Legal Aid, Sentencing and Punishment
of Offenders Bill
The Committee consisted of the following Members:
Chairs: †Mr Philip Hollobone , Jim Sheridan
† Blunt, Mr Crispin (Parliamentary Under-Secretary of State for Justice)
† Brake, Tom (Carshalton and Wallington) (LD)
† Buckland, Mr Robert (South Swindon) (Con)
† Crockart, Mike (Edinburgh West) (LD)
† Cunningham, Alex (Stockton North) (Lab)
† Djanogly, Mr Jonathan (Parliamentary Under-Secretary of State for Justice)
† Fovargue, Yvonne (Makerfield) (Lab)
† Goodman, Helen (Bishop Auckland) (Lab)
† Green, Kate (Stretford and Urmston) (Lab)
† Hinds, Damian (East Hampshire) (Con)
† Lee, Jessica (Erewash) (Con)
Llwyd, Mr Elfyn (Dwyfor Meirionnydd) (PC)
† Reynolds, Jonathan (Stalybridge and Hyde) (Lab/Co-op)
† Slaughter, Mr Andy (Hammersmith) (Lab)
† Soubry, Anna (Broxtowe) (Con)
† Truss, Elizabeth (South West Norfolk) (Con)
† Turner, Karl (Kingston upon Hull East) (Lab)
† Wallace, Mr Ben (Wyre and Preston North) (Con)
† Watts, Mr Dave (St Helens North) (Lab)
† Wright, Jeremy (Lord Commissioner of Her Majesty's Treasury)
Kate Emms, Committee Clerk
† attended the Committee
Public Bill Committee
Tuesday 19 July 2011
[Mr Philip Hollobone in the Chair]
Legal Aid, Sentencing and Punishment of Offenders Bill
The Chair: I have been away for a morning, and I come back thinking we will be well through the Bill, but I find we are still on clause 1.
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt): On a point of order, Mr Hollobone. Like you, I was not here for the whole of the proceedings this morning; I missed an hour, having sat and listened to the hon. Member for Hammersmith for an hour and a half, and I had rather anticipated that I would come back to find that the first speech of the day had concluded. I want to register my concern, as I think you have, that if we continue progress at this rate it will have implications for the consideration by the Committee of the rest of the Bill. I simply make that observation having been here for two and a half hours, with the Committee still on the first speech on the first group of amendments.
The Chair: Mr Blunt, I think you can be reassured that everything has been in order, and both you and I will have the benefit of listening to Mr Slaughter, having had the misfortune not to catch the whole of his speech this morning. If he is in any way disorderly, he will be asked to cease.
Mr Dave Watts (St Helens North) (Lab): Further to that point of order, Mr Hollobone. For your information, we had a similar point of order this morning, and I want to be reassured that the Government will not try to dictate to the Chair whether something is in order.
The Chair: Hon. Members can try to do what they like, but it is up to the Chair to decide what is or is not in order. We shall listen to all representations fairly but firmly.
Lord Chancellor’s functions
Amendment moved (this day): 60, in clause 1, page 1, line 6, at end insert—
‘(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.’.—(Mr Slaughter.)
The Chair: I remind the Committee that with this we are discussing the following: amendment 14, in clause 1, page 1, line 8, after ‘services’, insert
‘for the purpose of securing practical and effective access to justice for individuals’.
Amendment 61, in clause 1, page 2, line 7, at end insert—
‘(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.’.
Amendment 83, in clause 1, page 2, line 7, at end add—
‘(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.’.
Amendment 89, in clause 1, page 2, line 7, at end add—
‘(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.’.
New clause 1—Principles for the exercise of Lord Chancellor’s functions —
‘(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 Andy Slaughter (Hammersmith) (Lab): It would have been a pleasure in any event to welcome you to the Chair, Mr Hollobone, but having seen you stamp your authority on the Committee from the first moment, my appreciation is doubled. If I may say so, the comments
We had a very inclusive debate this morning. With the exception of the prisons Minister, all hon. Members have had their five penn’orth so far, and many good points were made in interventions. A final exculpatory point is that I was in any event drawing to the end of my preliminary remarks.
Mr Watts: My hon. Friend will remember the comment made from the Government Benches about local authorities’ ability to support services such as citizens advice bureaux. He drew attention to the fact that some councils were making a bigger contribution than others. I suggest that he might read the report of the special interest group of municipal authorities, which demonstrates how hard the cuts have hit some of the most deprived councils in Britain. That is probably why they have struggled to maintain resources for citizens advice bureaux. So far the Government’s cuts have not hit across the board; they have hit the most deprived communities hardest, and they are just the same communities where there will be even more pressures on citizens advice bureaux if the Bill goes ahead.
Mr Slaughter: That is right, and I am grateful to my hon. Friend for reminding me where I was. I was trying to conclude, but was answering a point made by the right hon. Member for Carshalton and Wallington. When I spoke of my preliminary point, I was not being entirely flippant, because I have spoken to all the amendments in my name in the first group, but have not dealt with those tabled by my colleagues. I anticipate that they will deal with those so comprehensively that I shall not need to speak again, but of course if I feel the necessity I shall avail myself of the opportunity.
To conclude on the point made by the right hon. Member for Carshalton and Wallington, I am slightly surprised: I was addressing a issue about amendment 61, which would to clause 1:
“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.”
Using the example of homelessness, I had simply made a point to highlight the great disparity between the cost of early advice, while also noting the benefits, and the actual cost of homelessness, which could run to a factor of some thousands. The analogy works for other branches of social welfare legal aid as well.
I had said that the decline in citizens advice bureaux, law centres and advice centres generally was preventing that early advice from being given. Hence, exacerbated costs were likely. Although I accept what the right hon. Gentleman said, which was that some local authorities—all credit to them—have protected their advice agency, the overall pattern is, as my hon. Friend the Member for St Helens North said, that most have made cuts while some have made deep cuts of up to 100%. That tends to be in the areas where such centres are most needed—the most deprived areas. I would not like the Committee to be under the misapprehension that this is somehow a swings-and-roundabouts situation. It clearly is not.
I was slightly surprised but pleased to see that the right hon. Gentleman is a signatory to the Justice for All campaign early-day motion 1194, which says that the House
“regrets that the reduction in spending on legal aid, through restrictions in scope and eligibility and the blanket 10 per cent. cut in the lower fee paid to providers of legal services, is having a detrimental effect on access to justice and on the well-being of the most vulnerable people… and calls on the Government to rethink the provision of legal services for the poorest in society.”
I am sure that the right hon. Gentleman will amplify those comments when he addresses the matter today or whenever. I hope, too, that he was a signatory to the excellent motion that went to the Liberal Democrat conference, which referred, inter alia, to a
“properly funded system whereby access to justice and the courts is not denied to those otherwise unable to bear the costs is a mark of a modern, civilised and democratic society.”
I could not have put it better myself. I hope we will hear more of that from the right hon. Gentleman and less about swings and roundabouts.
I shall conclude by addressing two matters that were raised this morning, which I could not address at the time. I apologise for that. The first relates to the Minister, and I bet we will hear more of this from him. He was keen to emphasise mediation and the money that had gone into it. I had not completely familiarised myself with the submission from Resolution. I have had a look at it between the sittings, and what surprises me is its vigour. I have read about 200 responses and it is one of the strongest. This is from one of the leading organisations that would be a beneficiary and whose interests would be promoted by the Government. I am conscious of that, and I do not resile from it. Mediation is a good thing if it works.
The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): My contact with Resolution suggests that many of its members would argue that other forms such as collaborative law or, indeed, court law might be preferable. It is an organisation of solicitors who deal with family law. They are not necessarily advocates for mediation per se.
Mr Slaughter: With respect to the Minister, that is splitting hairs. Yes, they are family law solicitors and one of the principal pursuits is mediation. They are experts in mediation and their submission strongly supports it. My point to the Minister is that they support it in the context of other remedies. They say:
“Mediation will continue to receive funding. This is welcome, but mediation is not suitable for all cases. Other valuable non-court options appear to be ignored. There needs to be funding provision for cases where mediation is unsuitable or fails, e.g. where one party refuses to take part.”
They make some general criticisms of the Bill, which is right and also say:
“The Government is underestimating the vulnerability of separating couples and their children.”
They note that 95% of civil and family legal help recipients in 2009-10 were in the bottom two income quintiles, which is worse than the situation I described—a figure of 80%. They also say:
“Legal aid will be available for representation in 34,000 fewer private law Children Act cases (75% of the proportion of existing cases).”
“Mediation will be the only option available to families who qualify for legal aid... The proposals fail to recognise the important role tailored legal advice plays in helping couples reach ‘agreement’. In order to negotiate sensibly and reach fair agreements, couples need a proper understanding of their legal rights… Families need tailored legal advice specific to their particular circumstances, alongside any dispute resolution process. Yet under these proposals, funding for legal advice alongside mediation is limited to £150 per person with an additional one-off fee of £200 for the drafting of a court order setting out the terms of settlement in finance cases… legal advice supports the parties.”
Hon. Members who are interested in the Commonwealth jurisdictions will pay attention to this:
“It is worth noting that in Australia, family relationship centres were initially established and designed to actively discourage legal advice and input from lawyers—but this policy has now been reversed and increasingly lawyers attend dispute resolution sessions with their clients. The proposals appear to ignore other solutions, including solicitor negotiation and collaborative law. If all cases are pushed into mediation, the success rate will worsen and the process will be undermined. Legal aid should be available for family law cases where mediation fails or is deemed unsuitable by a mediator.”
I do not think that we can get much clearer than that.
Mr Watts: Does my hon. Friend agree that it takes an absolute genius to introduce such a Bill that a beneficiary of it—the only party without a budget cut, and indeed no limit on its budget—joins the wide chorus of opposition to it?
Mr Slaughter: In fairness to Resolution, it does not want to be set up to fail. It does not want to be in a position whereby it is held up as a golden fleece by the Government—or a golden something. This will be the solution when Resolution knows that it is part of the solution. We will come back to this matter in the autumn, I am sure, but that is the point that the Government need to address. I hope they will do so and perhaps even consider introducing amendments.
On the position of families and of children, I had an interesting session with JustRights yesterday; I do not know whether the Minister has met it. JustRights represents 30 organisations representing children. Its concern involves how children will be particularly disadvantaged by this measure. This affects not only families, but children.
My final point on mediation is that most family cases—more than 90%—are settled outside court. Very few go to court. The benefit of advice from lawyers and the ability of lawyers to negotiate and reach a consensual solution are almost completely disregarded by the Government. The Government are looking at those cases that are litigated, which, by definition, are the most intractable and the least suitable for such a process.
I want to make a point about comparative jurisdictions, which I am sure we will return to, and to place something on the record. I have already mentioned the inaccurate figures quoted in relation to New Zealand—the figure of £8 rather than £20, which is where we actually are. This morning, I heard the sedentary comment, “Yes, but that is still half the cost.” I said that other factors would explain that, but the best rebuttal point here is the fact that looking at the total cost of civil and criminal justice systems in whatever jurisdiction—that
These figures were provided by the European Commission for the Efficiency of Justice, and they are comparable figures, unlike the ones that the Government choose to use. The per capita totals spent on the judiciary and courts, including legal aid, are £75 for England and Wales, £86 for Spain, £57 for France, £106 for Germany, £114 for the Netherlands, £79 for Belgium and £73 for Sweden. So we are possibly in the middle, or possibly towards the lower end.
Elizabeth Truss (South West Norfolk) (Con): Do not all the countries that the hon. Gentleman has just mentioned have entirely different legal systems from ours? If we look at common law systems, such as Canada, we find that the cost of legal aid is a lot less. Will he comment on the income thresholds at which legal aid is given in countries such as Canada?
Mr Slaughter: I am not explaining myself very well.
Elizabeth Truss: Will the hon. Gentleman answer that question?
Mr Slaughter: Yes, I will explain myself properly. If one takes the overall cost of the justice system, I think it is a fair comparison irrespective of the legal system pertaining to that country. I hope that the anti-Europeans here are not going to say that there is not a proper system of criminal or civil justice in France, Italy or Spain simply because their system of law is different from ours. I think that those are better comparators because they are societies that are more like the UK than Canada, Australia or New Zealand. If it keeps the hon. Lady happy, she will remember that I said that the figure for England and Wales is £75, while the figure of New Zealand is £109 per head, which is substantially in excess. She will no doubt reply that that is not a fair comparison, but that was my point in the first place.
Elizabeth Truss: I asked the hon. Gentleman what the income threshold was for legal aid eligibility. Rather than comparing the overall figure, we should compare what level of income people have to reach in order not to receive legal aid any more.
Mr Slaughter: I cannot answer that question, though I probably should have been able to, as the hon. Lady put that to the expert witnesses last week and they could not answer either. I suspect she may have a niche market in knowing eligibility thresholds for legal aid in every country around the world. I do not want to trespass on her specialisms. With all due respect, that is not the point. That is a tiny snapshot, just one part of the legal aid and advice assistance system. One would have to look at all the different ways of accessing the courts, all the benefits people could have and the fact that, in many jurisdictions there are legal help services that are publicly funded but that fall short of––
Elizabeth Truss: The level of income required for eligibility for legal aid is entirely to the point. Labour Members have argued that the proposals will hit the poorest hardest, so we need to consider what the definition of “poorest” is in different countries. If the hon. Gentleman does not have the income comparison figures, how can he say what is the relative position of Britain and other countries?
Mr Slaughter: The changes will hit the poorest hardest almost entirely because of the areas that are being taken out of scope. The changes in eligibility are important. I do not want to skirt round them and will talk about them as well, but the changes to scope are what is important here––the removal of entire areas of social welfare family legal aid so that it is simply no longer accessible at all. The reason why I am addressing the overall cost is that that is the way the Government put it. The Lord Chancellor made a statement on the day the Bill was published that was effectively the response to the consultation document, for what it was worth. He said:
“In some cases the system encourages people to bring issues before the courts when other solutions might be better. In others it enables people to pursue litigation that they would not contemplate were they paying for it out of their own pocket.”—[Official Report, 21 June 2011; Vol. 530, c. 166.]
