Civil Legal Aid

Debate between Robert Neill and Karl Turner

Thursday 15th October 2015 Westminster Hall

[Robert Neill (Bromley and Chislehurst) (Con)]

I beg to move,

That this House has considered the Eighth Report from the Justice Committee, Session 2014-15, on impact of changes to civil legal aid under part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, HC 311, and the Government Response, Cm 9096.

I am delighted to have secured this debate on the operation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO as it is often called. I welcome the Under-Secretary of State for Justice to his place. We now commence our discussion of the second of the Justice Committee’s important reports that we are considering today.

I was prepared to give these reforms of legal aid a fair wind when they were introduced, but I also have concerns about them, as I think the Committee does. I do not say that because the objective of saving money is not important and, indeed, a significant imperative. I sympathise with the predicament of the Minister and of his predecessors; having been a Minister in an unprotected Department myself, I am very conscious that the financial circumstances that the previous Government inherited were dire, and changes had to be made and economies found. I accept that entirely.

Nevertheless, I and the rest of the Committee are concerned that the reforms may have had some unintended consequences, which perhaps we can now sensibly revisit. I was not a member of the Committee at the time the report was produced, but reading through it, a number of the concerns expressed chimed with my own experience as a constituency MP and, for what it is worth, my experience at the Bar. Although I no longer practise at the Bar, I still keep in touch with those who do.

Perhaps we can deal with some of the main issues that were highlighted in the report, and I look forward to hearing my hon. Friend the Minister’s response. I say that because, once again, I detect in both his comments and those of the Secretary of State a willingness to be open-minded about revisiting situations where it can be shown that there are perhaps better, more nuanced and more effective ways of obtaining the objective that we all want to achieve—having a legal aid system that concentrates resource where it is needed and that helps those who are in genuine need, but that does not encourage unmeritorious litigation. I think that we all share that view.

The Committee raised several issues on which I am interested in hearing my hon. Friend the Minister’s comments. First, there was a concern that the reforms, in a sense, were undoubtedly financially driven. There is nothing wrong with that in itself; it was a necessity at the time. Both the then permanent secretary and my hon. Friend’s predecessor as Minister were frank and fair about that to the Committee; savings needed to be made, and made quickly. However, that meant that no research could be undertaken about the impact of the reforms. Now, we are about a year on and although, frankly, it is unusual to conduct a Select Committee inquiry on reforms after only about a year, we are now able to see some of the impacts and I hope that gives us a chance to revisit some of the issues.

The position, of course, is that the MOJ is unprotected. The Committee was concerned that, although it may not have been intended, in practice the reforms introduced in April 2013 may well have begun to impede access to justice. If that is the case, we need to be prepared to accept it, and we should revisit the issues.

There were four objectives that the Government perfectly reasonably set themselves: to discourage unnecessary and adversarial litigation at public expense; to target legal aid at those who need it most; to make significant savings in the cost of the scheme; and to deliver overall better value for money for the taxpayer. There is nothing wrong with any of those objectives, but the evidence that the Committee received suggested that at least three of them have not been successfully achieved. That is why we need to be prepared to look at them again.

Access to justice is fundamental to a system based on the rule of law, and it is therefore important that any changes we make to the ability of the citizen to access proper legal advice are based upon objective evidence. That is the first and primary concern.

In terms of a saving, the National Audit Office concluded that the Government had exceeded their savings target by £32 million, because they were not funding as many cases as was predicted. Many Members will have people come to their constituency surgeries with debt issues, and in debt cases the shortfall was in the region of 85%. That indicates to me that the projections were pretty much based on back-of-an-envelope calculations and may not have had a great deal of research behind them. I am happy to be corrected if that is not the case. Given the speed at which it was acknowledged that that was happening, I can understand why that might be the case, but perhaps that is all the more reason to look again at the matter, if that is what is happening.

I am happy to see an underspend when it is genuine, but if it is an underspend because people who ought to be entitled to legal advice and support are not getting it, that is a failure in the system, and we need to find out precisely why that is so. One of the Committee’s concerns was that there was a significant lack of public information on accessing legal aid, and I have found that in my surgeries. In a comparatively prosperous part of suburban London, I have a lot of constituents coming to me who are unaware of how best to access legal aid and what their rights are. I suspect that the situation may be very much worse in other, more socially challenged parts of the country. We urgently need to revisit that issue.

