Ministry of Justice: Legal Aid Spending

Debate between Siobhain McDonagh and Laura Farris

Thursday 22nd October 2020 Westminster Hall

[Laura Farris (Newbury) (Con)]

I, too, thank the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), for securing the debate. It feels to me like a really important opening to be talking about legal aid. Perhaps for the first time in about a decade, there is a real opportunity to shift the terrain.

When I was preparing for the debate, I returned to my earliest days in practice in order to remind myself what the atmosphere around legal aid was in 2007. We were swimming in such different waters. I read Lord Carter’s review of legal aid procurement, which had been commissioned by Lord Falconer. He was dealing with a system that he described as bloated and inefficient, and he talked about wasteful legal practices and the budget, which had swelled by about 35% to £2 billion. It kept on going from there, because by 2010 Jack Straw said on record that we were

“in grave danger of becoming over-lawyered and underrepresented.”

When we got to 2010, it was therefore inevitable that a Government of any stripe would have to make some tough choices about legal aid. Then we got to LASPO. It is fair to say that those choices were deep and dramatic, and they affected the criminal side and the civil side, particularly by removing from scope housing and welfare and by circumscribing a lot of education law —apart from special educational needs—and a lot of private family law, as has been observed.

When the post-implementation review was published last year, some people said it was overdue, but it was a really important moment to take stock. I want to focus my remarks on a few conclusions that emerge from that. I will start with aspects of civil law, then I will talk about criminal law. On the civil law side, one of the things that really came through from the review concerned representation. Access to justice has a number of component parts, and being able to access affordable representation is one of them. Any significant cut to legal aid runs the risk of denying the people who most need recourse to the courts the ability to get legal advice and representation. It does not matter whether we limit the scope of claims that qualify or reduce the eligibility thresholds. The reality is that it leads to two outcomes: either the person abandons their claim, in which case there is a rank denial of justice, or they proceed with their claim on their own. A lot of judges have either written or spoken about what that means in court: pressure on court staff and judges having to act as quasi-lawyers and perform the representative function. It leads to delay, inefficiency and extra costs, and, in my own experience, it sometimes does not lead to the right result.

There has been investment—I think it is £3 million—in the legal support grant for litigants in person, and there was more previously, since 2015, but I hope that when the civil legal aid review is undertaken, this sphere will be kept under close review and investment considered.

The second thing I want to talk about is the quality of support available for early resolution. When Baroness Hale retired and did her circuit of valedictory speeches, I was struck by the fact that in almost every single one she talked about legal aid. When she addressed the Legal Action Group last April, she did an exercise where she imagined herself as a hypothetical mum in her hometown of Richmond—I think there is a military barracks in Catterick—and she created an example of a serviceman who had come back from war. He was drinking, the relationship with his wife had become violent, and social services said that they would take the kids into care unless she resolved it. So she needed to separate from him and get herself housing and a non-molestation order. She needed to make arrangements.

Baroness Hale took herself to the library in Richmond. Approaching it as the young mum, how could she find out what she had to do and who would help her? It is not all bad; it is not a story with a terrible ending. She found quite a lot of information, but she said that the picture was patchy in terms of the level of the service offered and the extent of the information available. She said that developments in online information and filing may help to iron out the differences, but they do not make up for the lack of properly informed advice from a skilled person who is not necessarily a lawyer, who can not only give advice and information but set about doing something concrete to help, whether that is making calls, writing letters or filling in the court forms. She said that she believed the Secretary of State understood the problem and was trying to think creatively, but that where securing the right result depends more and more on the early resolution of claims, the focus must remain on the accessibility of adequate legal advice.

I think I am right in saying that law centres have got all the money that they asked for during the crisis, but also that they have a backlog and there are delays, so the funding of not only law centres but equivalent services is something that the MOJ should keep a particular focus on.

On criminal legal aid—I need to use the right expressions—the August announcement was part of the accelerated asks scheme. I know that it is welcome and viewers will know that the criminal Bar or criminal lawyers have said that it is not enough. It is fair to say that—I do not want to say too much—it has been a really long road for criminal practitioners and criminal legal aid. I will confine my remarks to the point about retention and diversity, which is so important. The nuts and bolts of how each piece of work gets remunerated will be a question for the next stage of the review, but it should be informed by a sense of who we want to recruit and retain to do this difficult and important work. This question has to be asked: what is the pathway for a young person who does not have any public funding and is considering a career at the criminal Bar? They can use the Inns of Court scholarships to get them to the door, but then they have to try to earn a living.

I spoke to a practitioner yesterday, who gave me a really neat case study. She said that if someone was a young junior in her chambers and they covered a sentencing hearing, they would have three to four hours of prep and maybe two hours on their feet, so six hours’ work for a case where the stakes are high. It concerned the deprivation of liberty and the person might be looking at 10 years behind bars. For that they get a standalone fixed fee of £126. That has a chilling effect on not only recruiting talent, but retaining it.

One of the most eye-catching features of the Government’s published response in August was at the end. I am sure that others noticed it, too. It was the equality impact assessment where they said that the focus of the funding was about proportionately increasing fees at the junior end of the criminal Bar, and that is where we find the majority of ethnic minority practitioners and the majority of female barristers. We know that this kind of diversity at the junior end of the Bar is not just desirable, but essential. It is from there that you get the pipeline into silk and the pipeline into the judiciary. If we do not act, in 20 years, we will have a judiciary that does not look as we would wish it to look.

The August announcement was interim, and a comprehensive review remains ongoing. It is an independent review, but the choices that follow it will be political. Of course I know that it is important that public funds for legal services are used efficiently and economically, but when it comes to early and effective legal advice, less is definitely not more. Also, remuneration for those engaged in the system has to be commensurate with the level of skill and expertise. It should be possible to say what a junior legal aid criminal practitioner should earn, and ask how we set about putting the mechanisms in place to achieve that.

[Siobhain McDonagh (in the Chair)]

Before I call the next speaker, I would just like to point out the time. We have until 4.30 pm, so if we are to give 10 minutes each to both Front Benchers, I am sorry, but I am putting a squeeze on the contribution of the hon. Member for Enfield, Southgate (Bambos Charalambous).