The Government’s argument is that people go to court willy-nilly, do not have skin in the game and litigate too quickly, and there are lots of lawyers encouraging people to litigate. We do not agree with that and it is something to which we will return. If that is the way the Government put their case—we are a litigious society in which anybody can get to court without incurring any personal financial risk—that is nonsense. It is perfectly fair to compare the relative costs of the judicial and justice systems in different, comparable developed countries. When we find that, far from being the most expensive, we are probably below average, although that does not suit the hon. Member for South West Norfolk.
Mr Watts: Is not the point that everyone agrees that mediation should be the first course of action—Opposition Members have no problem with that principle—but if it does not work, people should have access to justice? The Bill takes a group of people out of scope so that they do not get that justice. The Government are trying to hide the fact that mediation is an alternative plan, with legal aid removed for a range of work.
Mr Slaughter: Mediation is another fig leaf. I do not say that to denigrate mediators—I have clearly put on record the role that I believe mediators can play—but the Government have given another not very convincing excuse, like not needing law centres to advise about welfare benefits because people can go to a jobcentre, or not needing CABs to advise about employment law because people can ask an employment tribunal. They are risible explanations and alternatives. Perhaps mediation has a larger part to play, but it is part of a continuum. The hon. Member for South West Norfolk can respond if she wants, but the Government cannot answer the point that if litigation is taken out of the system altogether, that not only removes provision for the minority of cases in which it is necessary—most cases settle or find alternative dispute resolution mechanisms—but completely changes the game, because everybody knows, particularly
Anna Soubry (Broxtowe) (Con): Does the hon. Gentleman accept that my constituency does not have a law centre and my excellent CAB has no Legal Services Commission funding, yet there is no dispute that it provides an outstanding service to people throughout my constituency? As it happens, the CAB found funding through the transition fund, the lottery and other sources. Is he not making a mistake when he assumes that people must have legal advice on almost all matters when they can get very good non-legal advice from institutions such as CABs, which do not necessarily have LSC funding?
Mr Slaughter: The hon. Lady’s constituency is very different from mine. Probably 50% of the cases that I get in surgery need legal advice. We all have different ways of doing things, but I tend to see the most difficult cases and spend a lot of time with people, going through what they are doing. They may be disputes with a public or private landlord or on immigration matters, but they are usually problems that involve an element of law. The cases may not be going to court immediately, but that is the position.
Yvonne Fovargue (Makerfield) (Lab): The funding of citizens advice bureaux is complex. While one local bureau may not get funding from the LSC, a bigger conglomeration—for example, in the greater Nottinghamshire area, a large conglomeration has formed—can get legal aid funding and provide advice and assistance to the volunteers in local bureaux. Although there is a difference between advice about the law and legal advice, there is often confusion about that. An individual local bureau may not go to the LSC, but it may be part of a consortium, as in the greater Nottinghamshire area.
Mr Slaughter: That is true, and I will not try to second-guess what happens in the constituency of the hon. Member for Broxtowe. There may be private firms there that have legal aid franchises. I am not talking about the current position, which I explained this morning, whereby my constituency is sadly becoming an advice desert. Two or three years ago, it had good advice provision on paper, but even at that stage it was still difficult for people to get housing advice. Notionally, three different organisations in quite a small local authority area had an LSC contract for housing advice, but demand was such that, even when they were all running at full volume, there was a long wait—perhaps of two months—to get an appointment.
We are not talking about either the luxury of having advice or the lack of need for advice, or even everyone having a plentiful supply. On the contrary, the service has been a patchwork for the past 10 or 20 years. There are only 56 law centres in the country, so it is not surprising that there is not one in every constituency. There is a larger number of CABs; about half have LSC contracts and about half do not. There are other advice agencies that have LSC contracts, and there are a lot of
Alex Cunningham (Stockton North) (Lab): Earlier, my hon. Friend pointed out that I look for the best in Government Members. Does he endorse the campaign of the hon. Member for Broxtowe to save her local CAB, which is facing a 70% funding cut from the hard-pressed Nottinghamshire county council? Can he find a way to reconcile such an important campaign with support for the Bill, which will devastate CABs across the country, and for a Government who support the tremendous cuts agenda that is hitting our local authorities?
Mr Slaughter: I agree that there is an element of complacency on the Government side, if I may say so. If there is no LSC franchise or no law centre in the CAB, the conclusion is that there is no problem that needs to be resolved, but I do not think that that is the case in any constituency. There obviously is variable demand. I mentioned the CAB interactive maps that we probably all saw, which are good. I may come back to them on later amendments because they show different patterns in different constituencies. Just as I would not presume to lecture the hon. Member for Broxtowe about her constituency, I hope she will take it on trust from me that in my constituency there is great need for legal advice and legal assistance.
Anna Soubry: I make this point only for the record. It is unfair to talk about another member of the Committee in an intervention on someone else, which in a way denies us the opportunity to respond. I should make it clear that the CAB in my constituency does not receive any legal aid funding and therefore would be untouched by the Bill.
Mr Slaughter: If that is the extent of the hon. Lady’s interest perhaps we will not see much of her in September. I can be accused of lots of things, but not allowing interventions is probably not one of them.
I shall conclude by bringing the Committee back to the amendment. We think that the Bill will remove from millions of people across the country who rely on legal advice and assistance—although I accept that perhaps it will have different effects on different areas—not just parts of a service, but a whole tract of a service that they rely on.
We are seeking to restate in clause 1 the principles that we believe have underpinned legal aid for 70 years and which should continue to do so. We also want to introduce checks and balances on the Lord Chancellor, who has aggregated himself with many additional powers but far fewer responsibilities. Our amendments are entirely reasonable. I think I mentioned in last week’s evidence session that even the LSC, which operates the system with the Government, has serious concerns. It said in its response to the consultation that
“we have concerns that fee cuts may result in market failure and premature exits from the market where, for example, a firm or not-for-profit organisation becomes insolvent.”
In the week that the Immigration Advisory Service went out of business and a year after Refugee and Migrant Justice went out of business, we hear about private firms either shutting up, stopping their legal aid work altogether or not being able to continue with parts of their franchise; law centres, including those in London, being under threat of closure; and CABs looking carefully at whether they can continue or, in some cases, closing or amalgamating. That is the landscape before the Bill takes effect, which is why we ask for support on the amendments.
I will sit down and allow my colleagues to speak to their amendments. I hope that I will not need to add anything further in the debate. I hope, too, that I have made the point as clear as I can and exemplified my real concerns as much as I can to Government Members. If the debate is going on for a long time, that is because this is a crucial part of the Bill. This is where we define, as a Committee, the purpose and function of legal aid. There has been an oversight, and I hope the Minister will have the grace to admit that. Is it not an oversight not to define legal aid in his own terms at the beginning of the Bill?
I would welcome the Minister accepting what we have said in relation to the Bill. If he wishes to introduce his own form of words subsequently, so be it, but—for the benefit of our constituents and for the benefit of the whole country, for whom legal aid and advice are so important—we cannot go blindly into the future with nothing other than a series of horrific cuts to look forward to.
Mr Blunt: On a point of order, Mr Hollobone. I am not suggesting for one moment that the hon. Member for Hammersmith has strayed out of order, but this is the first time in my 14 years’ experience in the House that I have been present for a speech, in any form of Committee or any proceedings in the House, that has lasted three hours. I fully accept that the issues considered here are serious, but so are many other issues in more than 100 clauses in the Bill.
I am the Minister responsible for the second half of the Bill, and the Government are anxious to ensure that the Committee has the opportunity properly to scrutinise the whole Bill. It must be plain as a pikestaff to everyone in the Committee that making such a lengthy speech at the beginning of a debate on the first group of amendments obviously carries implications for what happens during the rest of the proceedings in Committee—that is, if we all actually want to get through the scrutiny of the Bill in the order that you, Mr Hollobone, and, I am quite sure, the rest of the Committee, desire.
The Chair: I am grateful for that point of order. It may or may not be of some concern to Mr Blunt that, at the end of the debate, Mr Slaughter may have a second innings if he so wishes.
Alex Cunningham: Further to that a point of order, Mr Hollobone. Like others in the Committee, I am relatively new to the House and I seek guidance from the Chair. Would it be in order for me, or for any other hon. Member, to raise campaigns and issues run by
The Chair: The hon. Gentleman can raise any matter he wishes, so long as he is speaking to the amendment before the Committee. If he wants to use one of those campaigns to illustrate a point pertinent to the amendment, he is perfectly entitled to do so, as is any other hon. Member.
Tom Brake (Carshalton and Wallington) (LD): Hon. Members will be pleased to hear that I rise to speak very briefly and make just a few points about access to justice. When the hon. Member for Hammersmith began his remarks, he said that he would comment in some detail on what his party’s alternatives would have been in relation to funding for legal aid. He did not do that in three hours. Perhaps he intends to do it in his second innings, which I hope will be briefer. There again, it may be that my attention lapsed during his peroration and he did in fact refer at length to what his party’s alternatives were going to be.
Mr Watts: It seems strange for the right hon. Gentleman’s colleagues to complain about the length of a speech when he wants to discuss the Labour party’s proposals. What would be the implications if we were to do that? I remind him that we are here, as a Committee, to scrutinise the Government’s plans, not the Opposition’s.
Tom Brake: I thank the hon. Gentleman for his intervention, and I am quite confident that had the Labour party deployed its alternative proposals, that would have made for a very brief contribution to the debate.
The hon. Member for Hammersmith referred to the early-day motion, and indeed I do regret it if funding is being cut from a range of bodies and organisations. That would be true of any member of the Committee, on either side, and the hon. Gentleman’s party does not have a monopoly on compassion, although that is how he seeks to portray it.
On mediation, I am pleased to note that the Bar Council has said that it is doing more work on training barristers to enable them to undertake mediation, but it is incumbent on the Government to ensure that Departments, quangos and primary care trusts—any bodies that, in effect, represent Government—also play an important role in being willing to undertake mediation. I hope more will be done on that to ensure that they are so willing and that they do not themselves rely on legal representation.
Kate Green (Stretford and Urmston) (Lab): I note the right hon. Gentleman’s comments on the willingness of Departments to engage in mediation—a point of view that I share—but does he extend that recognition of their approach to mediation to understanding that it works only when people are willing to enter into it and that the idea that it will be, compulsorily, the only option on the table means that in some cases it simply will not be able to succeed?
Tom Brake: The hon. Lady is right that mediation requires both parties to be willing to engage in it, but often it is an attitude or an approach that facilitates mediation and makes it perhaps the preferred option.
On litigants in person, again it is important that the Government extend the programme, which is under way, by making all those processes more open and transparent, so that if there are more litigants in person, at least they will have a clearer understanding of the legal process they are going through. All the necessary advice should be presented in a form that is easy to digest.
The decision-making process is an area where the Government can and should take action. It does not matter what decision-making process it is—whether it refers to benefits or to immigration—anything that can be done to reduce the need for intervention later on, whether it is legal or otherwise, and to get the decision right first time will help everybody, including the Government.
Finally, I welcome the fact that the Government are to undertake research on the impact of these changes. I hope that there will be a prompt and comprehensive report, so that if policy adjustments are indeed required, the Government can act quickly.
Karl Turner (Kingston upon Hull East) (Lab): Although I do not want to irritate members of the Committee by taking too long—I see that many of them are keen to get on to other parts of the Bill—I want to speak to the amendments standing in the name of my hon. Friend the Member for Hammersmith. It is crucial that the amendments are discussed thoroughly, as this is a particularly important part of the Bill that goes to the purpose of legal aid. [Interruption.] I think I am already irritating the Under-Secretary of State for Justice, the hon. Member for Reigate. He said something from a sedentary position, which I am afraid I did not hear. I want to talk about the commitment to ensuring access to justice, which is crucial. It is my submission to the Committee that it should be at the beginning of the Bill.
My hon. Friend the Member for St Helens North made the point that the Government’s plans are driven chiefly by the Treasury and by the Chancellor of the Exchequer, rather than by the Lord Chancellor. I agree with that, because 23% cuts are happening in his Department. I am not sure what discussions he had with the Treasury or with those in his party, but I wonder he why accepted such a massive cut. It means that £350 million will come off legal aid, the lion’s share of that from civil legal aid. What is particularly bad is the fact that social welfare will be affected the most severely, which will impact on the most vulnerable people in our society.
It has been said on numerous occasions that there are no votes in legal aid. I tend to agree with that statement, because I forget how many times I stood up for the Labour Government in court room scenarios, speaking to colleagues and defending our policy. The reality is that we were not profligate with legal aid. There were huge cuts to criminal legal aid over many years—of 40%, I think. Government Members cannot have it both ways: they cannot suggest that we were profligate, then say that we cut legal aid.
Of course, we did cut legal aid, but we would not have gone as far as the Government are going now. There is a reason for that. It is no good challenging Opposition
I want to pick up on what the hon. Member for Broxtowe said at this morning’s sitting. Earlier, she referred to the right to reply, so I am happy to give way to her if she wishes to speak. She suggested that people want litigation willy-nilly.
Karl Turner: I stand corrected, but that is what members of the Committee thought the hon. Lady was saying. I disagree entirely with her view, as that is not what happens. How often does she go to a pigeon hole at chambers, pick out a brief, unwrap the ribbon, go to the back of the brief and pick out the legal aid certificate and think, “Hang on, there is the legal aid certificate. Game on, let’s have a trial.”? I doubt very much whether she or any member of chambers has that attitude when it comes to litigation.
Members of the Bar and those in the legal profession, such as solicitors, will advise their clients on the basis of the case. People do not run to litigation as a first option. The national health service has a policy that it is not prepared to settle. That is probably right, and other organisations might well have such a policy. If the hon. Lady did not say it, I shall take back what I am about to say, but it is unfair to suggest that there is a tendency to run to litigation as the first option. That is not the truth.
