Examination of Witnesses (Question Numbers
Christina Blacklaws, Steve Hynes, Laura Janes and
Paul Mendelle QC
8 February 2011
Chair: Good morning and
welcome. We are a minute ahead of schedule but we like to try
and keep on time. I have to ask colleagues to declare any relevant
Mr Buckland: I have been
a criminal legal aid barrister for about 20 years prior to the
election receiving payments from the LSC. I am not currently conducting
any live cases and I am a Recorder of the Crown Court.
Mr Llwyd: I have been
a Member of the Law Society and the Family Law Bar Association
and have received payments for publicly funded work. Since April
of last year I have reverted to a non-practising status.
Thank you very much. We are very glad to have you with us to help
us with the work that we are doing on legal aid. We have Laura
Janes from Young Legal Aid Lawyers; Steve Hynes from the Legal
Action Group; Christina Blacklaws from the Law Society's Legal
Affairs and Policy Board; and Paul Mendelle, who was Chairman
of the Criminal Bar Association in the year that has just ended.
Thank you very much for coming.
argument is that legal aid has resulted in unnecessary litigation
and the budget just has to be cut. What is your initial response
Shall I start on behalf of the Law Society? We just don't accept
that there is unnecessary litigation before the courts. If there
is any problem in relation to that, then we think that that can
be addressed by a proper application of the merits tests which
are currently available through the LSC to ensure that the wrong
cases are taken out of scope rather than whole areas of law being
taken out of scope. Litigation and access to the courts should
obviously be the last resortthere is no doubt about thatand
the Law Society is very much in favour of all types of alternative
dispute resolution. However, it is absolutely vital, particularly
in areas of law where it is the individual against the State,
that the Government must not deprive citizens of access to effective
remedies, particularly if that is going to be contrary to the
rule of law.
The legal aid budget is in fact tiny in proportion
to the totality of Government spend. That is not to say it should
be ignored or it should not be assessed; of course it should.
However, we believe there are many other ways to reduce legal
aid spending which do not cut away at the basic rights of the
most vulnerable and disempowered citizens in our society. We will
come on to ways that we can do that later on.
It was put to us by a senior judge yesterday that there are a
large number of judicial review cases which are, in the legal
sense, without merit and that a merits test applied within the
judicial review process might significantly reduce costs. Do you
have a view about that?
Yes. Of course there should be merits tests applied to almost
every type of law and certainly to any law that is going to be
publicly funded. I guess there are a couple of exceptions to that,
and that is perhaps when the issue is of such great importancefor
example, to parents and children when there is the risk that that
child might be removed from their care. We are delighted and relieved
that the Government is not intending to remove that from scope
because that is of such fundamental importance.
As a broader point, there will be a huge increase
in unmeritorious cases coming before all manner of court, not
just judicial review, without proper, timely and helpful legal
advice. What we are urging upon the Government is to consider
that front-loaded, relatively low-cost legal advice will save
an awful lot of money downstream.
There are four of you there. On any question, if there is something
you want to add, please indicate that you do want to, but, on
the other hand, don't feel obliged to say something which has
already been said.
Steve Hynes: Thank
you, Sir. Just to chip in, the misleading picture that the Government
are painting is on a number of levels. First of all, there is
the original intention of the legal aid system. Lord Rushcliffe's
report was the antecedent of the legal aid system. It was quite
clear from what he said that he envisaged a system where people
of small or moderate means could get help and advice in cases
where a lawyer would usually be required. That was the original
intention of the system. It grew in terms of the coverage from
the early 1970s because of an all party recognition, particularly
in social welfare law and other areas of civil law, that the population
needed access to justice through being given legal aid.
The Government also try to paint a picture of
a budget out of control. Indeed, there were increases in expenditure
on legal aid in its recent history. But if you look at the budget
over the last three yearsin fact over the last five years
for criminalthere is no growth. I have the figures here.
The previous Government were successful in controlling expenditure,
particularly on criminal, mainly through the reintroduction of
a means test in magistrates' courtsand now, as you know,
the means test is going through in the Crown Courtsand
the reductions in criminal fees. There is a 12.5% reduction in
Crown Court and High Court fees working through the system at
the moment. Over the next two years there are going to be further
reductions. On the civil side, there was some growth in last year's
budget, but that was mainly due to the fact of the Baby P case
and public law children cases increasing. There were quite a number
of factors there, not just Baby P. I don't think anybody in the
political or legal world is saying that that is expenditure out
The other factor was the recession. The previous
Government acknowledged this and put more money, as a political
decision, into legal help. That is something that certainly Legal
Action Group agreed with because one of the effects of the recession
is that you do get a greater demand for civil legal advice across
a range of the areas in scope at the moment. If you look at where
the cuts are going to fall, and this is the final point I would
make on the misleading picture that the Government are painting,
£164 million of the budgeted £350 million in cuts is
on legal help. Legal help, as I am sure you know, is the initial
help that people get in the legal aid system. Legal help is very
effective in heading off litigation because people can get early
advice on their problem before it needs to go to litigation. It
is a wholly misleading picture to say that the Government are
introducing these cuts to try and prevent unnecessary litigation.
The final point I would make on that is that
there are areas that are litigated under legal aid, such as clinical
negligence, that are within scope at the moment and which the
Government are proposing to take out of scope. This is a well
trod path. The previous Government 10 years ago looked at clinical
negligence and decided, "No, we won't put it into CFAs."
