Legal Aid, Sentencing and Punishment of Offenders Bill

Yvonne Fovargue Excerpts

Wednesday 2nd November 2011 Commons Chamber

[Mike Crockart (Edinburgh West) (LD)]

In the interests of brevity I shall speak only to amendment 116 to which I have added my name. It has been more than 30 years since the National Consumer Council referred to access to advice as the fourth right of citizenship. It was ahead of its time in predicting the coming of an information age in which people’s ability to live full lives as responsible citizens would depend on access to organised, specialist information in order to navigate complex consumer choices, labour markets and state bureaucracy and law. In no area could that be more important than in relation to legal advice in a police station, where the presence of a lawyer acting for a defendant is crucial, although I might not have thought that between 1990 and 1998 when I was a serving police officer in Edinburgh. Solicitors are there to ensure that suspects’ rights are respected, that they are not physically abused, that their confessions are not forged and that they are not detained for longer than is legally allowed. The presence of a lawyer not only protects defendants from police abuse but protects the police from false allegations by defendants about what happened during an interrogation, for example.

Clause 12 provides the Secretary of State with the flexibility to subject legal aid in police stations to a system of means-testing. The Ministry of Justice has made it clear that such proposals would be modelled on the system currently operating in Scotland, where people who earn more than a certain amount—in Scotland, a weekly disposable income of £105—have to pay a contribution towards the cost of their legal aid. The current system of police station advice in Scotland is only a year old, but the Law Society of Scotland has already stated that it is complex process to operate and to explain to clients, many of whom are in a vulnerable situation.

The experience north of the border also shows that the provision of adequate verification undoubtedly lengthens the suspect’s time in a police station and that the solicitor often has no evidential proof that the client is eligible or of what their contribution should be. Solicitors also find that the prospects of claiming the contribution from the client are limited when the detention ends without criminal charges. Consequently, in Scotland in the past year, uptake of advice in police stations has fallen to around 25% of cases—roughly half that in England and Wales.

The Minister will also know that the Scottish situation has been somewhat complicated recently by the judgment in the Cadder case. Previously, when I was a serving officer, suspects could be detained without charge for up to six hours and questioned without the presence of a solicitor. Following that case in the Supreme Court last year, the Lord Advocate issued guidelines, and emergency legislation has since been enacted, to provide suspects who are detained by the police with the right to

“a private consultation with a solicitor”.

That can be either before questioning or at any stage during questioning. Moreover, experience has shown that it is often more expensive to administer means-testing than to operate it. Cutting out legal aid in police stations will lead to false economy, not least because the courts will be clogged up with unmeritorious or unprepared cases, or proceedings without a solicitor present will be open to legal challenge.

Early advice in a police station may save many social and economic costs, most of which must be picked up by other public services. Moreover, who will ask what someone’s earnings are, or how much their mortgage is? Those questions will have to be asked in extremely stressful situations. Will the Minister explain how the proposals will work without the whole process becoming extremely unwieldy?

Furthermore, will the Minister explain why such a provision is in the Bill when I and colleagues received assurances that there was no intention of the clause ever coming into effect? If the Government have no intention of using the power, why leave it in the Bill? The Minister has effectively asked us to sign a blank cheque, but assured us that he will never have to cash it. Much as I trust the Minister, that is no way to propose or to implement new legislation, because it leaves pointless regulation in statute, which because of assurances from Ministers might never have been properly scrutinised. That is a bad precedent, and a dangerous one, which should not allowed to continue.

[Yvonne Fovargue (Makerfield) (Lab)]

I rise to speak to new clause 17, tabled in my name. It is well known that many problems in social welfare law are interconnected and that clients invariably approach agencies with clusters of problems, which is why the social welfare law cluster of housing, benefit, debt and employment was introduced in the first place. As my hon. Friend the Member for Hammersmith (Mr Slaughter) said, all MPs have seen constituents who arrive with carrier bags of unopened mail from various agencies. It is impossible to deal with one issue—for example, electricity disconnection—without dealing with problems such as tax credit underpayment and illegal deduction of wages. It is the natural state of affairs that one problem leads to another, and the merit of not-for-profit agencies dealing with that cluster is the availability of specialisms in a one-stop shop, and the ability to drill down to the root cause of the issue, which may be wrongful refusal of benefits or unfair dismissal leading to debt issues and potential homelessness.

