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) 

Gummer, Ben (Ipswich) (Con) 

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

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Public Bill Committee 

Tuesday 6 September 2011  

(Morning)  

[Mr Philip Hollobone in the Chair] 

Legal Aid, Sentencing and Punishment of Offenders Bill

Written evidence to be reported to the House 

LA 47 Association of British Insurers 

LA 48 Andy Brodie, Solicitor 

LA 49 Mayor of London 

LA 50 Paul Fulcher 

LA 51 Children’s Legal Centre 

LA 52 Chesterfield Law Centre 

LA 53 René Cassin 

LA 54 Citizens Advice Bureau 

LA 55 All-Party Parliamentary Group on Equalities 

LA 56 Mr Joseph Anthony Culkin 

LA 57 Garden Court Chambers Gypsy and Travellers Team 

LA 58 South East Strategic Partnership for Migration 

LA 59 Cleveland and Co Solicitors 

LA 60 National Accident Helpline 

LA 61 JUSTICE 

LA 62 Action against Medical Accidents 

LA 63 Medical Protection Society Ltd 

LA 64 Association of Personal Injury Lawyers 

LA 65 Still Human Still Here 

LA 66 Amnesty International UK 

LA 67 Mr Harry Smith Taylor JP 

LA 68 British Red Cross 

LA 69 Al-Hasaniya 

LA 70 Forum of Insurance Lawyers 

LA 71 Criminal Justice Alliance 

LA 72 Asbestos Victims Support Groups Forum 

LA 73 Bail for Immigration Detainees 

LA 74 The Children’s Society 

LA 75 Zimbabwe Association 

LA 76 Magistrates Association 

LA 77 Discrimination Law Association 

LA 78 Weightmans 

LA 79 Leigh Day & Co 

10.30 am 

The Chair:  When the Committee rose in July, it debated the first group of amendments and eventually divided on the lead amendment, amendment 60. Hon. Members with other amendments in that group had indicated their intention to press them to votes. I should advise them that, if they still intend to do so, it should be when the Committee reaches that particular amendment on the amendment paper, not straight away. 

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Clause 1 

Lord Chancellor’s functions 

Mr Andy Slaughter (Hammersmith) (Lab):  I beg to move amendment 1, in clause 1, page 1, line 13, leave out ‘may’ and insert ‘must’. 

The Chair:  With this we may discuss amendment 2, in clause 1, page 1, line 13, after ‘secure’, insert ‘, through the internet or otherwise,’. 

Mr Slaughter:  It is good to see you, Mr Hollobone, back in the Chair after our break. It is also good to see all members of the Committee back. I am sure that we are all looking forward to the further six days of debate. 

I do not think that the amendments need detain us long. I know that the Government are keen to make progress, and so are we. The amendments are non-technical, and I hope that they will appeal to the Government, because they go to the heart of two of what I have heard the Minister describe as aims that underlie the Bill. 

The first aim is a more do-it-yourself culture in the courts. We see that not only in the extensive withdrawal of legal aid, but in other measures on which the Government are consulting or have consulted regarding extending small claims jurisdiction. Generally, I think the Government wish to remove lawyers from the courts when that can be done without affecting the interests of justice—I put it as neutrally as that. 

The second aim, which I have heard the Minister recite many times, is that appropriate help should be available, and that, where existing channels have been withdrawn or where services have been cut back, there should still be an opportunity for advice to be given; it may just be advice of a different kind. For that to happen, one needs to direct the people seeking that advice the right way. 

Amendment 1 would make it mandatory rather than optional for the Lord Chancellor to provide advice, and require him to take steps to secure such provision. That duty would then have a binding effect on other amendments, so that if amendment 1 is agreed, the Lord Chancellor would have a duty in every case to ensure proper provision of advice. I think that that would affect both providers and users of services. 

I have been involved with the law centre movement for 20 or 25 years. One of the singular attributes of law centres is that they see themselves as providers of not only advice in specific cases—taking cases, if necessary, to appeal and beyond—but general legal education. I know that that goes for other advice agencies as well. The whole advice sector prides itself on the fact that it not only takes individual cases, but raises the general level of education. I mention law centres because they have combined funding—not simply from the Legal Services Commission, as it is at the moment, but from local authorities and other means—which gives them the leeway and ability to have public meetings, produce general documents and interact with their local communities. That is certainly the experience of my law centre—I have been on its management board for many years. It sees that as being entirely integrated into the process of ensuring the interests of justice, and taking a heavyweight case to the Supreme Court or holding a seminar on housing rights for local authority tenants is part of an integrated continuum.

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If the Bill is passed substantially as drafted, the outcome must be a huge additional onus on users of legal services to find their own remedies. Whether that is through small claims or tribunals, there will be far more litigants in person. Therefore, the need for legal education will never be higher than in the coming years. To give one example, only yesterday I met the new chief executive of my local citizens advice bureau, who is already reacting to the changed climate of funding and policy by moving much more to a volunteer system. Many CABs already do that, as my hon. Friend the Member for Makerfield will know, and all do so to a greater or lesser extent. Whether moving from a scheme with professional paid advisers assisted by volunteers to effectively a team of supervisors of larger numbers of volunteers is a welcome step—the level of expertise will never be as great among volunteers as among professional advisers—it is proving necessary. 

For my CAB, that is a specific response to a cut, although not a significant one, in its funding, but mainly to the fact that it is now the only significant provider of advice where there were three or four agencies. It could simply batten down the hatches, decide that it cannot get a quart out of a pint pot and do its work to the best of its ability on a reduced budget, but it is responding very positively, which I know the Minister will welcome. It is trying on a smaller budget to have two offices rather than one to cover a larger area to make up for the advice provision that has been cut—indeed, moving into the office of a closed advice centre—and it is spreading its budget more thinly by using volunteers. Whether in the long run that is good or bad remains to be seen, but I cannot criticise the steps that it is taking. 

If we are moving to a world in which there is more—I do not use this word in a pejorative sense—amateurism, both in providers and users of legal services, it is more necessary than ever that the Lord Chancellor, in deploying the powers set out in the first few clauses, is clear that legal education, the ability of people to understand at least the basic processes of the law, their rights and duties, is a higher duty than it was before. In amendment 1, the word “must” rather than “may” is necessary to ensure that that happens. 

Amendment 2, which is related, uses the phrase 

“through the internet or otherwise”. 

I do not rely entirely on the internet as a source of information about legal services. I happen to have a very internet-literate constituency across all social classes, but that is not the case throughout the country, and many elderly people and those who have not had the benefit of an education involving information and communications technology still sometimes lack access to the internet. However, I use that example because the internet is important, and I am sure that other Members are always coming across people doing DIY legal services through the internet, which can be a mixed blessing. I have had instances of people dealing with squatting by using the processes available on the internet. There is good advice, but it is mixed. I do not rely on the internet alone as a source of information. I use it as an example of where other services or means of communication need to be considered. 

In the amendments that we will consider shortly, the Government rely entirely on the telephone gateway as a point of access. We consider that to be a blunt instrument. Again, let me use the example of how my newly

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reconfigured citizens advice bureau will organise itself. There will be a triage service—I think the Government approve of triage in advice—but it will not be available only by telephone. There will be an option of face-to-face or telephone. The outcome of that triage will be flexible. It may be direction to another, more specialist advice agency; a quick referral to deal with a problem that can be tackled immediately; an emergency referral if an eviction is imminent, or it may be simply a more detailed reference to general advice. That again seems to me to be the way in which advice services should work. It is an intelligent response, but the Government are straitjacketing the way in which services can be accessed. 

The Lord Chancellor’s duties on access to legal information and how it should be provided should be executed in the widest possible way, and the Government should make it clear what they are doing. Considerable steps have been taken over the past 10 years. One looks at Directgov and the Plain English Campaign. I think all parties would agree that there is now a duty, as there perhaps was not in the past, for the Government to make their actions and the rights of citizens available in a way that is clear and apparent. That is the purpose of the amendments. If we are entering an era in which legal services will be more scarce—again, we will come on to amendments shortly about an advice desert—it is more and more important that people are told where they can receive advice. I suspect that in many constituencies there are already very sketchy or limited services with regard to access to legal aid and certain types of law. I am sure that it is common in all our surgeries to find people who need specialist advice. They do not come to an MP for that advice, but they want to know how to access it, and it is quite difficult to point people in the right direction. If we refer them to the Law Society, it may or may not give them a list of solicitors. If we refer them to a CAB—if you have one—it may or may not supply a list of advice providers. 

If the Government pursue significant cuts in the provision of professional advice, they need to be much clearer about the alternatives and how the public can access them. That is imperative and they have a duty to ensure that that occurs. That, very simply, is the purpose of the amendments. I hope the Minister will feel able to accept them. My hon. Friends may wish to speak, but I am keen to hear the Minister’s response about how the Government will ensure that people have access to advice when much less advice and a less professional level of advice will be available. 

The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly):  Good morning, Mr Hollobone. I, too, welcome Members back to the Committee—refreshed and well rested, I hope. I am pleased that the hon. Member for Hammersmith is keen to make progress; that is certainly the Government’s position. 

10.45 am 

The proposed amendments seek to amend clause 1(3). Amendment 1 seeks to make the Lord Chancellor’s power in relation to the provision of information a duty. The amendment is not appropriate. The duties of the Lord Chancellor in the Bill relate to the provision of legal aid for those who qualify for it in accordance with part 1. In contrast, clause 1(3) aims to enable the Lord Chancellor to direct those who are ineligible for legal

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aid to other sources of advice, which may, in future, include providing for referral to paid-for advice through a telephone helpline service. 

The Government have decided not to implement that proposal at this stage, but to run a pilot scheme instead. We intend that any individual seeking legally aided services but ineligible for legal aid advice will be signposted to other sources of advice that may be able to assist them. However, to create a duty in that regard would be too onerous and might be very costly, because such a duty would imply a far greater requirement to provide an all-encompassing service. The intention in the provision is to provide assistance for those who seek legally aided services but discover that they are ineligible for them; the intention is not to provide a national signposting service for anyone who seeks legal advice. 

Amendment 2 would specify one main manner in which such information services might be provided. That is unnecessary, because it is for the Lord Chancellor to determine, in the exercise of the power, how best to achieve the aims of the subsection. Furthermore, technology is always changing, and although it may be appropriate to provide information over the internet or any other appropriate means, there is no need to make specific reference to that in clause 1(3). In future, no doubt there will be other appropriate ways of providing information that have not yet been invented. I therefore urge the hon. Gentleman not to press the amendments to a vote. 

Mr Slaughter:  I am grateful for the Minister’s response, but I am slightly disappointed, because my point is that we do want an all-encompassing duty. We want it to be very clear to the Government and the Lord Chancellor—whoever that may be in future—that there is an overriding duty to ensure that people are directed towards appropriate advice. If the Government are not supporting that, it gives the game away in that such provision of advice will simply not be there. As I indicated in my opening remarks, the internet is an important but not exclusive source, and the amendment provides for that. However, the amendments are nothing beyond probing; I have heard the Minister’s comments, and I do not intend to press them to a vote. I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Kate Green (Stretford and Urmston) (Lab):  I beg to move amendment 79, in clause 1, page 2, line 7, at end add— 

‘(6) The Lord Chancellor must ensure that when an individual is in dispute with the state or with a body that is an emanation of the state, in relation to a matter of welfare benefits, employment, debt, housing, or immigration, education or asylum support, that the individual shall continue to be entitled to legal advice, assistance and representation against the state or emanation of the state on the same basis existing prior to the enactment of this Act.’.