They listened to the lobby at that time and it was decided that
the cases that need a lot of investigation, expert reports, those
sorts of cases in clinical negligence, had to stay within scope.
It is only around £20 million off the funding, but it is
the one area, perhaps, that the Government could have an argument
to say that there is litigation paid for; but whether it is unnecessary
I wouldn't agree. I don't think those cases will transfer into
whatever emerges after the civil funding reforms. There will be
people who will be denied access to justice in those types of
cases. I will add to those comments later in the session.
Laura Janes: Very
briefly, just to endorse what Mr Hynes says about not confusing
access to justice with litigation, of course as law students what
we are learning to do is to avoid litigation. If you restrict
legal help or replace it just with telephone advice, there is,
of course, going to be even more unnecessary litigation brought
by litigants in person because they will have no other choice.
On the judicial review point, I should add that
I am a solicitor at the Howard League for Penal Reform where I
represent children in custody. We also have a public law contract.
Sometimes the importance of judicial review as a remedy of absolute
last resort cannot be underestimated. One of the concerns that
we have seen from the public law projects, and they have done
some excellent research on this, is that the number of fairly
hopeless cases that are going through for the permission test
tend to be those either where the solicitor is not a specialist
in the areaand that is a quality issueor where they
are bringing it themselves. Again, that is another good case for
that scenario coming within the realm of public funding where
there is a strong merits test.
To endorse what Mr Hynes was saying about the
rather false economy of people not having access to justice at
an early stage to resolve problems, lots of the children I represent
in prison have fallen through all the different hoops when they
could have had legal help with not being excluded from school
or getting help from social services, which has often landed them
in very expensive situations in terms of being detained in custody.
Do you want to say anything at this point, Mr Mendelle?
Yes, if I may. The concept of unnecessary litigation in crime,
of course, is a slightly odd one, because people tend not to choose
to be prosecuted. We would argue that the Government's own actions
are a driver in this increase in litigation and I would make these
points. First, Chris Huhne's own research shows that between 1997
and 2009 the previous Government created 4,289 new criminal offences.
Not all of those would have fallen into legal aid but a considerable
body of them would have. That causes an increase in litigation.
The York study that the Government refers
to in its Green Paper in 2009and its report covers the
period 2000 to 2006-07 also points out in Table 7.1 that
there is a much higher number of legal aid cases per 100,000 of
population in England and Wales than the next highest, which was
Netherlands. They trace that back to several factors. The crime
rate is higher in England and Wales than in other countries, with
the exception of Sweden. A higher proportion of cases in which
there is a suspect are brought to court in England and Wales,
and the proportion of suspects receiving legal aid was nearly
twice as high as in France or the Netherlands. That period exactly
coincides with the abolition of means testing in 2000, which was
not reintroduced until 2006-07 in the magistrates' court and 2010
in the Crown Court. We would say that is a factor. That is one
point I make.
The other point is this. The Crown Court Efficiency
Group under Lord Justice Goldring, and of which I was a member,
conducted a small survey of two Crown Courts. What they found
was that there was a practice of overcharging in the magistrates'
court. I am not saying this critically, but the CPS were often
reluctant to accept a plea until the case got up to the Crown
Court. Again, the MoJ's own statistics show that about a third
of cases collapse in the Crown Court because the prosecution offer
no evidence or the case is slung by the judge. You could argue
that those cases were unnecessary litigation. Our point is that
the driver, if there is, of unnecessary litigation in the Crown
Court is very often the Government's own actions.
Q206 Elizabeth Truss:
You have talked about the overall cost of legal aid and the proposals
by the Government. You mentioned how relatively high it is to
other countries. Our understanding is that it is the highest per
capita in the world. You mentioned the comparison with some European
countries. It is also expensive compared to some other common
law systems, for example, Canada. I just wondered, Mr Mendelle,
if you could just explain where you see the differential lying.
Is it the increased number of criminal charges in Britain? Is
it the court process itself or is it social problems in Britain
and the crime rate? How would you differentiate the drivers? What
is the key driver that is making legal aid so expensive?
First, we do not have the most expensive legal aid system in the
world. The only comparison that we have that the Government relied
on at the MoJ Commission was a report which compared eight legal
aid systems, including our own. The only common law ones were
New Zealand, Australia and Canada. Of course, two of them are
federal systems and the report itself found there is considerable
variation across the federal systems. I have already pointed out
what this report says are the drivers of the increase in legal
aid. You cannot exclude the fact that for a period of six years
there was no means testing at all, so everybody got legal aid.
That undoubtedly increased the legal aid bill. During that time
the spend on crime was very largely under control or fell. The
Green Paper itself says that the spend in real terms fell by 11%.
So there were more cases coming to court, more people were arrested,
and more cases were given legal aid.
Then you have to compare like with like. For
instance, in very many civil law countries the costs of legal
aid are low because a lot of the other coststhe court costs
and the costs of prosecutionare dealt with in a separate
budget. Again, if you don't have the report in front of you, we
can certainly send it in.
Chair: We have the report.
I am grateful. Table 7.2 on page 27 splits the legal aid spend
per capita with the spend on courts per capita and the public
prosecution costs per capita. When you add those three together,
because those, after all, are the costs of prosecution, then this
country is not the highest. In fact, Netherlands is the highest,
we come second and Sweden comes a close third, and there is not
a huge gulf. France is fourth. We are talking about a variation
from £50 per person up to £80 per person, and £90
for the Netherlands. It is very, very difficult to make these
comparisons, and the authors of the report themselves have said
that this report was not intended to be definitive but was intended
to provoke argument. It is a tendentious report so far as the
authors are concerned.
