Legal Aid, Sentencing and Punishment
of Offenders bill
The Committee consisted of the following Members:
Kate Emms, Committee Clerk
† attended the Committee
Written evidence to be reported to the House
The Chair: Before we start this morning’s proceedings, I want to say that we are considering an extremely serious Bill, not only for the taxpayer, but individuals. I am well aware that there are extremely talented brains in Committee, but I do not imagine that there will be a need to demonstrate that further. Brevity will be appreciated.
Mr Andy Slaughter (Hammersmith) (Lab): On a point of order, Mr Sheridan. It is a pleasure to see you in the Chair. I have checked my declaration of interest, and it still states that I am a barrister, which I am—albeit non-practising. I declare that as an interest—I hope for the one and only time, although I realise that, in so doing, I might set off a fusillade of similar declarations.
Mr Robert Buckland (South Swindon) (Con): Yes, Mr Sheridan. I should declare that I am a practising barrister, who has been in receipt of criminal legal aid payments for work done before the election. I am also a recorder at the Crown court. That is my declaration for the purposes of all our sittings until the end of our consideration of the Bill.
The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): Good morning, Mr Sheridan. I declare an interest as a non-practising solicitor who has never been in receipt of legal aid.
Anna Soubry (Broxtowe) (Con): I was a member of the Criminal Bar Association until my election to this place, so I have been in receipt of payments through the legal aid system. However, I have never held a judicial appointment.
Karl Turner (Kingston upon Hull East) (Lab): Before the general election, I was a pupil in my chambers in Hull, where I had practised as a criminal solicitor, mainly publicly funded, for some time. Since the general election, I have received fees that have been privately paid only.
The Lord Commissioner of Her Majesty's Treasury (Jeremy Wright): I am also a non-practising barrister. That may not matter, as I am unlikely to say anything in Committee apart from moving the Adjournment motion.
Kate Green: My hon. Friend the Member for Makerfield reminds me that I also ran the Child Poverty Action Group for a number of years and, before that, the National Council for One Parent Families, both of which received legal aid funding.
‘(1A) The provision of legal aid must promote and ensure access to justice by—
(a) providing legal services to those unable to afford it;
(b) ensuring equality of arms; and
(c) delivering services in the most effective and efficient manner.’.
‘(6) In carrying out his functions under this Act the Lord Chancellor shall—
(a) protect and promote the public interest;
(b) support the constitutional principle of the rule of law;
(c) ensure no denial of access to justice;
(d) ensure that access to legal aid complies with Article 6 of the European Convention on Human Rights, taking into account any guidance provided by the European Court of Human Rights.
(7) The Lord Chancellor must each year lay a report before Parliament explaining his legal aid strategy.
(8) A “legal aid strategy” is a strategy under this section setting out the measures that the Lord Chancellor has taken in the past 12 months, and the measures he proposes to take in the next 12 months for the purpose of complying with subsection (3) and (6) in accordance with the principles in subsection (1A).
(9) The Lord Chancellor must each year lay before Parliament a further report describing, in his opinion, the extent to which any changes he has made to the amount of expenditure on civil legal aid has caused additional costs to other departments of state.
(10) Before submitting the report to Parliament under subsection (9) the Lord Chancellor shall submit the report to the Comptroller and Auditor General for approval.’.
‘(6) The Lord Chancellor must ensure that no areas of law within the scope of legal aid prior to the enactment of this Act are removed from the scope of legal aid unless and until a full independent assessment of the costs of removal has been undertaken and presented to Parliament and in particular unless and until it has been reasonably established that the removal from scope will not increase the deficit.’.
‘(6) The Lord Chancellor must ensure that before any changes to legal aid set out in this Act are made, a full independent assessment is carried out into any likely increase of litigants in person resulting from such changes and the effect accordingly on the deficit.’.
‘(1) In exercising his functions under this Act, the Lord Chancellor must have regard to the principles in subsection (2).
(2) Those principles are—
(a) access to justice is the constitutional right of each citizen;
(b) the right of access to justice applies equally to civil and criminal law;
(c) the interests of the citizen should determine policy on access to justice issues, not those of the providers of services;
(d) the constitutional right to be regarded as innocent until proven guilty should be respected as the cardinal principle of criminal law;
(e) promoting access to justice requires policies across a range of areas including law reform, education and legal services; and
(f) proposals for reform should take account of levels of resources but the availability of resources should not dictate policy.’.
Mr Slaughter: Before I deal with the group of amendments, I wish to say how much I look forward to serving under your chairmanship, Mr Sheridan, and that of your co-Chair, Mr Hollobone, for the seven days of 14 sittings on which we are to discuss the Bill. Although it was not my intention when making my declaration of interest to illuminate the Committee with the array of talent that we have in the room, the declarations have shown briefly and eloquently that we have not only civil, but criminal law practitioners here—I have been both in my time. I should follow the example of colleagues and say that, unlike the Minister, I have received publicly funded fees in both capacities over several years, although not since being elected to the House.
We also have people who have held very senior positions in the magistracy, non-governmental organisations and other charitable bodies. It is not uncommon to have some expertise, but we are very privileged, if not uniquely so. I hope that that will inform our debates as we go through the Bill, although, having heard how many lawyers there are, Mr Sheridan, your plea for brevity might take some achieving, but we shall see.
I should add, so that the non-lawyers do not feel left out, that all members of the Committee, as constituency MPs, will have had experience of the matters that we shall discuss today and probably in September, after the summer recess. I am sure that all MPs have experienced in their surgeries the growing burden, and also the pleasure, of giving advice to constituents. Those who attended the recent Citizens Advice annual reception will have viewed the amount of advice available in their constituencies, compared that with their own work loads and seen how all Members of the House—and all members of the Committee—fit into that pattern of advice. Although we are clearly not entitled to give legal, financial or other advice, we can nevertheless bring a great deal, through our professional or lay experience, that will inform our debates.
Notwithstanding our real concerns about timetabling, which we have expressed and which I shall not repeat this morning, I hope that the Opposition’s approach to the Committee will be constructive. Although we will give proper scrutiny to each clause and amendment, we will also move through the Bill at a pace, because we want to consider all its parts and we will try to do so, notwithstanding the timetable.
Ben Gummer (Ipswich) (Con): May I, too, make a constructive suggestion? The hon. Gentleman is entirely right to try to scrutinise this important Bill, but the amendment paper issued on Thursday included more than 100 amendments. Happily, they have been filleted, no doubt because the Clerks saw that many were duplicates. Many, if not most, were clearly submitted by legal lobbying groups, which have so far informed the Opposition’s position. I hope that, as we scrutinise the Bill, we can have clearer, simpler and fewer amendments, which are written by individual Members and by the Opposition rather than the Law Society.
Mr Slaughter: Two points arise from that. The hon. Gentleman is new to the House and therefore perhaps—[ Interruption. ] He is no less wise. I am familiar with the “Blinky Ben MP” website, so I know what he does in his constituency and it is all very good stuff.
If the amendments put to us by lobby groups, legal or otherwise, had all been tabled, there would have been about 2,000 rather than 100. I shall address the hon. Gentleman’s point about what he called duplication—there is some overlap, but with good purpose. I commend the Clerks for the clever grouping, but when we move on to later groups of amendments, the hon. Gentleman will see that such overlaps assist the debate, without delaying the Committee. He shows no great respect to the Law Society, and I hope that he will not bash the Law Society and the Bar Council, as he has already shown a propensity to do.
Mr Dave Watts (St Helens North) (Lab): Is my hon. Friend as amazed as me that Government Members seem to be saying that we should take no notice of lobby groups that work in the field day today, and which know much more than they do about the legal aid issue? I find that amazing.
My hon. Friend the Member for St Helens North made a good point. I hope that we are not going to bash the organisations that have contributed assiduously. I am sure others will refer to briefings that have been given. However, I will put it on the record that I think all members of the Committee appreciate the quality and sincerity of the briefings even if they do not always agree with them. Perhaps because we are dealing on the whole with very articulate and precise lobby groups, we have an embarras de richesse when we come to the briefings. I might see a 35-page briefing from Liberty and Justice and it is the 47th
briefing that I have read that day, but then I find that it is an extremely well argued piece, so I am very grateful for the commitment and energy shown. I wish that the Government—I am sure this will change—had shown respect, which the hon. Member for Ipswich has not shown, to those organisations and the way in which they have responded.
Mr Slaughter: I will let that speak for itself. I will make one more preliminary point and then move on. I do not ask the Minister to respond now, unless he wishes to. My only caveat to the hopefully open-handed attitude that the Opposition bring to the Committee is to say that we have been given notice—officially or unofficially—that there will be substantial further amendments to the Bill in the autumn, which will include what I might call the Prime Minister’s amendments. At his press conference, he announced various amendments on indeterminate public protection sentences, squatting, self-defence and time to be served for serious offences. We have a consultation paper outstanding on solving disputes in the county courts, and the issue of referral fees, on which I believe there may be further amendments. We are therefore in the unusual position of there being quite a lot of legislation about which we do not know. I put that caveat on the record now, because if we are surprised at a later stage, in September or October, by a series of new clauses and amendments tabled by the Minister, we may have some protest to make. However, I will take my cue from you, Mr Sheridan. Let us take the Bill and the first group of amendments as we find them.