The Chair:  With this it will be convenient to discuss the following: amendment 80, in clause 1, page 2, line 7, at end add— 

‘(6) The Lord Chancellor must ensure that in any case where the state or an emanation of the state has legal advice, assistance or representation, a party in dispute with the state or an emanation of the state, shall continue to be entitled in turn to equality of arms and to legal aid for legal advice, assistance or representation in relation to any claim in welfare benefits,

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employment, debt, housing, or immigration, education or asylum support, as they would have been prior to the enactment of this Act.’.

Amendment 81, in clause 1, page 2, line 7, at end add— 

‘(6) The Lord Chancellor must ensure that any individual bringing an appeal on a point of law or perversity to the Upper Tribunal, Employment Appeal Tribunal, the Social Security Commissioners, the Court of Appeal or the Supreme Court shall continue to be entitled to legal aid on the same basis as they would have been prior to the enactment of this Act. No individual shall be left without access to legal aid in appeal cases in such higher courts and Tribunals which would have been in scope prior to the enactment of this Act and on the same basis existing prior to the enactment of this Act.’.

Amendment 82, in clause 1, page 2, line 7, at end add— 

‘(6) The Lord Chancellor must ensure that where an individual would experience difficulty protecting their legal rights by reason of learning difficulties, mental health problems, other disabilities, language difficulties, problems of literacy or from not being articulate, in relation to welfare benefits, employment, debt, housing, or immigration, education or asylum support, that they continue to be entitled to legal aid on the same basis as they would have been prior to the enactment of this Act.’.

Kate Green:  It is a pleasure to return to Committee with you in the Chair, Mr Hollobone. Amendments 79 and 80 fundamentally aim to ensure fairness in the system where the balance of power, the equality of arms between the state and the individual, would otherwise be significantly distorted. Amendments 81 and 82, which I shall discuss shortly, relate to other instances in which there might be an in-built disadvantage to individuals in the legal system. 

Clearly, it is important that our legal system operates fairly, as a level playing field between the parties to legal action, which is why amendments 79 and 80 stress the importance of preserving legal aid in legal disputes between the state and the individual. Amendment 79 relates to situations in which the state is a party to a dispute. Amendment 80 relates to situations in which, presumably by definition, the state is not only a party to a dispute but has access to legal advice. It seeks to ensure that in both situations the individual who is up against the state in such disputes is also appropriately advised and represented. 

The amendments draw on a point of principle that was identified by Dr E J Cohn in “Legal Aid for the Poor,” which was recently cited by the late Lord Bingham of Cornhill shortly after his retirement as the senior Law Lord in his book, “The Rule of Law”: 

“Legal aid is a service which the modern State owes to its citizens as a matter of principle. It is part of the protection of the citizen’s individuality which, in our modern conception of the relationship between the citizen and the State, can be claimed by those citizens who are too weak to protect themselves. Just as the modern State tries to protect the poorer classes against the common dangers of life, such as unemployment, disease, old age, social oppression, etc. so should it protect them when legal difficulties arise. Indeed, the case for such protection is stronger than the case for any other form of protection. The State is not responsible for the outbreak of epidemics, for old age or economic crisis.” 

Mr Hollobone, you may feel that that is an arguable statement, but it is the statement of Lord Bingham of Cornhill. He continues to quote: 

“But the State is responsible for the law. That law again is made for the protection of all citizens, rich and poor alike. It is therefore the duty of the State to make its machinery work alike, for the rich and the poor.” 

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Taking forward that principle as articulated by Lord Bingham is what underpins amendments 79 and 80. In situations where the state is party to the legal dispute, or by its action or inaction is the cause of the dispute, it is all the more the responsibility of the state to ensure that the individual is placed in a position where he or she can effectively hold the state and its agents to account. 

In such situations, the state and those to whom it delegates authority have access to substantial resources. They can easily afford the best legal advice, they can afford to be represented in tribunals and courts and they have the facility to undertake the necessary research into the legal and factual issues of a case. That stands out particularly in comparison with individuals who currently qualify for legal aid in legal disputes with the state in areas such as welfare benefits, employment, debt, housing, immigration and asylum support. By definition, people who are in dispute with the state on those matters are likely to be poorer, for otherwise they would not be in receipt of welfare benefits or housing support. They may be struggling with the decision making of the state, which may be why they are within the ambit of the asylum or immigration system, and are therefore more reliant on good quality decision making by the state. Or the state is their employer, and naturally one could say that there is an inequality of bargaining positions between the employer and an employee. If that is the nature of the legal dispute between an individual and the state, it is important to even up the playing field. 

In some instances, the content of such legal disputes can be said to be, in some significant part, the responsibility of the state. The state makes the decisions and is responsible for actions taken in consequence of such decisions. Therefore, the state is in a special place in terms of the impact of its decisions and the resources that it has available to it. 

By contrast, if legal aid is removed by the Bill, an individual or family will first of all face the task of establishing what the limits of the state’s lawful exercise of its powers are; what legal remedies are available by which those limits may be insisted on; and what evidence they will need to present to establish a case against the state. Secondly, if they are to have any chance of resisting the state, the individual must have the means to acquire and present the evidence in a legal manner and in the context of a legal process in which the state may, and often will, be represented and will have the option of further calling on senior advisers and lawyers. 

Many of these cases can be complex. I think we all know that cases in relation to welfare benefits can be extremely complex. It is important, therefore, that good quality advice is available to the individual to unpick that complexity and distil the legal issues—the justiciable issues—within what can be often be a real morass of concerns and complaints. It is also important to note that by no means all of those matters need to end up in tribunal. We are therefore talking about the availability of legal advice to the individual to, in many cases, prevent the case ultimately reaching tribunal. Harking back to our discussion before the summer recess, that is important in relation to the overall costs to the legal process of ensuring that support is given at the right point. Undoubtedly, early advice about difficulties with welfare benefits and so on can prevent cases arriving in a legal forum further down the line. 

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I hope Ministers will feel that there is not only a moral, fairness reason but an economic reason for taking on board the arguments that underlie amendments 79 and 80. Any outsider looking at the might of the state set against a potentially poor and vulnerable individual who is seeking to assert his or her rights will see that there is clearly an unfairness or an imbalance. I look forward to hearing how Ministers will seek to address that unfairness in the absence of the availability of legal aid. 

Amendment 81 covers the specific instance of an individual asserting his or her rights and of access to expert legal advice being important in cases that are moved to the upper tribunal. That happens when the individual appeals on a point of law to the upper tribunal, the Employment Appeal Tribunal, the social security commissioners or, indeed, to the Court of Appeal or the Supreme Court. The amendment proposes that that individual should continue to be entitled to legal aid on the same basis as before the Bill’s enactment. No individual should be left without access to legal aid in cases in higher courts and tribunals that are in scope before the Bill’s enactment and on the same basis. 

A decision of a first tribunal that is appealed to an upper tribunal will almost inevitably involve more complex points of law. That is recognised by the fact that the entitlement to go to the upper tribunal is carefully controlled. Typically, the whole factual findings of the first tribunal are not repeated, but the expert legal opinion of the senior judiciary is brought to bear on the more technical, controversial and difficult points of law. An individual cannot just assert his or her wish to go to the upper tribunal; permission has to be sought and granted. If permission is given, but it becomes impossible for the individual to go to the upper tribunal or to present his or her case effectively, it is entirely possible that decisions that are wrong in law will not be corrected as they should be on appeal. 

An individual may go to the level above the first tribunal without the benefit of legal advice and representation, seek to present his or her case, fail to make that case and proceed to a further tribunal, perhaps in the Court of Appeal or the Supreme Court. Again, we can see the efficiency and cost-effectiveness of having good advice early in the process to reduce the likelihood that cases proceed all the way to the top of the system before a final decision is reached. 

We should note that permission to appeal to the Court of Appeal will only be granted if the judge is satisfied that the case raises an important point of principle or practice or if there is another compelling reason. Such cases will therefore address significant points of law, and both parties should be able to argue their case effectively. Onward appeals concern matters of law on which specialist legal advice and representation may be necessary to identify and articulate the precise issue. 

11 am 

Again, there will be a real inequality of arms between the state and individuals if we remove access to legal aid from scope on cases that might move forward to appeal. An individual might succeed in the first-tier tribunal, but the state will be in a position to pursue an onward appeal, with the advantage of solicitors and counsel, all the way to the Supreme Court, while individuals could

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be left to cope without any legal advice or assistance at all. Litigants in person, whom we discussed before the summer, would also be especially vulnerable in such situations if, for example, the state was not responding in a timely manner to directions of the court, not disclosing relevant matters, not adequately preparing or pleading its case, or perhaps amending its case at the last minute. Such events are extremely difficult for the unqualified, amateur litigant to deal with without the support of legal advice. 

The prospect of increased litigants in person in onward appeals raises a particular risk to the capacity of the upper tribunal and higher courts to manage the cases that come before them. We discussed all the issues around litigants in person before the summer. I do not propose to repeat them, but if they were already an issue in the lower tribunal, they are going to be a greater issue—more complex and more costly—in the upper tribunals. Again, it makes sense to ensure that we cut through some of that by ensuring that litigants have access to good legal advice. 

It is important to note that when cases arrive in upper tribunals, decisions at that point are often crucial decisions in terms of the development of the law, particularly where the law may be changing rapidly; it may be subject to frequent need for understanding and interpretation, such as in relation to welfare benefits. The need for rulings by the upper tribunal and higher courts is ongoing and profound if there is to be a real prospect of consistency on appeal and in the wider understanding of the law. However, if many of the cases that come before the upper tribunal and higher courts have only the state represented, the risk will be that the development of the law lacks authority—is not properly argued out before that tribunal and requires revisiting frequently, because the issues that are put before the upper tribunal and higher courts in appeals where only the state is represented are deficient and incomplete. 

Finally, there is a real risk that if only one party is represented in complex cases in the upper tribunal, confidence in the system, confidence in the decisions of the upper tribunals—public confidence and certainly the confidence of the individual litigant—will be harmed, especially where it has been perceived that individuals have been unable adequately to participate in the proceedings in court. That in turn could lead to yet further cost to the system if individuals then seek to go back through the process and look for opportunities to pursue, for example, the route of judicial review. 

It is important for Ministers to consider public confidence in the legal system. Naturally, a disgruntled litigant can always be expected when a case is lost, but it is important that the ways in which cases are conducted in our upper tribunals are seen to be fair between the parties, and I am concerned that Ministers should address that point. 

On amendment 82, I hope that the subject will command widespread concern and support from across the Committee. From conversations with individual Committee members about this issue, I know that there is real concern about the implications for our most disadvantaged individuals in accessing and working their way through the legal process. The amendment proposes that 

“where an individual would experience difficulty protecting their legal rights by reason of learning difficulties, mental health problems, other disabilities, language disabilities, problems of literacy” 

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and language and speech problems, particularly in relation to those areas of law where the most vulnerable claimants are likely to be found, they should continue to be entitled to legal aid 

“on the same basis as they would have been prior to the enactment of this Act.” 

The Government’s impact assessment recognised the concerns about people with mental health issues. It referred to the availability of advice from volunteer organisations such as Mind, as well as specifically stating that it did not consider such sources of advice to be sufficient and that there were not sufficient alternative sources of funding to enable individuals to resolve issues without publicly funded legal assistance. It also noted that these were not cases where the individual could be expected to resolve the issues themselves. 

