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12 July 2007 : Column 518WH—continued

4.56 pm

John McDonnell (Hayes and Harlington) (Lab): I shall be extremely brief then, Mr. Martlew, and simply place on the record the concerns that my constituents have on this matter. I have received representations from the local citizens advice bureau, Hillingdon legal resource centre, of which I am a former chair, Hillingdon women’s centre, the Middlesex Law Society and solicitors too numerous to mention. All of them are unanimous in their view that the proposals may well undermine the service that they provide to my constituents and therefore undermine and impede access to justice.

I share the Government’s previous stated view that legal aid is a central plank of the welfare state. In any democracy, people need to ensure that they have the right of legal redress. I also share the concerns of my hon. Friends who are anxious about the control of public expenditure but, to put these matters in perspective, we are talking about an increase in public expenditure that is less than 0.5 percent. of the amount that the Treasury has calculated for tax not collected as a result of tax avoidance, particularly in relation to big business in the City. I agree that we need to ensure that we control public expenditure, but it should be on the basis of need. We should ensure that there is a proper assessment of the need for legal advice and legal aid and, on that basis, calculate what the public expenditure should be.

The concern that many of us have, which comes through in the report, is that, rather than undertaking a proper, rational assessment of need—the report refers to the drivers for the increase in costs—we have fallen back into an old politics style of addressing the issue. I regret that. I regret, for example, that before the debate, there was spin about fat cat lawyers and so on, which was not really the issue that we wanted to address in our discussions. The Government have followed a pattern, similar to that followed in other exercises, of establishing a review by a prominent individual whom, to be frank, they are confident will respond in a way that the Government would expect and wish, and then undertaking a consultation in which the vast majority of responses express severe reservations about the Government’s proposals yet they are largely dismissed. I think that a large number of people working in legal services feel that the whole process has been set up and that the solution of a market-driven approach was not arrived at as a result of rational debate or discussion, but was plumped for initially.

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I share the concerns of my hon. Friend the Member for Southampton, Test (Dr. Whitehead). We have all experienced, in our different walks of life, the introduction of systems that are market-based rather than focusing on the provision of public services, and we have seen what happens: initial cost-cutting followed by a virtual monopoly. In the end, with such systems, there is neither the delivery of service nor the cost savings that were expected in the long run. Indeed, many such public services have been undermined as a result of that approach.

I simply ask that now, with the new Prime Minister, when there is an attempt to demonstrate that the Government have learned the lessons of past, similar exercises, especially in relation to the need for change, with involvement in Government decision making, the Minister will consider having a moratorium on the implementation of some of the proposals. Will she consider some of the fresh ideas that have been suggested? I agree that there could be prospects for caps on earning levels, but alternative mechanisms have been suggested by legal service practitioners on the front line that could achieve the reforms that the Government want, while delivering effective services and providing value for money. However, I do not relate that to the control of overall costs, because if the need is there, we should spend the money to ensure that that need is satisfied.

Will the Minister reconsider? There has been a long process of debate on this issue, and appeal after appeal has been made in this Chamber and elsewhere for it to be re-examined. What would it cost the Government to give us another few months in which we could come up with a consensual solution and take with us not only the legal services community, which is arguing for some form of dialogue with the Government, but all those in our communities who are deeply concerned about the Government’s approach to this matter?

5.1 pm

Ms Diane Abbott (Hackney, North and Stoke Newington) (Lab): I am not a lawyer, and neither am I here to represent the producer interest—to use a rather distasteful piece of jargon. I want to talk about the thousands of people whom I have dealt with in my 20 years of representing one of the poorest areas of the country, who would have faced disaster in their personal lives, with housing and access to their children, for example, without receiving quality legal advice that was paid for by legal aid. In the inner city, legal aid is not a luxury frill, but a pillar of the welfare state.