Can I make two points on behalf of civil legal aid?
Chair: I think Mr Hynes
caught my eye first.
Steve Hynes: The
Bowles and Perry research is very interesting. The main point
that it is making about the comparison across Europe is the difference
between the inquisitorial systems. If you look at the overall
expenditure, Mr Mendelle is correct. They found that in Holland
they actually spend more on criminal, if you take all the costs
of the system into account. It wasn't the case in civil. If you
look at the figures for Germany, they spend more per head of population
on its civil system than we do in the UK. That is primarily due
to two factors. It has a federal system which means that there
are more costs in the court system, but also it is because it
is an inquisitorial system so there are more costs in terms of
It is very difficult to come up with comparisons
across the common law world. I would give the one example of Ontario
in Canada. Because it is a federal system, Ontario and their civil
spend is at more similar levels to the UK. In other States in
Canada it is a lot less. Certainly we would argue that you don't
want a system where you have a very minimum spend on civil because
of all the knock-on effects to the rest of the system. I think
the evidence this morning will bring that out.
Q207 Elizabeth Truss:
I can see why the inquisitorial systems in Europe are not a very
good comparison because the cost exists elsewhere, but had the
Canadian provinces looked at why it is much more expensive in
one province than another?
Steve Hynes: Canada
is an interesting country. Ontario is by far the most populous
state in Canada. It is more of an urban state with large cities.
Their legal aid system, particularly on the civil side, is very
much analogous to our legal aid system and so the spending is
similar in level. It certainly is not the same; it is about half
of what we spend in this country. They have gone, particularly
on the civil side, for more salaried services and less procured
in the private sector. That could be a factor. I suspect that
it is mainly cultural differences and the way in which their court
system works that has meant there are not the same costs in the
Q208 Elizabeth Truss:
It is interesting you mention the court system. I would be interested
in Ms Blacklaws' views as well on this. Given that we do need
to reduce spending and £2 billion is a large slug of moneyand
it is the kind of spending we do need to reduce across Departments
to make sure we can prioritise on future economic growth, etcetera,
which is very importanthow would you propose making those
savings in the Ministry of Justice if it is not through legal
aid? We have heard previous witnesses talk about more root and
branch reform of the system that is needed and the fact that things
like the court processes are driving the cost of legal aid. What
could the Government do in the relatively short term to try and
make those savings? In my view, I think in our report we need
to propose where else the savings could be made if we are going
to say things about the legal aid budget. I would be very interested
in your ideas on that.
Returning to your previous point, can I just make two points in
regard to civil legal aid? The first is that the fact we have
perhaps the best civil legal aid system in the world is a mark
of our civilisation and something we should be proud of rather
than bemoan as a society. Secondly, the need for this, particularly
in civil, is largely created by poor decision making and actions
of public bodies, so it is a responsive requirement rather than
something that is a waste of taxpayers' money.
To come on to your second question of how we
can make the cuts, the Law Society is not saying that legal aid
should be immune from this. In fact, we have some ideas as to
how to bring about the £350 million saving without doing
two things: first, reducing access to justice in this country
and, secondly, reducing the supplier base so that effectively
it has the same result. I am very happy to talk to you about those
and to give you further information.
The headline is that, as far as we have done
the costing so far, we think we can come up with about £470
million of savings. We are very keen to discuss these proposals
with you. Part of that is on a "polluter pays" system.
We think that there are real, almost win-win, savings that can
be made. If you look at the alcohol industry, so much of our criminal
litigation is due to alcohol abuse. I am sure that those in the
alcohol industry would not be keen on this idea but, none the
less, if you put a 1% additional levy upon that, that would give
you about £85 million. That could come into a pot
Q209 Elizabeth Truss:
I think what we are particularly interested in are ideas within
the Ministry of Justice and the justice system that could reduce
costs. There seem to be all kinds of bodies that we have discussed,
such as the CPS and the Legal Services Commission. I see Ms Janes
wants to come in on that point. Where can we find savings, rather
than just putting up taxes? I would be interested to see where
they can be found in the system.
Laura Janes: I
would just draw your attention to the National Audit Office report
on this, which did the comparative analysis and said, "Yes,
you need £22 per capita." It also noted that, compared
to other countries, we brought more than 1 million prosecutions
in that time. It is a really significant amount in terms of the
amount of prosecutions that we are bringing in this country. It
is not just another factor; it is a really significant factor.
Maybe that brings with it a lot of additional costs, so there
will be a lot of cross-departmental savings from that.
Could I address a couple of specific points within the proposals
that the Law Society accepts will bring about significant savings?
Spiralling experts' fees have always been a bone of contention.
We have specific proposals around how to contain those experts'
fees. We believe that will bring about £11 million worth
of savings; the supplementary legal aid scheme, about £10
million; litigators' graduated fees scheme adjustments, £23
million. Those are just a few example, but, in total, we believe
that £68 million plus of savings can come appropriately from
some of the proposals in the Green Paper.
In addition to that, looking within the Ministry
of Justice's budget for legal aid, the Law Society believes that,
if you had a much more robust enforcement of merits tests across
the board, but particularly, for example, in family law where
I think there has been some real concern about inappropriate cases
being fought through the courtswhether the child should
be returned at 6 pm or 6.15 pm and that sort of thingyou
could stop those cases from coming anywhere near to the courts
by having a proper merits test. We think £12 million could
be saved by that.
