Access to Justice: Vulnerable People

Stuart C McDonald Excerpts

Tuesday 19th January 2016 Westminster Hall

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship as we debate a crucial topic, Mr Bailey. What can be more fundamental than ensuring access to justice? For that reason, I congratulate the hon. Member for Aberavon (Stephen Kinnock) on securing this debate. I also congratulate the hon. Member for Warrington South (David Mowat) on his brave and spontaneous speech, which certainly got the debate going.

Different jurisdictions across the UK and across the world are each on their own journey as they continually grapple with access to justice, constantly updating procedural rules, introducing new technologies and reforming legal aid. Every jurisdiction can learn lessons from each of the others, as the hon. Member for Strangford (Jim Shannon) suggested, but I agree with the hon. Member for Aberavon that the UK Government should be doing more learning than teaching. It is clear that access to justice has suffered under the Conservative Government, and the former coalition partnership, as yet another austerity sacrifice.

Turning to the motion, in one sense the words “for vulnerable people” could be seen as superfluous, because if people’s access to justice is denied or made difficult, they become vulnerable people as a result. Thankfully, there is access to justice for most, but that is not good enough. If we believe in the rule of law, everyone should be able to vindicate their rights and have access to justice. Under this Government, access has become harder and harder for too many people. Understandably, and unsurprisingly, the main focus of the debate was legal aid, but we had good arguments about other aspects of proceedings, which gave food for thought as to how every jurisdiction can improve access to justice.

Turning to the main point of contention, I agree that the huge cuts in funding and eligibility for legal aid brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 are little short of a disgrace. The hon. Member for Aberavon highlighted some of the frightening statistics about the dramatic fall in the number of legal aid-funded cases, particularly for victims of domestic violence. As mentioned by the hon. Member for Cardiff Central (Jo Stevens), all the arguments were well summed up by the Lord Chief Justice of England and Wales when he said:

“Our system of justice has become unaffordable to most. In consequence there has been a considerable increase of litigants in person for whom our current court system is not really designed.”

Many of the issues were aired in another recent Westminster Hall debate on access to justice in Wales, and I want to tackle a couple of the arguments that Ministers have previously used to continue their attempted defence of legal aid cuts. They have said that it is better to encourage mediation than provide legal aid and an attempt at mediation should be encouraged or even required—by all means—but without pulling the rug from under people’s feet if it does not work. Legal aid spend should fall as a result of successful mediation, but not because people who have been forced into mediation have to sell themselves short and accept settlements even when mediation has failed. Ministers also claimed, and will probably claim again—the hon. Member for Warrington South started to make arguments along these lines—that the legal aid system in England and Wales

“remains one of the most generous in the world.”—[Official Report, 15 December 2015; Vol. 603, c. 528WH.]

That is the same old chestnut that the Justice Secretary used when pushing the cuts through, but it is like comparing apples and oranges and the argument does not stack up.

Professor Alan Paterson of the University of Strathclyde, chair of the International Legal Aid Group, pointed out that systems here cannot be compared with those on the continent, which are inquisitorial systems, a point which was accepted by the hon. Member for Warrington South. Such systems generally require less input from legal representatives, but significantly more resources are spent on prosecution services and the courts. Once expenditure on those other parts of the equation is factored in, England and Wales comes about a third of the way down the European league table. Professor Paterson made a specific comparison with Holland: back in 2011, England and Wales spent more than twice as much per capita on legal aid as Holland, but with a total per capita spend of around €90 on legal aid, courts and prosecutions combined, Holland spends a greater overall per capita sum on justice than England and Wales, where the total was around €80 euros. Of course, even if England and Wales has a higher per capita legal aid spend, it absolutely does not follow that that is because it has more generous eligibility rules. The hon. Member for Warrington South mentioned New Zealand, but the Law Society of England and Wales pointed out that the differential was not significantly caused by any increased generosity. Indeed, New Zealand was more generous in that regard. More relevant were higher crime rates, higher divorce rates, and higher expenditure per case.