In our approach to part 1, we will want to look in detail at specific elements of scope. That will not surprise Government Members. This morning we are dealing with the overriding principles of the Bill—or their absence. In the excellent evidence sessions last week, Roger Smith, the director of Justice and a very fine and experienced witness, described the Bill as a dog’s dinner. It is not for me to defend the Bill’s reputation, but while I think that that is a fair description of part 3, and possibly part 2, I think there is a clear strategy in part 1. We seek to explore and challenge that strategy in the amendments that we have tabled to clause 1. Although we strongly disagree on clause 1, as evidenced by
Returning to the point made by the hon. Member for Ipswich, the purpose of the first group of amendments is to present a consistent argument in a variety of ways. I shall speak to the amendments that I tabled and leave my colleagues to speak to theirs, although I reserve my right to come back if other matters arise. Bearing in mind the principle of the Bill and what we aim to do, I shall discuss the amendments slightly out of order, because if I deal with new clause 1 first, it will give a better pattern to our line of argument. I shall then discuss amendment 60, which is the lead amendment.
To put it another way, finance should not define but inform the legal advice and assistance that is available. The Government aim to lead with a financial provision and consider the legal consequences thereafter. We do not resile in any way from the fact that savings must be made in the legal aid budget or that finance is an important determinant of the levels of service that can be operated. However, if, as it appears, finance is the key point in the Lord Chancellor’s presentation of the Bill to Parliament, we have difficulty with that.
Tom Brake (Carshalton and Wallington) (LD): Given that the hon. Gentleman has acknowledged the need to address financial issues, does his party intend tabling any amendments that would identify the cuts that it would make in the Bill?
Mr Slaughter: I will answer the question, but I will do so in slightly more detail in Committee than in the main Chamber, where it is a yah-boo of, “It’s your fault,” or “What would you cut?”, which is the right hon. Gentleman’s point. I will answer him, but I shall give way to my hon. Friend first.
Helen Goodman (Bishop Auckland) (Lab): I want to reassure the hon. Member for Carshalton and Wallington—[Hon. Members: “Right hon.”] Of course. I congratulate the right hon. Gentleman on his recent promotion to the Privy Council. I assure him that we will propose measures that would be more effective ways of using public resources when we come to the parts of the Bill that relate to sentencing. [ Interruption. ] That was the right hon. Gentleman’s question.
Let us try to get away from this argument, which we have rehearsed a hundred times, have we not? The right hon. Gentleman says, “It’s your fault that we’re having to make cuts; what would you cut?” On legal aid, we can say, and we have said it before, first, we would make alternative cuts instead of these; secondly, we agree with some of the cuts that are being made; and thirdly, we disagree with other cuts that are being made. All that will become clear—[Hon. Members: “Which ones?]—as the Bill proceeds. I will not go through them clause by clause, because we would spend the entire morning doing it.
That said, the Minister must remember that he is part of the Government. I sometimes weary of Conservatives putting the onus on to the Opposition to do their job for them. This is the Government’s Bill, and the Government must justify the cuts that they are making. We say that those cuts are excessive and the wrong ones to make. The second limb of our argument relates not simply to how the Bill deals with cuts, but to the Government’s purpose. We say that litigation is sometimes a necessary step, and the availability of a legal remedy is an important safeguard of decision making in equity for the rule of law and for free expression. That is the principle of which the Government seem to have lost sight in the Bill. We seek to remind them of it, and we seek their support for this group of proposals.
The Government have choices and they have made them. The Opposition’s principal job is to examine those choices and say where we disagree or agree. The Government have limited their ability to make those choices by voluntarily, as far as we can see, opting for one of the highest levels of cuts of any Department: 23%. That already limits choice. It is further limited by the Government’s last minute changes, such as the change on sentencing policy, which has left a £140 million black hole, and the promise of new offences, tariffs and projects. There are also the effects of their policies that we have already seen in the wider world, with crime rising, which will put more pressure, burden and cost on the Ministry of Justice.
Those are all problems of the Government’s own making. Within that, they have made certain choices. They have chosen to focus cuts primarily on civil rather than criminal legal aid. They have picked out for particular treatment social welfare legal aid and family legal aid. I do not know—I await illumination from the Government—why those areas have come in for special treatment and punishment under the Bill. I have read that the Government fear they will be in breach of article 6 of the European convention on human rights if they make more swingeing cuts in criminal legal aid. I have also read that the Lord Chancellor and other members of the ministerial team simply have a bias towards, or a better understanding of, the purpose of criminal legal aid, and do not quite get the process of social welfare legal aid in the way that Opposition Members clearly do.
Alex Cunningham (Stockton North) (Lab): I am no lawyer, but I can understand talk of people. Is my hon. Friend aware of the tremendous increase in pressure on couples, such as one in my constituency, who have responsibility for their granddaughter yet continue to
Mr Buckland: On a point of order, Mr Sheridan. There is a lot of work to be got through and although the hon. Gentleman makes a proper point on behalf of his constituents, we all owe it to you and to the Committee to be as brief as possible.
The Chair: I will decide if interventions are too long, or too short. I hope they will be short. Given that the hon. Member for Stockton North is new to this and not a lawyer, I allowed him some leeway.
Mr Slaughter: I am grateful, Mr Sheridan, and I am grateful to my hon. Friend for reminding us that at root—for all the academic or pettifogging arguments we may come up with—this is about people and their access to justice. As far as the early part of the Bill is concerned, that is principally people of very limited means. I am sure we will hear many more individual case studies and examples. I am not intending to do that, because I am trying to set out the argument for amending clause 1, but I am still grateful to be reminded. The overwhelming majority of those in receipt of legal aid are often the poorest: I think 80% come from the poorest 20% of the population. I know the Minister concedes that cuts—taking matters out of scope—will disproportionately affect poor people and those who fall into vulnerable groups, such as children and disabled people.
Mr Watts: Is my hon. Friend as confused as I am about the scope? We heard from witnesses last week who suggested that if a child went into hospital and ended up with brain damage, the civil case would not be funded, but that the judge might have some discretion if a solicitor could not be found who was willing to take the case on a no win, no fee basis. Has my hon. Friend any idea how that judge would use his discretion, what its length would be and whether it would be likely to gain justice for the parents?
Mr Slaughter: I am not sure that I can help my hon. Friend, because the Government’s approach to clinical negligence is not clear. It is certainly not consistent. Legal aid for clinical negligence has been withdrawn completely from scope. It is still provided for the remaining part of personal injury litigation, in which legal aid played an important role, albeit supplemented over the past 12 or 13 years by conditional fee agreements and no win, no fee agreements. That has been withdrawn
Mr Djanogly: The hon. Gentleman used the word “supplemented” in relation to the extent to which legal aid is or is not used in clinical negligence cases. Is he not aware that legal aid is currently used in only 29% of clinical negligence cases?
Mr Slaughter: I am absolutely aware of that fact. It is an important part of clinical negligence cases. Of course, it is supplemented not only by CFAs, but by private insurance and, indeed, private funds. The Minister will be aware of what the NHS Litigation Authority, which is the defendant in such cases, has said about the issue. It very much regrets the withdrawal and believes that it will both severely hamper access to justice and produce additional costs for the NHS. That is something I hope the Minister will reflect on.
Mr Watts: Is my hon. Friend even more confused by the Minister’s intervention? The Minister does not seem to have taken the opportunity to clarify the exact position. We heard from witnesses last week that some of the costs could be £200,000 up front. Many legal firms would not take that sort of risk, which would then put the discretion back on the judge. Is it not up to those on the Government Benches to make it clear how someone could access justice in such cases?
Mr Slaughter: The Government will have to make a number of things clear during these debates, but if one issue cries out for clarity and further attention, it is that of clinical negligence cases, because what the Government have said on the subject is not clear, and because they are, perhaps, the most compelling cases, involving catastrophic injuries to adults as well as to children. There is a prospect that meritorious cases—even those with a good chance of success—will not be able to get into court, simply because the cost of investigating them is too high and impossible to raise.
The Minister needs to address a number of issues, including the knock-on effect of the abolition of after-the-event insurance. Even if the Government say that they wish insurance to be available or that they want some scheme for funding disbursements in clinical negligence cases, there simply may not be a market for them. It is not good enough for the Government to say, “Let’s suck it and see.” We have to have clarity. I am sure that we will table amendments on that subject in due course, with or without the assistance of others.
Let me remind the Committee where I had got to; I may need to remind myself, too. I skipped on to new clause 1(2)(f), because I thought that it would be better to deal with the financial issues immediately. I hope I have done so, although I am sure that we will return to
Legal aid was meant to ensure access to justice. Roger Smith, in evidence sessions, queried the phrase “access to justice”, saying that it was meaningless; he preferred “equal justice”. I will stick with “access to justice”, because we are all so used to it that we will fall into using that convention, and we all know what we mean by the phrase.
The Rushcliffe report in 1945—the all-party report that led to the creation of formalised comprehensive legal aid and assistance in this country—was the basis on which the modern legal aid system was founded. It stated:
Under these proposals, civil legal aid in particular would become a threadbare sink service for a tiny minority of the population. At the Bill’s outset, we want to affirm that access to justice is not something that is desirable, or even essential; it is the right of every citizen in the country.
Mr Buckland: Over the years since its introduction, the proportion of the public eligible for legal aid and assistance has varied. It reached a high of 80% during the 1970s and 1980s. What would the hon. Gentleman view as a reasonable percentage, in terms of access to justice for the purposes of legal aid?
Mr Slaughter: I will not answer the hon. Gentleman’s point now, because I will deal with it later when I look in slightly more detail at both the Legal Aid and Advice Act 1949 and the Access to Justice Act 1999. I think that will answer his question, because we live in different times.