It is not, however, only about people with mental health problems and those challenging mental health detention orders. We feel that there is a need for all vulnerable people to have access to good quality advice. There is no mention in the impact assessment of people with learning difficulties. I know that many members of the Committee share my concern about their ability to cope with working their way through the legal system on their own and unadvised. 

We must also be concerned about those with language difficulties, such as those who may not be fluent in English, and those with literacy difficulties. A substantial amount of what goes on in court requires the ability to read and absorb the content of complex documentation. Those people will be disproportionately—perhaps overwhelmingly—represented among those who, as a result of the lack of access to legal advice, do not bring their cases to courts or tribunals. That is not because their claims are unmeritorious; it is simply because the most vulnerable will be disfranchised from our courts. 

The Government have said that they think individuals should be capable of dealing with tribunals, which they say are designed to be accessible to users and do not require legal advice. That is a contentious statement in relation to many areas of law and many of the tribunals that individuals seek to access. It is particularly true when we are talking about individuals with high levels of need. Their needs cannot be dealt with by simply asserting that tribunals are accessible and easy to use. We risk leaving a vulnerable group of people without the ability to properly assert their legal rights simply by the nature of their disadvantages and disabilities. I know that Ministers will share those concerns. I look forward to hearing how they intend to address them if we are to see that legal aid is unavailable in such cases. 

Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC):  It is a pleasure to serve under your chairmanship, Mr Hollobone. 

There is not a great deal that can be said about these amendments, because the hon. Member for Stretford and Urmston has strongly and fluently argued the case on behalf of the people who are most vulnerable in society. People receive welfare benefits because, unfortunately, they are at the back of the queue. They are not in a privileged position, as we are. 

Looking at employment—I have no doubt that the point made by the hon. Lady will be made by the Minister—tribunals are meant to simplify proceedings. I declare an interest here. Both as a solicitor and a barrister, I have done publicly funded work in this area.

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When they were set up, tribunals were meant to be simple. The employment tribunal was meant to be a simpler, cheaper and more understandable version of proceedings in the county court. That was the intention. Being a lawyer myself, I know that we have a tendency to spin things out, and unfortunately the standard work on industrial relations, “Harveys”, is now five very thick volumes. That shows just how big an area employment law is. To expect someone who has been sacked by a large corporation or the state to deal with that case on behalf of him or herself is impossible. It cannot be right. We talk about equality of arms. If there is a better example of an inequality that will create great unfairness, I do not know of it. 

Let us look at debts and housing. I know that many feel that people should not get into debt, which is true, but many people do, because they are not proficient in looking after their own budgets. Perhaps those in the education system might look at that in due course. People often get into debt not through their own intentions, but because they are not proficient in handling budgets. That is an obvious matter, which I have seen as a Member of Parliament for the past 20 years or so. 

Housing is vital—what is more important than people having a roof above their head? To leave it, as with the latest scheme that the Government are considering, until it is virtually too late before any intervention can be made by a legally qualified person is folly of the utmost degree. If we intervene early enough, debts and housing can be sorted out. It beggars belief that the Government are making such cuts without thinking the process through. 

Immigration is clearly an important area, as is that relating to those people who are entitled to take action against the state for various reasons. There is a clear need to reconsider asylum, too. 

The hon. Member for Stretford and Urmston coupled her comments about education with the idea that many people who have learning difficulties will have great problems in this climate, which is absolutely true. Some pupils who have such difficulties cannot secure statementing in a proper care scheme to enable then to have a proper education. Such situations will be made 10 times worse under the changes. I do not believe it when the Government say, “They’ll seek advice elsewhere.” Where is such advice to be sought? Organisations that provide specialist advice, such as the CAB, are disappearing as we speak. I know of one or two CABs in half of Wales that would be qualified to assist—one of those is giving up and the other is considering doing so. Half the countryside in Wales will therefore be devoid of any assistance whatever in this important field. 

We talk about people being disengaged and youngsters rioting for whatever reason. I am not rushing to judgment, but undoubtedly some youngsters are disengaged from society. The provision is a recipe for further disengagement, is it not? If young people with special needs or learning difficulties are left high and dry, what can we look forward to in the next decade? Nothing but the kind of anarchy that we have seen recently; nothing that any of us would like to see. 

It is a matter of fairness. I know of a young boy in our village, who came to the local school at which my wife was then a teacher. People thought he was not trying—that he could not be bothered to do anything.

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Suddenly, someone realised that the young man had learning difficulties that could be addressed. He went on to found a very successful cartographical business. He also does film work and he has recently been nominated for and awarded a BAFTA. That young lad’s needs were unlocked at the appropriate time, but for all I know, he could have been disengaged had that not happened. It was not my wife who spotted his learning difficulties; it was another teacher. 

Heavens above! If we seriously want a civilised future society in which we are all given equal chances, the changes must be reversed and reconsidered. I agree that there must be changes and some cuts in the system—clearly that is true; only a fool would deny it—but this is the wrong end of the spectrum at which to be doing so. I endorse everything that the hon. Member for Stretford and Urmston said, and I hope that the Government will pause and think about the matter. This is probably the core area of the debate. These are the most vulnerable people, so they are the most deserving. Therefore we, as privileged people, should look after them and ensure that they are given an equal opportunity, as we have all been privileged to receive in our histories. The amendments are well argued and eminently sensible. I urge the Government, even at this eleventh hour, to reconsider the changes. 

11.15 am 

Mr Slaughter:  I can be brief as well, because I echo the right hon. Gentleman in saying that the arguments of my hon. Friend the Member for Stretford and Urmston on all the amendments, particularly the exposition on upper tribunals, are powerfully put. I hope that the Minister is sitting there and thinking, particularly with amendments 81 and 82, whether the Government have made an error in excluding people who fall into that category of legal aid. 

There is a common theme to the amendments, which is why they have been grouped together. It is a criticism of the Lord Chancellor’s role as defined in the Bill. It is effectively an abdication of responsibility, which is something that we are becoming familiar with from this Government. It is perhaps not quite as extreme an example as the Bill that is being debated on the Floor of the House today and the decision by the Secretary of State of Health to wish to take little responsibility for the national health service in the future, but it is of that order. I find that somewhat surprising from the current Lord Chancellor. I read with interest his approach in The Guardian today. Leaving aside the tabloid language, which was unfortunate, the approach was quite paternalistic. It was effectively saying that we have a duty to people, even people who have committed offences and serious offences, to rehabilitate them. I am pleased to hear that voice—a rare voice now in the Conservative party—being sounded. 

The Under-Secretary of State for Justice, the hon. Member for Reigate, is looking at me in a doleful manner, and of course I will scoop him up in that great paternalistic basket—[ Interruption. ] They all want to be in the one nation club. All right, they can all be in the one nation club, but just for today. I think the Lord Chancellor probably does get it where criminal law is concerned—[ Interruption. ] I am trying to collect my thoughts, but there is so much interesting debate on the Government Benches as to where exactly Government

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Members stand in the Conservative party. If in doubt, they can always abolish it, change the name and start again, as I believe is being proposed in some jurisdictions. 

Mr Ben Wallace (Wyre and Preston North) (Con):  Like new Labour. 

Mr Slaughter:  The hon. Gentleman says that it is like new Labour. Well, that seemed to work for a while—[ Laughter. ] I am not going to be put off my stride; not yet anyway. The Whips are trying to reach agreement, and I am not going to interrupt that. 

It is a serious point. There is an understanding, certainly as far as the Lord Chancellor is concerned, that the state has a duty to those caught up in the process of criminal law. However, there is no understanding regarding civil law, which is why we are seeing such utterly swingeing cuts to the provision of civil legal aid. Of course, matters of criminal law are often about the liberty of the subject, but being a defendant or a claimant in a civil matter can often be as devastating for people’s lives. As I said, the common theme here is to get the Government to try to take their responsibility seriously. That is why we have said in amendment 79 that where there is a dispute with the state, the state has a duty not only to put its own case forward, but to see that the individual is also properly represented. That is a level-playing-field amendment, which I think should find some resonance on the Government Benches. 

Equally, amendment 80 is an equality-of-arms amendment. The Minister has the fanciful view that an unrepresented litigant can go into an adversarial situation. Employment tribunals, social security tribunals—as they were called when I used to do them—and particularly immigration tribunals are highly adversarial. The representatives of the state at those tribunals often take a far more aggressive and unhelpful tone and line than is found in the county or even the Crown courts. Yet, we are asked to believe that the poor litigant, who has little understanding of the processes, is to ask either their opponent or the tribunal, which is not resourced or charged with that function in our jurisdiction, to assist them in the presentation of their case. That is simply not going to happen. 

We see the outcome of such an inequality of arms in the relative success rates of appeals. There are very high success rates, particularly on disability cases, and the Minister and his colleagues should be concerned about such worryingly high rates, because they are evidence of very poor decision making. The success rates, which are high in all cases, are significantly higher—often by a factor of 50%—when the party is represented, which should again give them pause for thought. 

My hon. Friend the Member for Stretford and Urmston completely demolished the Government’s case on withholding legal assistance in the upper tribunals. Surely, it is not just a question of equity—that, by definition, a court or tribunal deals with complex points of law; it is also a matter of effectiveness. It is a barely kept secret that particularly the upper courts live in fear—not fear perhaps, but dread—of litigants in person, who are hugely time-consuming. It is of course right that any individual citizen has access to justice at all levels, but it is quite wrong to expect litigants in person to be able to

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grasp the legal issues pertaining to appeals or to further appeals. One public policy issue is that that situation is a recipe for bad decision making in the long term. If only the state is represented, decisions will be based on only one side of the argument, notwithstanding the best efforts of the judiciary. 

Moreover, in many instances, cases will simply not go to appeal. I am sure that the Government would ask why public money should be used to appeal cases. I can almost hear the Minister saying, “Would an individual take a case to appeal using their own money, if they did not have access to legal aid?” That is not the right way to look at the issue. The law is often defined and developed by cases at the Court of Appeal or the Supreme Court, and those cases would not reach such levels without the provision of public funds. It is an absolutely proper use of public funds to develop the law in that way, because that relates to the successful jurisdiction in which we all live. 

I ask the Minister to think again about upper tribunals and about what we might call special cases. The idea that people who suffer from mental health difficulties should have assistance when they are challenging orders relevant to that disability—detention orders, for example—but not have assistance in other important proceedings that may affect their income, housing and so on seems wholly illogical. My hon. Friend the Member for Stretford and Urmston referred to it, but I will quote in full from the Government’s impact assessment: 

“Due to the nature of their illness, many of this client group will be very vulnerable and are unlikely to have the capacity to represent themselves properly at a tribunal without legal assistance. Although advice is available from other sources, through voluntary sector organisations such as Mind, which provides a legal advice service, we do not consider that these are sufficient, or that there are alternative sources of funding which would enable individuals to resolve these issues without publicly funded legal assistance. Nor do we consider that these cases are ones where the individual could be expected to resolve the issue themselves given the involvement of the state and the nature of the illness.” 

That is unarguable. That specifically relates to people who have diagnosed mental health conditions, but the same argument applies to anybody who would struggle not because of the ordinary difficulties that all unqualified people have in approaching the courts—I will come to litigants in person in a moment—but because they have a particular difficulty, whether it is a language or learning difficulty. 