My new clause would allow agencies to deal with all the issues. They would not have to take a piecemeal approach, but could make difficult decisions on which issues are legally aidable and which are not, so that the individual would not be left to struggle with the complex non-legally aidable issues alone.

Make no mistake; the issues that the Government wish to remove from scope are complex. The welfare benefits that the Government wish to remove from scope completely have 20 volumes of guidance, thousands of pages of case law, and thousands of statutory instruments, clauses and schedules. The Child Poverty Action Group’s handbook on welfare benefits and tax credits alone has 1,600 pages. In 2010, the Department for Work and Pensions issued 8,690 pages of advice to decision makers. That advice is not specialist. Can people rely on help from Jobcentre Plus or the Benefits Agency, the agencies that turned down their original claim? I do not think so.

The Bill is being enacted at precisely the same time as the introduction of universal credit, which will affect 19 million individual claimants and 8 million households. I remember the change from supplementary benefit to income support. The number of people who needed advice rocketed, and many important cases were appealed by advice agencies, which had far-reaching consequences for many people, not just individual claimants. That is being denied in the Bill.

In 2010, under the current system, there were 160,000 appeals, more than half of which were decided in favour of the claimant. To remove support from individuals who have been wrongly and unlawfully denied their benefit—in more than half of cases that was indeed the decision—and to deal with the rent arrears caused by that denial of benefit at the point of eviction, is perverse in the extreme.

Early intervention and an holistic approach save money. Even the Minister admitted that early advice may reduce costs further down the road, but he chose to save £1 now at the cost, according to research from the National Association of Citizens Advice Bureaux, of £8.80 for every benefit case, £7.13 for every employment case, £2.98 for every debt case and £2.34 for every housing case. This is blinkered short-termism at its most extreme.

I would like to give a couple of examples of linked problems where dealing with just the issue that remains in scope will be counter-productive. A client had multiple priority and non-priority debts, including rent arrears, and was facing the threat of possession proceedings. She had prioritised credit card repayments due to pressure applied by her bank and debt collection agencies, and had fallen behind with her rent. She suffered mental health problems, and her teenage daughter was becoming ill because of the stress facing her mother. She was working and studying to improve her situation, but had lost benefits and was appealing that, with help. Under the Government’s proposals, there would be no help with that appeal. The only help available would be to deal with the immediate repossession issue. The credit card and other debts would not be dealt with and I surmise that it is extremely likely that that client would return in exactly the same position, or worse, at a later date.

A constituent had been dismissed from employment and was being assisted with an unfair dismissal claim. Stress was making them ill and unable to work, and there was also an appeal against benefit sanctions for leaving their job. Owing to the lack of income, the bills were mounting up and mortgage arrears were accruing. Under the new proposals the client would have to wait until they were in imminent danger of losing their home, and that would be the only issue within the scope of the scheme. If ever there were examples of false economy, surely those are such.

The most vulnerable will bear the brunt of the cuts. The Legal Services Commission’s figures show that 62% of those affected by removal of welfare benefits from scope will be those with disabilities. Indeed, there is concern about whether agencies will be able to provide advice even to those fortunate individuals who still qualify for legal aid. The cuts to social welfare law disproportionately affect not-for-profit advice agencies with 77% of the funding withdrawn going from those agencies. Some 54% of citizens advice bureaux and more than 70% of law centres believe that they will not exist after 2013 if this Bill becomes law. There is no clear plan or strategy for the sector, just death by a thousand cuts.

Wigan metropolitan borough council currently has 3,080 cases funded by legal aid, but 2,342 will go out of scope if the Bill is enacted. At a rough estimate of 300 cases per caseworker, resources will drop from 10 specialists to help my constituents to 2. Their ability to deal with even the severely curtailed legal aid cases will be massively impacted, let alone their ability to deal with linked issues. Will the Minister say what cross-Departmental plans are in place to deal with the destabilisation of the not-for-profit advice sector, and how will linked issues, which are often the root cause of an immediate threat of eviction, be dealt with in future?