Ben Gummer: The hon. Gentleman read from the Rushcliffe report and made a distinction between those on low and modest means and those without any means at all. Even under the existing legal aid system, as we inherited it from the previous Government, there are people on very low and modest means who would not be able to prosecute cases through the courts, especially in the family courts, whereas those on no means at all can do so for many years at a time. There is already an inconsistency that this Government are trying to sort out, and which the previous Government did not address.
Mr Slaughter: I quibble with the point that the Government are trying to sort out that inconsistency, if they are doing so through a levelling downwards, so that nobody at all has access to justice. That would be a form of a sorting out, but it is not the form that I wish for.
I will put the hon. Gentleman’s question back to him in another way. I freely admit, because I was a practising member of the Bar at the time, that there was some consternation in the legal profession when CFAs were introduced in the 1990s. One thing that I find amusing—that is probably the right word—looking back at the proceedings of the Access to Justice Act, was the doom foretold by the Conservative party about withdrawing legal aid, and substituting CFAs for it.
The hon. Member for Ipswich raised a real problem about getting the balance right and ensuring that there is reasonable access to justice. I do not resile from that. I am against some of the instincts and expressions of foreboding of both politicians and the legal profession, because CFAs have worked quite well for people on moderate means. If one looks at the profile of those who benefit from CFAs—the typical person subject to a CFA—it is not Naomi Campbell or El Hadji Diouf, despite what the MOJ press office or the central press office puts into The Mail on Sunday. The average person benefiting from a CFA earns around £19,000 or £20,000 if they are a woman or around £25,000 if they are a man: hard-working citizens who do not currently qualify for legal aid but who can take a case to court using a no win, no fee agreement. They would not be able to do that without that provision. I will not go into the detail now, because we will come to it later in our proceedings, but they will not be able to do that under the Bill.
Ben Gummer: The hon. Gentleman has cleverly and barristerially moved around my question, specifically on access to family courts. He made an important point, drawn from the original consultation on legal aid, when he said that not only those on low income but those on low and modest incomes should be eligible for legal aid. In the family courts, there are many people on very low incomes who cannot prosecute a case through the courts, because they are not eligible, when those on no income can. Is the hon. Gentleman proposing that we extend the eligibility of legal aid in the family courts, so that those who currently cannot afford to go to court would be covered by the eligibility criteria?
Mr Slaughter: I practised family law for a while—everyone has to make a living somehow—and then, and more recently, when I talked to family practitioners, which we did a lot in preparation for the Bill, that was not the problem that was usually brought up. The problem was usually the inequality of arms between someone who can afford to pay privately, which is often the man in a failed relationship, and someone who cannot. I am not saying that there is not an issue in what the hon. Gentleman said, but it is not necessarily the central issue. If he is saying that the Bill is designed to tackle that problem, he is using a sledgehammer to crack a nut, which I suspect is a cliché that will come up many times in our deliberations.
Mr Slaughter: Yes, those are the criteria. I expect that we will look at them more closely when we come to social welfare legal aid. We have concerns on family legal aid and we still have concerns over the definition of domestic violence and the treatment of children in relationships. If we are looking for where people will suffer most because of the Bill, it is not in relation to private family law; it is in relation to social welfare legal aid. I do not want to set up some hierarchy of suffering or oppression, but I want to put that on the record.
Elizabeth Truss (South West Norfolk) (Con): The hon. Gentleman mentioned the economic imbalance between a couple in a divorce case. Is it not better, in those kinds of cases, that the wealthier party funds the less well-off party, rather than the state having to step in to create equality of arms? Is it not, therefore, better to rebalance that within the particular couple in divorce proceedings, as is proposed in the Bill?
Mr Slaughter: I think that happens more often than the hon. Lady thinks in relation to ancillary relief cases. We are all aware of distressing cases when the litigation eats up the matrimonial assets entirely, and the state has to cover in a number of cases. If the hon. Lady is asking, “Should those who have the means to pay, pay?” I do not see that there is necessarily a problem. I thought the question that she was going to put to me, which is actually what the Bill says, was, “Should we forgo litigation altogether and rely on mediation?” However, that was not her question, so I will not answer it.
That goes back to my previous point, which is that civil legal aid, and social welfare law in particular, has long been the poor relation in the system. I pay tribute to the previous Labour Government and, as I will on other occasions, to Lord Bach, who was a Minister and is now a shadow Justice Minister in the Lords. One of the things that he is rightly most proud of is the fact that when the size and growth of the legal aid budget had to be addressed, which it was under the previous Labour Government, it was done by protecting and, in some cases, expanding civil legal aid, particularly in the area of social welfare, and looking for savings in the then far larger criminal legal aid budget.
Yvonne Fovargue: My hon. Friend mentioned the expansion in social welfare law. Could that not have been because of the actual benefits to clients who pursued cases through it? In answer to my question, Carolyn Downs has written to me that 74% of all social welfare law cases that receive legal help have a substantive benefit to the client.
One point that I did not deal with under finance was the bogus economics of cutting services that may end up costing the taxpayer, let alone the litigant, more in the long run. That was hopefully in the wise Labour Government’s mind when they looked at the public purse, but I suspect that they also had in mind the fact that we have a wider duty to people who are in need and in difficulty in all the areas covered by social welfare legal aid. The provision of legal aid—legal help, for example, as well as legal advice and representation—is part of a construct of which my hon. Friend was part when, as she said earlier, she was the chief executive of a citizens advice bureau.
Another problem that the Bill sets up is the dismantling of the integrity of a system that protects people from the time that they have a worry or concern when walking into their CAB to the time when, if necessary, they have a lawyer, whom they would not otherwise be able to afford, representing them in courts, and even in the appellate courts. We are losing much of that system under the proposals, and I will return to that later, but I am trying to focus on the fact that there are—however one looks at it—competing needs between civil and criminal legal aid.
Generally, with the possible exception of the past five to 10 years, criminal legal aid has won out. That is not because there is a competition and one is good and one is bad, but civil legal aid has often been the poor relation. That may be because it is easier for everyone—the public included—to understand the need for representation when one’s liberty or reputation is at stake. It may be because criminal legal aid is more established as a constitutional principle. It may be because people do not understand—this Government certainly do not understand—the absolute need for civil legal aid not just in a reactive sense and not just for the person who may be losing their home or whose landlord is seeking to unlawfully evict them, but also where someone has a positive case where they are denied rights and wish to seek those rights. For that reason we put an emphasis in new clause 1 on the equality of civil and criminal legal aid.
I am sure that the hon. Member for Ipswich, the scourge of the professions, would agree with that paragraph, if with none other. Up to 1998 the Law Society administered legal aid. The significant change that came about in the Access to Justice Act, as well as the creation of the Legal Services Commission, was that legal aid policy then needed to be determined by the users of legally aided advice services. That is why we set up the community legal service to ascertain need and to plan accordingly.
That was the second significant step in the history of legal aid. After its creation under Rushcliffe, the reforms introduced in the AJA were very significant. The Bill is the third piece of legislation in the history of legal aid that will be seen as significant. That is why I began my remarks by saying that I disagreed with Mr Smith that it was a dog’s dinner. Although part 1 has a central financial motivation as well as some policy motivation,
I do not think anyone would disagree. Legal aid was first established at the beginning of the last century for criminal cases as it was increasingly recognised that legal representation was essential to guarantee a fair trial. Criminal legal aid is under pressure due to the numerous changes in the law and the administration of justice. The Government apparently fail to realise that.
Today, or more likely at some future date, we will be looking at clause 12. It sets out a proposition that many people involved in legal services regard with horror, which is the idea that on arrest it will be possible to make an assessment, based on means and the interests of justice, as to whether someone receives legal advice and assistance. We are wholly opposed to that. The Minister has already said that the Government have no plans to implement that provision, and therefore at the appropriate time we will ask why the clause is in the Bill at all. That clause is a clear indication that the Government are nibbling in very significant ways at a basic principle. I hope that members of the Committee will not have a problem with any part of the new clause and that they will all vote for it. I do not think that any of them will have a problem with the wording of paragraph (d); if they do not, they should have a problem with clause 12 and other parts of the Bill.
We would say, and it can be taken as a mistake that we did not address the point, that the legal aid system is too narrowly focused on funding individual cases and ought to embrace a wider role in legal education and more creative use of the law to tackle legal problems systematically. I will not say any more about that now, because it is covered by later amendments, but it is an important principle that I wanted to state at this stage. Paragraph (f), which essentially I have already addressed, states that
Mr Buckland: The hon. Gentleman is being generous in giving way. Will he explore paragraph (f) in further detail? As we have seen in judicial review cases, will paragraph (f) not lead to problems and challenges for the courts in determining eligibility for legal aid? Will it not potentially open the door to legal aid and assistance for people who neither of us would regard as appropriate recipients? Is that really what he wants, or does he want to target legal aid for those on poor or moderate means, as the 1949 Act stipulates?
Mr Slaughter: I admire the hon. Gentleman’s chutzpah, if I may use that word—I had better not spell it, but I will use it—because one thing that the Bill will do, and I will place a bet with the hon. Gentleman now if he
No, we do not seek to do what the hon. Gentleman suggests. In new clause 1 we seek to set out the principle that should govern the Lord Chancellor’s operation—clearly it will be the Lord Chancellor—of legal aid in this country.