The suggestion that people are simply moving to pro bono is not good enough. The pro bono work done by members from both sides of the profession is very important, but at the end of the day that is not a substitute for proper advice. That needs to be addressed, and I look forward to hearing what the Minister says on that.

Secondly, we have the operation of the exceptional cases funding scheme, which is an important part of the legal aid system. It was specifically and properly designed to ensure that any changes did not put us in breach of our obligations under the European convention or the European Union, and that is right and proper. The then Lord Chancellor described the scheme as a “safety net” on Second Reading of the Legal Aid, Sentencing and Punishment of Offenders Bill. I have no problem with a safety net, but we need to see how effective its operation has been. The evidence to the Committee on that raised concerns for us.

I appreciate things may have moved on—I am sure the Minister can update us if they have—but at the time of the Committee’s report, 7.2% of applications for ECF were granted. When the usual risk assessments and impact assessments were carried out for the legislation, the estimate was for that figure to be between 53% and 74%. I know from when I was a Minister that impact assessments are sometimes not entirely borne out in practice, but we are talking about a massive difference. When the figure is about one tenth of the top end of the impact assessment estimate, that indicates to me that something is going seriously awry. Either the impact assessment was very badly off indeed or the operation of the scheme has borne down much more heavily on deserving cases than Ministers ever intended. Some 60% of the grants that were made were for family representation at inquests, and that is good. I had a meeting recently with Inquest, which is an important and valuable body that does hard work in that field. Representation in that area is critical, but what about the rest of the significant shortfall? We need to examine that a little more.

We found—this is worth reciting—some exceptional cases where applications under the ECF were refused. They are exceptional cases; that is the whole point. An illiterate woman with learning, hearing and speech difficulties was facing an application that would affect her contact with her children. That was not regarded as suitable for exceptional cases funding, and that is difficult for many of us to appreciate. The judge in one case told us of a woman with modest learning difficulties who was unable to deal with representations from the lawyer on the other side. She is now facing possibly not seeing her child again. That troubled me in particular, because that coincides with my conversations with district and circuit judges and practitioners who operate in this field.

Anyone who goes to their county court will be aware of such issues, which raise a fundamental equality of arms argument. The other side is very often the local authority, which is represented by solicitor or counsel. Against that is someone who may not be able on their own to deal adequately with the process. To say that that is not an exceptional circumstance would be an unfair consequence of the scheme, and that sort of thing should not happen again in future.

I will give one further example. A destitute blind man with profound learning difficulties lacked the litigation capacity, so the official solicitor made an application on his behalf. Initially, that was rejected, and it had to go to judicial review. We should not be having to do that. That is clearly where the operation of the system, rather than the intention of Ministers, was at fault, but it means that we need to bear down carefully on how these cases are processed in the first place. I do not want a legitimate objective of efficiency and saving to get a bad name because of how it is carried out in practice.

Against that background, the Committee concluded that the low number of grants and some of those details meant that the scheme was not acting as the robust safety net that was intended. The risk of miscarriage of justice is real in some of those cases, and we should not allow such things to happen as a consequence of the reforms. We are concerned that so far we have heard no evidence of the Ministry investigating the significant disparity between the predicted number of grants—the 53% to 74% estimate—and the actuality of less than 8%. Will the Minister say what steps have been taken to investigate that enormous disparity? What steps are being taken to ensure that the scheme operates in a more equitable and just fashion? That is hugely important for the scheme’s credibility.

There has, in fairness, been an improvement in recent months, and I am sure the Minister will update me further. The statistics for April to June 2015 show an increase, with grants made to just over one third of all applicants. That is partly because Ministers reviewed the guidelines, and that was right and proper, but it required a review and decision by the Court of Appeal to make that happen. Ministers acted promptly on the basis of that decision, and I give them credit for that, but one third is still way short of the bottom end of the benchmark of 50%. We need more detail on what is being done to ensure that the percentage becomes more realistically near the estimate.