I want to address briefly the issue of whether those who qualify will be able to navigate the system and reach the help they need and not fall at the first barrier—the telephone gateway. In the all-too-inadequate time allowed in Committee, when the agencies presented their evidence, they all stated that the telephone gateway will be yet another barrier and will deny some clients access to the services they need. Indeed, Steve Hynes, director of the Legal Action Group, commented on research by that group—my hon. Friend the Member for Hammersmith referred to it. He said:

“if you want a legal system that people do not use, deliver it through telephone advice because the people who pass the means test tend to be the ones who do not have telephones”

In my experience, individuals with a number of problems often cannot focus on the most serious issue for many reasons. It often takes a considerable amount of time and experience to untangle the knotted ball of problems into single strands, and then to decide which is the most immediate and serious. For example, I saw a client who was most upset because, for the first time, she could not pay Provident. She was really upset that when it came to collecting the debt, her neighbour would know that she had problems and could not pay. Eventually, she let me examine all the other documents that she had, and it was apparent that she had been paying the company at the expense of her rent and was in danger of eviction. To tease that information out over the telephone without sight of the documents that she eventually handed over would be almost impossible, and I believe that that client would have been told her issue was not legally aidable and sent away still prioritising the wrong debt and facing eviction.

--- Later in debate ---

[Mr David Ward (Bradford East) (LD)]

We have heard some naughty stuff from the Opposition. I remember serving on a Public Bill Committee shortly after I arrived in the House. Now, I am a lad from Bradford, and we have this strange practice in Bradford: when we agree with something we vote for it, and when we disagree with something we vote against it. I went into Committee, and of course people soon told me, “That’s not the way you do it. If something comes from the other side, even if it’s a good amendment, you simply don’t accept it.” [Hon. Members: “Name them!”] I understand that that was common practice in the previous Parliament. [Hon. Members: “Name them!”] That is a tad nosey.

I am not a lawyer, but many, many people have come through my constituency door who desperately need, but cannot afford, a lawyer. I have serious concerns about these proposals, and I am very much in favour of new clause 17. Another thing that I quickly learnt when I came here was that there were unintended consequences. I had never heard of those before, to be honest, but I soon realised that when something goes wrong a bit later in the day—six months or a year later, perhaps—we say, “Well, it was unintended consequences.” That is basically a euphemism for, “We got it wrong.” In Bradford, we say, “We made a bad decision.”

Often we make bad decisions—that is the way of it—but, when we analyse why we are making bad decisions, often we find that it is because we failed to gather information or consult. Well, we have consulted on this, and we have a body of evidence. I thank the Liberal Democrat Lawyers Association for the information that it provided for us—no doubt other groups have provided information for other Members—and I am also grateful for the information from Citizens Advice. In particular, there are the case studies. Let us consider the consequences of the proposals. We can all look into the future and guess, but there are examples—case studies—of people receiving legal aid who simply will not receive it if these proposals go through. I am speaking for five or 10 minutes and could give hon. Members a couple of examples, but if I spoke for 20 minutes I could give three or four more; if I spoke for an hour I could give a dozen, and if I stayed here for a week I could give hundreds of case studies, one after another, of people who would be badly affected by the proposals.

We have received valuable information from the Law Society about the fictitious nature of the savings. They just will not be generated. In fact the proposals will probably add to costs in many ways. I am seriously concerned that, given the body of evidence available, including the huge number of case studies and examples from our constituencies, the consequences will not be unintended. These will be intended consequences; what will happen will be what the Government intended to happen. Various suggestions have been made of alternative measures that people could take—for example, they could represent themselves, or seek support from advice services—but the overall intention is that people will just go away. They will not be supported—but they will not go away, will they? Their problems will remain, and will probably get more serious, and indeed more costly.