Mr Slaughter: I will explain it clearly to the hon. Gentleman so that he does not go away and write another “bewigged Scargills” article; I would have thought once bitten, twice shy. For members of the Committee who do not know what I am talking about, there was a very good polemical article—it was called “The Thunderer” was it not?—in The Times headlined “Don’t pay heed to the wailing of the bewigged Scargills”. The bewigged Scargills being the Law Society and the Bar Council. The quote to which that refers, and I think the hon. Gentleman is making the same point now—[ Interruption. ] I am responding to it, although I am always grateful to the Minister’s Parliamentary Private Secretary for keeping me on the right track. If he can manage that as well as supporting the Minister, he has earned his money on the Committee. The quote is:
That is the phrase that wound up the hon. Member for Ipswich and led him to denounce the learned professions. However, in a letter in response to that article, Des Hudson, the chief executive of the Law Society, said that the quote came from the Government’s impact assessment, which had reported that the proposals run
Let us be clear. We are not saying that finance should not be a driver—a principal driver—as it is in all other areas of public expenditure, which is the hon. Gentleman’s point. As we heard in the House yesterday, for example, finance is the principal driver of defence expenditure; but just as one would not say that because money is tight, or because the Government wish to be efficient, we should abandon defence of the realm, so too one should not say, “Because we believe that money has to be saved at all objects and the Lord Chancellor says that his role model is to cut almost a quarter of the spending in his Department, that will be the driving force and, therefore, we will live with the consequences for the availability of legal services in this country.”
We are simply saying that—this is why the shadow Chancellor will have no disturbed sleep at all—in setting budgets, the Government cannot ignore the principles of policy. It is a simple and straightforward point, and it does not matter whether we are talking about defence,
Ben Gummer: To clarify, I have never attacked the legal professions, merely the trade unions, which I think have done them a disservice. To return to my original question, which is the point of my intervention, has the hon. Gentleman had the shadow Chancellor’s express approval for new clause 1(2)(f)?
Mr Slaughter: I do not know what sort of regime of fear is run in the Conservative party if one can never speak without having things stamped in triplicate. My answer is exactly as I gave it. The new clause would not introduce any additional spending burden. Its principle is that the provision of legal aid in the UK, although it must be examined in a financial context, must also be considered—this is not a difficult point to understand—in terms of what service will be provided. We were asked about alternative cuts earlier. Our alternative cuts would not create a system in which the poorest and most vulnerable in this country could not get access to basic legal advice and assistance. Before the hon. Gentleman votes on the new clause, he should ask himself whether that is what he wants.
Mr Watts: The hon. Member for Ipswich opens an interesting line of attack. Could the same be said of Front-Bench Members about this issue? Is the whole Bill driven by the Chancellor’s wish to make cuts as quickly and deeply as possible? Are the Government ignoring the implications of the cuts because they have been instructed by the Chancellor to make them?
Kate Green: Does my hon. Friend agree that the principle helpfully opens up the opportunity to consider legal aid in the context of the wider costs and benefits of all aspects of Government expenditure?
Mr Slaughter: I do. My hon. Friend tempts me again to go down another channel, albeit an important one, that we will sail down at some point. It is about what we get for the money that we spend, particularly on social welfare legal aid, which is a good deal, as my hon. Friend the Member for Makerfield said. Are we cutting off our nose to spite our face? Will we spend more money by making the cuts in the Bill?
Also, if there are villains, who are they? They are not, I suggest, constituents of mine who go into Fulham CAB because they have problems with their welfare benefits. In an overwhelming number of cases, they are the Departments: that is, the Government, who are now not just running but taking a scythe to the system and introducing major reforms of their own. Time after time, Government bodies make bad and wrong decisions that must then be challenged or appealed. Realistically, as I think Government Members know, that can be done only with help and advice. Sometimes that advice might be non-legal, although it often involves legal
Elizabeth Truss: Is it not the case, though, that we are funnelling a lot of money through the legal aid system at the moment rather than dealing with issues through appeals processes and so on, which would cost less? Is that not a result of the complexity of the welfare system created by the previous Government? Has the hon. Gentleman conducted any studies of what goes on overseas and the extent to which welfare claims and counter-claims are supported by legal aid in other countries?
Mr Slaughter: I agree with the hon. Lady that matters are complicated, and we all hope that they will be simpler. For example, the Welfare Reform Bill and the introduction of universal credit were supported by the Opposition. That may have a number of consequences, one of which may be a simpler and easier-to-understand benefit in the long term.
I declare an interest: I practised housing law for many years. I wish that I had a pound for every time we were going to reform housing law, which is notoriously complicated, with the different types of tenure and the number of Housing Acts there have been. We have been asking for many years, “Why don’t we get the Law Commission to have a go at it and produce one or two types of tenancy and simplify matters?” I absolutely agree—of course it would be sensible to do that. However, it will not happen overnight. If the Government put that forward, I am sure that the hon. Member for South West Norfolk would have warm support. Also, unfortunately but obviously, when one goes through major reform of complex legislation, the process of change and the teething troubles of a new system create problems. There is more need for advice and representation in a period of great change than at any other time.
Helen Goodman: Another point that the hon. Member for South West Norfolk does not take account of is that we have always had an independent system within the social security institutional arrangements in this country. At the moment, we have the social fund commissioners and the Social Security Advisory Committee, which used to be the supplementary benefits commission. It existed in the 1960s and throughout the 18 years of the last Tory Government. The Conservative party did nothing to remove it, quite rightly, because its function is essential. We cannot pretend that legal aid is an alternative to the checks and balances in the welfare system.
Mr Slaughter: I accept my hon. Friend’s point. We are dealing with a very complex legal system in many areas of social welfare. Welfare benefits are a good case in point. I know that some Members represent their constituents in a lay capacity at tribunals, which is diligent, although one has to be selective at immigration and welfare benefits tribunals. I would not like to take on that responsibility. I know that pro bono representation can be provided by the free representation unit, and others can do that.
The quantity of regulation and law ascribed in matters of debt, welfare benefits and education is such that even an intelligent lay person, educated to degree standard, has difficulty managing the process. They often need help, if not in representation, then certainly in preparation of the case. That is a fact of life, and the hon. Member for South West Norfolk cannot shy away from it.
Elizabeth Truss: May I press the hon. Gentleman on whether he has looked at the legal aid provided for welfare in other countries, and whether there are better institutional arrangements, which the hon. Member for Bishop Auckland mentioned?
Mr Slaughter: I am reading up on New Zealand. I have not got to British Columbia yet, which I know is one of the hon. Lady’s favourite jurisdictions. I hope that by the time the Bill is passed I shall have encyclopaedic knowledge of all Commonwealth jurisdictions. There is a good international law library in London, where I was once sent, when I was a pupil, to look at African customary law because it was thought that it might help with a point on appeal. I am willing to go back there. [ Interruption. ] I do not think we won the case.
The hon. Lady makes a good point, as long as she does not push it too far. I am sure that we will hear more about New Zealand as we go through the Bill; I may mention it myself in a moment. I think that that is good. I would not even mind the Government’s analogies with the cost of legal aid, if only they got their figures right, and if only they did not keep banging on, no matter how often we tell them that it is wrong, about legal aid in New Zealand costing £8 a head when we know from looking at the facts that it costs more than £20 a head.
Mr Watts: Does my hon. Friend agree that if we are to look for examples for Britain follow, those examples should have something in common with Britain? The social background in New Zealand has very little to do with the UK, as we heard from one of the witnesses last week—[ Interruption. ]
Mr Slaughter: I think my hon. Friend is right; that is why we must proceed with caution. I will not follow the chairman of the Bar in saying that there is no Moss Side in New Zealand, because I do not know whether there is. I know that New Zealand has a system of no-fault compensation, however, which would have a significant effect on the legal aid budget if we had it here. I do not know the exact figures, but I know that the volume of criminal cases per head of population is lower in New Zealand, so I do not believe that we can read across in that way. We can perhaps make detailed comparisons, particularly with similar jurisdictions, but Citizens Advice and the Bar Council have made the point that if we start comparing apples and oranges—comparing the cost of particular types of legal aid with those in a jurisdiction that has wholly different law, social make-up and alternative provision—that will get us nowhere and will mislead us and the wider public.
I thought that one of the most interesting answers to the questions asked by the hon. Member for South West Norfolk came from Julie Bishop of the Law Centres Federation, who, as her accent betrayed, comes not from New Zealand, but from Australia. She gave us an interesting account of how legal advice provision works in Australia. It sounded like rather a good system to me, and we may be able to learn from it. [ Interruption. ] I have enough trouble dealing with interventions; I will not deal with sedentary comments as well, or we will be here all night.
We also heard about Canada, and I suspect that under the rather right-wing Government that it has had on and off, it has seen a major retrenchment in the provision of legal aid and advice. We were told that, yes, it is cheaper, but it is rubbish, although I may be paraphrasing what was said. All I would say is let us be careful when we use comparisons so that we do not take them too far.
The Committee will be pleased to hear that I will not go further at length into my explanation of new clause 1(2)(a) to (f) because I think we will deal with those provisions later. I am sure that we will come back to finance. I will return to paragraph (e), looking at education, and I suspect that we will also come back to proper representation in criminal cases when we deal with clause 12 and others. We will certainly come back, when we debate clause 8 and schedule 1, to new clause 1(2)(b) and the proper provision of civil legal aid and social welfare legal aid.