The number of applications remains low, and I would like to know what more can be done on that. The Committee’s inquiry involved some 35 oral witnesses over a period of months and some 70 pieces of written evidence. It is a not insubstantial piece of work that was undertaken by my colleagues who were on the Committee at the time. One reason that the Committee found for the low number of applications was the length of time that it takes to complete the form. That is not insignificant. I can remember sitting in the cells as a practitioner, completing the legal aid form before we went up on the first remand hearing. The form has gone well beyond that now, and the truth is that lawyers cannot claim the time for completing the form.

[Mr Graham Brady in the Chair]

I welcome you to the Chair, Mr Brady, as always. I am not here to make the case on behalf of lawyers, but completing the form is generally beyond the capacity of many lay people, particularly those with any difficulties. They need help to do it and the solicitor will not be remunerated for doing it. Many do it out of their professional sense of duty and obligation, and they are right to do so, but the form is an impediment. In many areas of Government, we are successfully making forms simpler and putting things into plain English. If we are able to make forms simpler in a raft of areas, including planning applications, local government matters and court forms, we ought to be able to do it for the application forms for these matters. What are the Government going to do on that?

A separate issue that causes concern relates to legal aid in family law cases, particularly in what is sometimes termed the domestic violence gateway. Happily, I never practised in that field, but I know that it is one of the most stressful that a lawyer, judge or litigant can encounter. The intention was—I do not doubt its goodness—that legal aid would be available where a litigant can show evidence of abuse within the past two years, with an exception where there is clear evidence of a conviction arising from domestic violence. That is the easy bit. We were concerned by the evidence to our inquiry on the operation of that need, in the absence of a conviction, to show evidence of domestic abuse from within the past two years. We found that some 39% of women who contacted a domestic violence charity about abuse did not have one of the prescribed forms of evidence. That leads us to conclude that the prescribed forms of evidence are too rigid and that there ought to be greater nuance and discretion around that.

Also, as anyone who has dealt with such matters would know, many people struggle with the two-year time limit, because family law cases have often dragged on for years. Relationships that can be abusive, often with as much emotional and psychological pressure as physical pressure, are all part of a picture that builds up over time. In such a relationship, where there may be children and it is difficult for the person to walk away, the strict adherence to a two-year limit can be artificial, and perhaps the guidelines do not coincide with the reality of life as many of us know it from our surgeries, and certainly as many experienced practitioners know it. I hope we can look at that issue again.

The Committee recommended that the Legal Aid Agency be allowed discretion to grant funding where, although the facts might not immediately fit the criteria, the victim of abuse would be materially disadvantaged by having to face the alleged perpetrator of the violence in court. We would not allow that in criminal proceedings, and we should not get into such situations in family proceedings, either. I hope the Minister will give us more details on that. I doubt it would increase the spend. The numbers are not great, but the potential injustice is very great, so I hope we can revisit that issue.

I am sorry that the Government rejected our recommendation. I ask the Minister, on behalf of the Committee, to think again. It is not good enough to say it is a catch-all clause and will lead to large amounts of litigation. I am sure it is possible to draft a sensible form of discretion that is not a blank cheque, but goes further to reflect reality than the current arrangements. We are a year on now. On the basis of the open-minded approach that the Secretary of State and his team are taking, now is a good time to revisit it in the light of experience and perhaps seek evidence from the practitioners and judges who hear such cases as to what might sensibly be put into the form. I hope the Government will think again about that.

The third issue that we raised, which again coincides with my own experience independently of the report, is sometimes called “sustainability and advice deserts”. There are parts of this country where it is very difficult now to find a lawyer to take on a civil legal aid case. Again, if in comparatively prosperous Bromley it is hard to find a solicitor to take on legally aided family work, it is a lot worse in many other parts of the country, never mind in rural areas where the question of simple physical access to a suitable solicitor can be significant. This is classically the area where pieces of research were to be published in 2015, but we have not yet seen the fruits of that research. Perhaps the Minister can tell us when it will be made public, because I have no doubt that the Committee will wish to revisit some of the considerations in the light of that.