Another example is funding from seized assets
of defendants, so again, within the system, those could be captured
and used. We have a number of very specific proposals that would
be: outside system, polluter pays; inside system, appropriate
savings could be made. The Law Society thinks we do need to look
at whole system change. This is an opportunity for us to review
it. Nobody would start where we have ended up in terms of how
legal aid is procured, funded or delivered.
Laura Janes: With
regard to another saving within the criminal justice system itself,
we spend around £300 million on child custody per annum.
That is something that has not, to my knowledge, been looked at.
We have a very low age of criminal responsibility and the highest
number of children in penal custody in western Europe. There are
2,400 at any single time.
Could I add that I echo what Christina said about the use of restrained
funds? One understands the political argument "Why not?",
but it is not at all uncommon in a fraud case for a defendant
to be sitting on £1 million or £2 million of restrained
funds, to which he does have access for other items of expenditure
but not for his own defence, which seems, in our view, misguided.
That would certainly relieve the pressure on the legal aid fund.
There is insurance of officersi.e. insurance against their
own fraudso that they have private representation for fraud.
It is a small body of potential defendants and they could get
that insurance. It is not especially expensive. These are some
of the most expensive cases in the system. So VHCC cases are sucking
up somewhere around £100 million per annum for a small number
of cases. Those are two very specific areas within the system
where you could relieve the pressure on legal aid.
Q210 Ben Gummer:
I have just a quick supplementary to that, if it is possible to
supplement such a comprehensive question from my colleague Ms
Truss. Mr Mendelle, will yesterday's announcement about ASBOs
being moved effectively into criminal lawCRIMBOs, I think
they are called nowmake a difference to this burgeoning
body of criminal law which you have talked about? I think you
have much sympathy from many parts of this Committee about it.
Do you think that will create an even greater pressure on the
I think it is almost inevitably bound to, isn't it?
Q211 Ben Gummer:
So this is a trend that is going to continue?
Yes. I know this is not a very popular message to say to politicians,
but it would be very useful, certainly so far as the criminal
law is concerned, if there were an extended period of benign neglect.
Q212 Ben Gummer:
It is very popular amongst some of us.
I am old enough to remember Harold Wilson. I won't tell you what
I thought of him, but a lot of people used to say to Harold Wilson,
"Don't just do something; stand there." We sometimes
feel like saying the same thing to the Government.
Q213 Claire Perry:
I think it is absolutely fantastic to hear, if I might say so,
such very well thought-out and creative ideas for saving money.
I think many of us are concerned about the restriction of legal
aid, particularly to the people who need it most. I suppose I
have a frustration, which is that the Legal Services Commission
has been basically a bonfire of taxpayers' cash. There are million-pound
pension pots all over the place and there is just the sense that
the whole system has been completely out of control. My frustration
is, why were these very good ideas not put forward five or 10
years ago? It has taken a budget crisis to force out some of the
creativity in the system. I would urge you, please, to keep bringing
forward these very good proposals. We are very receptive to well-thought
through and structured and well-argued ideas as to how to save
taxpayers' money. I wish we didn't have to do it in such a crisis
situation, but, if we could please work together on this rather
than setting ourselves up as adversaries, I think that would be
I absolutely endorse that but I can say, for instance, that two
of the ideas I have mentionedthere are otherswere
put forward by the Bar last year.
Q214 Claire Perry:
Yes, exactly, six months before the Green Paper came out. So we
have been advancing these views before.
I must say the same on behalf of the Law Society. We had a full
access to justice review which has been running for two years.
Lots of the creative ideas that we have have come out of that.
We have been trying to fly these kites for a very long time, but
now we have the opportunity to be heard, which is the silver lining,
I hope, to this rather difficult situation.
Q215 Mr Llwyd:
This is a question to Mr Mendelle, I think, and probably to Ms
Blacklaws as well. Has any work been done on sifting through some
of the legislation which has been created in the last 10 years
and areas where we think we could cut away the dross so that we
don't waste money on it? I would go back to what Mr Mendelle said
about Harold Wilson. The world-famous jurist, Woody Allen, said
that 80% of success is turning up.
My clients don't say that.
Q216 Mr Llwyd:
On a serious point, has any work been done on that?
Yes. The Criminal Bar Association, shortly after this coalition
Government came into power and announced it was going to have
a Reform Bill, compiled a list of those statutes which we said
ought to be reviewed and modified. It was overseen by James Richardson,
who is the Editor of Criminal Law Week. I can't tell you
offhand what was in it, but it was a fairly comprehensive list.
Professor David Ormerod, who is the Editor of Criminal Law
Review, compiled a very long list as well. I know that was
sent by the Criminal Bar Association to the Bar Council. I am
sure it has gone on from there to Government.
There is no doubt that the last 10 years have
seen an explosion of technical law in crime. Some of that, one
could argue justifiably, could be repealed. There is no doubt,
for instance, that sections 34 and 35 have introduced a great
deal of technicality in the law. I think there is a strong argument
that section 34 could be repealed, because with defence statements
now you do have to have your case before the jury and this whole
argument about what took place at the police station is a little
There are arguments that say we have gone too
far with hearsay and bad character. A lot of time in court is
taken up with these. This is what delays trials and this is what
extends them. There is a huge amount of technical law being argued
in the criminal courts today that was not there 10 years ago.