I think some Members would be surprised at the people who go before the courts. The Minister will not be surprised, because he is on record as saying that people with disabilities and people who are vulnerable are disproportionately represented among those eligible for legal aid. The reasons are understandable. They are likely to be on low incomes and likely to need the services of the state, which might be withdrawn—there is a high incidence of poor decision making and it is likely to get worse at a time when many parts of the benefits system are changing out of recognition—and they will not be able to challenge those decisions. 

The evidence is in the Ministry of Justice research. It produced a very good paper on litigants in person in June, from which I quote: 

“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

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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.” 

That may sound slightly strange, because tribunals on the whole are designed to be less formal than established courts in the way that they look and the language that is used, but that is not the perception of those who go before them. 

If the Ministry of Justice research paper is right, it may justify the Government’s prediction that there will be fewer cases coming before courts and tribunals as a result of the legislation. I am sure we would all wish—for good reasons—that fewer cases came before courts and tribunals. Perhaps they could be settled without litigation. Perhaps there is less cause for them to come, because there is less cause for action and less poor decision making. However, to reduce the number of cases in litigation simply because the individuals concerned cannot access them, cannot understand the process and feel intimidated by them appears to be wholly wrong. 

It is likely, therefore, that the groups referred to in amendment 82, who have difficulties in understanding or articulating themselves, will be disproportionately and perhaps overwhelmingly represented among those who do not win their cases before the courts or tribunals. For all those reasons, the Government need to look again at the Lord Chancellor’s powers and duties and whether there is an abdication of the role of the state and of Government in not ensuring that there is proper access, particularly for those in need and for those who may need to go to a higher level where matters are more complicated. If no one else wishes to comment, I ask the Minister to respond to each amendment, perhaps paying particular attention to amendments 81 and 82. 

11.30 am 

Mr Djanogly:  Legal aid for tribunals, which was mentioned by various hon. Members, is the subject of amendments 139 to 141. We will come on to them later, so I will not spend a lot of time on that issue specifically at the moment. However, I point out to the hon. Member for Hammersmith that in “Government Response to Justice Committee’s Third Report of Session 2010/11”, paragraph 59 states: 

“MoJ recognises the Committee’s concerns”— 

this is in relation to legal representation at tribunals— 

“and will continue to maintain a strong focus on ensuring tribunal processes remain accessible and informal. For example, in the social security jurisdiction, use is made of informal tribunal rooms, specially trained clerks and most importantly judges who are trained in helping unrepresented appellants give their side of the story and the appropriate consideration of equality and diversity and other cultural issues.” 

I can assure the hon. Gentleman that the matter is of concern to us, and we will return to that issue later. 

Amendments 79, 80 and 82 seek to amend clause 1 to retain legal aid for matters where an individual is in dispute with the state, particularly where that individual would experience difficulty in protecting their legal rights by reason of learning difficulties, mental health problems, other disabilities, language difficulties, problems

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of literacy or not being articulate. I appreciate and respect the concern of the hon. Member for Stretford and Urmston and the right hon. Member for Dwyfor Meirionnydd and their commitment to looking for fairness in the system. Amendment 80 would require an equality of arms with the state in such cases. The amendments seek to retain legal aid for social welfare law, immigration and education categories, at a cost to the taxpayer of around £85 million. 

Amendment 81 relates to access to legal aid in appeal cases in the higher courts and certain tribunals. The categories of law in question include welfare benefits and immigration, where tribunals are used. Representation for welfare benefits is not available at the moment because such tribunals are designed to be user-friendly without the need for legal representation. 

We have to make tough choices about legal aid spending, so we have sought to focus resources on those who need them the most and on the most serious cases where legal advice or representation is justified. In social welfare law, education and immigration, we are reducing the availability of legal aid, but it will remain for cases with the highest priority, and we will continue to spend some £50 million on social welfare law. 

The concept of equality of arms is susceptible to misunderstanding. The amendment tabled by the hon. Member for Stretford and Urmston seems to imply that justice can be done only where both parties in proceedings have identical representation. That view is not supported by the law or by the experience of many litigants who currently appear before tribunals without the benefit of legally aided representation. 

The important question is whether an imbalance in representation gives rise to an obvious unfairness in proceedings. In determining that question, it is necessary to consider all the circumstances of the case, including the nature of the rights at stake, the complexity of the law, the capacity of the individual to represent themselves and whether there are alternative means of securing access to justice. In many cases, for example before the tribunals, the procedure is relatively straightforward and there are sufficient safeguards in place to ensure that the absence of legal representation for one side does not lead to an unjust outcome. 

The case law on article 6 of the European convention on human rights sets out the circumstances in which legal aid will be required to guard against an obvious unfairness in proceedings. Clause 9 will provide for an exceptional funding scheme that will continue to provide legal aid in circumstances where the failure to provide funding would amount to a breach of an individual’s rights under the ECHR or under European Union law. I emphasise that the threshold is very high; as the name suggests, the cases will have to be exceptional. However, the exceptional funding scheme provides an important safety net for those cases in which a significant inequality of arms would lead to an obvious and unlawful unfairness in proceedings, such as in the vulnerable and learning disability cases that the hon. Member for Stretford and Urmston referred to in relation to amendment 82. We shall discuss that matter further when we reach clause 9. 

Yvonne Fovargue (Makerfield) (Lab):  The Minister seems to be saying that these cases are not particularly complex, and he is focusing on representation. First, advice and support for people leading up to representation

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is equally important, and that will be vanishing. Secondly, if the cases are not complex, why did the Department for Work and Pensions issue 8,690 pages of advice to its decision makers in 2009? 

Mr Djanogly:  I did not say that all cases are not complex; some are, and they will require exceptional funding. People access advice in different ways—there will still be CABs, law centres and people who are prepared to give advice and representation for free, as they do now. Advice is given through a variety of methods and, as I said, exceptional funding will remain. 

Mr Dave Watts (St Helens North) (Lab):  Will the Minister guarantee that any individuals who seek advice will find it? If he cannot provide advice through citizens advice bureaux that do not exist, will he provide it by the state? 

Mr Djanogly:  I can give no more guarantee of that in the future than can be given now. 

On amendment 81, the Government have considered whether funding remains justified for all appeals, regardless of the area of law in which they arise. In our view, it does not. The fact that these cases are heard before a higher court, or on a point of law, does not automatically outweigh other considerations. The importance of the issue will vary with the type of case, as will the vulnerability of the appellant. As I have said, our approach retains funding for appeals in cases that raise matters of critical importance to individuals, such as those in which their life or liberty is at stake; in which they are at risk of serious physical harm or immediate loss of their home; or in which their children may be taken into care. Legal aid is not necessary for all appeals on a point of law, nor is it currently available for all such appeals. It has never been available for representation for appeals on a point of law from the welfare benefits tribunal, for example. 

We recognise that appellants may have difficulty presenting complex cases before the upper courts, but not all cases before such courts will necessarily be so complex that an individual would find it impossible to assert their claim. For appeals in which such difficulties do occur, exceptional funding will be available where, in the particular circumstances of the case, the failure to provide funding would amount to a breach of the appellant’s rights under the European convention on human rights or under European Union law. I hope that the hon. Member for Stretford and Urmston will be reassured and will withdraw her amendment. 

Kate Green:  I am disappointed by much of what the Minister has said and disappointed that the Government’s overall response to this matter seems so at odds with their impact assessment, which has highlighted the insufficiency of support for the most vulnerable in the system as a result of the changes. My right hon. Friend the Member for Dwyfor Meirionnydd summed it up when he said that we want a legal system in which all are given equal chances. Clearly, the provisions will not provide that for claimants who seek to deal with complex matters without the wherewithal and capacity to manage them on their own. 

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The Minister made an attractive intellectual point, but one that is completely at odds with reality, when he said that equal representation was not a prerequisite of giving everyone equal chances because our tribunals were already accessible, informal and relatively straightforward. As my hon. Friend the Member for Makerfield said, that is far from how tribunals are experienced by many who seek to access them. It is also of concern that the Minister has determined that there will be access to legal advice for what he deems to be the more serious matters, because that excludes matters that many individuals would regard as fundamentally serious to them and to their families—matters that go to the heart of their livelihood and well-being. I am concerned that there seems to be an assumption that it is only at the absolute extremes that there is the need for protection against inadequate and inappropriate decision making by the state and by others. 

It is right to note, as my hon. Friend the Member for Hammersmith pointed out, that we are not only talking about what goes on in tribunals. Amendments 79, 80 and 82 discuss how access to legal advice earlier in the process could keep cases out of tribunal. That would surely benefit not only the individuals with the particular problems, but would also reduce the cost to the public purse. 

In an adversarial system it is especially important that every participant in the process is adequately equipped to play their part. Despite the point that the Minister made about the judge seeking to ensure that people could understand what was going on and taking extra account of people who suffer from particular disadvantages, we have a fundamentally adversarial process, which requires each party to put their case in front of the judge and for the judge to take the decision on the basis of what he or she hears. It is difficult to see how that can be done fairly when the two parties are in different places in their ability to research, present and understand the legal complexities surrounding their case. I am concerned that, as my hon. Friend the Member for Hammersmith mentioned, we will end up with second-rate justice and deficient decisions, which are not the right decisions. 

I noted what the Minister said about exceptional funding remaining where people were particularly at risk of being unable to fully enjoy their European convention rights. Frankly, however, if a small and vulnerable group of litigants will have to go through a further hoop to determine whether their rights are being put under threat and they therefore have to make a case that they need legal aid in those situations, that will mean further uncertainty for those claimants as to whether they will be able to continue their case, as well as further hassle, further grief and further confusion as to where they stand. 

I was disappointed with the Minister’s response. I accept that amendments 79 and 80 would bring substantial parts of the current areas of law that qualify for legal aid back into scope. I can see why Ministers would be reluctant to accept amendments that had that particular effect. Any member of the public watching this debate would expect the Committee to stand up for those with learning disability, those with mental health problems and those who are unable to properly and equally participate in court hearings and court proceedings. They would also expect us to say that people should

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have access to professional, expert qualified advice in the upper tribunals where, by definition, technical and complex points of law, which require expert understanding, are involved. I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Amendment proposed: 81, in clause 1, page 2, line 7, at end add— 

‘(6) The Lord Chancellor must ensure that any individual bringing an appeal on a point of law or perversity to the Upper Tribunal, Employment Appeal Tribunal, the Social Security Commissioners, the Court of Appeal or the Supreme Court shall continue to be entitled to legal aid on the same basis as they would have been prior to the enactment of this Act. No individual shall be left without access to legal aid in appeal cases in such higher courts and Tribunals which would have been in scope prior to the enactment of this Act and on the same basis existing prior to the enactment of this Act.’.—(Kate Green.)

Question put, That the amendment be made. 

The Committee divided: Ayes 9, Noes 12. 

Division No. 3 ]  

AYES

Cunningham, Alex   

Fovargue, Yvonne   

Goodman, Helen   

Green, Kate   

Llwyd, rh Mr Elfyn   

Reynolds, Jonathan   

Slaughter, Mr Andy   

Turner, Karl   

Watts, Mr Dave   

NOES

Blunt, Mr Crispin   

Brake, rh Tom   

Buckland, Mr Robert   

Crockart, Mike   

Djanogly, Mr Jonathan   

Gummer, Ben   

Hinds, Damian   

Lee, Jessica   

Soubry, Anna   

Truss, Elizabeth   

Wallace, Mr Ben   

Wright, Jeremy   

Question accordingly negatived.  