The fourth area of concern stems from the increase in litigants in person. The contention at the time—I was prepared to give it a fair wind—was that there would be behavioural change through the removal of legal aid so that fewer people would choose to go to court to resolve their problems. I am not sure the evidence bears that out. I do not want to be an amateur psychologist, but perhaps the motives that lead people to go to court are not of a purely transactional nature. Sometimes, particularly in the most difficult cases, there are pressures that go beyond the ordinary straightforward business decision that we might make as to whether we litigated over a contractual matter, for example. This is not that sort of case. Very often there are other deep pressures that play upon people, which we may not have taken fully on board.

Also, I do not think we have done enough to promote the alternative of mediation, which I shall come to in a moment. On re-reading, I felt there was a finger in the wind approach to the assessment about behavioural change. The wind does not seem to be demonstrating that that is happening in the way that we would wish. Certainly the anecdotal evidence that we heard from people before the Committee, and others, was that there had been a significant increase in litigants in person. There is not a systematic means of collating that information; perhaps there should be. Even in the family courts where some figures are available, the accuracy and their significance was debatable. If we are to have such policy change we ought to know, and it should not be too difficult to work out. If litigants in person and those who are represented are logged, it should not be too difficult to pull the figures together so that we know better where we stand.

The National Audit Office was concerned that the increase in litigants in person in the family courts had cost the family court system an additional £3.4 million. I was disturbed at our evidence hearing on Tuesday to hear a senior official of the Department suggesting that there was no impact. Anyone who talks to anyone who sits in the county courts would say otherwise. There is an impact. We all know that litigants in person often take longer to present their case, which consumes court time and also affects soliciting as the costs run up on the other side, so it is in nobody’s interest in the long term to save money under one head of the justice system, but increase it on the courts budget, which is itself hard-pressed, on the other. Perhaps we need more evidence and a willingness to revisit that, too.

Moreover, often the increase in litigants in person is of people with real difficulties in coping with the system. We have moved on from a situation where the litigant in person was a fairly articulate person who chose not to employ a solicitor or a barrister—not something I would ever encourage, of course—because that was a sensible decision and they were able to deal with a straightforward case on its own merits. We now often deal with people coming before the courts with significant educational and communication difficulties and dealing with complex cases.

[Karl Turner (Kingston upon Hull East) (Lab)]

I want to make a serious point about what the hon. Gentleman has just said. The advice to litigants who propose to represent themselves is based on the fact that it is difficult for them to be objective. They are not in a position to sit back and look at the entire thing, and that often causes great delays going down the wrong road.

Legal Aid Reform

Debate between Robert Neill and Karl Turner

Thursday 27th June 2013 Commons Chamber

[Karl Turner]

My hon. Friend makes a good point. As far as I know, it is very unusual for a partner in the firm to come out in the early hours of the morning. The important point is this: a solicitor who attends at a police station in the middle of the night is often dealing with extremely serious allegations—sometimes allegations of murder. I have been in that position on a number of occasions, representing clients who are alleged to have committed murder. The solicitor is there on his or her own, whereas the police have advice from the CPS and many officers to assist them. The solicitor is facing all that pressure and is not being paid properly, even under the current arrangements, for his or her expertise.

Of course we accept that in these straitened economic times, cuts have to be made to Departments across the board, but these plans are massively ill conceived. They will, in my respectful submission, irretrievably damage the criminal justice system. I will focus my remarks on price competitive tendering.

[Robert Neill (Bromley and Chislehurst) (Con)]

Can the hon. Gentleman help with this point, then? If irretrievable damage is done to the criminal justice system by any change to legal aid, why was it that the right hon. Member for Blackburn (Mr Straw), when Lord Chancellor, said:

“I hope that everyone…will accept that the growth of spending on legal aid seen in the early part of the decade and before is no longer sustainable”?

[Karl Turner]

It is very disappointing, but I suspect the hon. Gentleman has not read the consultation document.

I shall go on to deal with price competitive tendering, but first let me try to bust a myth. There seems to be a suggestion that the Labour Government were particularly generous to criminal lawyers. We were not. Criminal lawyers have sustained cuts to fees from successive Governments. The current proposals are far reaching and, if they go through, they will be horrifically damaging to the criminal justice system. PCT will inevitably lead to the market being dominated by the big multinationals—the usual suspects—G4S, Serco, Capita, and probably the new entrants to the market who have absolutely no experience, Stobart.