Can I add to that? If you remove the hearsay and bad character
provisions which the last Government put in place, we think you
could save £6 million. We have costed that. The Law Society
again has a growing list of statutes which should be appropriately
repealed and some proposals. For example, in our paper we say
housing law should be simplified along the lines proposed by the
Law Commission in their report Renting Homes. We think
that that would reduce the expenditure by about 20%. That is another
£10 million saving.
In family law, if you remove fault from divorce you
make it an administrative rather than a legal process. I know
there are lots of issues around that, but it is a difficult process
for people to do by themselves because it is a legal one. If you
make it administrative, then there is no need to fund that and
people will be able to support themselves in accessing their own
divorces. There are political issues in this as well obviously,
but there are considerable savings that can be made by looking
to reform the statute.
We would say that this is really the cart before
the horse. Look at what you can do with reforming the statutes;
then look at practice; then look at funding, scope and eligibility.
Don't do it the other way round.
Q217 Ben Gummer:
Mr Mendelle, I was speaking to a judge at the weekend. He is trying
a murder trial at the moment with two defendants. One defendant
has the benefit of a silk and a junior; the other one a senior
junior and a junior. The Crown is being represented by a junior
and a paralegala solicitor of some description. He said
that this is now par for the course and, as a result, the public
is not being represented as well as defendants are. Is that the
same in your experience, and what is the effect if it is true?
Yes, I think it is a trend in my experience. It is common to see
two things. First, you are getting junior prosecutors being assisted
by more junior prosecutors or sometimes High Court advocates.
The same is true on the defence side as well. I don't want to
enter into this old war between the two sides of the profession,
but the fact is that an advocate who has been 20 or 25 years in
the profession and is skilled in advocacy is bound to have a better
skill set than somebody who has not been doing it for as long.
That means that the quality of the justice that is being administered
is not as high as it should be. There have been a number of factors
that have caused this. Undoubtedly, cutbacks in legal aid have
been one of them. There have been cutbacks in CPS funding as well.
I don't think there is an imbalance, if that
is suggested. I don't think that routinely the defence are better
represented than the prosecution. That is certainly not my experience.
What is happening is that there is a general lowering of the standard.
I have anecdotal evidence of cases being badly prosecuted because
they have been briefed out at too low a level. I have anecdotal
evidence of cases being badly defended because they have not been
Q218 Ben Gummer:
But were these complaints that you heard when you were fresh-faced
at the Bar from your elders? Is this a perpetual complaint of
Ben Gummer: I am not trying
I absolutely understand that point. You tend not to hear that
too much in the magistrates' court, which is where I spend quite
a lot of time. I am conscious of the fact that my perception changes
as I get older, obviously. It is not a panoply being laid out
in front, with me, the static observer. From the best that I can
judge, these were not complaints that were being made. For instance,
I am at the Bailey a lot and I can tell you that when I first
started appearing at the Bailey you were only ever prosecuted
by a TC. TCs at that stage were not silks. They would always be
assisted by a leading top-quality junior, and you only had silks
and juniors defending. Over the years that has changed. With that
change comes some diminution in the quality of justice that is
Q219 Ben Gummer:
Keir Starmer, when he was giving evidence a few weeks ago, was
quite frank about the variability of quality across the courts.
He was spending a lot of time seeing it and was honest about it,
but he seemed to be struggling with how to address that. Do you
have any suggestions?
This is going to be unpopular. You have to pay people a proper
rate for the job so that they will do it. In every walk of life,
generally speaking, you get what you pay for. If you pay more
money, you get better quality.
Q220 Ben Gummer:
Can I turn to you, Ms Janes, to extend on that? Many people are
concerned about the problems facing those entering the Bar. Could
you give your impression of the effect on quality and also on
the choices that young lawyers are making apropos whether to go
in the Criminal Bar or Commercial Bar as a result of differential
Laura Janes: Absolutely.
Young Legal Aid Lawyers represents both solicitors and barristers.
A huge number of our members are students as well who are at that
formative stage. What they all share in common is the commitment
to legal aid. We have done quite a lot of research to find out
what motivates people to become legal aid lawyers. Almost 99%
do it out of a desire to participate in ensuring social justice.
One of the big problems with the current state of
affairs, and as they have been now for some years, is that young
lawyers find it increasingly hard to qualify in either side of
the profession. The Bar is becoming virtually impossible, but
training contracts are extremely hard to come by as well. One
of the things that the Legal Services Commission did do that was
very good was to have between 100 and 150 sponsored training contracts
a year for some years. That scheme was axed last year. It is almost
impossible for new entrants to have any hope of qualifying. They
have found that it has become absolutely essential to do a stint
of unpaid work, which means that that has a big impact on the
diversity and social mobility within the profession.
Q221 Ben Gummer:
Have you been able to measure that specifically?
Laura Janes: We
have not been able to measure it, but the research shows that
typically about 50% of solicitors and barristers attended independent
schools compared to 7% of the general population. I know that
the Legal Services Board have done some research on gender and
ethnic minorities going through the profession. It is still clear
that at entry point, as you are about to come in, there is a level
of parity between genders, but as you get to about 10 years' qualification
it is virtually impossible. So there is a lot of work still to
be done, and that is with the situation as it is, let alone the
proposed changes. We have done a report on social mobility and
legal aid last year in response to the Government's diversity
papers, which found that, while lots of people were really keen
to become legal aid lawyers, they just simply couldn't afford
it. Over 35% of students who would like to do legal aid have over
£20,000 worth of debt. The starting salary for pupillage
at the Bar is about £10,000.
