Legal Aid Reform

Sarah Teather Excerpts

Thursday 27th June 2013 Commons Chamber

[Sarah Teather (Brent Central) (LD)]

I beg to move,

That this House has considered legal aid reform.

I thank the Backbench Business Committee for allowing the House to debate this very important issue. I am hugely grateful to the many Members who have remained in the Chamber on a Thursday afternoon even though the debate is not on a dividable motion. I offer my apology for the fact that I did not ask for a full day’s debate—clearly, there is much more desire to debate this matter than I expected when I went before the Committee.

As many in the House will know, the background to the debate is that just after the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force, the Government began a new consultation, “Transforming Legal Aid.” That consultation closed on 4 June, and the Government are due to respond after the summer recess. The proposals were incredibly wide ranging and arguably more significant in some ways than those in the LASPO Act, but it looked as if the House would not get an opportunity to debate that consultation document before the Government responded. As the Government are currently proposing secondary legislation for the matter, my concern is that we may not get an opportunity to have a debate before the legislation is introduced.

Because the proposals are so complex and wide-ranging, I think it important for us to get the details right, and I therefore hope that the Minister will view the contributions of Members in all parts of the House as part of the consultation process.

I am grateful to the 31 members of all parties who supported my application to the Backbench Business Committee. I particularly thank the right hon. Member for Tottenham (Mr Lammy), who is a former legal aid Minister, and the right hon. Member for Haltemprice and Howden (Mr Davis), who I know wants to speak later about some of the constitutional implications of the proposed changes.

The fact that so many organisations, including Mind and Shelter, have contacted Members of Parliament with briefings and queries demonstrates that it is not just lawyers who are worried about these proposals.

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

Is it not very disappointing that that the Justice Secretary has not bothered to come to the House today? As the hon. Lady has pointed out, the debate is very oversubscribed. More than 96,000 people signed the e-petition, and I believe that 96 Members of Parliament signed early-day motion 36. The Justice Secretary should be here.

--- Later in debate ---

[Sarah Teather]

I would have been delighted to see the Justice Secretary, but I am, in fact, delighted that the Minister is present. I trust that he will listen carefully to what Members say today, and will relay it faithfully.

[Sir Edward Garnier (Harborough) (Con)]

Like the hon. Member for Kingston upon Hull East (Karl Turner), I am a member of the Bar, but unlike him I do not do any legal aid work.

Does my hon. Friend agree that although the debate is important, it would not have had to take place had the Government chosen a better way in which to find their savings? It would have been better to continue with the proposals for further privatisation of the prisons, rather than attacking the legal aid system.

[Sarah Teather]

I certainly think that there are better ways of finding savings. I hope that some Members will refer to the way in which we manage some of the services that we privatise. The way in which contracts are managed is very important. The privatisation of the interpretation and translation services, for example, appears to have led to greater delay and driven up costs.

[Dr Julian Huppert (Cambridge) (LD)]

I congratulate my hon. Friend wholeheartedly on securing a debate that is clearly of interest to Members in all parts of the House. About two years ago, I too secured a debate on legal aid, which I think she attended, and that prompted a great deal of interest as well. The issue is incredibly broad, covering such matters as the residence test and, in the case of criminal legal aid, choice and diversity. Is it not important to ensure that small providers can continue to provide a service?

[Sarah Teather]

I think there are critical issues involving choice.

[Caroline Lucas (Brighton, Pavilion) (Green)]

rose—

[Sarah Teather]

I will struggle if I try to give way to everyone. May I at least respond to one intervention before I accept another?

I intend to speak about the residence test rather than about criminal legal aid, but I know that a number of Members—including the hon. Member for Kingston upon Hull East (Karl Turner), who supported the application to the Backbench Business Committee, and my hon. Friends the Member for Redcar (Ian Swales) and for Leeds North West (Greg Mulholland)—want to refer to it specifically.

[Caroline Lucas]

rose—

[Jake Berry (Rossendale and Darwen) (Con)]

rose—

[Sarah Teather]

I will give way first to the hon. Lady and then to the hon. Gentleman, but after that I must make some progress.

[Caroline Lucas]

I wanted to intervene early in the debate to crush the myth that this is about savings. It should be made absolutely clear that no money will be saved. Indeed, a barrister at Matrix Chambers has suggested that, rather than saving £6 million—which, in the great scheme of things, is not very much in any case—the changes are likely to generate on-costs of about £30 million.