The plans are also unconstitutional. They dismiss the notion that an accused might have the right to choose a solicitor. The cavalier ignorance of the Lord Chancellor was exposed when he remarked:

“I don’t believe that most people who find themselves in our criminal justice system are great connoisseurs of legal skills.”

Not only does he dismiss everyone requiring legal advice as a criminal before they have even been charged or had a trial, but he apparently has the naiveté to think that those who come face to face with the criminal justice system are not capable of judging the competence of their own lawyers. This is the “too thick to pick” point. The notion is completely contrary to attitudes applied to, say, health services in this country or education, where choice is deemed essential.

The proposals look to implement yet another changing fee structure. Fees would be cut by 17.5%, on top of the 2011 reduction of 10%. Firms that successfully bid for PCT will have demonstrated that they can provide the services at the cheapest possible rate. This means that advice will probably be provided by less qualified people supervised, perhaps, by a single lawyer. The “stack it high, sell it cheap” mentality will reduce the criminal justice system to a sausage factory where the quantity of cases trumps the quality of the service provided every time.

The proposals specify this in paragraph 23, suggesting that there is no need to be concerned about the quality of provision because work shall not be

“above the acceptable level specified by the LAA”—

the Legal Aid Agency. The plans also perversely propose the same fee to be paid, whether the case is resolved by way of a guilty plea or contested at trial. There is strong concern that this will inevitably lead to undue pressure being put on a defendant to plead guilty when in fact they have a defence.

The proposals will change the sort of people coming into the profession. This is not a plea for so-called fat-cat lawyers, but as the eminent barrister John Cooper QC put it to me yesterday,

“This is recognition, before it’s too late, that if the proposals go through we will be complicit in excluding many young people from less advantaged backgrounds from becoming part of what can only be described as the National Health Service of the Law”.

I have only one minute left. The Lord Chancellor showed his ignorance and lack of understanding of the profession. He showed ignorance today by not attending this important debate, yet the civil servants Box is full to the gunwales. The Lord Chancellor should sit down and meet for the first time the chairman of the Criminal Bar Association, Michael Turner QC, and Bill Waddington, the chairman of the Criminal Law Solicitors Association, and discuss alternatives to these undemocratic, unconstitutional and worrying plans.

--- Later in debate ---

[Robert Neill]

I have given way twice, so my time is running out. I am sure that my hon. Friend will forgive me.

There might be different means by which the same objective can be achieved. It might be possible to have some form of panel system. It might be possible to have a different approach to police station work, where there is a strong argument for saying that firms need a guaranteed volume of work to make the business case sustainable, as opposed to the preparation of litigation and the ongoing court work in both the magistrates court and the Crown court. It is not unreasonable to say that choice has to be provided in the context of affordability. We must not be afraid to say that.

We must recognise that the number of people seeking work at the Bar and in the solicitors’ profession has grown greatly, frankly to an unsustainable level. The profession has to recognise that too many people are chasing a diminishing work load. The number of cases that go to court has reduced by broadly a third since I came to the Bar, whereas the independent Bar and the solicitors’ profession have become about three times as large. Something has to give. Let us sit down sensibly and find ways in which that can be achieved.

[Karl Turner]

rose—

[Robert Neill]

I have given way twice and am afraid that I cannot give way any more. I am sure that the hon. Gentleman will find another opportunity to make his point.

We should not be sniffy about the development of alternative business models that might deliver the service properly. I recognise the points that have been made about accessibility in rural areas and about the particular types of expertise that may be needed. We could do more within the existing mechanisms to assist people with such issues.

I have come across such a situation in my constituency. Bromley council has set up an online platform in negotiation with reputable and well-established solicitors firms in the area that puts potential clients in contact with a solicitor, who provides the initial advice without any charge. There was difficulty in setting that up because, despite the willingness of the established solicitors firms to take part, the Solicitors Regulation Authority would not provide the necessary regulatory clearance. That is a needless bureaucratic obstacle to a practical solution to a genuine problem. That could sensibly be looked at and I hope the Minister will consider what might be done.

There are other ways in which we can make savings in criminal matters. My hon. Friend the Member for North West Norfolk (Mr Bellingham) has suggested using the independent Bar more within the Crown Prosecution Service. We should look at whether more efficiencies can be made in that body more generally. Perhaps we should look at the operation of the new centralised magistrates courts service. Again, there might be scope for savings.