Q222 Ben Gummer:
What is the actual effect of that? Does that mean that the only
people doing it are those with private incomes or that people
are living in penury, or both?
Laura Janes: This
is anecdotal rather than the basis of research. The impact seems
to be that either people have to be supported by their parents
and are not able to develop their own financial stability, so
they are not able to buy their own homes or anything like that
for years and years and years, or they are working all hours God
sends and doing part-time jobs to complement. We have some members
that are working weekends in the supermarket and working all hours
in the week as paralegals.
Steve Hynes: Just
a few points to emphasise. The bulk of what the Government are
proposing, around £280 million, is coming from the scope
cuts in civil. They are not particularly looking at Crown and
higher court work. There are a few things to say on that. I emphasised
in my opening statement that the previous Government reduced fees
and they are working through the system. There are something like,
I would say, 1,000 or so QCs and other barristers earning six
figures from the legal aid system. These people tend to specialise
in criminal and high-end civil work. It is a market that is at
work here. I don't buy into the argument that somebody is paid
£20,000 a year and they do a bad job. I know plenty of paralegals
and even lawyers working for that sort of money in the legal aid
system. Similarly, you could have somebody on six figures that
does a bad job. Quality goes beyond just what is paid for the
job, but it has to be recognised that at the high end of the Bar
there are 1,000 or so who are earning similar figures to consultant
surgeons. It is what you place as a worth on those skills. There
are about 14,000 barristers practising in the country. There is
an argument to say that perhaps there is not enough work to go
around, but I believe you need to have that intake to ensure that
the cream, or the fortunate, rise to the top and do the Crown
Court and other cases.
As I say, it is not part of the Government's
proposals but you could look again at very high cost cases. You
could look again at Crown Court costs and unifying the fees, which
I know is one of the Law Society's suggestions, and it would take
some money out of the system. I don't think you would take anything
near the order of 23%, which is what the Government wants, and
also you would risk quality. It is a balancing act you have to
play, and certainly it is not a balancing act that the Government
are addressing in these proposals at the moment.
Q223 Mr Llwyd:
I turn to family law. As you are probably aware, the Green Paper
says that "the provision of legal aid"in private
family law cases"is creating unnecessary litigation
and encouraging long, drawn-out and acrimonious cases". It
goes on to say that "people should take responsibility for
resolving such issues themselves". Do you think this is fair?
If you can, what proportion of the cases which reach the courts
should, or could, have been resolved earlier?
Can I start this? Just to explain, I run a large family and housing
law legal aid practice in London. I am the childcare representative
on the Law Society Council. I am the chief assessor of the Children
Panel, so this is squarely my practice area. I have already made
the point, but it does require emphasis, because we think considerable
savings could be made, and also legal aid could be going to the
people that the Government and the public want it to go to, if
legal aid merits tests are properly applied. They are there and
able to be applied. We think that they are fairly loosely applied
at the moment, so cases are getting into public funding that perhaps
What was the first part of your question?
Q224 Mr Llwyd:
Yes. The Government believe that the provision of legal aid is
creating unnecessary litigation and long drawn-out cases, and
acrimonious cases as well. Do you think that is the case?
If you have a look at family legal aid at the moment in the private
law sphere, over 80% of those casesof those acts of assistance,
as they are called by the Governmentdo not go on to litigation.
You have to think about why only 20% of cases that have been given
legal aid go to the court. That is because the vast majority of
those clients are helped by solicitors to understand whether or
not they have got a good case and to start to think, in relation
to children, what is in their children's best interests, to focus
on the future rather than what has happened in the past and to
be assisted to negotiate properly so that they need never go near
a court but come out with outcomes that are important for them
as individuals, for their children, and also for society.
I would say that a lot of the work that is done at
the low level, as Mr Hynes has said, is very supportive to ensure
that there is no unnecessary litigation. But you will always have,
as Lady Butler-Sloss said in the House of Lords recently, that
hard core of cases where you have people who have mental health
problems; where you have people who have all sorts of drug and
alcohol dependency; who have cognitive difficulties; who basically
will not be able to be reasonable. In family law, I am afraid,
to be reasonable and to come up with good solutions it does take
two to tango. You can be the most reasonable person in the world,
but if your ex-spouse has a mental health problem then it is most
likely that you are going to end up in court. There are cases
which will always need to go to court. Those tend to be the most
vulnerable people. They are people who don't have English as a
first language. They are the people who have these sorts of difficulties
and who are the most deprived section of our community. What we
say is, do we really want those people unsupported at the early
stages and ultimately unrepresented in court? That is not the
mark of a civilised society. So, no, is the answer to that question.
Can more cases be resolved through mediation
and through support in alternative dispute resolution? Of course,
we have collaborative family law as well as a different and another
type of resolving cases in family. Yes, absolutely, and the Law
Society is very supportive of as many cases as possible going
through mediation. We fear, rather ironically, that fewer cases
may get to mediation because solicitors refer to mediation. How
would individuals find mediation otherwise? It is a part of the
process. Of necessity, to get legal aid, you have to go and see
a mediator, first and foremost. That mediator assesses whether
your case is suitable for mediation. If you don't go through that
process, you may never find out about mediation or the benefits
Q225 Mr Llwyd:
But, of course, it is a truism that unless both parties submit
to mediation it is not going to work, is it?