[Sarah Teather]

I entirely agree with the hon. Lady. She was referring, of course, to the changes in civil rather than criminal legal aid. I think that the costs are likely to be significantly greater, especially if people remain in detention or cannot be released from hospital.

[Jake Berry]

Let me begin by drawing Members’ attention to my declaration of interest, largely because I am immensely proud of being a solicitor. What concerns me most is discrimination against small high street practices such as Holt and Longworth and other small firms in my constituency, which, although they are the backbone of our profession, will probably cease to exist.

[Sarah Teather]

I find it extremely worrying that the Government should pursue a line that would put small and medium-sized firms out of business, apparently deliberately. It flies in the face of everything they are trying to do to promote growth and the high streets. I trust that the Minister has noted what the hon. Gentleman said.

I hope that the hon. Member for Stretford and Urmston (Kate Green) will catch your eye later, Madam Deputy Speaker, because I know that she wishes to speak specifically about issues relating to civil legal aid for prisoners. I shall not have time to speak about that myself, but I think that it is important for it to be covered today.

Let me now say something about the residence test. As a former children’s Minister, I know that the proposed changes have particular implications for children, and as chair of the all-party parliamentary group on refugees, I am very concerned about the impact on those who seek sanctuary on our shores.

The Bill that became the Legal Aid, Sentencing and Punishing of Offenders Act was highly contentious and fiercely debated in both Houses. Many were persuaded of the need to save money, but all sought to ensure that the most vulnerable members of society would continue to have access to justice. Time and again, Ministers assured the House of Commons that when people’s lives or liberty were at stake, access to justice would be preserved. However, the new residence test appears to undermine that directly.

Schedule 1 of the Act lists the categories that the Government sought to protect from cuts—groups whom they recognised to have a vital need for legal representation. Children who may be subject to care orders, children with special educational needs, victims of domestic violence, victims of trafficking, asylum cases, those in immigration detention, those facing immediate homelessness, and those with mental health issues are just a few of the very vulnerable groups that are identified. I am afraid that people in all those categories may be denied legal aid if they fail to pass the residence test.

[Mr Jim Cunningham (Coventry South) (Lab)]

Does the hon. Lady agree that what may happen—if it is not already happening—is that citizens advice bureaux and law centres will become overloaded with casework, and people in all the categories that she has listed will start coming to elected Members of Parliament for help?

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[Sarah Teather]

I think the hon. Gentleman is absolutely right. Those in what was originally a category of people needing legal aid will still have problems after being denied it, and will arrive at all our surgeries seeking our help with problems that still exist and are still insurmountable.

[Mr Dominic Raab (Esher and Walton) (Con)]

I thank the hon. Lady for giving way; she is being very generous. Does she know whether the family of Jean Charles de Menezes would have qualified for legal aid under the new residence test? That is a very esoteric but important category which ought to be protected.

[Sarah Teather]

I understand that the family of Jean Charles de Menezes would not have qualified under the new test. As the hon. Gentleman says, that was an incredibly important case which had huge implications for policing policy, and it is for precisely that reason that we need to be careful about identifying categories of this kind.

A number of Members have said that the changes will not save money. That, I think, is the point. The Government are apparently not seeking to save money with the changes in the residence test; they say that their purpose is to shore up public confidence in the legal aid system. However, I do not think that the public will continue to have confidence in a system that denies access in certain cases, including the one that was referred to by the hon. Gentleman.

Particularly unjust, in my view, is the position of those who, having gained refugee status, will be forced to wait 12 months before becoming eligible for legal aid. I think it extremely unlikely that we would be complying with article 16 of the Geneva convention if we proceeded with that proposal. Many of the people involved are very vulnerable, and there is frequently a gap in communication between the Home Office and those who should be seeking care for them in the form of housing or benefits. Many would face a period of homelessness if lawyers did not intervene to ensure that local authorities do their duty.

[Keith Vaz (Leicester East) (Lab)]

Will the hon. Lady give way?

[Sarah Teather]

I will, but I am conscious that I am taking up the time of others who wish to speak.

[Keith Vaz]

I am most grateful to the hon. Lady, who has been extremely generous in giving way. She is right about immigration, which has become more complex. One of the reasons for opposing these proposals is that the few remaining specialist legal aid immigration lawyers will disappear if they are accepted.

[Sarah Teather]

I fear losing specialists in immigration law. I already see constituents who are consulting lawyers who are, I am afraid to say, less than qualified to do the job, and that is what creates many of the delays and bad decisions in the first place.