We spend markedly more on legal aid than any comparable common law jurisdiction. We spend about £39 per head in the UK, compared with about £20 per head in the Republic of Ireland, about £10 per head in Canada and about £13 per head in New Zealand. Those are jurisdictions with the same system and trial processes as we have, but they do it markedly cheaper. I do not believe that a reduction of 10%, which is not out of line with other reductions, is unacceptable.

Local Government Funding

Debate between Robert Neill and Karl Turner

Monday 6th December 2010 Commons Chamber

[The Parliamentary Under-Secretary of State for Communities and Local Government (Robert Neill)]

This has been a robust debate and is none the worse for that perhaps. The subject is important and there are rightly strong views on it. Many Members have spoken and I shall start by apologising in advance if I do not manage to mention individually the speech of every one of the 25 Members who spoke. I hope, however, that I can pick up on certain themes.

There have been some considered and thoughtful speeches from hon. Members on both sides of the House. Issues of genuine concern have been raised by Members on both sides and I shall come back to those in a moment. I regret to say that, in some cases, however, the seriousness of the debate has not been served by the simplicity and shroud-waving and by some of the clichés that have been used as Members have injected more and more purple passages. That does not help in dealing with this serious matter, because the Government have never made any secret of the fact that the circumstances facing local authorities are difficult. We have been honest about that and it is to the credit of my hon. Friends from the Liberal Democrats that, when they came into government, they had the courage to recognise that the circumstances facing the country were grave. They deserve better service than the carping from Opposition Members who have not yet had the decency to admit their responsibility for the mess that the country is in or to come up with a constructive alternative.

Let me say to the hon. Member for St Helens North (Mr Watts) that he need have no fears about my health. I would fear, however, for the health of the nation’s economy if he were to be let loose, on the basis of what he and his right hon. and hon. Friends have done already.

It is against that background that it is necessary for us to take difficult and regrettable measures. I spent 16 years in local government, initially during the time when Denis Healey was going to the IMF and Jim Callaghan was telling local government that the party was over. I shall not brook any lessons from Opposition Members about the effects of Labour economic mismanagement on local authorities. Yet again, my hon. Friends and I find that we have to pick up the pieces. I accept that there are tough decisions, but they have come about because of the wreck and the train crash that the previous Government made of the economy.

Let me consider some of the propositions in the motion. There is a criticism of the percentages, but it starts from a basic error. It complains that

“councils will lose, on average, 27 per cent….compared to 11 per cent., on average, for Whitehall departments”

There is a sleight of hand in that, because the average figure includes the protected Departments. Unless Labour is going to tell us that it was not going to protect those Departments, the second line of its motion does not compare like with like. Frankly, it is intellectually questionable on that basis. The motion

“regrets the frontloading of reductions”,

but sadly, because of the extent of our economic inheritance, there should be a swift move to deal with deficit reduction. All people have to work together in that.

Ironically, we see from the Treasury proposals left behind by the previous Government that they intended to make cuts of 14% in the first year and 11% in the second year. That might be a type of front loading. I do not think we will take any lectures on that from Opposition Members either.

Let me turn to the question of the unexpected severity. My right hon. Friend the Secretary of State pointed out that the previous Chancellor and the previous Prime Minister already made it clear that should Labour—unfortunately for the country—have been returned at the election, there would have been significant cuts. We have simply been honest about it and shouldered the burden that they neglected to take on board. We do not need to take any lessons there.

[Karl Turner]

Will the Minister give way?

[Robert Neill]

I shall, because the hon. Gentleman has been very vocal all night.

[Karl Turner]

It seems rather contradictory for the Minister to say on the one hand that we did not have a plan to reduce the deficit and on the other hand that we seemingly did. Which is it? Come on, Minister.

[Robert Neill]

The hon. Gentleman gets it right. Seemingly none of us knows what Labour’s plan was and the Leader of the Opposition does not know either. I assume that the hon. Gentleman will progress rapidly to the Front Bench, as he is as vague on policy as the leader of his party. If that is the best the hon. Gentleman can do by way of intervention, I suggest he saves his knees the trouble in future.

May I just—[Interruption.]