Yes, and sometimes it fails. Even if parties are very willing
to try mediation, sometimes it doesn't work so we come back to
that hard core of clients. We have to think about this in context
of the number of people who are separating and divorcing every
year. 90% of them never go near a solicitor, let alone go to a
court. It is a tiny proportion of people who end up going to the
family courts at the moment. If you take away legal aid, that
proportion is going to increase hugely because they are not going
to have that checking mechanism, that good, helpful supportive
advice at the outset.
Q226 Mr Llwyd:
The Government have said that they intend to retain legal aid
in private law cases where physical violence is involved. Do you
share the widespread concern about the Green Paper's reference
to physical violence, as there is no clear definition of what
that amounts to?
Absolutely. I think all representative bodies are very clear that
the appropriate definition is probably that of the Government,
ACPOthe Association of Chief Police Officersand
the Crown Prosecution Service. I can tell you what that definition
is, but it goes way beyond just physical violence.
In fact, there was a judgment of the Supreme Court
two weeks agoYemshaw v. LB Hounslow  UKSC
3which us lawyers think drives a coach and horses through
the proposed definition of domestic violence. Even taking away
the legalistic arguments, very vulnerable women and children,
and sometimes men, will not be protected by this. What we know
is that a lot of people do not seek protection because they are
so frightened of the consequences of doing that. If they have
not had an order or a criminal prosecution, then they are not
going to get help. I can give you many examples of current cases
where, not to over-dramatise, we would be very concerned that
there could be serious injury and even death in relation to current
clients. Had they not had this support from their lawyers and
been able to access the courts, the consequences for them and
their children would have been dramatic.
If you had a broader definition, would you create a perverse incentive
which you, as a lawyer, might feel obliged to draw to the attention
of your client and say, "If there has been any implied threat
of domestic violence, it would be a good idea to make that clear
because that would make you eligible for legal aid"?
Of course. It would be our duty to assess, as it is at the moment,
whether any client is eligible for legal aid and we would have
to be clear about the eligibility criteria. Possibly you are right.
There may be a perverse incentive either to allege or pursue domestic
violence claims. That is why we go back to saying don't take the
type of work out of scope but narrow it to what the Government,
the public and professions feel is an appropriate limitation.
We can give you hundreds of cases where all of us would say, "These
people need help at this point in time." We want to make
sure that those people get the help rather than creating a skewed
system which allows certain people into the whole treasure chest
and others are excluded for no particularly good reason.
Q228 Mr Buckland:
As a supplementary on that, what you are saying is that the domestic
violence test is just too arbitrary and, fundamentally, there
needs to be a more stringent merits test when it comes to private
Yes, because that would be fairer, more appropriate and enable
access to justice for this tiny minorityremember it is
a tiny minority who are eligible at the moment for legal aidto
ensure that they do have proper access to the courts, and they
would be prevented from that. I want to emphasise that I am not
undermining the import of domestic violence, and that must be
Q229 Mr Buckland:
Do you think the term "domestic abuse" is a better term
than "domestic violence"?
Yes, absolutely. That is the one that is generally used.
Q230 Mr Buckland:
I want to move the arguments on scope to the other areas because
it is not just family law, though I accept that that does seem
to be the lion's share of the proposed savings to be made. We
are talking about other areas as well which we have touched upon,
such as housing, debt, benefits and employment. This Committee
is well aware of the potential detriments that can occur with
a reduction in legal aid for the provision of those services.
I am interested in any proposals you may have that could make
savings in those areas but in your view would be a more effective
way of making savings rather than just a whole-scale removal from
scope. I would be interested in the views of all the panel as
to that approach.
Steve Hynes: We
are proposing that the Government initiate a commission to look
at the funding, quality and provision of the other areas of civil
law. We are particularly focused on civil and social welfare law.
Our fear is that, if the scope cuts go ahead, and I will give
one example, it would reduce the number of contract holders in
housing down to 226. That is less than one per three parliamentary
constituencies. We do not think there will be a viable national
legal aid service if the scope cuts go ahead. We recognise that
there are other funding streams and other providers of these services
in these areas of law. There needs to be a cross-Government review
of these services looking to create the best that we can from
the existing providers and funding streams that we have.
The other illustration I would give is on page
4 of our submission. The legal aid scheme, particularly when you
look at non-family cases, has never really been a comprehensive
national service. There is the example of Surrey. The Legal Services
Commission has a formula that is called "indicative spend".
It means if legal aid was spread fairly across the country there
is an amount that would be spent in each area. In Surrey, it would
be £2,264,806. In reality, and this is three years ago, £529,271
was spent, which is about 23% of the indicative spend. That illustrates
the fact that legal aid has never been evenly spread across the
The other example I would give here is Camden,
Hackney and Tower Hamlets. They are all in London and all spending
a lot more than what would be calculated as fair. That is not
to say that these areas are creating demand. What is happening
is that practitioners are responding to the demand in those areas
and the pattern of supply has been determined by that demand.
But you do not have a service now which is fairly evenly spread
and providing a service in every largeish town.
But wealth is not fairly evenly spread as between Surrey and Tower
Steve Hynes: No,
it is not.
Q232 Claire Perry:
Isn't that exactly what we want? I would far rather see legal
aid, which is designed for the people who can least access justice
and least afford it, being massively overspent in our most deprived
areas and not spent at all in leafy Surrey.
Steve Hynes: I
would agree, but
Q233 Claire Perry:
That is an extraordinary interpretation, if I might say, Mr Hynes,
of what legal aid is meant to be. We are not trying to provide
a system where everybody can access their fair part of legal aid.