Anna Soubry: The hon. Gentleman is as generous as ever in giving way. As he knows, in criminal legal aid work criminal cases, with few exceptions, are funded by legal aid. A person does not choose to be prosecuted by the police. People find themselves in such a position and are then taken to court. That is different from civil litigation, as he knows. My point is that there has certainly not been a tendency to settle and to use mediation in the way that it could, and should, have been used. Law was always very expensive, and the good side of that was that it meant that people looked at alternatives to using it. Then there was a proliferation of legal aid, and too many people resorted to law when there may have been other ways to settle disputes.
Karl Turner: I probably agree with the hon. Lady about that, but her earlier intervention rather suggested that people ran to litigation as a first option.
Mr Watts: Would that argument not have more force if the proposal was that someone had to go through mediation before they could access legal aid? In that
Karl Turner: My hon. Friend makes a valid point. In response to the intervention by the hon. Member for Broxtowe, I think she would agree that—at least this is my experience—lawyers tend to advise clients based on the merits of the case that they are dealing with. I suspect I may have misunderstood the hon. Lady’s point in her intervention this morning, but it caused me some concern.
There are some real dangers in the Government proposals that I am concerned about. I represent a constituency that is pretty heavily socially deprived, and that deprivation has increased over the past 12 months. There are 27 people chasing every job vacancy and that number has tripled over the past 12 months. That is no coincidence; it has something to do with the policies of this Government. I mention that because the people I am talking about are those who need access to legal services and lawyers. Hon. Members have made the point that CABs, law centres and so on provide a good service without using lawyers. I think, however, that it is important for people such as I who represent a constituency with high levels of social deprivation to bear the issue in mind. There is a danger that lawyers will eventually close the door and I suspect that advice deserts will occur. I can name areas near my constituency where firms of solicitors are telling me that they cannot survive under the Government’s plans. If that is so and those firms decide to close the door because it is not viable economically, people will be closed out of seeking legal redress. I am sure that is not what the Government intend, but that will be the consequence of their plans.
Alex Cunningham: The profile of my constituency is very similar to that of my hon. Friend. At the moment, a family in my constituency is pursuing a case of clinical negligence against the local hospital. They claim that their mother was neglected. She was admitted with a fractured hip but died from a septic ulcer. Under the provisions in the Bill, I wonder what options will be open to that family to take forward their case. It falls into the same category as those poor people in my hon. Friend’s constituency.
Karl Turner: My hon. Friend makes a good point—that is the main issue. I am not trying to score political points; I said at the outset that hon. Members on both sides of the Committee accepted that whoever had won the general election, there would be cuts because the deficit needed to be addressed and reduced. We do, however, have a different plan and approach to those the Government seem to be running with.
I am concerned that, as my hon. Friend has pointed out, people will genuinely be closed out of seeking legal redress under the plans that the Government propose in this Bill. To answer my hon. Friend’s point, I cannot find anything in the Bill that would allow his constituent the legal redress that they require. There is no good saying to that person, “Well, what about mediation?” How do we mediate in a situation such as that?
I can tell a story of my own family. Many years ago, my brother was ill with stomach pains. He went to his GP; I think he went four times in three days. He was
That is a very personal story, but I tell it because I think that it is important. If a constituent came to me with an issue such as that and they were not able to seek legal redress, what would they do? Where would they go? Who would they see to get the support they would need with litigation? I suspect it would not be possible to get round the table and negotiate a settlement.
My brother’s case needed litigation—that was the truth of it. It needed a legal fight and it was settled eventually on the day of the court case and, as they say, at the door of the court.
I have made one or two points, some perhaps not entirely relevant to those made by my hon. Friend the Member for Hammersmith this morning, but I have major concerns about the Government’s plans and I think that people will be genuinely closed out of legal redress by the proposals in the Bill.
Mr Robert Buckland (South Swindon) (Con): I promise you, Mr Hollobone, that I will not fall foul of this myself, but we have been moving from discussion of the specific amendments and the new clauses to a more general debate about access to justice. It is worth pausing for a moment to consider what that term means.
“Access to justice” is a term that is difficult to define in any fixed way. My understanding of access to justice is a desire among people to seek a form of justice that may not yet be available to them, and it brings with it a question about the validity of the system of law and justice within which we work. Those are huge issues and I must say they are not issues for this debate, with respect to everybody concerned.
We are working within a limited system. It is, I think we would all have to agree, a flawed system; it is a human system. It is a system that has evolved over the generations, based not on a universal provision but on limited access. I think that the term “access to justice” in the context of this debate is unhelpful. We should be looking at the phrase “legal needs”. It is a far more strictly defined criterion, and in using it we are talking about a limited set of possible actions for securing existing legal rights within our limited system.
That is what we are dealing with. That is what the last Government struggled to deal with, and the hon. Member for Kingston upon Hull East spoke very well about the challenges faced by the last Government and indeed the challenges faced by all of us who work within a limited system. That was the challenge that faced the legislators back in 1949, because the choice for them was a stark one. They either went down the road of creating a system of salaried lawyers who would give specific help and advice to the poor and the less well-off, or it would be a system of legal aid administered by private practitioners and the Law Society. Those were the two options in the Rushcliffe report and it was the second option that formed the basis of the Legal Aid and Advice Act 1949.
That Act was not the start of legal aid and assistance in this country. Back in the ’30s, an Act gave access for what were termed “poor prisoners”—an archaic way of describing people in the criminal justice system, but there we have it, that was the language of the time.
Mr Watts: I tend to agree with the first of the hon. Gentleman’s comments. It would be ideal for the Government to set out the principles of the Bill—what do they intend, what is the scope of the Bill, what is driving them to their decisions on the scope and what should be limited? If he is suggesting that, perhaps the Minister will consider it and table amendments at a later stage.
Mr Buckland: There are two issues, and none of us would be telling the truth if we said money was not part of the consideration—of course it is, and it was a consideration of the previous Government as well. Let us not hide from the fact that it is more than about just raw calculations and Treasury estimates—it is about the quality of the system that we can provide. The challenge facing any Government coming to office in 2010 was to accept the fact that there were limited resources and that those resources would shrink, and to square that shrinking level of resources with providing a system that would reach out not only to the poor but to those who are on the margins, are vulnerable and need real help. I hope that is an answer to the hon. Member for St Helens North.
I want to return to where we were at the dawn of legal aid. Legal aid has often been described as one of the pillars of the welfare state and compared—rather histrionically at times, with respect, but not by any speakers in this room although certainly elsewhere—to the national health service, yet that comparison is ill judged. Provision was never universal: it was limited in the 1949 Act to matrimonial cases in the High Court. Only through the following generation or decades, most notably as a result of the Widgery report in 1964, did we see the roll-out of legal aid for all imprisonable offences. At that time, defendants going to a police station who were facing a potentially imprisonable offence would get legal aid.
In the ’70s, we saw the rise of the green form scheme. A lot of practitioners and former practitioners remember that—I think it was the Legal Aid Act 1974 that brought in green form advice, which solicitors used and which was an integral part of high-street practice.
Mr Slaughter: I am entirely following the hon. Gentleman’s brief but interesting history of legal aid. I agree that it has changed over time—I think I made that point myself—but I do not entirely agree with him. Yes, it is not the same as the national health service, but it is often said that the welfare state is a three-legged or four-legged stool—I am never sure which. Yes, we have the NHS and education, which are largely free, although they have private components, but we also have the social security and welfare benefits system, and I think that legal aid fits into that. I would not like to lose sight of the fact that access to justice—it is a constitutional principle, as well as a facility to help people in need—is as important if not the same as those other three legs.
Mr Buckland: That is the nub of the debate. My concern with the hon. Gentleman’s amendments is that he is trying to enshrine principles in legal aid legislation that were never part of the system. In effect, with respect, he is potentially opening the door to a whole raft of litigation on and judicial review of the true ambit of legal aid. He might recall, in an intervention I made early on in his speech, my concern about the true potential unforeseen consequences of his amendments. I am sure he would confirm that neither he nor his party is seriously suggesting that there can be a wholesale expansion in legal aid in such troubled financial times.
Mr Slaughter indicated assent.
Mr Buckland: I am grateful for that nodded assent to my assertion.
Therefore, with the greatest respect, the hon. Gentleman and the Opposition need to ask themselves what the amendments actually achieve. Do they open the door to potential expansion, which in many ways is impossible in these limited times, or do they in fact in any way advance what they would regard as the important case for the retention of legal aid services?
Alex Cunningham: The hon. Gentleman asks what my hon. Friend the Member for Hammersmith is trying to achieve with the amendments. He is trying to ensure that the Government and the public purse save money in future. For example, Citizens Advice’s business case for legal aid states:
“For every £1 of legal aid expenditure on housing advice, the state potentially saves £2.34.”
On debt advice, the figure is £2.98; on benefits advice, it is £8.80; and on employment advice, it is £7.13. The amendments would ensure that we continue to make those savings rather than ramp up expenditure outside the legal aid system.
Mr Buckland: I shall directly address the hon. Gentleman’s very good point about the dangers of focusing only on the legal aid system, and forgetting about the other areas of public life that are failing our citizens. I am thinking particularly of welfare benefits, where 92% of decisions made by the Department for Work and Pensions were overturned in tribunals, which is a complete waste of everyone’s time and resources. I therefore take his point very seriously, but I am not convinced that the amendments would do what he wants. We might be able to deal with those issues head on when we debate later clauses.
I want to address as concisely as possible the hon. Gentleman’s earlier point about law centres. At the beginning of my remarks, I mentioned the decision made in 1949 not to employ lawyers to advise poor or vulnerable people. The year 1970 saw the birth of the first law centre, which represented a different approach in that it involved the direct employment of lawyers to give specialist legal advice to poor or disadvantaged people. It was a great initiative that has given birth to 56 law centres, one of which is in my constituency, and the hon. Gentleman referred to the support that I have given it.
Both in this House and in my constituency, I have argued for a reform of how law centres are funded. I have mentioned block funding, and I stand by that, because I strongly believe that it would ease the role of law centres if they did not have to worry about whether someone who came in was a debt, a housing or a benefits problem and could deal with them as a legal problem through the block funding. All the law centres, including mine, accept that their funding would probably be lower, to return to the issue of finance.
I want to make it clear that I am proud to express today the views that I have expressed locally, and I will continue to express them in this context. I have come to the view that arguments about scope, and whether things should be in or out, miss the point, because we are dealing with ordinary people who do not come in off the street and into the law centre to say that they are a debt problem, but who come in with human experiences and concerns and in need of legal advice. I will continue to make my case, and I make no apology whatever for doing so. If the hon. Gentleman thinks there is a contradiction, I disagree. I am doing my very best to make the case for my local law centre, both in Committee and in my constituency, and I will continue to do so.
Mr Slaughter: As always, the hon. Gentleman makes a persuasive case, but he is advancing an alternative method of funding access to justice, to use a phrase that he does not like. His case may be an extension of the principles in the Access to Justice Act 1999, which I have mentioned, in the sense that it looks at society in the round, whether locally or nationally, and asks how we provide for what he calls legal need. It might be that he wants to copy a system operating elsewhere, such as the Australian one. I would be interested to go down that route, but the Bill is not about that. We have to address what is in the Bill, which at the moment will disfranchise people and does not provide an alternative.
Mr Buckland: The hon. Gentleman is absolutely right. The evidence of Julie Bishop was extremely compelling. She was the only witness we heard from in the oral evidence sessions who offered a constructive alternative. I was impressed by her evidence that more than 200 law centres in Australia are funded by the block funding system that I very much support. I think that model could work well in this country. We have already seen the beginnings of a move to it, with the announcement on Second Reading of £20 million of funding this year. This is not a job for the Ministry of Justice alone; it is for the Cabinet Office and other Departments to come together and realise that where we have potential legal aid deserts, an avoidance of duplication of service could make our public money go much further. Swindon would be a case in point, because without the law centre we would not have proper local housing law advice.
Mr Watts: The hon. Gentleman is making the case for the Bill to fall, and for the Government to reconsider their proposals and come back with a more coherent strategy that will do all the things that both he and we want to do, while maintaining some justice for poorer people on moderate incomes. If that is what the hon. Gentleman is advocating, I think that Opposition Members would agree with him.
Mr Buckland: The hon. Gentleman is right to raise that point. I am saying that the Bill in isolation is not enough. We all kid ourselves in this place by thinking that Acts of Parliament can be passed and can make the sort of changes that we claim, whether we are in opposition or in government. I therefore caution the Opposition about making some of their more gloomy predictions about the future of publicly funded legal services. Although I could be accused of being an eternal optimist, I believe that, even after the reforms, we will still live in a country where we spend the best part of £1 billion on civil legal aid and £1 billion on criminal legal aid. We should not lose sight of that.
There are many other things I would like to say, but I am conscious of time. The truth is that when we reached the 1980s after the green form scheme, about 80% of the population of England and Wales was eligible for legal aid. Both parties realised that that was not sustainable, and we saw a decline in that percentage to what it is now, aided, most notably, by the Access to Justice Act 1999. With respect to the Labour party, I have to say that some people thought the use of that particular phrase to describe the Act was a contradiction in terms because at a stroke it removed significant areas of civil work from legal aid. It was a workman-like Act, in whose provisions none of the grandiloquent phrases that we see in the amendments tabled by Opposition Members appears. It contains no attempts to restate the European convention on human rights or to give judges the opportunity to widen the ambit of legal aid. It is carefully drafted legislation, designed to restrict access to legal aid. That is the fact of the matter, and therefore the Act is, in many ways, no different from the Bill before us.
I will not deal with each amendment in turn, because time sadly does not permit me, but I will say that attempts to restate general legal principles in the context of legal aid are dangerous for the reasons that I outlined at the beginning of my address. We need to look at limited needs. This is a limited system, and a system within which we as human beings have to operate. I accept the points made and the concerns raised by Opposition Members; they are made sincerely. However, Opposition Members forget the context in which we live and the nature of the limited system within which we work.