I shall speak specifically about the plight of black and minority ethnic solicitors, partly because it sheds a light on what is problematic about this whole reform. My hon. Friend the Member for City of York (Hugh Bayley) disputed whether the Carter reforms will have an unfair impact on black and minority ethnic solicitors. Of course, we do not really know, which is why some of us are calling for a pilot scheme, at least, or a proper race impact study. People who should know, however, such as the Law Society and different bodies that represent black and Asian solicitors and lawyers, say that black and ethnic minority solicitors will be decimated by the Carter proposals. That is also what the Committee’s report says. In their response to the report, the Government say:

I must tell my hon. Friend that the people whom I know who were involved in fashioning the Carter reforms concede freely, in private, that of course they will have a disproportionate impact on black and minority ethnic firms. That is why I asked whether he, with his particular family background, thinks that is a price worth paying.

Some Members might ask whether it really matters that black and minority ethnic solicitors will be decimated if it means that taxpayers in York will pay less tax. I say that it does matter, for several reasons. Black and minority ethnic solicitors, especially those in London—I accept that the issue might look different in inner-city Brixton, Hackney and Islington than it does in York—add value to our legal and justice system. Many members of the ethnic community prefer, rightly or wrongly, to go to such solicitors. My hon. Friend will remember the Lawrence case; a brilliant minority ethnic solicitor took that case and drove it forward, when there was not necessarily any money in it, and made sure that Doreen Lawrence got justice for her dead son. She chose that brilliant solicitor, but she might no longer have that choice under the proposals that my hon. Friend supports.

Black and minority ethnic solicitors add value through their language skills, their understanding of the community and because some members of the community are more willing to go to them than others. In Asian communities in Blackburn, for example, many Muslim women are trying to pursue divorces, and they simply would not go to a white, male solicitor. They want to go to a solicitor with whom they feel comfortable. Black and minority ethnic solicitors bring added value, but if we remove the choice to go to them by decimating the profession, we will affect people’s access to justice. That is the basis of the court case that the Government currently face.

Hugh Bayley: Will my hon. Friend give way?

Ms Abbott: I am afraid that time is against me.

Black and minority ethnic solicitors are an important ingredient in bringing more diversity to the profession, as they are more likely to engage black and minority ethnic barristers. That is why the Society of Asian Lawyers is engaged in the legal action against the Government. If we decimate the base of such solicitors firms, we will indirectly affect the career chances of those barristers. How in the world are we to have a more diverse legal system and judiciary if we, as a Government, are taking a hammer and smashing the base of the profession for black and minority ethnic solicitors?

I remind hon. Members that the reason why many such solicitors set up their own firms was because, sadly, they faced institutional racism in the mainstream profession. So, what is the response of my Government in 2007? It is to turn around and say, “You tried, you struggled, you set up your high-street firm because of institutional racism, but we are going to break it up with ill-thought-out, untested, market-based proposals.”

In addition, many black and minority ethnic solicitors are small entrepreneurs on local high streets who help to build community cohesion. For all the reasons that I have given—added value, access to
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justice, the importance of diversity and community cohesion—it would be very dangerous to go through with the proposals without first introducing the pilots that my hon. Friends have suggested.

Community cohesion and access to justice are important for all our people—both the taxpayers of York and people on benefits in Hackney, Brixton and Islington—and are as important as the concerns of those taxpayers in York. Even at this late stage, the Government should be prepared not to give up on reforming the legal aid system. No one who has spoken is against reforming the system; the only query is about what to reform—but at least the proposals should be tested. They could then come back and reassure us that our worst fears are unfounded; otherwise, they will stand as having taken a hammer to one of the pillars of the Beveridge welfare settlement, which would be a very sad thing to do.

5.8 pm

Mr. David Kidney (Stafford) (Lab): It is a pleasure to take part in the debate. I have a registered interest as a non-practising solicitor. Before I was elected to Parliament in 1997, I was a solicitor. As it happens, for 20 years I was mostly a legal aid solicitor working on cases relating to families and children in care. As such, in my first 10 years in Parliament, it was noticeable that other hon. Members spoke about lawyers in derogatory terms. Indeed, I often heard hon. Members say that there were too many lawyers in this place, and they did not mean it as a compliment. It has therefore been heart-warming to hear the recognition and solidarity shown to legal aid lawyers in this debate. I can certainly confirm, from personal experience, that we are—or, in my case, I was—motivated by a deep commitment to our communities and social justice before personal profit and advancement.

The people to whom we are showing solidarity are not just lawyers in private practices and solicitors firms, but people in the not-for-profit sector. Indeed, hon. Members have mentioned citizens advice bureaux and law centres. Much of the valuable social justice and social inclusion work in the sector goes on in those settings.