11.45 am 

Amendment proposed: 82, in clause 1, page 2, line 7, at end add— 

‘(6) The Lord Chancellor must ensure that where an individual would experience difficulty protecting their legal rights by reason of learning difficulties, mental health problems, other disabilities, language difficulties, problems of literacy or from not being articulate, in relation to welfare benefits, employment, debt, housing, or immigration, education or asylum support, that they continue to be entitled to legal aid on the same basis as they would have been prior to the enactment of this Act.’.—(Kate Green.)

The Committee divided: Ayes 9, Noes 12. 

Division No. 4 ]  

AYES

Cunningham, Alex   

Fovargue, Yvonne   

Goodman, Helen   

Green, Kate   

Llwyd, rh Mr Elfyn   

Reynolds, Jonathan   

Slaughter, Mr Andy   

Turner, Karl   

Watts, Mr Dave   

NOES

Blunt, Mr Crispin   

Brake, rh Tom   

Buckland, Mr Robert   

Crockart, Mike   

Djanogly, Mr Jonathan   

Gummer, Ben   

Hinds, Damian   

Lee, Jessica   

Soubry, Anna   

Truss, Elizabeth   

Wallace, Mr Ben   

Wright, Jeremy   

Column number: 272 

Question accordingly negatived.  

Amendment proposed: 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.’.—(Kate Green.)

The Committee divided: Ayes 9, Noes 12. 

Division No. 5 ]  

AYES

Cunningham, Alex   

Fovargue, Yvonne   

Goodman, Helen   

Green, Kate   

Llwyd, rh Mr Elfyn   

Reynolds, Jonathan   

Slaughter, Mr Andy   

Turner, Karl   

Watts, Mr Dave   

NOES

Blunt, Mr Crispin   

Brake, rh Tom   

Buckland, Mr Robert   

Crockart, Mike   

Djanogly, Mr Jonathan   

Gummer, Ben   

Hinds, Damian   

Lee, Jessica   

Soubry, Anna   

Truss, Elizabeth   

Wallace, Mr Ben   

Wright, Jeremy   

Question accordingly negatived.  

Kate Green:  I beg to move amendment 84, in clause 1, page 2, line 7, at end add— 

‘(6) The Lord Chancellor must ensure that a detailed strategic plan to fund the not for profit legal advice sector is adequately prepared prior to any decisions being made on changes to the scope of legal aid, to ensure that individuals are not left without access to legal advice and representation in relation to problems of welfare benefits, employment, debt, housing, or immigration, education or asylum support.’.

The Chair:  With this it will be convenient to discuss the following: amendment 85, in clause 1, page 2, line 7, at end add— 

‘(6) The Lord Chancellor must ensure, before implementing any changes to legal aid in this Act, that in no part of the country will the proposals result in advice deserts where it is not reasonably practicable for any person to be able to access legal advice and assistance in relation to welfare benefits, employment, debt, housing, or immigration, education or asylum support.’.

Amendment 4, in clause 2, page 2, line 11, after ‘Part’, insert 

‘and of fulfilling his obligations under section 1, having regard to the extent and nature of demand from eligible persons for Legal Aid’. 

Amendment 90, in clause 2, page 2, line 29, at end insert— 

‘(6) The Lord Chancellor may make funding available on a discretionary basis for civil legal advice on matters not covered in Schedule 1, where such advice complements the civil legal services provided for under that Schedule.’.

Kate Green:  Amendments 84 and 85 deal with the impact on the market of the proposals that the Government are bringing forward in relation to legal aid. Amendment 84 would require the Lord Chancellor to ensure that a detailed strategic plan is in place for funding for the not-for-profit legal advice sector before any decisions

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are made on changes to the scope of legal aid. We are concerned that individuals should not be left without access to legal advice and representation on matters that go to their fundamental well-being. 

The Legal Services Commission has already warned of “market failure” from the proposed cuts; law centres may have to close and many citizens advice bureaux with legal aid contracts will inevitably be severely affected. To try to mitigate some effects of the cuts, the Lord Chancellor has announced funding of £20 million, which is certainly welcome, but we do not yet know to what that will be applied or whether it is only a one-time offer, so we are still concerned about the long-term funding of agencies in the not-for-profit sector. 

Although we are not at present saying what the nature of the long-term strategic plan would be, the amendment would not require the reinstatement of legal aid to categories that the Bill would remove from scope. We are asking the Lord Chancellor to demonstrate strategically how the not-for-profit advice sector will be supported to continue to fulfil its important functions when the changes go through. 

There are concerns about the impact on the sector and the sustainability of the market overall. The chief executive of the Legal Services Commission told us in Committee on 12 July: 

“The issue around market sustainability…is the impact of the three different budget reductions in relation to the single gateway, the fee reductions and the changes in scope. The area where we have had some concerns is about the large reductions in scope and the ability of certain parts of the legal services market to adapt to that, particularly the not for profit sector, which the Government absolutely accept in their impact assessments, and in the immigration and asylum field.”––[Official Report, Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee, 12 July 2011; c. 71, Q158.] 

In its written evidence to the Committee, Shelter made the similar point that the proposals for cuts in funding will have a significant and destabilising impact on the not-for-profit advice sector and are likely to make current business plans unviable. In particular, it will be difficult for advice agencies to restrict their offer only to fields and categories of activity outside the scope of legal aid. The interdependence of agencies’ legal aid and non-legal aid work is fundamental to their overall financial and business viability, and by removing one fundamental brick in the wall the whole edifice will begin to rock. 

The Government’s impact assessment highlights the extent of the impact on the not-for-profit sector. It acknowledges that the sector stands to lose 77% of its legal aid funding, which is a very substantial proportion. The Advice Services Alliance estimates that that will equate to a loss of 900 specialist advisers and solicitors from the sector. In its oral evidence, the Law Centres Federation stated that it expects to lose 86% of its funding—£6.87 million—on top of the 53% cut that has already taken place in its local authority funding. Gillian Guy, the chief executive of Citizens Advice, told us in her oral evidence that the hit on the CAB network will be about £25 million. 

The loss of funding to core advice agencies is substantial and will have a significant impact on the not-for-profit sector, but does not apply only to agencies dedicated to

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the provision of legal advice. Members of DIAL, the disability network, and members of Youth Access also stand to lose substantial funding—Youth Access between 20% and 40% and DIAL members 39%. 

Another thing that we can expect is not only some agencies struggling to keep going or to provide services at all but even if they can continue to offer some sort of advice and support to individuals, the quality and skills of the workers in those agencies being significantly and adversely affected. There is a real issue not only of quantity but of quality resulting from what the Government are proposing and in how the not-for-profit sector might look because of the funding reductions. That is a considerable cause of concern. 

Amendment 85 provides that the Lord Chancellor, before implementing any changes to legal aid, should ensure that in no part of the country will proposals result in advice deserts. We are asking the Lord Chancellor to assess the impact of the changes and to respond to any adverse impacts before the changes go through. 

Mr Watts:  Is what my hon. Friend has just said not at odds with what the Minister said earlier, in that individuals might well not be able to get access to help, assistance and advice? In that case, the desert would seem to exist, if the Minister refuses to guarantee provision for those individuals in such circumstances. 

Kate Green:  My hon. Friend is absolutely right. We are concerned that individuals will be put in a position where they cannot get the advice that they need, either because they do not qualify or because nothing is available in their communities or neighbourhoods. In either case, that individual can no longer enjoy his or her legal rights. 

We are concerned about the disappearance of provision from certain areas and certain communities. Immigration offers a good case study. Paragraph 306 of the Ministry of Justice response to its consultation document states that 

“if there is any short term disruption in supply in some areas, this can be mitigated through running a short, focussed retender exercise, for example as undertaken” 

in respect of 

“immigration matters in Dover following the 2010 bid round.” 

The consultation response neglects to mention that the immigration tender was let in November 2010, but that only in July 2011 was a firm appointed to take the Dover cases—a period of eight months during which those seeking immigration advice in Dover would have struggled to find it. 

The response also neglected to mention that there was a focused retender in Plymouth, where no contract in asylum had been let, and that has failed, meaning that the nearest asylum advice to Plymouth is in Bristol. Those who know their geography of the south-west, and some hon. Members certainly do, know that that is a not inconsiderable journey for the seeker of advice to take. The response also neglected to mention that no Bristol firm or organisation had the capacity to provide interim cover in Plymouth, and that the interim arrangements were only put in place from 15 February 2011—remembering that immigration tenders were let in 2011. The interim arrangements are the cover provided on a Tuesday and a Wednesday between 10 am and

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5 pm by a firm based in Enfield in London, which is not very near the south-west at all. The response neglected to mention that in east Essex a shortfall in supply could not be picked up. Attempts to resolve that without a retender have so far failed. 

We can add to that the situation with regard to the Immigration Advisory Service, which has gone into administration as the Committee has been deliberating. It had offices in Bristol, serving Essex from its Cambridge office, which means that for those areas the disappearance of the IAS further compounds the existence of an immigration advice desert in those communities. Advice deserts are not some nebulous future threat but a present reality. 

12 noon 

The Legal Services Commission, in response to the IAS going into administration, stated that there would be an orderly transition of files. We disagree. Carolyn Downs, the chief executive of the Legal Services Commission, when talking about an earlier failure of the organisation Refugee and Migrant Justice, told the Select Committee on Home Affairs last November: 

“In relation to the RMJ going into administration, all the cases which were with RMJ were passed on to other providers some months ago. That was successfully transferred from the RMJ to other providers.” 

A substantial proportion of RMJ cases were transferred to the Immigration Advisory Service. With that now going into administration too, we can see that the provision is very unstable. There is a risk that former IAS clients are now wandering around in advice deserts and simply unable to access their files, get advice on their case or know where their case stands at all. 

We are concerned about the provision of advice and particularly the impact on the non-profit sector. More generally, we are concerned that advice is simply not available in significant areas of law that remain within scope, but where agencies are not able to survive. We are also concerned where categories of law are taken out of scope, and that has a knock-on effect on the ability of agencies to provide advice on matters that remain in scope. We therefore ask, not for the Government’s proposals to be withdrawn, but simply that they are not progressed until those concerns can be adequately addressed through the provision of proper strategies and plans to deal with them. I hope that the Minister will agree that such strategic planning now would be an investment worth making for the long-term success of the reforms that the Government seek to introduce. 

Mr Slaughter:  As my hon. Friend indicated at the end of her remarks, the key word in this group of amendments is “strategic”, which is in the first line of amendment 84. That follows on logically from the previous group. The Minister probably expressed our doubts more eloquently than I could when he was struggling to justify, particularly, the Government’s intention not to provide legal assistance for litigants in person struggling with difficult and complex points of law on appeal. He was intervened on by my hon. Friend the Member for Makerfield, who suggested an example. The right hon. Member for Dwyfor Meirionnydd gave another example of the complexity of the law in many of the areas—8,000 regulations in four volumes issued by the Government. The Under-Secretary of State for Justice, the hon. Member for

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Reigate, indicated at that point that it might be the previous Government’s fault for being over-regulatory. If the Government are intending to replace 8,000 regulations with eight pages of regulation, perhaps they could get the Minister of State, Department for Communities and Local Government, the right hon. Member for Tunbridge Wells, to have a go at that; he seem to be good at slimming down the number of pages, but not without controversy. In the real world that is lived in every day by people who attend tribunals, such matters are complicated. That is why there has to be a strategic approach. 