Jessica Lee (Erewash) (Con): Does my hon. Friend share my confusion about the points made by Opposition Members? I say this with respect, and I take the point that my hon. Friend has just made about all the discussions today having been sincere. There is a lot of experience on both sides of the Committee. The hon. Member for Stockton North made the point that the Opposition are trying to save money, but I note that earlier the shadow Minister, when talking about new clause 1(2)(f), said that they did not wish to create a financial burden and that that was less of a consideration. The truth of the matter is that we are dealing with public money. The Minister has a responsibility, and ultimately we will always have to balance that with the access to justice points that my hon. Friend makes.
Mr Buckland: I am grateful to my hon. Friend. In the final analysis, I am afraid the amendments have too many ambiguities to withstand close scrutiny. In amendment 60, proposed new subsection (1A)(a) states:
“providing legal services to those unable to afford it”.
That is not properly defined. It is immediately open to a range of different interpretations that could lead to the sort of problems that my hon. Friend the Member for Erewash has raised. If the Opposition are serious about wanting to ration and properly direct scarce public funds, the amendments go no way at all to achieving that. In fact, they endanger that very laudable aim.
Kate Green: It is a great pleasure to speak after the hon. Member for South Swindon. He brings a great deal of expertise and credibility to the work of the Committee. He opens up the opportunity for me to speak to the two amendments tabled in my name, and I hope he will agree that they are quite specific. They are not theoretical or philosophical, but pragmatic amendments. They deal with cost-effectiveness, value for money and ensuring that we spend legal aid money in the best possible way.
In tabling amendment 83, I seek the analysis around the debate that we have begun to have this afternoon on the relative costs of legal aid and the savings in the legal system and beyond it. I want it to be properly analysed and understood before we make the kind of radical changes to legal aid coverage that the Bill proposes. I do that very much in the current financial context, when it is particularly important that we understand the widest possible and long-term impacts on public spending and the cost to the public purse. The Government have accepted that that is the right way in which to approach consideration of public spending. They have accepted the philosophical justification for prevention where it is possible and that spending money up front on preventing problems down the line is in many ways preferable for the quality of experience of individuals. In terms of long-term cost, it is a more cost-effective approach too.
However, the prevention-up-front approach is missing from the whole structure of the Bill, which simply cuts funds at the point of crisis rather than looking at how, upstream, we could spend both legal aid and other money more effectively to avoid that point of crisis being reached.
In speaking to amendment 83, I want to look at costs in two groups in terms of the way in which I want the Government to bring forward their analysis and assessment. The first group of costs comprises those to which the Bill could give rise in the legal system itself. There are several costs, which will flow and potentially increase, from removing social welfare legal aid from scope. I look first at the administrative costs to the legal system and the complexity, which I think the hon. Member for South Swindon began to discuss in terms of determining just what is in scope and what is not. I have considerable sympathy with what he says about looking for funding approaches that can begin to deal with boundary issues. He is absolutely right that the most intractable problems are usually those that do not come in isolation. They come in clusters. They come as a result of one event, which is a catalyst for a whole train of events. Events in the categories of family debt, employment, housing and social welfare benefits can all follow on from, for example, a relationship breakdown. I was looking for funding mechanisms flexible enough to respond to the clustered nature of legal, justiciable and social problems. The hon. Gentleman is absolutely right; it is a pity that the Government have not attempted, through the Bill, to open up our thinking on how that could be designed.
Instead, I fear that there will be added costs as a result of trying to see where those boundaries sit and which bit of a person’s circumstances are within scope for legal aid and which are outside. Indeed, in its response to the Green Paper, the Legal Services Commission suggests—I hope that I do not misinterpret its thrust—that funding that boundary, making a proper analysis of where that boundary sits, could cost more than the savings in legal aid. The Government should make a careful analysis of the impact of the administration costs to the legal system that will result from leaving some matters within scope but taking out whole categories of law.
I am interested in those provisions that, although they may have merit—I look forward to debating them—require further analysis by the legal system, which will inevitably result in administrative costs. For example, I am sure that we can expect legal challenges on whether an individual should be given exceptional funding, I think under clause 9. It is important that we consider those costs that are to be borne by local authorities as a result of the Bill. I believe that authorities will be required to pick up some legal costs that are currently met by the legal aid budget, and in some instances they will be at the private rate, which will be higher than the legal aid rate.
I would welcome the Minister’s clarifying whether my interpretation is correct and if it is, whether he has had any discussions with the Local Government Association about the implications for local government, and whether an analysis of the potential knock-on costs for local government has been made.
Where individuals can no longer use particular categories of law because they are now outside scope, people will look to move to other categories that are inside scope. The classic area is the boundary between immigration and asylum, and we can expect some cases currently covered by legal aid as immigration cases to be transferred to asylum.
We will find ourselves engaging in more costly legal action and possibly legal action in the wrong category; that, too, will increase costs. For example, if a parent is unable to get legal aid to challenge removal or deportation on the ground that the children are British citizens, a human rights judicial review may be sought in the name of the children. That, too, would be a much more complicated and costly procedure. We would like to know what analysis has been made of the risk of displacing current costs in some categories of law to costs in other categories, especially inappropriate categories. There will be additional costs for courts and tribunals as a result of dealing with more litigants in person. I shall come to that in a moment, when I speak to amendment 89.
Finally, the ability for the system to learn will be lost. That ability arises from being able to deal early with categories of law under the legal aid system and making clear judgments that can be applied in similar cases. In particular, I refer to the possibility that some important legally-aided test-case work will no longer fall within scope. I speak with strong personal experience from my previous role at Child Poverty Action Group; we were able to use legal aid funding to take a number of test
Mr Watts: My hon. Friend has shown a whole batch of areas where there could be unforeseen consequences. Does she share my concern that the general public will want a system that is fair? Does she agree that they will have great difficulty when someone can get legal aid for an asylum case, but not to pursue a case in the health service for a child who has been brain damaged? I wonder what papers such as the Daily Mail would make of it. The public perception will be that that is wrong; it cannot be right that people faced with a problem of a child with brain damage, who has been injured in hospital, will not be able to pursue a case because their legal aid has been removed.
Kate Green: There is clearly deep disquiet about the implications of the Bill for some of the most serious clinical negligence cases. I know that we will discuss that point further. My hon. Friend is right that public perception of the validity of the system is extremely important. We do the system no favours if we open up the possibility of people seeking to manipulate their access to legally aided categories of law, which he is right to highlight.
Those are my concerns about the possibility of increased costs in the legal system. I do not say that all those increased costs will arise. I simply ask in my amendment that the Government publish an analysis of the likelihood and potential impact of those costs before they proceed to remove categories of law from the ambit of legal aid.
In the context of amendment 83, I also want to expand on a point first made by my hon. Friend the Member for Stockton North. He raised the wider cost to society when legal aid is not available and social problems are therefore displaced to other parts of the public purse. When working well, social welfare legal funding should create a virtuous circle. As the hon. Member for South Swindon or one of his colleagues suggested, part of the problem is not to resolve it by legally aiding people to challenge bad decisions, but to get good decisions in the first place. That is absolutely right. The example that was given of the exceptionally high success rate of appeals on welfare benefits absolutely makes the point. The ideal is, of course, to improve decision making within the social welfare benefits and other systems, and not to have to keep on relying on ratcheting up legal costs.
Two things about that high figure cause me concern that costs could continue to increase. The first is that the “polluter pays” concept is now completely lost, but has been of interest to hon. Members of all parties for some time. One way of encouraging Departments, such as the Department for Work and Pensions, to improve their decision making is to make it costly to keep dealing with legal challenges and tribunals. Why is that concept no longer attractive to Ministers? It certainly merits some exploration and analysis. Again, I ask Ministers to bring forward that analysis during the Bill’s passage.
Secondly, additional challenges to decision making and the public interpretation and understanding of such decisions increase at times of significant policy change, such as we are about to see in welfare benefits,
Mr Slaughter: My hon. Friend is right. She is going through the different categories in which cost can be incurred or caused, even by parts of the public sector. We also have the specific problem at the moment that reassessment of those claiming disability benefits is throwing up high numbers of appeals. One of two things can happen. Either people will appeal—a high percentage of appeals are successful—or they will not, and they will lose welfare benefits, unjustly in many cases. I come across such cases every week in my constituency. People do not have the means or the ability to appeal decisions themselves; they need some form of advice and assistance. Although I agree with my hon. Friend about the additional costs, I fear that one way in which the Government are saving money is by effectively making people disappear from the benefits register. That may save money, but it is a pretty disgraceful way of doing so.
Kate Green: I am with my hon. Friend the Member for Stockton North in trying to think the best of all hon. Members, so I do not think that the Government intend deliberately to shut people out of welfare benefits to which they are entitled. We are certainly seeing an exceptionally high number of successful appeals in the social security tribunal concerning the decisions that have been made about eligibility for employment and support allowance and the work capability assessment that claimants have to go through. I am sure that not an hon. Member on the Committee has not had a constituent come to them with a tale of woe about the work capability assessment and the difficulties of applying for a benefit to which it is quite clear that they are entitled.
It is also of note that Professor Malcolm Harrington, whom the Government commissioned to provide expert advice on the work capability assessment and employment and support allowance, has specifically highlighted how good decision making in tribunals can be useful to the Department for Work and Pensions in ensuring that it does not repeat process and decision mistakes. Professor Harrington’s point is very much a transition point. As we bring in a new system, we specifically want, as quickly and as efficiently as possible, to get absolute clarity on the boundaries of that new system. Access to the tribunal is a way of enabling that to take place.
Mr Slaughter: In the yin and yang of the debate, for every positive point that my hon. Friend makes, I have to make a negative one. The converse of what she is saying is that, if there is no right or ability to appeal, that depresses the level of decision making. That may not be an automatic response, and I do not say that people are sitting in the Department for Work and
Kate Green: My hon. Friend is right. That is a shocking outcome for the individual, particularly when it involves a benefit to which they are entitled and that they should have received. It is a bad result for the local economy, too, because it has a knock-on effect on wider local economic prosperity if people are not receiving the financial support to which they are entitled. Although I appreciate that that may stray quite far from the cost-benefit analysis of legal aid at first blush, it is an important consideration that seems to have been swept aside. I appreciate how difficult it is to quantify the relationship between legal aid spending—or the lack thereof—and social consequences for debt, health and well-being and economic performance in the local community, but I am disappointed that the Government have made no attempt, as far as I can see, to do so. It is not as though there is no science available at least to make an attempt. It its document “Towards a business case for legal aid”, Citizens Advice tried to do so. I know that that analysis has not been without criticism but it has at least asked some important questions, which the Government must answer. In all fairness to Citizens Advice, it has made strenuous attempts to build as robust a case as it possibly can. It has worked with the LSC and the Legal Services Research Centre to undertake that analysis. Although, of necessity, it produces something of a theoretical answer, it is a good first stab, and I shall be interested to hear the Minister’s comments on it. If even a fraction of Citizens Advice’s analysis of the knock-on costs to the social system of reduced legal aid spending is correct, we will substantially increase expenditure to the Exchequer elsewhere—in social spending incurred locally as well as that in central Government.
A whole host of issues is, if not causally linked, certainly correlated between housing, homelessness, debt, and employment and discrimination problems. If, for example, a family cannot meet bills and parents are stressed, children’s educational performance is affected and relationships come under strain. There are knock-on costs to child well-being and to supporting children who are—increasingly—in single-parent households and so on. I ask Ministers, why has there been no apparent consideration of the wider social costs? If there has, how has it informed the design of legal aid in the Bill and the provision to remove all categories of social welfare law from scope?
Mr Watts: Is this not exactly the point that was made from the Government Benches? The Bill is money-led; it is about making a share of the cuts to meet the Budget deficit plans. As a consequence, other Departments that might be affected financially by the measures have
Kate Green: Obviously, I am not privy to what discussions have been held in government, and between Departments and different ministerial teams in relation to the Bill. However, the situation certainly appears very like that to people looking in from the outside.
I feel strongly that a more detailed report and analysis of the Government’s consideration of the cost consequences of their legal aid proposals should be provided to the Committee and the House before the Bill completes its parliamentary passage. In the spirit of encouraging Ministers, not all such consequences may be bad, but they must be properly analysed and explored.
I mentioned one area in which we will see a risk of increased costs as a result of the proposals. We are likely to have a rise in the number of litigants in person in our tribunals and courts. Amendment 89 specifically relates to that point and asks Ministers to present an analysis of the likelihood of an increasing presence of litigants in person and, again, the resultant costs. Considerable concern has been expressed by people who have supplied written and oral evidence to the Committee, to the Government’s legal aid consultation, and to the Select Committee on Justice about the risk of increased numbers of such litigants, which would create significant difficulties both for the court system and for those individuals themselves.
Litigants in person tend to be younger and more poorly educated. They often have a history of problems such as violence, depression, substance misuse and mental illness. They frequently come with clusters of problems. If we are to bring more such litigants into our courts, that very high-need group will come with additional associated costs.
The Government’s literature review of litigants in person states that
“most research suggested that litigants in person may experience a number of problems, which in turn impact on the court. For instance, the research pointed to problems with understanding evidential requirements, difficulties with forms, and identifying facts relevant to the case… A number of sources also pointed out that litigants in person may have difficulty understanding the nature of proceedings, were often overwhelmed by the procedural and oral demands of the courtroom, and had difficulty explaining the details of their case…many unrepresented tribunal appellants and applicants felt ill-equipped to present their case effectively at their hearing. They felt intimidated, confused at the language and often surprised by the formality of proceedings.”
Although I am sure that the most vulnerable litigants in person will be likely to experience all those consequences, by the nature of court proceedings, particularly our adversarial legal proceedings, many of us, when forced to litigate for ourselves with a direct emotional stake and a potential financial stake in the outcome, would find that those emotions are excited in us, too.
The literature review states that such
“problems may also be relevant for those engaging in mediation without legal representation.”
We discussed the efficacy of mediation at length this morning. Again, it is important to recognise, as was said earlier, that mediation is on a continuum and to
“parties in mixed representation cases (where one party was represented and the other was not) were more likely, than cases where both or neither parties were represented, to report feeling unprepared to mediate”.