The right hon. Member for Berwick-upon-Tweed (Mr. Beith) reminded us at the beginning of the debate that the legal aid system in England and Wales still has something of which we can be proud. We probably still spend more on legal aid per head of population than any other system in the world. The reach of our system is probably as good as anything in the world. All those years after the founding of a legal aid system after the second world war, we still start from a position that has something in which we can take pride. However, we stand on a precipice where decisions may be made that would throw away that pre-eminent position. Who would want to be responsible for making such a decision? Not I, and hopefully not this Minister. We are all trying to help her to avoid such a mistake.

The debate has been helpful in reminding us that we are debating two possible developments in the future funding of legal aid. The longer-term one, although it is not so far away, is the Carter proposal, red in tooth
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and claw, of competitive tendering to decide who delivers legal aid services. That is untried and untested. It cries out for piloting first, so I add my voice to those who have said that it should be piloted. The right hon. Gentleman reminded us about the transitional system that might get us from where we are to that arrangement. The crude fixed fees that are being proposed are in danger of causing great damage.

There might have been reactionary forces in the legal profession who wanted this all to go away and said, “Leave it as it is. It is not broken, so do not try to fix it. It is okay.” All those voices have long since ebbed and died. When preparing for this debate, it was instructive to see the briefings from the Bar Council and the Law Society about how they have recognised the need for change. They have put forward positive proposals that meet their members’ concern for certainty in respect of an amount of money from which they can make a living, and the Department’s concern for certainty in respect of the outcome of its expenditure. That all relates to a system of graduated fees. We ought to consider more closely replacing the fixed fees that are being proposed with the graduated-fee scheme around which everybody has eventually coalesced.

What will the consequences be should we get this wrong? The Access to Justice Alliance, which is a deep and broad alliance of all those with a real interest in this area, comprising many people who are friendly towards and supportive of the Government and want them to make the right decision, reminds us that the regulatory impact assessment points out that the effects of standard fixed fees will be most acutely felt in London and by the not-for-profit providers. In addition to those, the areas that can expect the biggest adverse effects are Reading, Cambridge and Bristol.

My hon. Friend the Member for Hackney, North and Stoke Newington (Ms Abbott) referred to the negative impact on black and minority ethnic communities. In that regard, the areas that can expect the most significant detriment are London, Birmingham, Leeds, Manchester, Reading and Cambridge. We are not talking about a narrow danger—it is widespread and will be deeply felt.

I also want to examine a couple of areas relating to the complexity of law. The present proposals for fixed fees run the risk of undermining the delicate balance involving those lawyers who are committed to carrying out the work. My experience tells me that the first such area is child care proceedings. That is a concern for the Minister because of the increasing costs of individual cases; the unit cost has risen. Nevertheless, if we do not have the commitment of the lawyers who do the careful work required in those cases and if we are not careful, people will be compelled by the fees that they will receive to cut corners, reduce the amount of work that they do or leave the area altogether and thus leave too few lawyers who are able to do that work. For similar reasons, great detriment is likely to be caused in mental health law, where cases require patient, detailed work with clients and incredible amounts of investigation to get the outcome right.

My hon. Friend the Member for Hackney, North and Stoke Newington has mentioned the risk to lawyers’ black and minority ethnic clients. I want also to point out the danger to lawyers’ disabled clients. They are a specific group who require attention and detailed consideration, and they would not get that under the fixed-fee proposals.

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One hon. Member mentioned rural communities as a whole, and I want to underline that point. The future vision might be one of large-volume suppliers of legal services, but there is no way that the practices that exist in rural areas can be those large-volume suppliers. Practices will go out of business and people will have to travel a long way to find a lawyer willing to help them.

All those comments come from my background, my taking part in debates such as this and my correspondence with the former Minister responsible for this area, but I want to mention constituency pressures. My citizens advice bureau gives astonishingly good value. It is a shoestring organisation that delivers high-quality law in many social law areas of practice. It is already warning me that it faces stopping some of its activities because the fixed fees would not cover them.