My final comments about new clause 1 concern paragraphs (a) and (c), which encapsulate the two principles that have underlined the development of legal aid in England and Wales since the Rushcliffe report of 1945, the Legal Aid and Advice Act 1949, and the Access to Justice Act 1999. I remind hon. Members that the Rushcliffe report said that
“the total… of all the existing free facilities is inadequate to meet the present demand…. there appears to be a consensus of opinion that the great increase in legislation and the growing complexity of modern life have created a situation in which increasing numbers of people must have recourse to professional legal assistance”.
I fear that we are at the other end of that tube now. I suspect that most hon. Members would agree that life is rather more complicated now than it was in 1945. In the spirit of openness, I say that that and the rising costs may be why the availability of legal aid has been restricted to a lower percentage of the population, and that the previous Government took steps to control costs and would have taken steps to do so further. I cannot answer the hon. Gentleman’s question and give him an exact percentage, but perhaps I can explain why we are where we are.
Helen Goodman: Does my hon. Friend agree that the Government are wholly inconsistent? When they talk about small businesses, the burden of regulation and the difficulties of operating within the employment law framework, they constantly say how complicated it is and that the costs are too high, yet when we look at individuals, they completely deny that the same problem exists.
Mr Slaughter: Yes, and many small businesses will look with consternation at the proposals in part 2. They will mean that if they have been let down by a supplier and have a meritorious case, but as a small business do not have the free assets to take that case to the county court or High Court, they will be in far more difficulty in obtaining CFA consent. If they win, they will find that they pay substantially for their damages. Therefore, yes, this does apply to small businesses. They are concerned about it, but equally, as my hon. Friend says, it applies to individuals.
I am glad that the hon. Member for South Swindon looks back to the time of the 1945 Labour Government as halcyon days. He may be reassured that that was the general view of the then Opposition. [ Interruption. ] I hear the Prisons Minister muttering, so I shall quote David Maxwell Fyfe, shadow Attorney-General, in the debate on the Legal Aid and Advice Bill:
Perish the thought. The fact that the Conservative Opposition said that it was so good that the only thing they could see wrong with it was that the Labour party might take credit for it illustrates the consensus on the provision of legal aid.
Mr Buckland: The consensus was based on a system to be administered by the Law Society, run through private practice and confined at that stage to matrimonial cases in the High Court. We have moved a long way since then. Although I agree with the hon. Gentleman, and it is important to try to avoid party political point scoring, I must ask him again, what does the definition of “afford” in amendment 60 mean? Does it mean a capital threshold test? Does it mean a passported benefit test? Will he define it for us?
Mr Slaughter: I will do so when I deal with amendment 60. The hon. Gentleman cannot have it both ways. A moment ago he said that legal aid used to cover 80% of the population and it now covers 20%—I forget the figures he used, but it was something like that.
Mr Slaughter: A means test applied, as it does now. On the whole, the service was delivered through solicitors in private practice, although we now have a very good not-for-profit sector. Let us not look through rose-coloured glasses, although I do not think that the 1945 Government had a rose; I think they had a flag. Yes, those were straitened times—more straitened than now—and there were restrictions. Part of the debate was on what areas of law should be excluded, such as libel, slander and tribunal proceedings, many of which will be familiar now.
My point is that the principle was established with all-party support that a system should be introduced that allowed representation. I shall quote what was said then, as my eloquence does not match that of our forebears.
“If I might translate a respected expression from the promissory and ephemeral field in which it has been misemployed of late into the sphere of intended enactment, I should be inclined to call this Bill a charter. It is the charter of the little man to the British courts of justice.”
I am not sure that we hear rhetoric like that in the Chamber today, although it might not be far off in the case of some hon. Members. That Bill set out principles that were then established, but which were modified in 1999, as I shall explain. It set a template. Spending varied—on the whole, it grew. Society changed; the law changed; the provision of legal aid changed substantially over that time, but the principle did not change. We are all familiar with the point that was probably hackneyed at the time, but the then Attorney-General went on to say that Her Majesty’s courts were open to all just as the grill room at the Ritz was open to all. What is not so generally known is that he went on to qualify that comment, perhaps rather ruefully, when he said:
“I suppose that taunt is even more applicable today when the charges at the Ritz Hotel, at any rate in the grill room, are largely controlled, but many of the costs of the litigant are not subject to any legal limit at all.”
I suspect that that was due to rationing, but I have not fully researched that point. I shall do that during our short adjournment. I shall end my trip down memory lane with the other example used by the then Attorney-General. It is not so well known, but in many ways it is a better example of how dysfunctional the pre-legal aid system was. It addresses complexity—a point that the hon. Lady made to me earlier. He said:
“Then there is the very famous sentence imposed by Mr. Justice Maule in a certain bigamy case. A hawker convicted of bigamy urged in extenuation that his wife had left her home and children to live with another man, that he had never seen her since and that he had married the second wife in consequence of the desertion of the first.
Mr. Justice Maule said, ‘I will tell you what you ought to have done in the circumstances, and if you say you did not know I must tell you that the law conclusively presumes that you did. You should have instructed your attorney to bring an action against the seducer of your wife for damages. That would have cost you about £100. Having proceeded thus far, you should have employed a proctor and instituted a suit in the ecclesiastic courts for a divorce a mensa et thoro.’”
“‘That would have cost £200 or £300 more. When you had obtained a divorce a mensa et thoro, you only had to obtain a divorce a vinculo matrimonii. That procedure might possibly have been opposed in all its stages in both Houses of Parliament and altogether those proceedings would have cost you £1,000. You will probably tell me that you never had one-tenth of that sum, but that makes no difference. Sitting here as an English
It clearly illustrates the point that the Attorney-General and shadow Attorney-General made eloquently in relation to that debate. We allude to the same principle in subsection (a), which, sadly, the Bill will cause us to lose.
The second principle is perhaps not as eloquently put and is slightly more prosaic, but is important nevertheless. It was established in the Access to Justice Act 1999. Whereas the 1949 Act dealt with scope, the 1999 Act effectively dealt with structure. What do we see as the purpose of the—[ Interruption. ] If the Minister is going to make sedentary interventions, he ought to make them to me, rather than to his hon. Friend.
Mr Slaughter: I do not use that Act in my argument on scope; I use it in my argument on structure. The Access to Justice Act 1999 was described, albeit by the Minister moving the motion on Second Reading, as
“the state will now choose which forms of litigation it considers socially desirable and therefore worthy of support… Is that a desirable development in a free society?”—[Official Report, 14 April 1999; Vol. 329, c. 230-33.]
Anna Soubry: Does the hon. Gentleman agree that, historically, going to law has always been expensive and that that would sometimes cause injustice, which is why legal aid was introduced, but that, equally, the cost meant that people paused before going to law and considered alternative ways to resolve a dispute? Over time, the proliferation of legal aid has caused people to rush to law, when it would have been better to employ alternatives to resolve disputes. I accept that it is a question of balance, but if nothing else, bringing ourselves back to the system that the original Legal Aid Act 1949 tried to achieve will mean that fewer people will rush to law, which is not always the best way to resolve things.
Mr Slaughter: I have great respect for the hon. Lady, particularly for her experience as a criminal practitioner, although I do not know whether she is a civil practitioner as well. Whether prosecuting or defending, the experience of the courts is slightly different as a criminal practitioner, because the nature of the client—whether the state or a criminal defendant, particularly a regular criminal defendant—is somewhat different from the litigants whom one tends to meet in the civil courts.
My experience over 20 years has been that whether people are legally aided or making a contribution and whether that contribution is de minimis or a substantial amount of their own resources, they are reluctant to go to court. One issue that we will undoubtedly debate is the proliferation of litigants in person. That is a major concern for the judiciary, but it should be a major concern for us all, not simply because it clogs the courts and costs money, but because it will distort how justice is delivered in this country. One thing that is said about litigants in person is that they not only have difficulty understanding the law and process, but find the atmosphere of the justice system intimidating, alien and over-formalised. Sadly, it has to be that way. There are more or less relaxed types of court. The Court of Appeal is not as relaxed as an employment tribunal. Nevertheless, even in the most minor tribunal, there is a formalised and serious process. Most people would find that intimidating. I am not talking not about people with learning difficulties or poor education or those who cannot read or write, but about any citizen who is not conversant with the process.
The corollary is that nobody goes willingly to law, or very few people do. I do not accept the hon. Member for Broxtowe’s premise that people think that they might as well give it a punt because it is all on legal aid. I do accept the point that sometimes being against a legal-aided party may cause an imbalance to the party paying their own costs. That is a fact of life, to which we should pay attention, but it is a different point and a poor Government defence of the Bill. I have heard the phrase “skin in the game” used, and I find that quite an insulting. The idea is to make people more responsible, think twice or thrice, or simply not to go ahead with litigation at all. I do not accept that the provision of legal aid, even when there is nil or low contribution, acts as an inducement to take unnecessary litigation. I am not saying that it never happens, but I do not think, as the Government and media have tried to contend, that is a substantive part of litigation in this country.
Mr Watts: A smokescreen has been created that there is an alternative to legal aid: advice and mediation. Does my hon. Friend agree that that would be okay but for the fact that, while the Bill proceeds, the amount of money available for mediation and advice through citizens advice bureaux is decreasing? We will have the cruel irony of people thinking that they can go somewhere else and finding that the services do not exist.
Mr Djanogly: I thank the hon. Gentleman. I wish to make it quite clear that the Government’s proposals are to increase the amount of money going into mediation by, we estimate, £10 million. Those who are eligible for legal aid will be eligible for mediation, paid by legal aid.