So we have a real picture of the difficulties and risks of increased litigation in person because such individuals feel that they cannot go through mediation first.
We also need to recognise the case-management difficulties of the courts dealing with more litigants in person, particularly where a tribunal has lay members, who will especially rely on the guidance of the lawyers in court representing both the appellant and respondent. We need to recognise the steer that such expert legal advice can give to a tribunal.
It is also important to recognise that, in the more complex cases, especially at first tribunal, a great deal of sorting out will be needed for litigants in person. Such litigation is currently dealt with and cut through by legal representatives, but that will not be available if those litigants can no longer access legal aid.
The legal adviser can, for example, look at the real substance of a case and, if it lacks sufficient merit, possibly divert it away from legal action altogether. That avoids claimants presenting irrelevant or unsubstantiated facts, because, clearly, advisers can distinguish between the points of fact and the points of law and which is appropriate to bring to tribunal. Without such cutting through by legal professionals, far more time will be spent in the courtroom trying to negotiate and explain all that to the litigant in person, possibly sending her or him away to bring back different evidence or different arguments. So repeated attendance by litigants in person may be another consequence that will add further costs and increase court time, particularly in the upper tribunal, where it is far more likely that points of law will be appealed and where it will be exceptionally difficult for most litigants in person to make an efficient and effective case.
The risk of repeat applications and therefore judicial review proceedings by those who, deprived of any legal advice and assistance, have understandable reason to be dissatisfied with the result of earlier proceedings might increase. In many cases, such applications and judicial reviews might be not only understandable, but necessary if the individual’s understanding of what was or was not relevant, or their ability to collect and present evidence in an earlier appeal, has meant that the appeal decision does not address the substance of her or his case.
All those risks might incur additional costs to the public purse, specifically to the legal system. I hope that Ministers will explain exactly what analysis they have carried out of the risks. In addition to supporting the amendments tabled by my hon. Friends, which address the broader philosophical questions about the purpose of legal aid and the way in which it is or is not adequately reflected in the Bill, I hope that the pragmatics of the workability of the Government’s proposals will be properly aired in Committee.
Ben Gummer (Ipswich) (Con): I hope that the Opposition Whip, when he was not detained by his Twitter feed, as so many of us are at the moment, took note of the
The hon. Member for Hammersmith was right to say earlier that I am a new Member, but considering the speed at which I am losing the legal vote in Ipswich, I might only ever be known as such. I want to offer an observation. I awoke suddenly when he mentioned the golden fleece, which is a myth derived from the Georgians of ancient times. They used to sew lamb skins together and pan for gold in the rushing waters of the Caucasian hills. I tried the same with his speech. The muddy waters flowed down and I filtered them with my hands, but little stuck to them, except for two things—a general moan about finance and something about access to justice, which went on and on with nothing whatsoever to enlighten the Committee, unlike the hon. Member for Stretford and Urmston.
The hon. Member for Hammersmith spoke for three hours. Many members of the Committee wish to make substantial contributions to the debate. We have already heard one such contribution from my hon. Friend the Member for South Swindon. It was not entirely in line with what the Government are proposing. Back Benchers are not going to stand up and defend everything in the Bill and attack everything the Opposition propose. We are not like the previous Government. We have many constructive suggestions to make, but we will all have much less time to make them and discuss the issues raised by the Bill—its second half is revolutionary—if we are detained for such a long time by enormous quantities of verbiage.
Mr Watts: I am not a new Member and, as such, suggest that if hon. Gentleman had not taken five minutes to make that contribution, he would have had a further five minutes to express his own views.
Ben Gummer: I thank the hon. Gentleman, who is the stoker in chief of the hon. Member for Hammersmith and his never-ending, smoky railway train.
Mr Slaughter: If it helps, I meant holy grail rather than golden fleece.
Ben Gummer: I thank the hon. Gentleman. He meant holy grail, but I had hoped that it was a curate’s egg. I looked for the good bits and found none, but it was a bloody big egg. Anyway, we have now arrived at the core points of his objections to the Bill. He laid them out himself, and they relate to finance and access to justice. I want to make some brief remarks about those key points. I refrained from intervening on him too much and thought it better to try to encapsulate my remarks in a short speech now.
The hon. Gentleman seems to think that we can discuss this matter outside the financial context in which we find ourselves. The fact is that the country is bankrupt. If we do not make changes now, we will come back here—[ Interruption. ] The hon. Gentleman touches his head, but he will come back here in 2016, at which point he may be the Minister—I hope not—to ask for more cuts to legal aid because tough decisions have not been made now.
Therefore, I not only heartily support but applaud my hon. Friend the Minister for his brave decisions in putting together the Bill, which—although one would not know it from the doom-mongering of Opposition Members—represents a cut of 16.7% to the legal aid bill. That is less than the cuts that most other Departments must endure during this spending round. He has certainly defended the Bill in a way that some other Ministers have not been willing to do for their own Departments.
I am impressed that we have managed a 16.7% cut. The question now is how to distribute it. Within the context of the financial environment in which we find ourselves, it is interesting and telling that the previous Government made the choice that they did between criminal and civil legal aid. The Minister could have made a much easier decision. He could have said, “We’re going to cut criminal legal aid.” After all, criminals in prison do not vote, and I am afraid that many of the people who end up in prison do not vote when they are not in prison. I wish that they did.
That would have been the politically easy choice to make. It is precisely the choice that the previous Government made, and to my mind, it was a terrible and catastrophic choice that has meant that many people currently in the criminal system are not receiving the representation that they require due to the poverty of representation afforded by current levels of criminal legal aid across the country. I hope that in a few years’ time, when financial considerations allow, the Government will invest in criminal legal aid before returning to civil legal aid.
It is telling that the Opposition have no ideas about civil legal aid and how to find alternative savings. At least the Law Society attempted to make up some figures, but the Opposition came here with nothing except the suggestion to cut criminal legal aid: to cut legal aid from those who are the most vulnerable, because they are about to lose their liberty, their reputation and, in many cases, their future.
We return to this weird canard, which is hoisted by so many—[ Interruption. ] Yes, you do hoist a canard. It is hoisted many times in debates on public spending: “We are making cuts that will cost more money elsewhere.” It is a weird argument about public expenditure that somehow, if we spend more money, we will save it. On that basis, if we followed the Opposition’s line, we would be investing in so many areas of public policy that there would be no money left at the end to spend. Do they not understand the lunacy of the argument that we must spend money in order to save it? That is precisely the policy that they attempted to pursue over the last 13 years, and it has landed us where we are.
We are talking about Government cash that must not be spent. I am afraid that the Minister’s proposals are the only ones on the table so far. Barring a few helpful interventions from the hon. Member for Stretford and Urmston and my hon. Friend the Member for South Swindon, no one has offered alternative proposals or alterations of any substance.
Then there is the issue of access to justice, which was successfully and elegantly blown apart by my hon. Friend the Member for South Swindon. We are nowhere near the concept of what legal aid meant in 1949. The number of marriages ending in divorce in 1949 was
The hon. Member for Hammersmith says that he is not aware of the issue. That is because tens of thousands of people across the country know that they have no recourse to legal aid in their marriage disputes. Of course they will not come to him, because they do not expect it, yet that is the situation. He would know it anecdotally if his ear were a little closer to the ground. The only people who can pursue the dissolution of their marriage in the courts are those with no money and those with huge amounts of money. Frankly, it is unjust to those who earn limited amounts and who are paying too much tax to the Exchequer, in my view, to have part of that tax go to people who are not earning and who, if they were earning a bit of money, would not be in a position to pursue their marriage disputes in the courts.
Then there is the idea that somehow we are taking out of scope a whole series of areas that have been dealt with previously through a generous legal aid system that is almost universal, but the fact is that injustices have been done to people right from the beginning, which could not be answered with legal aid. I am aware that I am up against a far more interesting speaker over in Portcullis House, so I might as well use a topical example. It is brave of the visitors in the Public Gallery here. It is rather like getting the tickets for the volley ball in the Olympics when the 100 metres final is going on at the other end of the stadium.
Let me use some topical examples. Some of the people who have been victims of hacking are in very vulnerable situations and some are on low incomes, as we have now found out. They would not get legal aid to pursue their injustice through the courts. Even among ourselves, there could be instances of enormous injustices that change the nature of our democratic process. Just imagine perforce that there were a candidate in an election who put out entirely specious literature, perhaps about housing, saying that a whole group of people in a constituency would lose their houses if their opponent won that seat. That would be not only specious but lying and mendacious and I am sure that would not apply to any one in this room.
Mr Slaughter: Will the hon. Gentleman give way?
Ben Gummer: I will just finish my point.
Mr Slaughter: No. I think that the hon. Gentleman should give way because he is clearly referring to me. He has just used the words “lying and mendacious” and I think he ought to withdraw them. I can amplify the point because funnily enough, as he would not know, the preliminary decision on selling to a developer for demolition an estate occupied by thousands of families took place on Monday evening in Hammersmith. I would like the hon. Gentleman to withdraw that comment because he is wrong and his comments and language are completely out of order.
Ben Gummer: I am certainly not withdrawing any comment. I was using a hypothetical situation in which someone put out entirely specious literature that changed the course of an election by lying and frightening local residents.
Mr Slaughter: On a point of order, Mr Hollobone. The hon. Gentleman is either making an entirely vacuous and spurious point or he is making a reference to me but does not have the courage to say that and is using language that is unparliamentary and unnecessary. He should withdraw his comments on either basis.
Ben Gummer: If the hon. Gentleman had allowed me to finish, he would understand why it is not a vacuous point. Neither those who felt that they had been unnecessarily frightened nor the opponent who felt that they had been unfairly prejudiced would have recourse to legal aid. It is rather like the case in which legal action was taken by a Liberal Democrat loser. They were unable to use legal aid to fight their opponent. In that case, even in the cause of democracy, it is not possible to have recourse to legal aid in order to fight an injustice in a hypothetical situation.
Then there is the issue of the international comparisons. The hon. Member for Kingston upon Hull East and I are lucky enough to sit on the Justice Committee. We have heard many academics give evidence on international comparisons. It is entirely right that the figures that the Government have put forward are the views of some academics. There are others who give different views. In every instance we heard, when the systems are agglomerated together, the British system comes out as either the most or second most expensive system.
Alex Cunningham: The hon. Gentleman speaks of international comparisons. The hon. Member for South West Norfolk has been a great champion—again I am being nice to Government Members—of the Canadian legal aid system, especially during the evidence sessions. Does the hon. Gentleman share my interest in the Public Commission on Legal Aid? A commissioner said:
“Based on the evidence presented to me, I cannot come to any conclusion other than the services provided in British Columbia today are too little, their longevity or consistency too uncertain.”
Mark Benton, the executive director of the Legal Services Society says:
I have lost my place. None the less, he supports the impression that legal aid should be redesigned. He says that it should become an essential public service and be better funded.
Ben Gummer: I thank the hon. Gentleman. His Whip should write more clearly in future. I have to say that in a moment when I was losing the thread of the argument of the hon. Member for Hammersmith, I looked at his website, and there are 23 pages of press releases with which he has delighted the local media, not one of which refers to his own CAB. I do not see anywhere any interest at all in law and order, justice or indeed legal aid. It is interesting therefore that he has suddenly developed an interest in all of our positions on CABs and law and order.
Helen Goodman (Bishop Auckland) (Lab): I am surprised that the hon. Gentleman does not know that parliamentary websites paid for by the taxpayer cannot be used by hon. Members in their role as Front-Bench spokespersons.
Ben Gummer: I am glad the hon. Lady charges the taxpayer for her website, because I do not and think it not right to do so.
Mr Watts: Because you have loads of money.
Ben Gummer: No. I actually wish I had more for my campaign.
In all seriousness, of course we can put up local campaigns about CABs on parliamentary-paid websites, but that is not the point. The Opposition, I am afraid, do not really understand about fighting for local campaigns while supporting the Government on their broad policy objectives; that is something that they have not quite understood, although the right hon. Member for Salford and Eccles (Hazel Blears) understood it in the previous Government.
Getting back to the international comparisons, the point is that, frankly, most of the time the English and Welsh system comes out top or near the top. Importantly, because this was raised in the evidence sessions, there is little difference between an inquisitorial system and an adversarial system, which we have here. That was the evidence that we heard. It is not because we are adversarial. It is not because of any difference between us and our European partners. It is to do with scope, the cost of lawyers—that was brought up in evidence to the Justice Committee—and massive inefficiencies in the system. The Government are trying to address those three main issues, and I hope that we can flesh them out a bit more in Committee.
Karl Turner: I thought that the Justice Committee, of which the hon. Gentleman and I are both lucky enough to be members, found that our expenditure is average across Europe. Is that not correct?
Ben Gummer: That was not the experience, as I understood it, when looking at legal aid costs, where we are second highest, and that was understood in the evidence sessions. Indeed, if one starts to look at wider justice costs, which is difficult for reasons that the hon. Gentleman understands, we are somewhere in the top quartile of global systems, but we are still high. The important thing is that even after the cuts that the Government propose, we will still be in the top quartile of spenders on legal aid. By the Government’s own reckoning, we will still be the second heaviest spender on legal aid in the world after Northern Ireland.
Mr Watts: The hon. Gentleman’s arguments seem to be threefold. One is that the country is bankrupt, so that justifies any change. That is a fair point, because the Government’s general view seems to be that no matter what the implications they will hide behind the fact that the country is, as the hon. Gentleman said, bankrupt. It is news to me that the country is bankrupt. It has a triple A rating, and it has never had a problem with raising finances, so I am surprised that the hon. Gentleman would say that.