What underlies this part of the Bill, and the Bill in general, is a finance-led review of the legal system without regard to the consequences. That is why we are asking for a pause to consider what some of those consequences might be and to take steps to ensure that the worst of them do not come to pass. The chief executive of the Legal Services Commission indicated that the cumulative effect of the single gateway, the fee reductions and the changes in scope would mean that even if there was a desire to provide legal services in a particular area, the provision would not be sustainable. We will see later on that other costs will be loaded on to providers of legal services. The Government have not considered what that cumulative aspect will be. 

My hon. Friend the Member for Stretford and Urmston says that there are already advice deserts. It is already difficult to get comprehensive legal services, even in London and major conurbations, let alone—Government Members will have more experience of this—in rural areas. People are being asked to travel prohibitive distances to seek legal advice and assistance. I know that my hon. Friend the Member for Makerfield will speak to her amendment shortly, and I do not want to pre-empt what she will say, but that is another part of the jigsaw that needs to be put in place. These are fig leaves. 

We have mentioned exceptional cases and exceptional funding. We heard about the £20 million, which was provided in parentheses in one of the Lord Chancellor’s statements. We understand that it will continue this year, but we do not know for how much longer it will continue to give some succour or palliative care to the advice sector. There has been no news about what will happen to the financial inclusion fund, which was first abolished then reprieved. Those are all ancillary areas to legal advice and LSC funding, but they work in conjunction. 

It is worth making the point that it is not currently the case that advice agencies are flush with money. They are already making do and finding clever ways to ensure that different funding streams such as FIF and the money that they get from charitable sources or local authorities, where that remains, are used to supplement or provide for where legal services funding cannot be there. There is no attempt, however, to look at advice in general and to come up with proposals, although we understand that there is work going on somewhere in the Government, perhaps in the Cabinet Office. The Bill pre-empts any of that. It makes the case for cutting and then waiting and seeing what the consequences may be. 

Yvonne Fovargue:  Perhaps my hon. Friend would like to hear about a practical example of where agencies worked to minimise costs. That example is the Liverpool specialist advice services, where all the money for the

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specialist services for Liverpool was concentrated into the specialist services, which then provided the advisers to go out to each bureau in Liverpool. In one fell swoop, the removal of this money will mean that there are no specialist services in Liverpool, an area of high demand, simply because of the cost-efficient way that they organised their services. 

Mr Slaughter:  I am grateful to my hon. Friend for that. I am sure that every hon. Member here will know of examples. I described earlier how my local citizens advice bureau is seeking to use its own resources more cleverly as well as plugging the gaps made by cuts elsewhere. I know, because they are on the record saying so, that Government Members have praised their local advice agencies and how they work. It is not that they are not valued; it is that this is incoherent. It is an attempt to make substantial cuts in a variety of different ways, which has a cumulative effect, without paying attention to the consequences. 

We are asking first that the matter should be looked at in the round, secondly that it should be looked at geographically so that there is a reasonable coverage, and thirdly that there is integration and consideration of the integration of the available funding schemes. The Government would then not simply make ad hoc announcements when they are on the back foot or want to do something to keep the advice sector quiet for a few days, but instead would look at where the policy is going in general. 

Yvonne Fovargue:  It is a pleasure to serve under your chairmanship, Mr Hollobone. 

Amendment 90 seeks to give the Lord Chancellor a discretion to permit transfers from the legal aid budget to other funding schemes. I do not agree with the way in which schedule 1 frames the definition of legal services. While it is intended to prioritise the needs of the most vulnerable by establishing categories of legal proceedings, it does so by being too narrowly prescriptive. In my experience, clients do not come in with a neat bundle of problems and say to the adviser, “Here you are. This is my housing problem. I have sorted out a welfare benefit problem. While I am at it, I have a little debt problem here.” They come in and say, “I might lose my home.” It is like a ball of wool that has to be unravelled by an experienced adviser—I am sure my hon. Friend the Member for Stretford and Urmston will talk about why a telephone gateway is completely unsuitable in some experiences—and the adviser has to separate the strands. 

Many issues cross boundaries and cannot be separated. What about the case where the housing benefit has been refused owing to the client’s relationship with the landlord, who happens to be the father? Both the client and the landlord could have lost the home owing to the complexity of the housing benefit legislation and, I have to say, the local authority’s lack of knowledge of the legislation. A very experienced benefits adviser argued the case to the local authority at appeal. They quoted the regulations, case law and precedents. They won the case and housing benefit was payable. The landlord continued to be able to pay the mortgage and the client remained in the home. That is not strictly a housing case. There was going to be loss of home, but it needed a benefits

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specialist to deal with it. We cannot separate problems with simple boundaries. If there had not been a benefits specialist available, the outcome could have been very different. 

The time spent by the Legal Services Commission or its successor in unravelling eligibility and whether the problem is strictly a housing or a benefits problem will be expensive and wasteful. The LSC’s response to the Green Paper highlighted the problem of “boundary issues”. It warned that 

“the administration costs of considering such cases could erode the revenue savings that the Ministry of Justice has committed itself to.” 

Although the £20 million is welcome—I hope it will continue past 2012, because it is much needed for advice agencies—it has to work in conjunction with the legal aid scheme so that there is no duplication. Advice services dealing with benefits, debt, employment entitlement, social security appeals, employment rights and immigration have to be able to give holistic advice, some of which will be legally aidable, even under the scheme, and some of which may not. The MOJ has to be able to make a discretionary resource transfer to any advice funding where appropriate to ensure that the clients do not keep returning. There is no point in dealing with one problem if the underlying problem, which is not legally aidable, is still there and is causing the problem. If the problems continue because the underlying problem is out of scope, it will cost the system more money and the client will end up claiming legal aid for a much more serious problem, so I propose a discretionary transfer. 

Mr Robert Buckland (South Swindon) (Con):  It is a pleasure to serve under your chairmanship, Mr Hollobone. 

I want to address the points raised by the hon. Member for Makerfield. With respect to this morning’s other contributors, she has made a substantive proposition to the Committee about the future of the welcome £20 million that has been made available by the Government through the Office for Civil Society to help not-for-profit legal advice services. It is entirely welcome. The Government are committed to trying to ensure that there is provision for people who need legal advice services. In previous contributions to the Committee and elsewhere, I have reiterated my support for that approach. I want to talk about the future of not-for-profit legal services and how local agencies such as law centres and citizens advice bureaux can work together in a collaborative way and in partnership to deliver legal advice services. 

12.15 pm 

We have endured a top-heavy, centralised system, through the Legal Services Commission, which, happily is to be abolished—we warmly welcome that. There is a case to be made in future for looking carefully at the way we deliver services locally. By that I mean looking at the sort of model that would allow the development of real localism in legal services—local partnerships with control of local budgets by way of block funding. I have used that phrase in the past and make no apology for doing so again. In that devolved and localised way, they could then make decisions about what needs they should serve, and the boundary problems that all of us, on both sides of the Committee, acknowledge could largely be avoided. 

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In a nutshell, I am not convinced that amendments to the Bill will be the best way to achieve that, but I know that Ministers are thinking anxiously about the issue. It is an issue for the long term. I am sure that the excellent initiative represented by the £20 million of funding will be followed through by more thinking about how to develop real localism in the delivery of legal services and allow the not-for-profit sector to flourish, as part of what we believe is a viable big society approach to the problems faced by people in all our communities. 

Mr Djanogly:  The amendments relate to the supply of, and demand for, legal services, including, as part of that, the impact of the legal aid reforms on the not-for-profit advice sector. Before I deal with the specifics of the amendments I want briefly to set out how we have approached our reforms. 

Our proposals have been designed with the aim of making substantial savings in legal aid expenditure. As we discussed earlier, legal aid is not an unlimited right. It follows that we cannot have a system that caters for unlimited demand. Refocusing the scope of the legal aid scheme on those who need it most has required us to make difficult choices about where funding continues to be justified. 

The starting point for our consideration has been to examine which issues have sufficient priority to justify public funding. In reaching our proposals we have taken into account our domestic, European and international legal obligations, including the European convention on human rights. We believe it is clearly right that we should continue to provide legal aid for those accused of criminal offences, provided it is in the interest of justice, and subject to the appropriate test of the individual’s means, as that underpins the right to a fair trial. 

In civil and family legal aid our aim is to introduce a targeted scheme that directs resources to those areas of law that we judge to be a priority. Our consideration of the justification of public funding for civil and family cases is based on our assessment of the nature of the rights involved, the client’s ability to represent his or her own case, and the availability of alternative assistance, remedies or funding. 

The current civil legal aid scheme, established under the Access to Justice Act 1999, is very broad. Legal aid funding is available to provide legal advice on almost any area of law other than personal injury and damage to property, conveyancing, boundary disputes, defamation and malicious falsehood, the making of wills, trust law and business cases, which are explicitly excluded. 

In the Bill we have taken a different approach. To target legal aid resources in a more focused way on specific issues, we propose to specify the types of issue and levels of service that are available under the revised scheme as set out in schedule 1. 

Amendment 84 would place a duty on the Lord Chancellor to provide a strategy for funding and preparation of the not-for-profit sector before the finalisation of any decisions on scope, with the object of ensuring advice and representation in relation to the category specified. Amendment 85 is linked closely with that, and would require the Lord Chancellor to ensure that advice and assistance had been secured in those areas of law, before the implementation of any decisions on scope. Both amendments refer to the concept of advice deserts. 

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Amendment 4 relates to clause 2 and would introduce an explicit consideration that the Lord Chancellor would have to take into account in meeting his obligations under clause 1: specifically that he should have regard to the nature and extent of demand from persons eligible for legal aid. We believe that that is unnecessary. Clause 1 states that the Lord Chancellor must secure that legal aid is made available in accordance with part 1 of the Bill. The Lord Chancellor has powers under clause 2 to make arrangements to enable provision of services. Such arrangements will, as now, enable people to access in-scope legal aid services wherever they are in England or in Wales. 

The concern about demand for legal aid services has not been ignored in the Bill. Under clause 10, the Lord Chancellor will make regulations setting out the criteria that the director of legal aid casework will be required to consider when making decisions. When setting such criteria, the Lord Chancellor must consider the extent to which they should reflect particular factors, which will specifically include 

“the availability of resources to provide the services” 

and 

“the appropriateness of applying those resources to provide the services, having regard to present and likely future demands for the provision of civil legal services”. 

In addition, we have been clear in the response to consultation that we will work in conjunction with the LSC to develop and implement a procurement strategy that reflects the demands and requirements of the new legal aid market. We are confident that a sufficient number of providers will be willing to undertake legal aid work under the new strategy once the provisions have been implemented, and that we will not have advice deserts. The hon. Member for Stretford and Urmston referred to IAS, whose administration was a sad event. However, within two months of its going into administration, all the organisation’s active files—more than 5,000—were successfully reallocated to new providers. All urgent cases involving unaccompanied minors and impending hearings were prioritised—there are no resulting advice deserts from IAS. 

Mr Watts:  If the Minister is so sure that there will be no advice deserts, why does the Bill not require the Government to provide extra resources if such a desert should exist? 

Mr Djanogly:  The Government and the Ministry of Justice want to provide appropriate coverage of legal aid throughout the country. There have been several administrations—a number of law firms have closed down. Law firms open and close, and that will always result in operational issues to deal with, which one might describe as advice deserts. However, I am pleased to say that despite that, to date, we have dealt with such issues as they have arrived, and I expect and hope that we will do so in future. That is an operational matter and not one for statute. 