Mr Slaughter: Nevertheless, a notional figure has been used. I am looking in my interesting bundle to find out what mediators say about the Minister’s points. I do not think he can get away with that. We all agree that he will find that there is consensus, as there would be in all good mediation, about the role that mediation should play and that that role should be increased. First, resolving matters through mediation might not be cheaper. Professionally trained mediators, of which there are not sufficient at the moment—something else the Minister has probably not thought of—do not mean justice on the cheap. Secondly, in reaching an acceptable solution, mediation is the proper way to go, but mediators say it is not the solution in every case, which is why they want the availability of legal aid to continue. Those are the views of Resolution, which is one of the major mediation organisations in the country. It speaks up for mediators but makes two points: first, not all cases are suitable and, secondly, being able to go to law, if necessary, is part of the process.
Mr Djanogly: I think I heard the hon. Gentleman say that there are not enough trained mediators. As far as non-family mediation is concerned, there is no problem. He may be referring to the expansion of family mediation as a result of our proposals. The Family Mediation Council advises us that there are enough mediators to cover current demand and it sees no problems looking to the future and the way that mediators are coming into the system.
Mr Slaughter: All I concede is that we have conflicting advice. I have met Resolution, which I think the Minister regards as a reputable and respectable body. Its members are seriously concerned that there are insufficient mediators, particularly in the family area. Of course, they welcome the expansion of mediation and more trained mediators being available, but it is not the be-all and end-all. It is not the solution in that way. I am terribly sorry, but I have forgotten the previous point.
Helen Goodman: No, I am going to refer back to the remarks made by the hon. Member for Broxtowe. Surely her case that people go to law too quickly is an argument for changing the means test, the capital limits and the test across the board? What is so objectionable about the Government’s proposals is that whole areas are being taken out of scope and those are the areas that people on low incomes need.
“When mediation fails a parent will be expected to conduct their own application for contact with their child. This will include situations when a parent has no contact with their child but their ex-partner refuses to attend mediation or cooperate in mediation; or where there are significant compliance and enforceability issues relating to a court order. Enforcement of contact orders
I expect we shall come back to that, too. The mediation services have brought up several detailed considerations because they do not believe the catch-all that mediation will provide the solution to all the problems and all the cuts in scope that the Government claim. I urge them to listen to the people on whom they are putting the onus and responsibility.
Jessica Lee: I want to go back to the hon. Gentleman’s points about people finding the court process troubling or unfamiliar, making it a difficult experience for them. Is it not therefore common sense, along with many other reasons, to look at the principle of how we deal with conflict in society? Is not the move towards mediation another step towards stopping people having to go through that traumatic process of going to court? Surely that must be welcome.
Mr Slaughter: I shall not disagree with the hon. Lady’s comment. Mediation is only one alternative to litigation. There is a long history of arbitration, alternative dispute resolution, negotiation and settlement of cases. With all due respect to the Minister, I do not think he has come up with some brainwave about how the justice system in the UK will change overnight.
Mr Slaughter: The Minister says that he does not claim to be a legal pioneer, but we would not understand that from what the Ministry of Justice says through the media, which is, effectively, that it has a new way of doing things.
Mr Watts: Is that not the root of the issue? No Opposition Member is suggesting for one second that mediation is not a good thing, but we have heard from many people involved in mediation who have said, “It’s not a suitable alternative to access to legal aid.” Perhaps people might have to go to mediation before they could gain legal aid—that might be worth pursuing. Mediation is not, however, an alternative, it is not the same, and it should be part of a package.
Mr Djanogly: I thank the shadow Minister for giving way on this point. To be clear, in many circumstances, mediation can be a viable alternative. In many—not all—circumstances, it should be an alternative. I say to the hon. Member for Hammersmith that mediation is usually cheaper and faster, and it can be much less stressful for those who use it, which is why I have been promoting it. The measure is not a brainwave that I have come up with; I have looked at the established facts of a system that works.
I am reaching the end of my comments on new clause 1, so I return to one of the few things that I wrote down so that I would remember it. We challenge two principles. First, finance should inform, not define legal advice and assistance, which relates to what the hon. Member for Ipswich said earlier. I think that is clear, and it might be the single most important factor. At present, I entirely accept that the Government are making savings in the legal aid budget—we would have done so too, and our savings may well have been of the same order. We would not, however, have made savings in that way; we would have had regard to the fact that we must end up with a coherent and effective system for providing legal aid. At the core of that, certainly as far as civil legal aid is concerned, is ensuring that poor people and people of moderate means have access to the courts. We must have equality of arms and people must not be disfranchised simply by their lack of means, either because they have to contribute themselves, or because lawyers are not available or not commercially able to take cases on. Secondly, litigation is sometimes a necessary step, and the availability of legal remedy is an important safeguard of decision making, equity, the rule of law and free expression.
My first point on finance is the usual argument. The policy is being applied in the Bill in a more than usually hamfisted and oppressive way—even more so than in other Bills that have gone through or are going through the House.
I am particularly concerned about the second point, which is why I have spent some time looking at how legal aid has grown up in this country; the principles behind it, which had all-party support 70 years ago, and, notwithstanding the comments made by the Attorney-General, the change that was introduced in the Access to Justice Act 1999. With all due respect to him, the Attorney-General misunderstood in that debate—I am sure that he does not misunderstand it now—the intention of that Act. It was not intended to set some sort of political template for access to legal services, but to begin to look at the relationship between society and legal services, which, of course, was already happening. It was happening through the law centre movement, through not-for-profit organisations and through Citizens Advice, which has a history going back to the second world war. There was both a continuum and a varied response to people’s levels of need for advice, representation and so forth. As lawyers, we should not work in a vacuum, as may have been the case previously; legal professionals should see themselves as part of a process that delivers justice. That is why, whatever the changes in resources that came about, the principle of the Access to Justice Act 1999 was as important as the principle of the Legal Aid and Advice Act 1949.
Despite the expansion of legal aid and the previous Government’s attempts to control it, which were successful and which we would have continued, we are now in a different ball game. It is one in which the Government have decided that finance is not just a main motivating factor, but the be-all and end-all in making decisions. The downside of that—I say this with some regret—is that the Government are either indifferent to or positively welcome that. I say that because many of the Minister’s comments in public have been to the effect that depressing litigation is an end in itself, that there is too much litigation and that too many people go to the courts too
The cumulative consequences of parts 1 and 2 will be that much of the ability of individuals of all types and means—save the most wealthy, but particularly the poorest—to receive redress and get proper representation will be removed from the public realm. When mistakes have been made, particularly by big organisations, whether they be Departments, businesses or whatever, in all the situations for which social welfare legal aid has grown up, that will no longer be a recourse. That will be the case for CABs, law centres and private practice through to preparation for trial and trial itself. That is the significant change.
In new clause 1—I do not imagine the Minister will support it, but he may have had a change of heart—we seek to put back those principles, which have been tried and tested over time. Sometimes, the Government talk as though the ability to go and get advice on debt or on housing benefit arrears is a luxury. The Government have several answers to that. They say, “That is not a legal matter,” or, “A volunteer or pro bono organisation can help you with that,” or, “The people who have committed the wrong or the tort in the first place can help you with that,” or, “The tribunal can help you with that.” When one looks at the Government’s alternatives to the current provision, one sees how lame those answers are. I take exception to the idea that there is some Shangri-La of free advice and representation in our constituencies where one can walk off the street and immediately have all problems sorted out at no cost or inconvenience. I do not believe that any Member here—however prosperous their constituency, because all constituencies have areas of need—actually believes that. From our individual experience, we know that people are often reluctant to seek advice and do not know how to do it. However, when they seek advice, they are already in extremis or certainly unable to deal with problems. In the past 10 years, we have tried to deal with that problem by early intervention through such things as the financial inclusion fund, and the expansion of law centres and AdviceUK networks across the country.
There are already concerns. There were concerns under the previous Government about advice deserts. The whole country will become an advice desert if the proposals are introduced. That is why it is important, at the beginning of the Bill, to set out and state the principles that have defined legal aid, and from which we have learned lessons over 70 years. Radical reform of this kind, which is not constructive reform, as in the two previous Acts, is destructive. The Government introduce it at their peril because the consequences, as registered by the equality impact assessment, will be a lack of social cohesion, increased criminality and huge distress to people.
I do not know what other hon. Members do, but I spend my Sunday mornings knocking on doors, particularly in areas of need and areas where people will not necessarily access services. In the 21st century, I am greatly shocked by the conditions in which people live. I have found pensioners who had not received their pensions for five
I will deal with the amendments speedily because, as the hon. Member for Ipswich so perspicaciously says, there is some overlap. However, the intention is to help, rather than hinder the Committee. Amendment 60 states:
I confess that I cribbed part of that from the New Zealand Legal Services Act 2011. There are some good things in New Zealand, not just “Lord of the Rings” and so on. Section 3 of the Act is called, “Purpose of Act”. What a revolutionary proposal that is. Why did the Minister not think of that—putting the purpose of the Act at the beginning? When he set out the Lord Chancellor’s powers in clause 1, why did he not think to tell us the purpose of the Act? Perhaps he was embarrassed about it for the reasons that I have just given. Perhaps that is the real reason. Nevertheless, he should have bitten the bullet and done so. The New Zealand Act states:
That is not quite the same, but I think it does the same job. It is not as flowery, elaborate or relevant to our past history as new clause 1, but it does the job succinctly by being clear about the purpose of legal services.