Briefly, I have some similar points about the position in Scotland. Professor Paterson, in his Hamlyn lectures at the University of Cambridge in 2010, pointed out that the Scottish Legal Aid Board spent around £29 per capita compared with £38 in England and Wales, and yet the system in Scotland was more generous in terms of scope, including personal injury claims and representation at employment tribunals. It was also considerably more generous in terms of coverage, with a significantly higher proportion of the population financially eligible for legal aid. The system in Scotland remains uncapped and demand-led. Why, therefore, was the per capita spend in England and Wales higher? One significant factor was the high number of high-cost fraud cases prosecuted south of the border compared with in Scotland. In reality, the Government were taking away from the least well-off in order to fund the prosecution of high-value fraudsters. That argument does not appeal to me. According to Professor Paterson, court procedures in Scotland, both civil and criminal, have received holistic reform to reduce legal aid spend. That is a better approach than wholesale legal aid cuts, which cause so much social damage.

The hon. Member for Aberavon also highlighted last year’s Select Committee on Justice report, which noted that the Ministry of Justice’s four objectives for the reforms were 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 better overall value for money for the taxpayer. However, the Committee concluded that,

“while it had made significant savings in the cost of the scheme, the Ministry had harmed access to justice for some litigants and had not achieved the other three out of four of its stated objectives for the reforms.”

The hon. Gentleman also pointed out that the National Audit Office and the Public Accounts Committee have made similar criticisms. We are left wondering whether anyone actually thinks that the reforms have been a success.

The Justice Committee also made some excellent points regarding the claimed savings and delivering value for money. It said:

“The Ministry’s efforts to target legal aid at those who most need it have suffered from the weakness that they have often been aimed at the point after a crisis has already developed, such as in housing repossession cases, rather than being preventive.”

From my own experience as a solicitor, I would say that public money spent providing help to those who need it to fill in complex immigration application forms offers better value than pursuing tribunal appeals or judicial reviews after that person has got the form wrong. That is the approach taken by the Scottish Government in its 2011 strategy “A sustainable future for legal aid”, the themes of which are the right help at the right time, delivering justice efficiently and maximising value. That all points to a preventive approach that avoids problems escalating to the point at which they can cause lasting damage and disruption to people in our communities and increased cost to the public purse.

However, as other hon. Members pointed out, legal aid alone does not secure access to justice. The hon. Member for Lancaster and Fleetwood (Cat Smith) pointed out that the fees that have been introduced for employment tribunals are making the vindication of important employment rights more difficult. Criminal court charges were introduced in the previous Parliament, encouraging innocent people to plead guilty. I warmly welcome the change of heart that seems to have been signalled by the current Justice Secretary. We could indeed spend days considering the simplification of procedures, the use of plain English, special safeguards for children, protections for those who are doli incapax, pro bono work, the provision of law centres and even the use of technology, which I am sure the Minister will mention.

Finally, as parliamentarians, we need to take care how we respond to Bills that are passing through Parliament. The Immigration Bill currently making its way through the House of Lords will make people leave their families and jobs and conduct appeals against Home Office decisions from abroad. I do not regard that as access to justice. The Bill would also cut back on appeal rights against refusal of asylum support, leaving vulnerable, destitute people without any legal recourse. Perhaps most disgracefully of all, the Bill will introduce procedures that will allow families with children to be summarily evicted without so much as a court order, never mind a court hearing. Any Government pursuing that sort of agenda cannot claim to be prioritising access to justice. As the new chair of the Bar Council said:

“Justice is not a luxury, and everyone should be able to defend their rights through the legal system.”

The Government need to listen and change course.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Mr Shailesh Vara)]

May I say what a pleasure it is to serve under your chairmanship this morning, Mr Bailey? I congratulate the hon. Member for Aberavon (Stephen Kinnock) on having secured the debate. I also thank the other hon. Members who have contributed. This important subject is capable of arousing many passions, and I am pleased that the debate, although lively at times, has been conducted in a measured tone. I very much hope that will continue.