[Several hon. Members]

rose—

[Sarah Teather]

I have tried to take as many interventions as possible, as I know that some Members will not get an opportunity to speak, but I also do not want to speak for too long, and there are some points I want to make on the residence test, so I shall continue

Were it not for the intervention of lawyers, many refugees would be homeless at the very time when the state has recognised they are absolutely in need of protection. They will also be unable to challenge other decisions, such as on special educational needs and other forms of care. Young unaccompanied asylum seekers are particularly vulnerable. The Coram Children’s Legal Centre provided an example of a young woman from Eritrea who was just 16. The Home Office accepted that she required refugee status. However, after that happened, as is often the case, her local authority began disputing her age. Were it not for the intervention of lawyers, she would not then have been cared for by the local authority, as she had no chance of proving she had been resident in the UK for 12 months; in fact, she had not been resident in the UK for 12 months, and she had certainly not been lawfully resident in the UK for 12 months.

Those who struggle to make a claim for asylum initially are frequently particularly vulnerable to wrong decisions being made. I include in that category young people, those who have experienced sexual violence, those who are claiming asylum on grounds of sexual orientation and those who have been tortured. Many of these people fail to disclose that in their initial interviews. It is only on subsequent fresh applications for asylum that the right decision is made, because all the information is provided. Once that fresh application is accepted, they become eligible for legal aid. However, they need a lawyer to put in an application, so these people find themselves in a position of not being able to gain the status they deserve. Similarly, victims of human trafficking may need to challenge the identification given to them. Without access to legal aid, they are unable to do that.

Perhaps the most bizarre aspect of this residence test is not about asylum seekers, but about British-born children. British-born children under the age of one will fail a residence test. I do not know whether Ministers did not communicate with the Department for Education, but it is common practice in care proceedings that a child will be allocated a solicitor. That is why certain categories of children were listed at the back of schedule 1 to LASPO. Examples of other kinds of case that would be excluded are British citizens who from time to time get wrongly deported—I am afraid that does happen—and high-profile cases such as that mentioned a few moments ago. I am aware that my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) wishes to raise Baha Mousa’s case and the case of Afghani interpreters.

Perhaps the most invidious and troubling cases, however, are those involving people in immigration detention. That, too, was specifically included in LASPO because it involved the state depriving people of their liberty. They must instigate their own proceedings. We often have indefinite detention for these people; their case does not automatically review, yet they will not be eligible for legal aid, because they are not lawfully here. The chief inspector of prisons has previously expressed concerns about that group, and this makes it significantly worse.

The argument Ministers have offered to me is that I should not concern myself with this group because exceptional funding is in place to support them. I want to debunk that myth right away. First, the application process for exceptional funding is exceptionally complicated; it is extremely difficult to provide the required evidence to the Legal Aid Agency, which is why very few people have applied, and people need a lawyer to be able to fill in the form. I understand that 100 cases have been accepted by the LAA, and the Public Law Project has told us it knew of just one case that had been accepted. Secondly, exceptional funding exists for cases outside the scope of LASPO, yet all the cases I have detailed are within its scope, but are outside that of the residence test. Thirdly, there is no procedure for urgent cases. That is not much good for people who may have a pressing problem with their housing or who are seeking a non-molestation order as a result of domestic violence. Finally, there is no exemption for those with no capacity to litigate.

The residence test is likely to be seriously detrimental to many of the most vulnerable groups that we have sought to protect during previous cuts to legal aid. I want to remind the Minister—as one former Minister to a current Minister—that being judicially reviewed is annoying. I remember that; it is very frustrating when we are taken to court, but we have to be humble enough to accept that Ministers, and others in public authorities, sometimes make the wrong decisions, and we also have to be man enough to accept the risk that some of the things people will JR us about may not seem to be particularly significant. That is what we need in a free society; that is the price we pay for making sure citizens are able to hold the state to account and for preventing overbearing state power from interfering with people’s right to live in the way they choose.

[Several hon. Members]

rose—

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[Sarah Teather]

This has been an excellent and well-informed debate. If there is one thing I hope the Minister will take away and consider, it is that of the more than 30 contributions we have heard today, only one—in addition to his own—was unequivocally in favour of the proposals. I hope that he will reflect on that. Liberal democracies cannot afford to get themselves into a position in which they wield power over a citizen without giving them a right to challenge. It would undermine the rule of law if we afford citizens rights without giving them the means to secure them. I hope that the Government will consider these points carefully and come back with some very different proposals, which they will put to a vote in the House.

Question put and agreed to.

Resolved,

That this House has considered legal aid reform.