“The Government have received the fullest support from both branches of the profession…the Bar Council and the Law Society have worked upon this matter with a degree of co-operation between each other which has hitherto been quite unequalled”.—[Official Report, 15 December 1948; Vol. 459, c. 1227.]
I do not think that that can be said about any other occasion, can it? The Government, the Opposition, the Bar Council and the Law Society were all of one mind. It will please the hon. Member for Ipswich to know that there were times when we could all get on terribly well together. I promise the Committee that I had not seen it before we drafted the amendment, but I was looking through the Access to Justice Bill Second Reading debate and that Bill contained a similar provision, which was in the then Opposition’s amendment. When I lay my hand on it, I will read it to the Committee because it makes an interesting comparison.
If Government Members do not feel minded to support new clause 1, because of whatever concerns they may have voiced, or even not voiced, I hope that they will have no difficulty in supporting amendment 60, which sets out very basically, without embellishment, what the principles of legal aid should be.
“persons have access to legal services and the machinery of justice which they would otherwise be unable to obtain on account of their means…that legal services and facilities of high quality be available such that disputes may be resolved, and proceedings determined, expeditiously, fairly and with the parties placed on an equal footing.”—[Official Report, House of Lords, 11 February 1999; Vol. 597, c. 329.]
That is slightly more verbose than my amendment, but it says the same thing. The Conservatives were keen to support that proposition in 1999, so I see no reason why they should not support a similar provision this year. I will not say any more about that. I think there was a question, but I have forgotten what it was and I have forgotten who wanted to ask it, so I will not trouble them further.
I am not going to deal, at this stage at least, with the amendments tabled by my hon. Friends. I will allow them to put their own case and if I have further comments, I will add them later in the debate. However, I would like to deal with my amendment 61, which I am afraid is a long amendment, but I shall not spend a long time on it.
The purpose of the amendment will partly be covered by my hon. Friend the Member for Kingston upon Hull East when he speaks on his amendment. It is to consider our concerns about the repeal of large parts of the Access to Justice Act and the requirements that such an approach puts on the Lord Chancellor in allowing him a much freer rein.
There are dangers—we will consider them when we discuss clause 4—in the abolition of the Legal Services Commission. That is not something we oppose on principle; indeed, it is something we propose. However, we want there to be proper safeguards. We also want there to be proper duties on the Lord Chancellor, as I have indicated, and proper scrutiny of the Lord Chancellor. In the Bill, particularly regarding the repeals that it makes to the 1999 Act, the Lord Chancellor has far fewer responsibilities and far more leeway.
“In carrying out his functions under this Act the Lord Chancellor shall…protect and promote the public interest…support the constitutional principle of the rule of law…ensure no denial of access to justice.”
Members may say that it is otiose to put that in, but it is right to be clear about what we are saying at the beginning of the Bill. I am sure that Members are familiar with article 6, which states that
The article guarantees the right to a fair hearing in civil and criminal proceedings, and protects the right to take court proceedings to settle a dispute. It may also give a right to legal aid if the dispute is very complicated and if someone would be at a disadvantage when unable to afford a lawyer; I am citing the explanatory notes as well as the text of the article. For all the current air war over article 8 and other matters to do with the convention and the Act, it is right for article 6 to be clearly in the mind of the Lord Chancellor when he makes provision for legal aid. It is fundamental not only for criminal but civil legal aid.
The definition of that strategy in proposed new subsection (8) and the remaining two subsections of amendment 61 provide for additional requirements and make everything sound bureaucratic. However, the reason why we think that a legal aid strategy is important is that the Bill gives the Lord Chancellor a great deal of leeway. Under secondary legislation, he has the ability to remove matters from scope—not to add them, but to remove them—and unless the Minister enlightens us during our proceedings we do not yet know how much secondary legislation we will get, what form it will take and which areas it will cover. We already know that significant areas that, frankly, we expected to be in the Bill are not. Even if the Minister says that his advice is that that is not the requirement of primary legislation, we would like to see where substantive changes are being made to areas of law, so that we are clear about what we are debating and what those changes are in the round.
There is an example in part 2, where we have the reservations on and qualifications for conditional fee agreements; no recovery of success fees, no ATE premium, recovery from claimants’ damages and damage-based agreements are all there, but the mitigating factors are not. I suspect that one of the reasons is that they are not ready. The Minister has no more idea than I do about how QOCS—qualified one-way costs shifting—will work, for example. It is a work in progress, but I say that that is simply not good enough. We should not be making major changes to civil litigation without knowing the package in the round and without considering it in the context of the Bill.
The Minister might equally well have said—I am glad he has not—that many of the scope changes would be outside the Bill and dealt with by secondary legislation. Effectively, he is saying that is what might happen in the future, by giving the power to change scope to the Lord Chancellor. We are suspicious of that, in particular because it is a one-way street further to reduce the scope of legal aid, rather than any ability to increase it. I also suspect that the reason why the Minister has put most of the scope changes into the Bill is not so much to enlighten our debate as to fend off the possibility of judicial review, which will be easier if provision is in primary rather than secondary legislation.
I will not use “dog’s dinner” again, but a more precise phrase: this is a very partial Bill. It deals with certain matters that the Government want to deal with, and it promises to deal with other matters, but it does not. Proper scrutiny is, therefore, important as we progress. If the Bill is enacted in anything like its current form, it will leave the Lord Chancellor in a powerful position in terms of the type of civil legal system we have in this country in the future. If he decides in a year or two that the savings have not been made, for any of the reasons that I gave earlier, including the fact that many of the cuts will cost the public purse more in the long run, and therefore decides to make further scope changes to restrict it, it will be difficult to keep an eye on that, other than through statutory instrument Committees.
Mr Djanogly: The hon. Gentleman is speaking eloquently, but he will appreciate that as the law stands at present, the Lord Chancellor could change the schedules, and therefore what is in and out of scope, by order.
Mr Slaughter: Yes, I am aware of that, but no previous Government have declared war on legal aid. The Minister’s best argument would be, “I’ve done all the dirty work now, so there’s not much left to cut in the future.” I suspect that the Government are still leaving the door open for that.
Mr Djanogly: Is it not better to do what we are proposing to do, which is to present to Parliament what we want to happen to the scope of legal aid and to debate it in the form that we are debating it now, rather than follow the system that the previous Government bequeathed us, which was to do it only by order?
Mr Watts: The Minister’s view would be okay if there was some detail about how the system is going to work. Is it not a practical problem that the Lord Chancellor will be able to use discretion but that nobody has any idea about the parameters for it? It could exclude or include people. Is it not up to Members on the Government Front Bench to set out some general principles so that we can at least understand what we are dealing with in the Bill? It seems that the reason why it has been described as a dog’s breakfast is that such an important detail has not been included.
Mr Slaughter: As I have said, I know what the Bill’s underlying principle is. It is to eviscerate legal aid. It is as simple as that. What we do not know—because I do not think that the Government know—is exactly how that is going to happen. This is such a radical reform and it will have a deleterious effect on the advice and representation sector, so it is highly likely—I hope I will be here to see whether this prediction comes true or not—that what is set out in the Bill will not be the limit of damage. Because so much is taken out of scope and because of the cuts to remuneration for people who are already poorly paid, we will see the disappearance not only of firms, agencies and the areas of scope that we know about, but of whole areas of scope.
I know that the Minister will say at some point—probably when we discuss schedule 1—that the Government have been careful to protect those areas of legal aid that, for want of a better phrase, go to life and limb, such as loss of a home and asylum, and that that represents a filleting that has taken the necessary core out of the current provision of legal aid, but I am afraid that that is not what it represents at all. It is a PR effort. Getting rid of such things would have been wholly indefensible, rather than just indefensible, and that is the reason why they had to be left in. We have seen one or two minor amendments in relation to special educational needs and a slight widening of the provision for domestic violence, but otherwise there has been no change at all.
Whereas the Minister may say that he is presenting a different encapsulation of legal aid, I say that he is not. The Government are, effectively, ending provision—certainly of social welfare legal aid—and what provision they have left will not be sustainable in many cases. At the moment, we get a very good deal out of the providers of legal aid in this country. I am not talking about top QCs or very high-cost cases in the criminal courts, which take a sizeable chunk of the money, but about legal aid solicitors and barristers, about CABs with Legal Services Commission franchises and law centres, and what comes with them.
For our money, we get people who earn low sums. I know how much is earned by people who manage CABs, who manage lots of staff and volunteers and by legal aid lawyers—I have been on the management board of a law centre for more than 25 years—and we are not talking about people who do it for the money. They do it, to use an old-fashioned phrase, as a vocation, and they are generally passionate about what they do. They also bring with them a whole panoply of other benefits. CABs are partly run by volunteers, often in a ratio of four or five—sometimes, even 10—to one ordinary member of staff.
There is a symbiotic relationship between the legal aid practitioners and the pro bono market. That is most obvious where legal aid is available for preparation, but not for representation in tribunals. Frequently, even after having assistance with preparation, people cannot represent themselves, so they go to the Free Representation Unit or a City firm that will put someone up to do the case, even if it lasts two or three days, for nothing. However, that will not work if the Government get rid of the infrastructure supporting it—the legal aid lawyers and solicitors and the law centres—and it is fanciful for them to say that the pro bono or free sector alone will deal with that work. The consequences are therefore far greater than what we can read in the Bill, as it is drafted.