Mr Slaughter:  The Minister mentioned IAS; is he as certain about the demise of Refugee and Migrant Justice? According to the Immigration Law Practitioners’ Association, administrators have continued to pay tens

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of thousands of pounds for the storage of files that have not been reallocated, and the transfers are often transfers in name only. In other words, there has been no connection between the new provider and the client. In the light of that, the Minister may want to reconsider not only what happened to RMJ, but also what is happening with IAS. Perhaps the information that he is getting is not accurate. 

Mr Djanogly:  I am pleased to inform the hon. Gentleman that, again, with RMJ, the LSC performed its duty well. A serious situation arose from the administration of that organisation, which was dealt with effectively. The hon. Gentleman specifically mentioned files in storage, which was a particular problem, not least because the files were, perhaps, in a room—to say that they were stored in a methodical format would be an overstatement. However, we are dealing with that matter, which, again, is operational and administrative. 

Amendment 90 is designed to enable the legal aid fund to be used to fund advice for areas of law that we would otherwise have taken out of scope. The amendments are neither necessary nor desirable. I admire the work of the UK’s not-for-profit centres and I recognise that they are an important national asset. I value the advice that they provide, not least to my own constituents, and I am sure that all Committee members feel the same. Throughout all the parliamentary debates on changes to legal aid, I have been left in no doubt about the value and esteem that Members of Parliament and local communities place on their local advice centres. We have sought to redesign legal aid based on an assessment of where taxpayers ought to fund legal advice. We propose to focus funding on critically important issues. Few of those are easy choices, but after careful consideration we have decided that disputes about financial issues, rather than life and liberty, should have a lower relative priority. 

In that context, I will deal head-on with the issues raised by hon. Members about the provision of early advice. Let me be clear that I strongly agree with the argument that many people with disputes or grievances need good early general advice and do not necessarily need the expertise of specialist lawyers. Of course, I can see the points made by hon. Members and, intuitively, that some early legal advice may well have a preventive benefit in avoiding downstream costs. However, changes to legal aid alone should not themselves undermine the provision of general advice. As a matter of principle, legal aid is money intended for specialist advice and not for cross-subsidising other activities, as would be provided for in amendment 90. As a matter of practice, legal aid represents only one of several income streams for many organisations—for example, 85% of CAB funding comes from other sources and half the bureaux receive no legal aid funding. 

The Government share the view of hon. Members who want to see a robust and sustainable not-for-profit advice sector. We have heard and carefully considered the concerns raised about the risks presented by a combination of funding changes, and we intend to continue our conversation with the advice sector. We are not acting off the back foot or in an ad hoc manner, as was suggested by the hon. Member for Hammersmith.

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The £100 million transition fund that was made available last December is testament to the pan-Government commitment to general practical advice to empower individuals to resolve their issues. In addition, the Lord Chancellor has announced funding of £20 million to support not-for-profits in delivering front-line services for this financial year, for which both CABs and advice centres generally can bid. 

In the longer term, a corollary of reframing legal aid might be a need to reframe early general advice provision. If we are to move away from the adversarial and litigious resolution of problems, part of our ambitious culture change has to be making the right provision of advice and information to allow people to operate on an empowered and informed basis. The priority is to work with the sector and across the Government to ensure that the implementation of our reforms helps to improve the efficiency and effectiveness of advice services. Ultimately, that work is being led by the Cabinet Office, but I can tell hon. Members that my Department and I certainly retain a keen interest. 

In conclusion, although I and the Government support the broad principles raised by the amendments, they are not necessary. On that basis, I ask the hon. Member for Stretford and Urmston to withdraw her amendment. 

Kate Green:  I noted with considerable interest all that the Minister said, particularly his points about the specific responsibilities of the Lord Chancellor and the factors that he will have to take into account in ensuring that legal advice services are provided. I welcome the Minister’s statement that he and the Government want a robust and profitable not-for-profit advice sector to continue, and that they intend to work with the Legal Services Commission to develop a procurement strategy that supports the not-for-profits and the broader advice sector. 

I hope that the Minister, when he works with the LSC to develop that broader procurement strategy, will take note of the very sound points made by my hon. Friend the Member for Makerfield and the hon. Member for South Swindon, who both have significant hands-on expertise of the needs of the sector, as the Minister knows. Some very sensible points and suggestions have been made by them and other hon. Members, and I hope that the Government give them serious attention. 

The Minister’s assurances are welcome, and we will be holding him to them. He has confidently stated that no advice deserts will result from what the Government plan and that they will take action to ensure that that proves to be the case. I assure the Minister that we will certainly be watching to make sure that his promises are fulfilled but, in the light of the assurances that we have received, I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

12.30 pm 

Kate Green:  I beg to move amendment 86, in clause 1, page 2, line 7, at end add— 

‘(6) The Lord Chancellor must ensure that any individual wishing to access legal aid through face to face provision shall be entitled so to do and shall not be compelled to do so through a telephone gateway.’.

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The Chair:  With this it will be convenient to discuss the following: amendment 87, in clause 1, page 2, line 7, at end add— 

‘(6) The Lord Chancellor must ensure that before any proposals to provide legal aid through a telephone gateway are progressed a full further public consultation takes place on the specific details of such proposals and such proposals are fully assessed for cost.’.

Amendment 88, in clause 1, page 2, line 7, at end add— 

‘(6) The Lord Chancellor must ensure that if a telephone gateway is introduced sufficient protection is in place to protect the rights of those who would have problems accessing it by reason of learning difficulties, mental health problems, language difficulties, problems of literacy, or from not being articulate.’.

Amendment 118, in clause 15, page 11, line 22, at end insert— 

‘( ) An individual to whom representation is made available under this Part for the purpose of criminal proceedings may select any representative willing to act for that individual, and where such a selection is made the representation is to be by way of legal services provided by the selected representative.’.

Amendment 108, in clause 26, page 20, line 34, leave out subsections (1) to (4) and insert— 

‘(1) Subject to subsection (2) the Lord Chancellor may discharge his duty under section 1(1) by arranging for services to be provided by telephone or by other electronic means.

(2) The Lord Chancellor may not arrange for services to be provided by telephone or electronic means where an individual requests that advice be provided in person.

(3) An individual who qualifies under this Part for representation for the purposes of any civil or criminal legal services may select any representative or representatives willing to act for the individual, subject to regulations under subsection (6).’.

Amendment 109, in clause 26, page 21, line 24, leave out subsections (8) to (10). 

Amendment 115, in clause 38, page 27, line 39, leave out ‘or (8)’. 

Kate Green:  My amendments relate to inclusion of the telephone gateway as the access to legally aided advice. The change to how people will access their legal advice and entitlement to legal aid is profound and therefore it should be explained well and understood fully. 

Amendment 86 is specifically about how telephone advice might not be suitable in some cases. We are seeking to protect the availability of, for example, face-to-face advice when appropriate. Amendment 87 would require further public consultation before the telephone gateway is created, and amendment 88 returns to the theme that we were discussing this morning—the particular needs of vulnerable people, but in this instance, specifically, their ability to access and benefit from telephone advice. 

In considering the amendments on the need to protect appropriate face-to-face advice and to have in mind the needs of particularly vulnerable people, it is important that we acknowledge what we already know. The socio-economic groups D and E—least likely to make use of telephone advice services—are the ones that will struggle to meet the higher costs of phoning even an 0845 number if they are calling from certain mobile networks and pay-as-you-go systems. I am sure that the Minister is anxious that people are not precluded from accessing telephone advice simply because they cannot afford it. 

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The Minister alluded to something else this morning that it is important to note: the intention is to allow paid-for services to be provided through the telephone gateway to those who are not eligible for legal aid. He mentioned the intention to pilot the operation of the telephone gateway, and it is certainly right to look at the conclusions to be drawn from such a pilot before proceeding to full roll-out of the gateway as proposed. 

It is important to note that, while there might be some merits to having a national, single and known point of information on the legal aid system, which the telephone advice service could provide, we have deep concerns about those who might be left without help, such as those with learning difficulties, mental health problems and language problems. The Government’s own impact assessment highlighted the adverse effect of the proposals on some ethnic minorities, and those with poor literacy or speech and communication problems might find it very difficult indeed to use a telephone service. 

As my hon. Friend the Member for Makerfield highlighted, some people come in with particularly complex and overlapping problems, which have to be disentangled and analysed, and which often arrive accompanied by sackfuls of documentation, some of which has been sitting behind the clock on the mantelpiece for months on end as people hope that the problem, if ignored, will simply go away. It is difficult for an adviser on the telephone to work his way through the kind of documentation that all hon. Members are familiar with in our own advice surgeries, let alone the kind of information that people might take into a citizens advice bureau or local welfare rights agency. Such people will not be helped at all by simply being routed through telephone advice. We must also be concerned that we might lose the ability to pick up on and respond to the extent of confusion and distress that people might bring when they first present a legal or quasi-legal problem. We will need very skilled telephone operators indeed to deal with some of the extremely difficult personal situations that will present themselves. 

The Minister might be able to offer more clarity today and that would certainly be welcome, as there is a lack of it in the details of the proposed scheme. In its response to the Government’s Green Paper, the Law Centres Federation said specifically that there was to be an evaluation and consultation process on any proposals to introduce the telephone gateway. It was also left unclear what might happen in situations that could not be dealt with through the telephone gateway. For example, people with a problem go to the telephone gateway where it is identified clearly that they have a problem that is susceptible to resolution under legal aid, but it is not clear what would happen to them if the telephone route were not sufficient to deal with it. There is a real issue for those for whom the cost of the telephone call might be a significant barrier and, indeed, for those who might not have access to a telephone at all. Moreover, there might be some in-built cost in dealing over the telephone with complex problems if people have to go over the same ground for advisers to understand the nature of their problems. 

I hope that the Minister will offer us more information today on how the proposals will be structured to ensure that it is financially viable for providers to operate the telephone advice gateway. He will be aware that the

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telephone service whereby solicitors can be identified and allocated has just gone bust, and I should be interested to know what lessons have been learnt from that experience. How can the hon. Gentleman be confident that the proposed telephone service will be financially viable; how can it be guaranteed a sufficient number of matter starts and how will it be viable for it to employ adequately qualified and trained staff? 

Will the Minister describe the level andexperience that will be required of staff to operate the call centre both in their soft skills—their ability to empathise with people perhaps in situations of great distress and confusion—as well as in their hard skills, whereby they can identify and know the right route by which to deal with complex and tricky legal issues? What will happen when people make a complaint or are dissatisfied with the telephone service? Has an estimate been made of any cost to the state of the putting right where the telephone service might go wrong—possible claims of negligence or of poor quality advice or indeed wrong advice having been given—and what assessment has been made in designing the service? 

I am worried that the proposals are likely to limit the right of a client to select their own preferred adviser—the person that they feel comfortable with and have confidence in, and with whom they can build a relationship of trust in discussing complex and personal legal problems. I hope that the hon. Gentleman will explain how those profound hurdles of trust and confidence can be overcome in the context of a telephone-only advice service. For example, those who seek asylum in this country might have come from distressing situations and it can take considerable time for such individuals to fully open up to an adviser. Similarly, we heard from Rights of Women in our oral evidence sessions before the summer recess that victims of domestic violence often take a considerable time before they are able to open up fully to their adviser and provide all the facts and circumstances of their case. 