The hon. Gentleman’s second argument used examples from around the world. I think that he would accept that those examples are disputed left, right and centre by different academics, so it cannot be said whether that is the case. We heard from witnesses last week that the comparisons used by the Government are challengeable
Ben Gummer: I thank the hon. Gentleman. He is making essentially two points. The broader issue about the financial situation of the country is that if we do not make tough decisions now, whoever conducts the next spending review will have to make even tougher decisions, without reverting to the discussions that I know he would want to have in another place at greater length. That is just the position of the Government. It is the one on which both parties in the coalition won the last election. [ Interruption. ] That was a completely fair intervention. To show that I am capable of admitting that, I can say that with a combined vote the coalition won something like over 50% of the vote, so even on proportional representation terms we did well.
No Government have ever suggested, whether in defence, education or health, that somehow these were unlimited pots, yet in the new clause there is the provision that somehow the need for legal aid, defined in a completely arbitrary manner as far as I can tell, trumps the resources available to supply it. What I find odd about the Opposition’s argument is that on the one hand they say, albeit rather quickly, that they would agree to cuts in legal aid almost, or perhaps even, to the same extent as the Government are proposing, yet on the other hand they are writing a blank cheque into the first line of the Bill saying that need, as defined completely subjectively, trumps the resource issues that confront the Government of the time. That is why I tried to tease out whether the hon. Member for Hammersmith had approval from the shadow Chancellor, which he clearly had not.
Alex Cunningham: The Law Society has had much to say about the Bill and its many faults, even suggesting ways that that money could be saved. In the hon. Gentleman’s article in The Times of 15 June, he dismisses the contributions of the Law Society as partisan attacks of “bewigged Scargills”, who are unlikely to get a hearing from the Government. Does the hon. Gentleman find any good advice from the bewigged Scargills of the Law Society?
Ben Gummer: I thank the hon. Gentleman for prompting me about that article, which has caused me rather more trouble than I had anticipated. I was being very frank about who I felt was at fault, and it was not the professionals themselves. There are many people, especially at the family Bar, who are not earning a huge amount of money and who care passionately about what they are doing. They have been failed comprehensively by their trade unions. They cannot even agree between themselves as to the cuts that are proposed.
Karl Turner: The hon. Gentleman describes the Bar Council and, I suspect, the Law Society as a trade union. The hon. Member for Broxtowe will recall that in the Health and Social Care Bill Committee, which we both served on, her hon. Friends described the British Medical Association in the same way. It is ridiculous to describe the Bar Council or the Law Society as trade unions.
Ben Gummer: The hon. Gentleman makes a fair point, and I know that he has a worthy trade union background. Trade unions, as typically known, might have shown a rather greater degree of proficiency in arguing on behalf of their members than those representing the legal profession. The reason I call them trade unions is that over the past 10 or 15 years they have lost their regulatory function. They do not disburse legal aid any more. Consequently, their only function is to respond to their subscribers’ lobbying efforts to protect their incomes and their sources of state funding. That is really the core purpose now of the Law Society and the Bar Council; their other functions have gone. When we listen to their submissions we should be aware that they are responding to only one part of their membership.
I had a great deal of correspondence from solicitors who were pleased with what I was saying about them, because they are now failing many of the people they seek to represent. I say that they failed them—I am responding to the intervention by the hon. Member for Stockton North—because people who work hard and care about the family law system were failed by a group of people who could not agree between themselves, and who provided no substantive proposals or constructive suggestions that were likely to proceed to anywhere near making the savings that the Government need to make, and of the scale that Her Majesty’s Opposition support. That is why I chose to attack them in that way.
Elizabeth Truss: I want to make one positive comment about the Law Society’s proposals.
Elizabeth Truss: Just one. The Law Society made the point that we need to make the court process more efficient. One thing we discovered when looking at international comparisons was that the cost per case in Britain is very high compared with other countries. I am pleased that the Government are, for example, introducing e-mail into all courts to speed up the process of transferring papers. We have heard that quite a lot of delay is caused by papers getting lost in the post or not turning up on time. The Law Society made a good point on that front.
The other element of the high cost per case is the high cost of lawyers in this country. They should look to their own organisation to find further savings.
Ben Gummer: I thank my hon. Friend for that intervention. A further point about the Law Society’s contribution—
Karl Turner: I am interested in whether the hon. Gentleman agrees with his hon. Friend’s intervention.
Ben Gummer: At this rate, I will be jumping up and down rather a lot. I was coming to that in greater detail, but I wanted to do so via comments on mediation, about which the Opposition and especially the hon. Member for St Helens North have talked at considerable length, as did the Law Society and the Bar Council in their submissions. The fact is that we put more marriage cases through the courts in England and Wales than any other European country. In Sweden and Germany—I tried to speak to witnesses about this during the evidence sessions—almost every marriage case goes through
At the conclusion of the evidence, I received a withering look from the hon. Member for Stretford and Urmston which upset me greatly, because I respect her and I felt burnt by her reproach. I will explain why I was angered by the evidence given by the women’s rights groups and the Women’s Institute. This is a real opportunity to sort out one of the considerable injustices in our legal system, which is putting women and families through terrible, protracted and sometimes vexatious legal disputes in the courts. We all know from personal experience and constituency work that that can do more damage to families and individuals than the original situation.
With mediation we can create a situation that is geared towards reconciliation rather than division, which is the natural course of any court action. I had hoped that the women’s organisations giving evidence would have done a little more work to compare what was working well throughout Europe and what could be suggested to the Government to make the proposal stick so that we can take many more families out of the courts. That was my frustration with what the women’s rights organisations gave us.
Kate Green: I apologise to the hon. Gentleman if he interpreted my look as withering; I certainly meant only to offer him a wry smile of encouragement. I agree that we should seek to make as much use as possible of mediation wherever appropriate. Does he agree that limiting it to domestic violence cases is too narrow, and that when there is a high degree of conflict and a real mismatch of power in a relationship, mediation may be inappropriate?
Ben Gummer: I thank the hon. Lady. There are certainly such cases, and that is why I hope that the Government have beefed up their proposals with the discretionary fund for those cases that can find a resolution through mediation.
Opposition Members must know that if there is the option of automatic entrance to a court at the end of a mediation process, many people will just go through that process, and if they do not get what they want, they will try to go to court as a last-ditch option. The mere fact that the process exists, as my hon. Friend the Member for Broxtowe explained, can encourage litigation when in fact mediation would have done a better job for both parties.
Helen Goodman: The hon. Gentleman has totally decontextualised his remarks. He has not begun to take account of the completely different provision in the welfare state of other European countries compared with this country. Furthermore, he has not understood that the pressure on people to win the best possible settlement will have been further increased by the Government’s absurd notion that women should pay for the services of the Child Maintenance and Enforcement Commission.
Ben Gummer: The hon. Lady forgets that Sweden boasts—that is probably the wrong word—the highest rates of reported domestic violence in the world, yet
Anna Soubry: I know we must make progress, but does my hon. Friend agree, or at least consider, that in order to mediate properly, people often need legal advice so that they can go into the mediation process knowing their rights and the likelihood of success, given the assets in any marriage and so on?
Ben Gummer: I completely agree with my hon. Friend, and so Labour Members. Therefore, they agree with the Government, who have provided advice in the Bill for people going into mediation with legal aid. I am glad that we have had a moment of reconciliation across the Committee.
The picture painted by the hon. Member for Hammersmith of a wonderful, real-life Michael Henchard traipsing through the ecclesiastical courts is one that we will laugh at in 100 years’ time when we look back at how we treated families and marriage breakdown in the early part of the 21st century. It is frankly barbaric and we need to move on to something far more humane.
I had not intended to speak at such length, but I am glad that I have excited Opposition Members to intervene on me so much. I will submit three points. First, I hope that in discussing the amendments we will find the concision that the hon. Member for Stretford and Urmston also found; secondly, we have to set the legislation in a financial context; and thirdly, please always remember that access to justice has been a very varied thing, and if we are to protect the rights of the most vulnerable people, such as women in difficult situations, families and children, mediation is in most cases a more just way of proceeding.
Yvonne Fovargue: I rise to support the amendment tabled by my hon. Friend the Member for Stretford and Urmston. Before I do that, I would like to refer to the suggestion made by the hon. Member for South Swindon about block funding. Having worked with the Legal Services Commission, I agree that to get rid of some of the bureaucracy would be a good thing. However, block funding is not on the table and instead there is the removal from scope of social welfare law. If block funding were on the table initially, I would be happy to look at that and possibly agree to the removal of the social welfare law. As it is not on the table, I can deal only with what is before us.
I would like to argue that the removal from scope of social welfare law will increase costs. We have heard a lot about high-cost cases and the high cost of legal aid but, with thanks to Bolton CAB, I would like to go through a few of the cases that people have consulted it on and to demonstrate where the extra costs to the Government will be.
This is one case in the client’s own words:
“My last visit was to once again try to get Disability Living Allowance. I have severe osteoarthritis and could hardly walk. I was in extreme pain and was on 2 crutches, it was costing an absolute fortune in taxis. I spoke to one of their Advisors and we filled the forms in”.
After the third time of trying,
“I was this time awarded Disability Living Allowance…If I had not received help from CAB I would definitely have finished up in hospital with a nervous breakdown…I was at breaking point”
with the system. The person goes on to state that they would not say they were
“suicidal but very very close.”
The cost of that advice was £167; the cost of a suicide is nearly £1 million.
I have another example—excuse me while I find it—which states:
“I was at my wits end, couldn’t sleep, eat, I was so depressed. I was ashamed, I couldn’t tell my family. I was 65 years old”.
That person had worked all their life and now just could not cope. They go on to state:
“I went into the bank to tell them again how I could not afford on my pension to make the payments they said I had to make. They advised me to go to the Citizens Advice Bureau and I did right away. They made me an appointment to see an advisor. Oh my God the relief was wonderful, all the worry gone, they went through everything with me and worked out a plan. Now, I am 67 years old and in control of my money. I had really thought of taking some sleeping pills, I just could not cope with the phone calls and letters. I couldn't even answer my door, I used to pretend to be out and sit in the dark.”
Cost of that advice: £200; cost of the suicide: more than £1,000.
“I have needed their help on a couple of times for debt, medical issues and benefits. I have depression and find it difficult to deal with these things. My debts were going up and my benefits stopped.”
Their debts were going up because their benefits had stopped. That person goes on to state:
“I was very close to taking my own life because I couldn't see any other way, but now I have seen CAB they have helped me…I don't know of anywhere else I could have gone for help other than to go to my GP for my depression”.
They also state that they would have continued on tablets for the rest of their life. Cost to the health service: incalculable.
A gentleman who received help from the CAB for himself and his son who has learning difficulties is 85 years old and dares not go out because he is not in good health. His son cannot read or write but every time he goes to the citizens advice bureau he tells his father who writes to the CAB to help with his son’s benefits and debt. People come out to see that gentleman and they help him to get the money to which he is entitled.
Elizabeth Truss: Is the hon. Lady not making an excellent case for good general advice, rather than necessarily legal advice? Is not one of the problems with the way our system works that it incentivises more legal advice than general advice?
Yvonne Fovargue: This advice is not legal advice. The person who had been for help with their disability living allowance three times was going through an appeal and had been through three appeals. I will cite another case, which will demonstrate that it is not general advice that is needed. In fact, a lone parent on income support was
The housing benefit department was unaware of that case and was persuaded by the arguments and representations the CAB made. It awarded the appropriate amount of housing benefit before the appeal was heard. As a result, the client could pay the rent, her father could pay the mortgage and a full appeal to an appeal tribunal was prevented, as were court proceedings that would have been instigated by the mortgage company. A homelessness application for re-housing from the client and the likely allocation of a council property and a full-scale family argument were also prevented. I do not know about other hon. Members, but I certainly would not have known about the case of R (Mackay) v Barking and Dagenham. I do not believe that that is general advice.
Mr Watts: It is good to hear from someone who has had practical experience of dealing with people’s problems. My hon. Friend is demonstrating that when people arrive at citizens advice bureaux, they do not come with only one problem, but with about four or five different ones. Some of them can be dealt with—to take up the earlier point—through general advice, but it is crucial that people have access to legal advice as well if they are to solve their problems. What would be the result if the legal element of the advice disappeared, people who had problems were given bad advice and their situation ended up becoming even worse because they had received poor, rather than good, legal advice?
Yvonne Fovargue: I thank my hon. Friend for that intervention. The implication would be that, first, the advice agency would be sued, leading to more unnecessary court proceedings, and, secondly, the wrong advice would lead the person down an even worse track.
There is an interesting distinction to be made between legal advice and quite detailed information about the law, and that is what the Legal Services Commission pays for in this case—very detailed information about the law. I have used the Child Poverty Action Group’s excellent books— [ Interruption. ] Yes, more than one. The one about benefits is pretty thick. Were it just general advice, I am sure we could compress it a great deal, but it is not general advice; it is extremely complex and goes into a number of regulations and statutes.
Elizabeth Truss: Is that not an argument for simplifying the benefits system? Does the hon. Lady agree that legal advice has not necessarily been provided in the most cost-effective way in the past? Through telephone and
Yvonne Fovargue: I absolutely do not agree with the hon. Lady on that point. I was working in a citizens advice bureau when the system changed from supplementary benefit to income support. The CPAG handbook started off being probably about an inch thick; it has now developed and is 3 inches thick owing to how the system has developed through case law. As soon as a new system is brought in, the number of appeals absolutely rockets. I am sure she will agree that the system has not got any more complex over the past year, yet the number of appeals on incapacity benefit and employment support allowance have gone up by 167% in that year alone. What that figure is likely to be when the new system comes in, I cannot bear to imagine. Of the appeals, 50% on incapacity benefit and 38% on ESA were decided in favour of the appellant. The cost of those appeals, in terms of the legal advice provided, was £167.
Mr Watts: My hon. Friend has not dealt with the second point—I hope she will—about the idea that we can replace good legal advice with some sort of hotline or computer programme. I hope she agrees that the people who turn up for such advice are often those who either cannot communicate as effectively as they would like or do not have access to a computer.
Yvonne Fovargue: I absolutely agree and I refer the hon. Member for South West Norfolk to the answer Steve Hynes gave in our fourth evidence session. He stated that the people who are most likely to need the legal system are those in social groups D and E, who are less likely to have access to a mobile telephone or the internet. He said that if we actually want to create a system that stops the people who need it using the advice, this is the way to do it.