For that reason, it is important to have not only regular review and scrutiny from the professions and others—indeed, from MPs as constituency MPs—but a formal process of reporting, so that, whatever duties are set down for the Lord Chancellor, he will have to report to Parliament on them once a year. That would not be an onerous duty; it should be a requirement, and I hope it will receive support.
The other document that would be required is about the amount of expenditure and whether there have been additional costs. We have already discussed that matter, so I shall be brief, but additional costs might arise in two ways. They arise if, as a consequence of not receiving early advice or representation, someone falls back on
Yvonne Fovargue: Does my hon. Friend agree that it is a waste of money to focus only on the issue of homelessness and the problem of a person losing their home if their other debts are still mounting up, because the underlying problem will still remain and the person is likely to find themselves in the same situation again?
Mr Slaughter: Yes. All over the local authority and housing association estates in my constituency, there are stentorian notices saying, “Pay your rent at all costs.” They make it clear that that is the priority. It does not matter whether people have to deal with loan sharks, other debts, utilities bills and so forth; if they do not pay their rent, they will not have a roof over their heads. The financial pressures on local authorities these days mean that they are much more assiduous in pursuing possession orders. If somebody has got themselves into debt, and a not very nice man is knocking on their door every day or ringing up 10 times a day to ask for what little money they have, the approach my hon. Friend mentioned will not always work. By the time a lawyer is engaged, they may not be able to do anything.
At the moment, however, someone can go into Mary Ward legal centre or Hammersmith and Fulham law centre and say, “I have problems with housing benefit.” That could be an issue of general assistance. People will often have tried to reason with the authority and they will need somebody who understands regulations and what is going wrong and who can find their way through the bureaucracy in a lay sense and a legal sense. In that way, people can ensure that the authority deals properly with them, pays their housing benefit and ensures that their rent is not in arrears or at least that their debts become manageable. That means that people will not end up in the situation we are talking about. It is fatuous to say that simply providing legal advice and assistance at the last moment will ensure that people do not become homeless, that asylum seekers and refugees can live a family life or that many of the other things we will no doubt consider will happen.
If we look at this from a financial, rather than a humanitarian point of view, it is clear that the cost of homelessness runs into tens of thousands of pounds in each case. If a family qualifies as being in need under the housing legislation, the local authority has an obligation to them. Thus far, the Government have not repealed that legislation, although nothing would surprise me. However, they have said that obligations can be permanently discharged into the private sector, although far from costing less, that often costs more. However, the overall
Yvonne Fovargue: Does my hon. Friend agree that the cost of early intervention, when all the debts are dealt with at a cost of £200—that is how much people pay for a debt case under legal aid—is much lower than even that of going for the first possession proceeding, which is the first stage involved in someone losing their home?
Mr Slaughter: Yes. We could go into any county court on possession day and see lists running down the walls of people whose homes are up for possession. Even that is still a relatively early stage. The Minister has clarified that the service at that stage will be preserved, and I am pleased about that, because it is essential. Often that is the first contact people have with any professional advice. As a consequence of that advice, they may find that their case is adjourned or that they will not lose their home. Often, people even find that they have a defence at that point, so a deal can be done. If that is not the case, but the possession order is not granted, or a suspended possession is granted, they have the opportunity to go away and be put in touch with the infrastructure of advice in their area—if it still exists.
Mr Watts: Would the Government not be in a better position—we have heard today that mediation is not limited—if the same criteria were applied to citizens advice bureau debt counsellors and everyone else, so that they could maintain their budgets? It is not good enough for the Government to say, “Well, we’ve put extra money into those services,” when they have removed massive amounts of money from local government and other agencies, which have had to reduce or hold their funding of Citizens Advice. The Government are not looking at it holistically. We know from experience that many such organisations are struggling and the Government are not finding resources for them.
Mr Slaughter: Let us be fair. Subsection (9) would address that point, so we should be even-handed about it. The Government have done two things: first, they have extended the financial inclusion fund for a year; and, secondly, the Lord Chancellor has announced £20 million for the CAB. I do not know the details of that scheme. I understand that the scheme is for this financial year, but I do not know how, to whom or on what basis it is to be distributed. Importantly, if both those sums expire at the end of the financial year, what provision will there be for such advice services? My hon. Friend the Member for Makerfield eloquently said that advice services are probably the most cost-effective way of catching things at the earliest stage and ensuring that further costs to the public purse and social costs do not build up.
It will be helpful to know the answer, although it may not be the Minister’s Department, which might be one of the problems. There is a lot buck passing going on. When we hear the Minister or the Lord Chancellor blaming local authorities for their cuts to CABs and law centres, they are absolutely right—my law centre has lost 100% of its local authority funding—but it is a consequence, at least in part, of cuts to the budgets of the Departments for Communities and Local Government and for Business, Innovation and Skills. Until the last minute reprieve, the whole financial inclusion fund was also going.
Yes, we understand that there is extra money and, clearly, it is welcome. I am glad the Government have provided the money in both cases, but it does not compensate for the cuts this year. The money bears no relation to the cuts set out in the Bill, and we do not have a clear indication either of how the money will be administered and distributed or, more importantly, of the future of additional provision.
I know the game that the Government are trying to play. It goes along with their narrative that the advice is non-legal and that anyone can go into a CAB and give it. I was going to say something that is probably unfair to the CABs, which is that that is what they were like 50 years ago. Someone would go in to ask directions or to find out where the police station was, or something of that kind. The Rushcliffe report talks about CABs, and even back in the 1940s they were doing extremely valuable and professional work. Now, partly because of the LSC contract and partly because they are sophisticated organisations, CABs can assess and give advice at different levels. Some of it may be generalist advice, but much of it is legal or quasi-legal advice, otherwise Citizens Advice would not qualify for LSC funding. Let us put that myth to bed.
We are told that the Cabinet Office is looking in the round at the provision of advice, which is a good thing provided that we do not end up with a second-rate service that caters only for very basic levels of advice and assistance. All our constituents need to have access to the high degree of professional advice that is available at the moment.
I do not wish to patronise Members, because I am sure they all regularly visit their local advice agencies, but I would advise going to the Mary Ward centre in Holborn to see the service that is provided there. It was a revelation to me, and I thought I was familiar with such provision. I fear that the consequences will be greater than the Government intend. I do not ascribe any adverse motives to the Bill; I take it as it stands. I simply warn the Committee that there will be consequences, even if they are unintended, from the collapse of the advice sector.
Tom Brake: Although I acknowledge that local authorities are under financial pressures, does the hon. Gentleman recall that when I asked Julie Bishop and Gillian Guy on 14 July about the level of funding and whether there was any uniformity in how citizens advice bureaux and law centres were being treated, they responded that there had been a wide range of responses from local authorities? For instance, one law centre received a 12% increase, whereas others, such as the hon. Gentleman’s, had a 100% cut. There was no uniformity of response with citizens advice bureaux either. Local authorities have some leeway in how they treat their advice centres.
Mr Slaughter: They do, and I praise the authorities that have been able to protect advice centres. A very small minority have prioritised them to the extent that budgets have increased by a small amount, and I am sure that that is in response to the much greater demand—let us not forget that other side of the equation—that exists as a consequence of people being in economically poor circumstances. That is looking at things with hazy vision, however. The overwhelming impact of cuts so far, before we get on to anything in the Bill, has been horrific.
I do not want to be overly parochial, but two years ago, under a Labour Government—certainly before that, when the area also had a Labour local authority—Hammersmith had four superb generalist advice services. We had an excellent citizens advice bureau. I am pleased to say that that is still going, but it is having to do two or three times as much work, it is being forced out of its original premises and it is not receiving any assistance with its move to new premises. We had a council-run, well-established advice agency that had been in existence for 30 years, where I used to do my surgeries. One day, I turned up to find that the staff and the equipment had gone, and the agency had simply been closed overnight. We had a specialist housing advice service called Threshold, which operates in a number of London boroughs. That was forced to close by the withdrawal of all its local authority funding, after it had been going for more than thirty years, since 1978. We had the Hammersmith and Fulham law centre, which, as the right hon. Gentleman has acknowledged, has lost 100% of its local authority funding. It is surviving only through its own extremely effective fundraising, which included myself and Baroness Hale doing the London legal sponsored walk on its behalf. I am delighted that Baroness Hale, a justice of the Supreme Court, is now the law centre’s patron—as, indeed, Lord Bingham was before her—because that gives it an additional profile and it shows the esteem in which such organisations are held by the senior ranks of the judiciary.
I am old enough to remember the last time that this all happened, in the early 1980s, when there was a studied campaign to remove funding from law centres and advice agencies. Many of those in London—I am not sure whether the right hon. Gentleman is old enough to remember this, even though he is a Privy councellor, on which I congratulate him—hung on for a couple of years until Ken Livingstone found the money to keep them going. This is not the first time that we have been in crisis, although it is the first time in 30 years.
Alex Cunningham: My hon. Friend is talking about the closure of law centres. Will he join me in congratulating the hon. Member for South Swindon, who is campaigning for his local centre? He was quoted in the Swindon Advertiser as saying:
“My view is if these changes are to go through, there’s a case for organisations like the law centre to get special funding, in recognition of the fact it plays a very important role in looking after the vulnerable.”
Mr Slaughter: I hope that Opposition Members do not think that we are stalking them. Whereas I always look for the bad quotes, my hon. Friend looks only for the good that Government Members do. We all join him in supporting the hon. Member for South Swindon in his laudable aim.