That is a worrying fact for me to face. Cathie Halliday, a lawyer who carries out legal aid in my area, has had the gumption to collect a public petition of objections to the changes and led a day of action outside court, in which lots of legal aid lawyers participated. Such activities on the part of lawyers in my constituency are unheard of.

A good friend and long-standing colleague when I was a lawyer, Neil Robinson, is now an experienced family lawyer and sometimes a district judge. He is particularly strong on mediation, and he warns me of the dangers for mediation cases if the fixed fees go ahead as planned, especially in respect of the not-for-profit sector as opposed to private lawyers. He is writing an article for the Family Law Journal this month expressing his fears about what might happen in mediation cases.

Bearing in mind what my hon. Friend the Member for City of York (Hugh Bayley) said about the National Audit Office report that points out the financial benefits to the legal aid system of encouraging more take-up of mediation, and the Government’s stated stance of supporting more mediation, it seems ridiculous to take the risk of mediation going backwards under these proposals.

We should not get fixated on these schemes. Many other solutions to the problems of pressures on the legal aid system exist. One is increased use of mediation. We must get to grips with the high-cost cases and understand the reasons why the child care cases are becoming so expensive. We must examine the way experts are instructed and used and the other disbursements that are increasingly coming under a legal aid heading despite their not really sitting there. We must also examine this place’s responsibility for creating new laws, for making the law that courts have to implement more complex, and for creating delays in the court system, which several hon. Members have mentioned.

My hon. Friend the Member for Southampton, Test (Dr. Whitehead) sought to make his point by comparison with the waste sector. I should like to make my point by comparison with national health service dentistry, which was a good scheme until the early 1990s, when a disastrous contract drove many state-funded dentists away from the system. When the impact on the public was realised, a new Government tried to bring those dentists back with a new contract, but they had either left the system completely or had become comfortable with the ways in which they had become ensconced, and they did not want to come back to help us out with national health service dentistry.

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I fear that exactly the same situation might occur: that we will drive away lots of legal aid lawyers and find out that there is a disaster in terms of services to the public, and when we want the lawyers to come back and we throw more money at the problem, they may not want to come back. Plenty of alarm bells are ringing and I hope that the Minister will listen to them.

5.18 pm

David Howarth (Cambridge) (LD): This has been a remarkably powerful debate—I include the previous speech in that comment—which has had a clear message. The hon. Member for City of York (Hugh Bayley) is perhaps the exception in that regard, but it was noticeable that even he was not agreeing with the Government’s proposal. He was putting forward a different set of proposals which, admittedly, would not go far. I doubt whether he has worked out how much money would be raised by his cap, but I suspect that it would be only 1 to 2 per cent. of the budget. Nevertheless, he was not supporting the Government’s ideas.

I served on the Select Committee during the writing of this report. Technically, I still serve on it, although I am in the process of extricating myself. I voted for the report and agree with every word of the speech made by my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith).

Many hon. Members have mentioned the key thing: going back to the purposes of legal aid. Its main purpose is to allow people to vindicate their rights. I am talking about those who would otherwise not be able to do so because of their lack of funds. I believe that that is central to the whole idea of legal aid; otherwise we would spend our time in this place passing laws that would be meaningless. I think that one hon. Member said that civil liberties and all the welfare rights that we can think of would be illusory if people could not enforce those rights in the courts.

The second theme of legal aid is equality and to ensure that people are not put at serious disadvantage in the courts because they are poor. That is a fundamental principle that we should fight for. It applies in housing law, social welfare law, immigration law and, above all, criminal law where criminal defendants face the states’ might and resources. Criminal defendants are perhaps the most unpopular group of people, and the civilisation of society can be measured by the extent to which it sticks up for the principle that criminal defendants, no matter how unpopular, deserve a fair trial.

The Government’s concerns are budgetary. There is no doubt about that. One of the odd background facts is that the budget would seem to most people to be demand-led—the number of people who need legal aid, especially in the criminal law, is the number of people who are brought before the courts. That is completely outside the control of those in the legal aid sector. A budget that is largely demand-led is counted by the Treasury as not being demand-led, but as part of the departmental expenditure limits, so unlike other demand-led budgets—for example, benefits—the Department must keep within annual spending limits even when it has no control over the calls on that budget.

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