Let me be clear at the outset: the Government share the passion for a justice system that works for everyone. I have spoken previously about our commitment to one nation justice, which is fundamental to the rule of law. At the heart of one nation justice is equality. We are committed to making sure that our justice system delivers faster and fairer justice for all citizens, not just some. We are committed to a justice system that safeguards and protects the vulnerable and that works better for victims and witnesses. It must be recognised that legal aid is only one part of the balanced provision of access to justice, but it is nevertheless an important part, and I accept that there is a responsibility on the Government to ensure that it is available for those in the greatest need.

When the programme to reform legal aid commenced in 2010, the scale of the financial challenge facing the Government was unprecedented. The coalition had to find significant savings, which meant making difficult choices. Despite that, we have made sure that legal aid remains available for the highest priority cases, such as those where people’s life or liberty is at stake, where people face the loss of their home, as in cases of domestic violence, or where people’s children might be taken into care. It is also available in relation to the treatment and detention of people experiencing mental health problems and in cases concerning the best interests of people who lack mental capacity.

Tackling domestic violence remains a Government priority. For that reason, we have retained legal aid for the purpose of obtaining urgent protection via an injunction. In addition, in private family law cases—those concerning child arrangements and financial matters—funding may be available for those who will be materially disadvantaged by facing their abuser in court.

I hope hon. Members will accept that it is reasonable to ensure that the correct cases attract funding. However, we have listened and responded to specific concerns. That is why, during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, we made changes to make evidence easier to obtain. In April 2014, we expanded the list of evidence accepted in applications for legal aid in private family cases. We also extended the definition of health professionals to include psychologists. We made further changes in July 2015, including by adding new offences to the list of domestic violence and child abuse offences. Further regulatory changes ensure that, once a particular form of legal aid has been granted, no further evidence needs to be submitted for someone to receive legal representation for their case. We will, of course, continue to keep the evidence requirements under review.

Mention has been made of exceptional case funding, and funding has been provided where it is required by law under European Union legislation or European convention on human rights regulations.

[Stuart C. McDonald]

The Minister explains how legal aid is still available in some of the most urgent situations—for example, when someone’s house is at risk of repossession. However, does that not raise the question, why wait until we get to that stage? Why not provide legal aid earlier, so that people do not get into that mess in the first place?

[Mr Vara]

It is important that the hon. Gentleman recognises that there must be some limit, and I will come in due course to how much money is spent. However, his criticism is ironic, given that he admitted in his speech that there is less expenditure per capita in Scotland than in England and Wales.

[Stuart C. McDonald]

rose—

[Mr Vara]

The hon. Gentleman did explain the reasons for that, but I have to say that the facts speak for themselves. He should not try to explain away the fact that there is less expenditure per capita in Scotland than in England and Wales—it is easy to be disingenuous in explaining things away. As I will explain later, the fact is that the legal aid budget for England and Wales is one of the largest in the world.

[Stuart C. McDonald]

The Minister misses the two key points I made in my speech about per capita spend. First, it is not fair just to compare legal aid spending per capita; we have to look at justice spending overall. Secondly—this is a matter of fact, not explaining things away—the higher per capita spend in England and Wales is a result of things such as the larger number of expensive fraud cases prosecuted south of the border. The proportion of people eligible for civil legal aid in Scotland is about 75%—well in excess of that in England and Wales. The Minister must also bear it in mind that the financial eligibility rules are more generous and the number of legal cases covered is far broader. He should try to learn lessons from the Scottish jurisdiction, so that savings can be made not by removing all sorts of cases and people from the scope of legal aid, but by achieving efficiencies in the system and other changes.

[Mr Vara]

I would simply say that the hon. Gentleman should look at some of the cases in England and Wales. He will find that some of the fraud cases in this jurisdiction are pretty complex. However, I am grateful to him for saying that it is important that we look at matters from an overall perspective. With the best will in the world, some of those who have spoken already have not done so—they have seen legal aid in a narrow confine, rather than from the overall perspective the hon. Gentleman speaks of.

Even after the reforms we have put in place, we still have a very generous legal aid system, compared with other countries. Last year we spent more than £1.6 billion on legal aid, which is about a quarter of the Ministry of Justice’s departmental expenditure. As I said, that is one of the most generous legal aid budgets in the world.