[Yvonne Fovargue]

Does the hon. Gentleman agree that it is worth reminding the House of the costs of taking a case under the legal aid scheme? A welfare benefits case costs £164. That is what the agency gets for dealing with it. It is £200 for a debt case and £174 for a housing case—and I believe that those costs have been cut by 10% from 1 August. These are not high-cost cases; this is extremely good value for money.

[Mr Ward]

Absolutely. I actually deleted some of my speech because of the figures that the hon. Lady quoted earlier, which highlighted my point about the fictitious nature of the cuts, the costs and the value for money to the public purse.

--- Later in debate ---

[Simon Hughes]

Hampstead and Kilburn, as it now is, sounds more balanced and mixed, but of course the hon. Lady knows about and has experience of the issues.

I think that the Government, given the constraints of the general economic position, are trying as hard as they can to find the support that the hon. Lady and I wish for. Her party, had there been a Labour Government in this Parliament, would have made cuts in legal aid and to public spending across the board, and she would not have liked it, as she did not when they were in power. Indeed, I remember her speaking against her Government pretty well every week in the previous Parliament, owing to what they were doing, and I was with her and made just those comments.

However, this Government have already put some money into Citizens Advice, for example. Transitional funding is being discussed. My hon. Friends have discussed with the Chief Secretary to the Treasury, who made a very welcome statement earlier today, putting more money on the table for public servants and the ways in which that might be extended. I understand the hon. Lady's point and we will try, from the Liberal Democrat Benches, to win that argument, but we have to win it within the confines of what is a very difficult position for everyone, including the Government.

On amendment 116, my right hon. and hon. Friends have made the point about clause 12. May I say to Ministers that if clause 12 is not going to be used, it ought to go? I understand why the Government might want a fall-back or safety-net position, but if it is not to be used they should let it go and say so. That is important because, as colleagues have identified, providing someone at a police station with legal advice and assistance will often save huge grief for them and their families and a huge amount of time for the police and other agencies that come to deal with them. Often, it will also save a huge amount of time for the criminal justice process afterwards. I am clear that, in time-efficient and cost-efficient spend, we ought to retain that and not lose it.

Let me make a substantive point about amendment 148, which is in my name, about telephone advice and the telephone helpline. The Government propose that the community legal advice helpline that is currently in use and does a perfectly good job should, once the changes have come into operation, be the sole method of access to the service for certain issues at the beginning. It is proposed that there should be a mandatory single telephone gateway for four areas at the beginning: debt, inasmuch as it is covered by legal aid; community care; discrimination; and special educational needs, subject to exceptions. The plan is that there should then be a phased expansion of the provision of specialist telephone advice into the other areas of law for which legal aid is available, except for asylum matters, and that there should be a pilot scheme.

The Justice Committee chaired by my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) has looked into this matter and said that it was not against a telephone advice line in principle, but it advised caution and the Government have responded cautiously. May I make two points about why the Government have to be really careful? First, there is real concern out there, as I know from my meetings with Cambridge House and other organisations that do legal aid work and advice in my constituency and borough, that if people have to go through a central call centre, which is the only way into the system, they will not get the same service as with NHS Direct, for example. With that service, if someone does not like what they get they can go to their chemist, GP or hospital, but this call centre will be the only way in.

However good any advice line might be, some people are not going to be very able to deal with that service. I know that the Government are not being absolutist about this issue and that the theory is that the person at the other end will spot the person who might have learning difficulties, poor English or whatever and make sure that there is a face-to-face service. However, I am nervous that if someone from Bermondsey, to choose a place at random, phones up the national headquarters, which may be in Bradford, there will not be a full understanding of their circumstances as a recently arrived Eritrean with children, for example, who is barely able to speak English and is trying to sort out their housing when there are legal issues. I therefore ask the Government to think again about how we might make sure that there are ways for people to see someone face to face in their community or part of the world that do not require their having that kind of advice only in the first instance.

[Yvonne Fovargue]

The telephone helpline will also direct people who are not legally aidable towards paid-for services. Does the right hon. Gentleman share my concern that if helpline staff do not know of any face-to-face advice agencies or telephone helplines for debt, for example, they might direct people to one of the fee-charging debt-management agencies, which would be totally inappropriate?