I know of someone who said that they had rung the Benefits Agency and received no help whatsoever—picking up the phone merely put her off going for face-to-face advice. She could not face picking up another telephone to speak to somebody in a call centre. She needed somebody to realise how distressed she was by her case and by not receiving her benefits. Telephone advice is good in some circumstances—I think we all want to increase access to telephone advice—but it is totally unsuitable for a number of vulnerable people, such as those with learning disabilities and those who are almost at the end of their tether and suicidal, as in the examples I gave earlier.
Helen Goodman: My hon. Friend is making a powerful case. Does she agree that another group of people who are extremely disadvantaged by such long-distance systems are those who cannot read, and who cannot put together information and their papers in a coherent order? They cannot answer questions that are web-based because they cannot do the arithmetic and do not know what the numbers mean.
Yvonne Fovargue: I absolutely agree. A later amendment goes through the availability of telephone advice and its suitability for clients. I also refer to the answers given by
Mr Watts: Has my hon. Friend had the same experience as I have with the change to a hotline to the Benefits Agency when those who ring it receive different advice each time? They will end up in the citizens advice bureau or in our surgeries because the system that will replace legal aid will be exactly the same system that exists for benefits.
Yvonne Fovargue: I have great concerns about the people providing the system being the gatekeepers of the system. There are also people who have no access to a telephone or the web. We have clients in secure units, who cannot speak privately on a telephone about their benefits. Where would those people receive advice if that were the only means available to them? It is difficult to quantify, but some of these cases demonstrate that the wider costs to society and to the state will increase if we remove access to social welfare law at an early stage.
Karl Turner: I am conscious of the time, so I shall be as quick as I possibly can. I want to speak to amendment 14, which is in my name. Paragraph 49 of schedule 5 to the Bill removes sections 1 to 26 and schedules 1 to 3A to the Access to Justice Act 1999, which would remove the duty of the Government to ensure that individuals have access to legal services that meet their needs effectively.
The amendment would reinstate that important duty and remove any doubt that the Lord Chancellor will ensure that those who need legal assistance do not go without it. As I said, such an important duty already exists in current legislation. If the amendment were accepted by the Government, it would put to bed any suggestion that the Lord Chancellor will fail in his duty to provide legal assistance to those who need it. It would ensure that our constituents continue to receive practical and effective access to justice, which means that when people need access to professionals and legal services, they will receive effective advice and assistance. That does not mean a telephone call— an opportunity to speak to someone on the end of a telephone line—but proper, effective access to justice.
Mr Slaughter: I compliment my hon. Friend on tabling an important amendment. He was making a point that I was trying to make, but more succinctly. Where the Access to Justice Act was inclusive—it gave a whole raft of powers and responsibilities—the Bill will take them away in one fell swoop. His amendment would cleverly put back that responsibility, so the Lord Chancellor cannot abrogate his responsibility.
Karl Turner: Absolutely. I am very obliged to my hon. Friend on the Front Bench. He is absolutely right—that is exactly what the amendment seeks to do. Labour Members of the Committee have real concerns about the agenda of the Government.
That brings me to another point. I think it has been mentioned already in the Committee, but there seems to be a myth that publicly funded lawyers have earned
I make that point because there seems to be a suggestion that not only are publicly funded lawyers doing very well from the current system but that firms of solicitors earn fortunes as well. It is simply not the truth.
Mr Watts: Does my hon. Friend find it strange that Members on the Government Benches seem to be very concerned about people working in family practice law, but do not pay any regard whatever to those barristers and expensive lawyers at the top who are doing criminal law? They seem quite happy that the public purse should keep on paying such large fees to that group.
Karl Turner: My hon. Friend makes a valid point. It seems that the Government are concentrating their attention on the low end of the profession. I have great concerns. The Government have ignored thousands of responses to the proposals. If legal aid is withdrawn from substantial areas of law, many people will be disfranchised from the justice system. They will be left unable to access justice and to enforce their legal rights. Without the benefit of proper legal representation, people will be left with no choice but to paddle their own canoe, taking on the system on their own. Very often, law is difficult and complex, procedurally and legally. That is why the Bar Council very accurately described the Government’s plans as do it yourself justice, rather than access to justice.
I do not look on the Bar Council—or the Law Society for that matter—as a trade union, but there seems to be a suggestion from the hon. Member for Ipswich that that is exactly what it is. Even if the Bar Council is a trade union representing the interests of its members, it is not, as I suspect he would have us believe, some left-wing firebrand trade union. I have to say that I have not read the article that he wrote for The Times—I shall read it after this Committee—but I suspect that that is what he was suggesting in that article.
Ben Gummer: I did not suggest that those bodies are left-wing or firebrand, not that those terms are necessarily derogatory. However, it is worth pointing out that the president of the Law Society wrote a preface to a report by the Haldane Society of Socialist Lawyers—“socialist” is a word that Opposition Members used to use a few decades ago—saying that it was fair and balanced, and it evidently was not. That really is the position from the
Karl Turner: I am conscious of the time, so I will move on. It is safe to say that I disagree with the point that the hon. Gentleman makes in his intervention. I am always entertained by him, but I tend to disagree with him for the most part.
I have other concerns as well. I think that members of the Committee would agree with me on the disruption and costly delay to the court system that the proposals will create. That issue was raised by the Bar Council, the Law Society and the Judges Council of England and Wales. It worries me that professional bodies such as those that I have just mentioned are ignored by the Government. There were some 5,000 submissions to the consultation on legal aid. It seems that the Government did not listen to those submissions.
Even worse, the Government seem to have ignored their own research. I think I am right in saying that they spent time researching the plans and whether they would give rise to more litigants in person. The finding was that they would, and that that would result in considerable delays and costs in the system. Of course, they have chosen to ignore their research, which is of great concern to me. I am delighted to say that I have just come off the Health and Social Care Bill Committee. It was a recommitted Bill Committee, because the Government spent several months saying very little to people like me who made comments, remarks and speeches in Committee, and decided to slap to one side the submissions made by Labour Members and ignore them, but then, all of a sudden, decided that they would listen. I suspect that I am going slightly off-track, but the point that I am making is valuable. There is a need to listen to the submissions made by professional bodies such as the Bar Council, the Law Society and the Judges Council of England and Wales, which made strong submissions about the consequences of the provisions.
The amendment would reinstate an important duty that already exists, and would remove any doubt that the Lord Chancellor should ensure that those who are in need of legal assistance do not go without. If the Government are serious about wanting to retain access to justice, the amendment would help them in their endeavour. I urge hon. Members to support the amendment, which I will press to a vote.
Mr Djanogly: It seems somewhat strange, Mr Hollobone, to be addressing the Committee for the first time after some five hours of deliberations. I welcome you to the Chair, Mr Hollobone. I will start by saying that I was pleased to hear the co-operative tone suggested by the hon. Member for Hammersmith. I hope that we can move through the Bill with due consideration, and with regard to the urgency that the legal aid system requires. I have to say that that has been somewhat lacking in the hon. Gentleman’s approach to date.
We have had many good contributions and knowledgeable comments from hon. Members on both sides of the room. It was a lengthy debate, to be frank, so I will go straight to addressing the amendments. The amendments would amend clause 1 to include express reference to the need to promote and ensure access to
“The Lord Chancellor must secure that legal aid is made available in accordance with this Part”,
so the purpose of the Bill is clear, and we do not need a purpose clause.
Amendments 60, 14 and 61 all seek to introduce a requirement for legal aid to ensure access to justice for individuals. I acknowledge the vital importance of protecting fundamental rights of access to justice. I assure all hon. Members that that has been central in developing our proposals for reform. Fundamental rights to access to justice are the subject of international protections, such as those provided by the European convention on human rights and certain enforceable EU rights. I am confident that the plans set out in the Bill protect those fundamental rights, both through the areas retained in the scope of schedule 1, and through the new exceptional funding scheme.
Mr Watts: The Minister says that his first priority was to maintain access to justice. Given that he agreed to substantial cuts in the legal aid budget, was it not a question of fitting the new policy and the new Bill around the money that was left after he accepted the cuts?
Mr Djanogly: I did not say that our first priority was to retain access to justice. I said that we took on board the fundamental right of access to justice. The scheme will ensure that in individual cases where the failure to provide legal aid would be likely to amount to a breach of an individual’s rights under the Human Rights Act 1998 or European law, exceptional funding for that individual will be available. That is a vital safeguard to ensure that no one is deprived of their fundamental rights of access to justice. We live, however, in a difficult time of scarce resources, as the hon. Member for Kingston upon Hull East acknowledged, and as my hon. Friends the Members for Erewash and for Ipswich said very plainly. It is essential that we achieve an affordable system for legal aid that allows taxpayer-funded representation to be targeted at priority areas. We made that clear in our consultation paper. It is not the case, and indeed has never been the case, that everyone is entitled to legal representation, provided by the taxpayer, for any dispute. It is essential that we are able to put forward reforms that establish an affordable system, while still ensuring that no one is denied their fundamental rights of access to justice.
The hon. Member for Hammersmith said, “I think we know what we mean when we talk of access to justice,” but do we? Are we talking in absolute terms, as he seemed to suggest in some of his remarks, or do we mean the phrase as used in Labour’s flagship Access to Justice Act 1999? It is important to clarify that, despite its name, that Act does not contain an equivalent duty to that put forward by the hon. Gentleman. Indeed, there is no an express duty on the Lord Chancellor or the Legal Services Commission to secure access to justice—nor has there ever been. Perhaps one of the Opposition Members will wish to advise the Committee of why that Act was so named. That Act requires only that the Legal Services Commission establishes the community legal service to ensure, within the resources available and the priorities set, that individuals have
In any event, the common-law right of access to justice does not guarantee legal representation or equality of arms. While it is clear that a fundamental principle of law is that every citizen has a right of unimpeded access to a court, that does not include a right in all circumstances to receive advice from a legal representative. A right of access to the court means having the assistance of the court to assert legal rights, and to obtain remedies to which one is entitled. That means having the right to challenge a decision in the courts if one wishes to do so. That means not preventing somebody from issuing court proceedings because of an inability to pay the court fee. All of that is despite the point, rightly made by my hon. Friends the Members for Broxtowe and for Erewash, that too often people rush to lawyers and court when they should be using alternatives.
The hon. Member for Hammersmith mentioned impact assessments and the certain possible outcomes set out in the Bill’s impact assessment. I am pleased that he reminded the Committee that we have looked carefully at the possible outcomes in those impact assessments. It is right and proper to consider all risks and possible eventualities, but that does not make them either likely or probable. All impacts will be determined by behavioural responses, which cannot be predicted; hence we need to discuss all risks. That is called analytical rigour. The hon. Gentleman is unwise to disparage that in the way that he did.
Mr Slaughter: That sounded like a disclaimer at the end of a mortgage advert. I prefer the Minister’s previous comments:
“Legal aid per se involves poor people, so if we are going to reduce costs it will impact on poor people. It is true that individuals with protected equality characteristics are over-represented within the current client base of civil and family legal aid when compared with the population as a whole, although the extent of that varies by category of law.”—[Official Report, 17 May 2011; Vol. 528, c. 142.]
Is that not what the Minister means? It means that he is cutting a service for poor people, so poor people will suffer.
Mr Djanogly: No. What I am saying is that the impact assessment looks at a range of impacts, so that people can make decisions on the possibilities of policy reform. Various examples have been given this afternoon. The main example and the main debate focused on clinical negligence. Many hon. Members made a lot of points on that, particularly the hon. Member for Hammersmith, and I think the hon. Member for St Helens North also made a number of comments. Let me go through the issue.
Currently, legal aid is available to those who qualify financially, and who suffered negligent medical treatment, to seek damages from any type of public or private medical practitioner. Those are claims for monetary compensation, but they often raise serious issues, especially where the damages are required to meet future needs. Some litigants will be vulnerable because of disabilities resulting from the negligent treatment. However, although the issues raised are likely to be important, we consider
I shall answer the first question from the hon. Member for St Helens North, so that he may ask some more. He asked whether the Jackson proposals would leave a number of claimants without representation. We recognise that there will be particular cases where it may be difficult to secure conditional fee arrangements, but our proposals will ensure that individual cases of that type continue to receive legal aid where necessary for the UK to meets its international and domestic legal obligations via a proposed scheme for excluded cases. It is also intended that the reform following the Jackson proposals will provide for a tightly drawn-up power, allowing recoverability of after-the-event premiums in clinical negligence claims.
Mr Watts: The Minister seems to be ignoring the evidence that we heard last week, which seemed to indicate that the practitioners believe that such cases are expensive—they often have £100,000 or £200,000 in up-front costs—and that it is unlikely that companies will take them. Even if they do, they will limit the number of cases that they take because of liabilities to their own company. Will the Minister spell out what discretion there will be for the judge, when it comes to people who find themselves without legal redress, and who need to find a way to take a case through the court?
Mr Djanogly: The reason why I will not do that today is that we have a clause that specifically deals with excluded cases. It is a full and particular area, and we will go through it in some detail. I assure the hon. Gentleman that I will cover his comments carefully when we reach that clause. Given the time, I should keep moving on.
On the other aspects of amendment 61, it would require the Lord Chancellor to protect and promote the public interest and support the constitutional principle of the rule of law in carrying out his functions. That amendment is unnecessary, because those considerations are inherent in the Lord Chancellor’s functions as a Minister of the Crown and they do not require specific reference here. In addition, the Lord Chancellor has some specific duties under the Constitutional Reform Act 2005.
Proposed new subsections (7) and (8) are also unnecessary, as they seek a statutory footing for a legal aid strategy. The Bill is precisely that; the culmination of an extensive consultation and engagement exercise, which sought to define the nature and range of legal aid services in the future. We have been clear on the objectives of the new scheme throughout the process. We have undertaken to conduct a post-implementation review of the new scheme, which will be published, and of course the House will be free to debate its findings. Amendment 61 is therefore not needed.