What consideration has the Minister given to ensuring that a telephone advice service can deal with such difficult and challenging individual cases? I should welcome his comments, in particular, on the protection of face-to-face advice as of right, when it is in the best interests of the client to follow that route. Finally, although the situation will arise only rarely, it is possible that callers to a telephone advice service may be calling under pressure or be subject to undue influence from another party; however, the telephone adviser will not be able to see whether that is the case. Although we accept that, in a substantial number of cases, telephone advice will be a cost-effective and efficient way of providing information and advice to individuals, it is extremely important that the Minister recognises that it will not always be so and that it cannot adequately meet need in all cases. I hope that the questions that I have asked and the concerns that many groups have raised in their submissions will be suitably addressed and that the Minister will be able to offer us reassurances today. 

Mr Llwyd:  In rising to make a brief contribution, may I first say that I am in full agreement with the amendments tabled by the hon. Lady? Compelling people to go through a telephone gateway is an important matter, and I believe that further consultation is needed.

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I am sure that I am not alone in having people regularly visiting my surgery with welfare or benefits problems that emanate directly from a failure to use the telephone gateway. I am aware of numerous problems. If the changes are inevitable, I hope that the Government will speak with the Department for Work and Pensions to see how things are working in other areas. It certainly is not an unqualified success in my neck of the woods. 

Before I deal with that aspect in detail, however, I wish to speak to my amendment 118. It deals with the repealing of section 15 of the Access to Justice Act 1999 under schedule 5, which in effect removes the right of individuals granted representation in criminal proceedings to select any representative willing to act for them. That aspect was mentioned by the hon. Lady. For good reason, the amendment is fully supported by the Bar Council. It is not incumbent on me to explain further; the matter is self-evident and the wording is fairly clear. 

I turn to the question of the telephone gateway. Amendment 108 deals with that in a similar way to the hon. Lady’s amendments. It states: 

“(1) Subject to subsection (2) the Lord Chancellor may discharge his duty under section 1(1) by arranging for services to be provided by telephone or by other electronic means. 

(2) The Lord Chancellor may not arrange for services to be provided by telephone or electronic means where an individual requests that advice be provided in person. 

(3) An individual who qualifies under this Part for representation for the purposes of any civil or criminal legal services may select any representative or representatives willing to act for the individual, subject to regulations under subsection (6).” 

In effect, the amendment would restrict the Lord Chancellor’s power to override individual choice for the means of service provision and of representative. 

The Bill provides for the Lord Chancellor to discharge his duty to provide services for those who are eligible in accordance with primary and secondary legislation by any means he chooses, including explicit provision for services to be provided by telephone or electronic means. The Government’s response to the consultation exercise carried out earlier this year confirms their intention to press ahead with a mandatory single telephone gateway, with a few narrow exceptions, for those seeking to access the legal aid system. 

In addition, the Government envisage the provision of at least some continuing casework through a specialist advice service, including complex cases and cases involving extensive documentation. While, presently, there is still little detail about how the system would work in practice, Liberty, for one, has serious concerns about the proposals. 

Currently no information is given about the level of training or qualifications to be expected of those channelling requests for legal advice and assistance. Advisers with an incomplete understanding of the legal issues involved might well misdirect inquiries, which could compromise the interests of individuals, who must bring claims within set limitation periods. 

12.45 pm 

Legal issues are often very complex, and an individual’s concerns frequently span areas of law and require a combination of specialisms—a point that has been made several times here today. I believe that there is a risk that telephone operatives will perhaps artificially demarcate areas of law and the specific needs of the individuals will not be met. 

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As I mentioned, Liberty strongly believes that face-to-face contact with clients is a critical component of good quality legal advice—obviously so that the adviser can exactly understand the problem, and so that the person who is being advised can receive good, reasonable advice based on the facts presented, facilitating a comprehensive understanding of issues, and helping to build a relationship of trust and confidence. Liberty is also concerned about the removal of choice from clients seeking legal representation. 

The point is this: we have experience of the telephone gateway for benefits, which has not been a happy one in many instances. For my constituency, the nearest office is in Wrexham, which is about an hour away from where many of my constituents live, and it is not easy, when dealing with what are, let us face it, very personal matters, such as benefits. 

Legal problems are also very personal, and people are often embarrassed about their situation and unable to be explicit about their precise problems. Often people—particularly the older generation—want to be as succinct as possible on the telephone, and may well leave out important matters; so, given the bundle of problems that are dealt with, they may fall foul of unintended consequences, because the adviser is not made aware of a problem. 

The problem may, in many instances, be straightforward. In those circumstances the telephone inquiry line is perfectly adequate—if it is readily available, of course: we have problems with the Department for Work and Pensions, because people ring time and again and get no response. 

Helen Goodman (Bishop Auckland) (Lab):  The right hon. Gentleman makes a good point about the difficulties of the person speaking on the phone, but is not there also a problem for the one listening, who will give the advice? The messages that we receive visually are significant for understanding what a person is saying. 

Mr Llwyd:  Most definitely; speaking from my own experience in legal matters, that is the case. I often found that the first 10 minutes of any interview with a new client were virtually a waste of time; then I would realise where things were going. I would feel that some things were not being told properly and I did not quite understand. In half an hour I would understand exactly what the problems were. I agree: it is vital that the adviser is given the full picture, or obviously wrong advice will be given. That is as plain as can be. 

In circumstances where difficulties are encountered it should be routine for face-to-face consultation to take place. I fear that that will be a fair old number of cases, and the Government should begin to make provision for that now. We cannot wait for the system to come in, and for the whole thing to implode, which is what will happen. Wrong advice will be given, people will lose their entitlement or they might well fall foul of limitation periods. All manner of things might happen and the consequences are dire in the extreme.

I urge the Government to think carefully about the immediate provision of face-to-face consultation, whether that is visits or visits to the office. However it is arranged, there should be face-to-face consultation in many of these cases. That is not trying to give anybody a sort of

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feather bed. It is to ensure that the system, if it has to come in, works. This particular element of it—face-to-face consultation—is vital if it is going to work. 

Mr Slaughter:  This is an important group of amendments and that is borne out by the two speeches that have been made so far. Opposition Members have very serious concerns about the implementation of the telephone gateway. The three amendments sum up what are perhaps our three main concerns: choice; the speed at which the gateway is being implemented, and the viability of the scheme. Choice speaks for itself and it is a shame that this Government, who hold themselves up as supporting choice in many matters, are going to restrict it so far in this respect and in a way that we believe is not viable. That lack of viability would be proved if a fair opportunity was given to trial this gateway. 

I hear what the Minister says about pilots but I am aware, for example, of the position that the Government take on payment by results, as we will find when we come to part 3. A pilot introduced by the Labour Government was under way and before any of its outcomes could be reviewed—while it was still in the first or second year of a five-year programme—the Government have decided to put all their eggs in one basket and use payment by results as effectively their only method of funding new schemes as alternatives to custody. The analogy with this system is very clear; the Government wish here to funnel everything through one particular channel. 

Yvonne Fovargue:  Does my hon. Friend share my concern that debt will be one of the first areas trialled, whereas a considerable number of people who will ring the telephone gateway will be ineligible for advice because of the very narrow scope changes? Paid-for advice services, to which people can be referred, make me concerned that people will be referred not only to the free advice services, which will be able to provide debt advice, but to debt management companies, which I am sure would be happy to pay referral fees. 

Mr Slaughter:  Yes. That is the central point, which is really dealt with in amendment 88. It is this issue of how feasible it is that matters of great complexity, which are dealt with through face-to-face advice in a variety of different formats, can now suddenly all be filtered through this one avenue of telephone advice. The point is that there is no risk to the Government here. The Government see only a benefit; if people fall away at that stage, there are fewer costs further down the line. However, the risks to users of the service are very great. 

I do not wish to be flippant, but I think that we have all had experiences of call centres and the way that they deal with people. They are a bane of modern life. There is a process of simply making contact with a human being—what one has to do electronically to get through. Perhaps I have reached that age when I can no longer cope with electronic equipment of that kind, but I am sure that every Member here has had a bad experience of call centres. If people who should be capable of dealing with technology, processes and systems experience difficulty, I am sure that that will be the case for people who are vulnerable, quite likely to be inarticulate and in a state of some distress. 

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If I may, I will give another example from my experience of a constituency case that I have dealt with this week. It involved a couple running a small business. Both spoke English as a second language, and spoke different languages, although they had a good standard of English. Both were intelligent and very hard-working. They had been subjected to an extraordinary range of abuse by someone who had entered the property, taken it over and expropriated goods. In the course of a long discussion, there were clearly issues of civil law, and possibly of criminal law. They were not, at face value, issues that attracted legal aid, but in a situation where someone was locked out of their premises, had no form of income and was therefore falling into debt, they might well be. However, it took perhaps a half-hour discussion, going through lots of issues that did not appear to be germane to advice that might attract legal aid, to get to that point. Is that going to be the case with a telephone gateway? In the example that I have given, two people had to give their own side of the story. Neither spoke English as their first language, and indeed spoke different languages from each other. They were in a state of extreme distress and had a complicated story to tell, which did not, at face value, involve legal aid issues. That is not an untypical case. It beggars belief that such matters will be dealt with through a telephone gateway.

The Law Centres Federation said in its response that it supports amendment 86. There needs to be a specific evaluation and consultation process on the telephone gateway. The Minister must know, when he was still meeting the advice sector, that the issue is of the widest concern and that the proposals simply will not work. They have not been adequately assessed to consider whether they will save money, what level of skill may be required, even as a triage service, and how the referral service will work. My hon. Friend the Member for Stretford and Urmston said that that is particularly significant where people have difficulties expressing themselves in any event. Again, it is a common experience in all our surgeries to see people who have a problem but do not have the ability to articulate it and present themselves with a large amount of written material. Often I find myself going through carrier bags of information looking for key documents that are not there. Yet I know they should be. The eviction notice,

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the final demand or something of that nature is not there because all that the person who is presenting the case knows is that they have a problem and that they are getting an increasing series of demands and harassment, which may be from a debt collection agency or their landlord. They are asking for someone not, in the first instance, to resolve the problem, but to define it. Are the Government seriously expecting that to be done through the telephone gateway process, at least to the stage where the problem can be defined and passed on? Quite frankly, that is cloud cuckoo land. 

The amendments tabled by the right hon. Member for Dwyfor Meirionnydd are welcome. He referred to section 15 of the Access to Justice Act 1999. I shall refer to that in the next group of amendments, so I will not mention it now. The repeal of that section, which defined how the legal aid system operated previously, is a significant departure. However, as I said, I will deal with that later. I am content, looking at the time, to leave my comments on the group of amendments at that. 

Mr Djanogly:  The amendments seek to amend the provisions in the Bill relating to a mandatory single telephone gateway and the ability of a person to choose their representative in civil and criminal proceedings. Hon. Members have raised a variety of relevant and pertinent points, which I shall attempt to address. 

Amendment 86 would prevent the Lord Chancellor from requiring an individual to apply for civil legal aid via a mandatory single telephone gateway. We have consulted on the proposal, and the Government explained in their consultation response their decision to implement a mandatory single gateway, initially in a restricted number of in-scope areas of law: debt, community care, discrimination—meaning claims relating to the contravention of the Equality Act 2010—and special educational needs. There will be exceptions to using the mandatory single gateway for the four areas of law covered by the gateway, including emergency cases, instances where the client has previously been assessed by the mandatory single gateway— 

1 pm 

The Chair adjourned the Committee without Question put (Standing Order No. 88).  

Adjourned till this day at Four o’clock.  

Prepared 7th September 2011