removing some of the barriers facing disabled children and young people.

[Mr Robert Buckland (South Swindon) (Con)]

On the point about special educational needs, does my hon. Friend further welcome the proposals in the Green Paper to move to a system of mediation to resolve many of the problems that parents and children have in challenging decisions made by local authorities? Should not that system of mediation be put in train with any changes to legal aid so that we do not end up with the good intentions of the Green Paper being frustrated by a lack of co-ordination between two Departments?

[Dr Huppert]

I thank the hon. Gentleman for his comments. Yes, mediation can play a good role. There are a number of cases in which we need to move away from the legalistic approach to resolving problems and towards mediatory approaches. However, as I said in response to the point raised by the hon. Member for Maidstone and The Weald (Mrs Grant), mediation does not always work, and where will we get all the mediators from? We must ensure that there is a fall-back—a safety net—for people.

I cannot deal with all the issues relating to this area now. I assume that the Government have seen the briefings from the Children’s Society and the Special Educational Consortium and I hope that they will consider what they say. I am sure that other hon. Members have seen them as well.

--- Later in debate ---

[Mr Robert Buckland (South Swindon) (Con)]

It is a pleasure to serve under your chairmanship, Mr Weir. I will bear in mind your exhortation about brevity. I congratulate the hon. Member for Makerfield (Yvonne Fovargue) on following your strictures, and I shall do likewise.

I speak as a former practitioner in legal aid, at the Bar for nearly 20 years, and as someone who has had wide experience of criminal, family and civil legal aid. It has been a changing picture. I hesitate to use the phrase “permanent revolution”, but it has felt like that at times, especially over the past 10 or so years, when the previous Government bombarded the profession with consultation after consultation and literally made it revolve on the spot with the number of questions that they kept on asking of the system.

The reality is that whoever had been elected to Government last year would be dealing with the legal aid issue. Whoever was sitting in the Minister’s seat now would no doubt be putting forward proposals that would involve a reduction in expenditure on legal aid. It is important that we take out party politics from this issue. I do not believe that that either helps the debate or puts it in a proper context.

I am a member of the Justice Committee. As was mentioned by my hon. Friend the Member for Cambridge (Dr Huppert), whom I congratulate on securing this debate, the Committee produced a report in recent months, which was based on a series of evidence sessions on the Green Paper. I commend the report to the Chamber. It is the result of a lot of hard work from Committee members. Its conclusions and recommendations are being carefully considered by the Minister. I must say that the Minister has, at all times, been extremely open to suggestions, proposals and counter-proposals about the future of legal aid, and I pay tribute to him for the work that he is doing.

The report is a challenging read. One of its fundamental points is the dearth of evidence at case level to work out the key cost drivers of legal aid expenditure in England and Wales. In other words, there is precious little evidence to help decision makers come to a view on why we spend more on legal aid per head as a percentage of GDP than other comparable countries. It is the strong view of the Committee that far more academic research needs to be done domestically to work out the reasons for that expenditure on legal aid.

During my research into the subject, a couple of facts shone out. First, many more cases tend to be prosecuted in England and Wales than in other jurisdictions. Secondly, some of our processes of law are much more complex than those in other countries. One example is in the field of welfare benefits law, which, without the guidance and help of a lawyer, can be a real minefield for litigants and lay people.

An important fact that we must not overlook is the global view of expenditure on legal processes. It is wrong to look at legal aid in isolation; we should be considering the cost of prosecutions, court processes and the judiciary. When we consider those three areas together, the Council of Europe’s most recent report, which offers comparators between England and Wales and other European countries, shows that our expenditure as a percentage of GDP per head is equal to the average. Suddenly, the assertion that we spend more on legal aid compared with other countries becomes a little hollow. Perhaps, therefore, we should be careful before we base any policy developments on assertions such as that.

Having said that, it is quite clear that there are a number of areas in which we can make reforms to reduce expenditure on legal aid. We were particularly struck as a Committee by the evidence of Sir Anthony May, the president of the Queen’s Bench Division, who reminded us that when it comes to the scope of judicial review, there was a case for saying that, for the merry-go-round of appeal on appeal in asylum cases—as a Lord Justice of Appeal described it—legal aid should be removed. A substantial saving could be made there. As my hon. Friend the Member for Cambridge said, it is incumbent on Committee members or Members of Parliament to come up with constructive proposals that can offer real and effective savings.

The problem does not, however, begin and end with the law. As has been said, the quality, or lack of quality, of Departments’ decision making has led to an explosion in appeals, and the Department for Work and Pensions is a notable example. One statistic that came before the Committee showed that 92% of appeals against DWP decisions were successful, which speaks volumes, I am afraid, about the poor quality of the decision making.

The Committee’s view was that we should adopt the “polluter pays” principle and award costs against Departments that make poor decisions that result in successful appeals; in other words, we should place an incentive on Departments to get their decisions right in the first place. The counter-argument is that that merely involves transferring money from one Department to another, but we really need to get the incentives right so that we avoid the need to go to law in the first place. We should encourage such an approach across the piece when it comes to poor decision making.

The report raised many other points, some of which have been covered, and I will not repeat them. However, the Minister will forgive me for repeating something that he has heard me say many times before, and I make no apology for saying it again. Adopting a narrow definition of domestic violence and a narrow reliance on previous court orders, as opposed to undertakings or promises made by people to the court, opens up a host of problems when it comes to ensuring that people have fair representation in what are often quite serious cases. The definition is not a good one to rely on, and the report submits that it should not be relied on—or that it should, at the very least, be expanded to include domestic abuse. Indeed, I would go further and refer to a course of conduct representing domestic abuse to avoid the Government’s quite proper concerns about one-off situations being characterised as something more serious.

For all those reasons, I argue that more work needs to be done to improve the ambit of the Green Paper and to ensure that any changes to the legal aid system do not disadvantage those who genuinely need it.