The practical implications of the proposed new subsections (9) and (10) in amendment 61 make them administratively impossible to achieve. Trying to establish
I turn to the remaining aspects of new clause 1, tabled by the hon. Member for Hammersmith, that I have not addressed. The first point relates to the proposed principle that the constitutional right to be regarded as innocent until proven guilty should be respected as the cardinal principle of criminal law. It goes without saying that we agree with the fundamental principle of being innocent until proven guilty. It is not necessary, however, to include that principle in the Bill. We have made it absolutely clear throughout the reform process that we do not propose to make any alterations in respect of the scope of criminal legal aid.
The last element of new clause 1, which deals with the availability of resources, is equally unnecessary. I am surprised, as was my hon. Friend the Member for Ipswich, that the hon. Gentleman made such a proposal in the existing fiscal climate. To answer his question about financial accountability, Conservative Front Benchers in opposition were expected to clear all spending commitments with their shadow Treasury colleagues. That is known, I believe, as responsible opposition, and I am surprised that Opposition Front Benchers can issue uncapped spending commitments.
On the issue raised by the hon. Member for St Helens North, as we have made clear in our proposals and the consultation document, as well as in proposing the Bill, legal aid resources are not infinite, and we have taken the hard choices necessary to target that finite resource where it is most needed.
Amendment 89, which was proposed to clause 1 by the hon. Member for Stretford and Urmston, would require that before any changes to legal aid are made, a full independent assessment of any likely increase in litigants in person and the consequent effect on the deficit would have to be undertaken. That amendment is unnecessary, because we conducted a full review of the available literature on litigants in person and published it alongside the consultation response.
The hon. Members for Hammersmith and for Bishop Auckland asked how claimants are expected to prepare their own tribunal applications in this context. In most cases, individuals will be able to appeal to the first-tier social security and child support tribunal without formal legal assistance. The appellant is required only to provide reasons for disagreeing with the decision in plain language. For those who need assistance on a welfare benefits matter, factual advice is available from Jobcentre Plus, the benefit enquiry line and the tribunal itself, for example.
I am pleased to advise the hon. Member for Makerfield that in the CAB example that she gave—where the CAB gave legal advice to stop the client’s eviction—such action would remain in scope.
Litigants in person are already—as the hon. Member for Stretford and Urmston noted—and have always been a feature of our legal system. We accept that the reforms will mean an increase in the numbers of unrepresented litigants and that that might impact on case duration. The important point here is that significantly increased numbers of people will not go to court at all.
My hon. Friend the Member for Ipswich spoke persuasively in support of mediation. We think that there will be at least an extra 10,000 cases of mediation, and we will not in any way cap the numbers. That is likely to help offset any additional burden on the courts, and they should therefore still able to deal effectively with the cases that they hear. I can confirm to my right hon. Friend the Member for Carshalton and Wallington that the Government have a significant project to extend mediation within the Government and that we are also working with local government to extend mediation there. He is right that the Government should lead the way, and we intend to do so. Several Members queried the relationship between mediation and legal advice, and I can tell them that once a funded mediation client starts mediation, there will be legal advice at the legal help level, on a fixed-fee basis.
We recognise, as the hon. Member for Hammersmith pointed out, that people find, and still will find after the legislation is passed, the justice system daunting and difficult to navigate. They might need help with that. We agree that that area has been ignored for too long, and the Government have a number of plans to simplify the system, such as through the family justice review. A range of work is going on to produce better guidance, simplify forms and rules, and create online walk-throughs. There will also be post-implementation reviews of the reforms.
Turning to the hon. Member for Stretford and Urmston’s other amendment, amendment 83 would require the Lord Chancellor to ensure that no areas of law that are currently within scope could be removed until there had been a full independent assessment of the costs, which had reasonably established that the removal would not increase the deficit. That assessment would have to be presented to Parliament. We therefore believe that that amendment is also unnecessary.
The clear goals of our reform are to discourage unnecessary and adversarial litigation at public expense, target legal aid at those who need it most, make substantial savings to the cost of the scheme and deliver better value for money to the taxpayer. We have made it clear from the outset that a cultural and therefore behavioural change is one of the key objectives of the reform programme. We are seeking to move away from adversarial and litigious resolution of disputes and instead promote greater use of alternative methods of dispute resolution and the right provision of advice and information to empower people to resolve their own problems. At the same time, the Bill will ensure that legal aid is retained for the highest priority cases.
Ben Gummer: My hon. Friend mentioned the amendment tabled by the hon. Member for Stretford and Urmston. She discussed the division between immigration and asylum cases, and I mentioned in my submission that Government Members are concerned about some related issues. Although asylum will remain in scope and non-detention immigration will be taken out of scope, is
Mr Djanogly: My hon. Friend makes a good point. The matter of including cases brought under the immigration domestic violence rule in the scope of civil legal aid was raised a great deal during the consultation, and we considered the point carefully. Although we accepted that the applicants in such cases were vulnerable, we did not think, on balance, that legal aid was required, essentially because the applications, similar to other immigrant applications, were paper-based. We recognised that people might need assistance with obtaining the required documentary evidence, but we considered that such assistance need not be specialist legal assistance funded by legal aid.
After further consideration, however, we accept that such cases are unusual. There is a real risk that, without legal aid, people will stay trapped in abusive relationships out of fear of jeopardising their immigration status. The type of trauma that they might have suffered will often make it difficult to cope with such applications. We also appreciate that people apply under great pressure of time, and access to a properly designated immigration adviser is a factor. We intend to table a Government amendment to bring such cases into scope at a later stage.
We recognise the concern that early advice may reduce the costs further down the road. We consider, however, that our approach of prioritising cases where life or liberty is at stake or there is a direct and immediate risk of homelessness is rational and appropriate, and that it is necessary to ensure a sustainable system for legal aid. The hon. Members for Makerfield and for Stockton North spoke about early intervention being essential. We have listened carefully to the points that have been made about the importance of early advice in social welfare cases, but given the need to make substantial financial savings in the spending review period and to target resources on those who need them most, we consider that debt and housing cases where there is an immediate risk of homelessness are the appropriate priority.
Overall, we consider that financial issues, however important to the individual, are less important in terms of legal aid funding than fundamental issues, such as safety or liberty. We also consider that many such cases are about practical rather than legal problems, so although we recognise that advice on money management is often of clear benefit to the client, it does not necessarily require specialist legal advice that is funded by legal aid.
We recognise that many respondents told us that other sources of advice will no longer be available, but on 12 February this year, the Government announced continued funding of £27 million to maintain the face-to-face debt advice programme in CABs and other independent advice agencies across England and Wales.
Yvonne Fovargue: Does the Minister accept that the face-to-face funding will finish in March 2012, but the legal aid cuts will come into operation in 2013, so that funding will not be available?
Mr Djanogly: I will come on to the other things that are available. We need to discuss how that money will be applied and whether it will be available for future years. I agree that many people with disputes or grievances need early, good-quality, general advice, and not necessarily the expertise of specialist lawyers. I understand the points that hon. Members have made, and, intuitively, some early advice may well have a preventive benefit in avoiding downstream costs. Changes to legal aid alone should not undermine the provision of general advice, however. As a matter of principle, legal aid is money that has been intended for specialist advice, not cross-subsidising other activities. As a matter of practice, legal aid represents only one of several income streams for many organisations. For example, 85% of CABs’ funding comes from other sources, and half of all bureaux get no legal aid funding at all.
The following question was how the Government expect the not-for-profit sector to fill the gap left by the reforms. The Government recognise the important role that not-for-profit organisations such as Citizens Advice play in delivering advice services locally. We are considering the impact of wide reductions in their funding, recognising that legal aid represents one of several income streams for many organisations. The Government are reviewing the likely impact on not-for-profit advice organisations to identify the scale of the issues and to consider the appropriate role for Government in contributing to the future sustainability of the sector. On Second Reading, the Lord Chancellor announced that the Government will provide additional funding to the not-for-profit advice sector in 2011-12, which will amount to an additional £20 million. That is, of course, in addition to the £100 million of transitional funding made available last December.
We are also mindful of the impact of reforms beyond this financial year, which the hon. Member for Makerfield quite rightly mentioned, and the review will consider the issues that that creates. The hon. Member for Hammersmith mentioned his local law centre, which had a 100% cut from his local authority. I am pleased to say that Huntingdonshire CABs have not been cut; I am sure that that has nothing to do with the influence of the local MP. My right hon. Friend the Member for Carshalton and Wallington quite rightly said that the picture was mixed across the country, and the hon. Member for St Helens North also remarked on the issue. Across CABs, to cite a representative not-for-profit organisation, the average cut is about 10% across the country. That is similar to if not better than the cuts that are happening in the public sector, although I advise caution on that figure, because, as I have said before, most CABs would have more funding streams than simply the local authority. That point was made by the hon. Member for Makerfield in her earlier remarks.
Amendment 83 asks us to predict the future benefits and costs of the reforms. That is notoriously difficult because the extent of any systemic cost arising will be driven by a range of factors that are difficult to predict, including an individual’s behavioural responses to the changes that we are seeking to make in the Bill. Nevertheless,
The hon. Member for Stretford and Urmston also said that welfare reforms would mean that legal aid must be maintained for these matters while reforms are bedded down. Several proposals are currently being considered across government that should make it easier for people to receive the right provision or entitlement in welfare benefits or education. The most notable of those is universal credit, which will help reduce the scope of fraud and error because it makes the benefits system simpler and easier to understand.
Kate Green: We naturally all hope that will be the eventual outcome of the introduction of universal credit, but my point was specifically about the transition to universal credit, which will be protracted and leave people unsure about whether they are in the new or the old system. They need to understand how they will transition across, and I was querying whether there could be extra support specifically in relation to that.
Mr Djanogly: That is a fair point, and I can assure the hon. Lady that Ministers spend not a little time meeting each other across Departments to address that very issue to see how we can make that transition as smooth as possible.
I can also confirm to the hon. Lady that we will continue to review costs. That matter was also raised by my right hon. Friend the Member for Carshalton and Wallington, who asked how we propose to review the progress of our reforms. I confirm to both of them that we are now exploring client and provider research that will be conducted in the near future—this year, before the Bill’s commencement—and that there will be a post-implementation review, which will conducted three to five years after implementation. Accordingly, we believe that the amendments are unnecessary and I urge the hon. Member for Hammersmith to withdraw them.
Mr Slaughter: This has been an excellent debate, which justifies the high bar that I set for the Committee at the beginning of its proceedings. In part, the debate has been a general one on legal aid and its history, but it has also related to provisions in the Bill.
The right hon. Member for Carshalton and Wallington made his “What will the Labour party do?” speech—now his default speech. I like to think that it is his conscience pricking him, as he contemplates making yet more cuts. My hon. Friend for Kingston upon Hull East had two bites at the cherry. First, he spoke movingly about his personal experience. He argued that the Government need to address the truculence shown by some defendants, particularly in NHS cases, and the lack of willingness on the part of clinicians to admit fault. He questioned whether proper redress can be had by those who have suffered clinical negligence or indeed other injuries at the hands of the NHS or other public bodies without
I agreed with almost the entire speech of the hon. Member for South Swindon, certainly in terms of the history of legal aid, and some of alternative solutions that he proposed. The only point on which I did not agree with him, and again I paraphrase, was when he said that to claim that that the proposals in the Bill would undermine our legal aid system was a storm in a teacup. The 5,000 responses to the legal aid consultation say different. Those responses, from a raft of engaged and committed organisations, say that this is a profound change. I would not want to lose that point.
My hon. Friend the Member for Stretford and Urmston spoke to two very persuasive amendments. I do not know how far they persuaded Conservative Members. I do not think we will find out today. They make unarguable points in relation to costs and litigants in person. We will see how far they are true—how far the courts are clogged up, how far justice is not done in the absence of lawyers, and how far other parts of the state or individuals themselves have to bear the cost of lack of representation. Even at this stage, it is unarguable that there will be costs, delays and problems.
I do not want to fall out with the hon. Member for Ipswich but his speech was a bit too clever by half. To say that one cannot spend to save in a Bill where payment by results is at the heart of reform of the criminal justice system is a bit bizarre. I wince slightly when hon. Members use words such as “lying” and “malicious” in Committee. He may want to reflect on the use of those terms. I know he is referring to my constituency. I do not take umbrage at that; I have been in Hammersmith politics for 30 years and those are quite mild terms in that milieu. I take exception to the fact that he thinks he knows better about what is going on in my constituency, where very serious matters to do with people’s homes are occurring this week. I will not digress by getting into that subject, but I will say that it is not a proper place to go, either in Committee or from his perspective of knowing very little about the area.
My hon. Friend the Member for Makerfield made her points succinctly and clearly with the use of example, and they were all the better for that. I conclude by saying that listening to the Minister is a bit like “Groundhog Day” sometimes. I give him points for doggedness, which is to say that we hear the same things time and again. I will keep trying to wear him down and maybe I will get there in the end. He may be right that there has not been a clear statement so far, even in the landmark Bills we talked about today. However, the spirit and intention of the Bills were clear, certainly of the ’49 Bill—I invite him to read the Second Reading debate—and of the ’99 Bill. We feel it is important to put one or two of the amendments to the vote, and invite the Government to support us, because we believe that for the first time that consensus is being broken, and the Government are moving far away from the spirit intended.
On finance, the Minister understands our point. Yes, clearly, we said before as well as after the election that we would make cuts in this area, and we do not resile
I feel it in my bones that my hon. Friend the Member for Kingston upon Hull East is not keen to press his amendment to a vote. I would seek to press new clause 1, but I understand that that comes later, as does amendment 61, tabled by my hon. Friend the Member for Stretford and Urmston, so the only amendment that I wish to press is amendment 60.
Question put, That the amendment be made:—
The Committee divided: Ayes 8, Noes 10.
Question accordingly negatived.
Ordered, That further consideration be now adjourned. —(Jeremy Wright.)
Adjourned till Tuesday 6 September at half-past Ten o’clock.