It should and ought to be designed for the most disadvantaged.
If I might say, that is the sort of thinking that has got us into
this mess. We are not focused on how to get it to the people that
need it most.
Steve Hynes: No.
The point that I am making is that the indicative spend formula
allows for the fact that legal aid is a means-tested benefit,
in effect, but we do not have the spread of services for the people
that qualify for legal aid fairly spread across the country. Surrey
is an extreme example, but yes, Surrey has pockets of deprivation
and people that qualify for legal aid.
I would give another example of Alnwick, in
the Chairman's constituency. If you know Alnwick, you know there
is public housing there. You know that there is a need for legal
aid. It is not at the same level, I would readily concede, as
Camden or perhaps inner-city Manchester. There is a need there
but it is not catered for, because legal aid has never been particularly
good at catering for need outside the larger urban conurbations
where there are pockets of need. I appreciate the MP's argument,
but I am saying that legal aid should be a system, a safety net
across the country, that is equally going to serve somebody on
benefits or who qualifies for legal aid in Surrey as they would
in Camden, inner-city Manchester, or in fact Alnwick, for that
Q234 Mr Buckland:
I accept your point. The point you are making is about legal aid
deserts, fundamentally, isn't it?
Steve Hynes: Yes.
Q235 Mr Buckland:
I understand that, but the problem is that resources are limited.
Is it not desirable to have practitioners of expertise and excellence
who may be serving a wide geographical area but who may be based
remotely from the town or village from which the particular need
Steve Hynes: Yes,
I can agree with that. I believe with existing resources we can
put together a system, for example, where Citizens Advice Bureaux
and other not-for-profit agencies link in with solicitors in private
practice and the Bar to provide a service. I think that is exactly
right. You could have a regional provider, for example, for public
law familythat would work welland they would be
taking referrals from their local Citizens Advice Bureau. The
problem is that they have been hit on all sides.
There are two examples I would give. The Financial
Inclusion Fund is going. We are losing something like 1,000 people
employed under that to give debt advice. An example from only
two weeks ago is that Birmingham City Council are cutting back
£600,000 on their Citizens Advice Bureaux. Five Bureaux will
close. That type of service where you can have an open-door service
that you can refer on when needs be to expert practitioners is
going. I believe strongly that the Government needs to look at
this whole problem in the round. It is not enough just to cut
one part of the system in the Ministry of Justice. You need to
look at the entire system.
Obviously I would like to support Mr Hynes and what he is saying
about community-based services. It is really important that they
are available, although, as you rightly say, they are not available
across the country at the moment. It is an opportunity for us
to think much more creatively about how we can deliver the services.
The Law Society is not against internet delivery or greater telephone
delivery. It may well be an answer to remote rural areas. In Wales,
for example, there is a tiny handful of legal aid providers already
so there is not that access. We need to look creatively at how
else we can provide the service, but remote service provision
is not the answer for everybody. What we know about our legal
aid demographic is that a lot of these people will not, for many
and varied reasons, be able to access services in anything but
a face-to-face way. There are those with mental health problems.
I can recite the list again of the people who have the problems.
Chair: Mr Llwyd is probably
anxious to come in on Wales.
Q236 Mr Llwyd:
Yes. You mentioned Wales. It seems to me that one of the problems
is that the Legal Services Commission presumes that if there is
a large throughput of cases then the expertise is there. That
is simply not true. There is a mental health practice in North
Wales which almost lost its contract because it was a few cases
short. These are specialists who do nothing else. By dint of the
fact that they are situated in a semi-rural area they had not
got the throughput. It seems to me that there has to be some discretion
involved here, otherwise we are going to lose good practitioners
and thereby deny people good advice.
Steve Hynes: The
point I would make on the legal aid system, if you look at how
it is spread throughout the country, is that it is highly dependentthose
high street practitionerson the 2,000 or so family law
providers. This will probably cut down around 60% of those providers,
so you are going to be looking at a system of less than 900 providers.
I don't think that will mean you will have in many market towns
and other population centres a legal aid service. Unfortunately,
the nature of the client base of legal aid is that they will travel
to open-door services within a five-mile radius, but they are
not likely to travel long distances. It becomes a self-fulfilling
Housing law is another example. You would look
at under 200 or so providers in housing law. If there is no provider
on somebody's doorstep, then the problem goes unsolved and all
the social problems that come with that. It costs something like
£50,000 to rehouse a family in public costs.
That is not a new situation, is it?
Steve Hynes: It
is not a new situation.
You said earlier how many parliamentary constituencies are involved.
If I take the Shelter contract in the north-east, that must cover
15 or more parliamentary constituencies and an area which is 70
Steve Hynes: Yes,
Chair: Partly because
of numbers, seeking more specialised advice in a particular areain
this case housinghas depended on going to somewhere more
distant but usually via the open door either of the CAB or of
the MP's surgery.
Q239 Mr Buckland:
I think Ms Janes wants to come in on the question I was asking
about suggestions to save money in these areas other than taking
it out of scope.
Laura Janes: I
am afraid it is more of a general point about scope and the importance
of a holistic approach to people's needs. At the Howard League
we provide an access to justice service where people can just
ring in and say, "This is my problem. This is my child's
problem," and we do a full legal diagnosis. What is striking
is how many different areas of law and how many different specialists
are required. I recently represented a young person, who had been
sentenced as a child to a life sentence, on his parole. About
two weeks before the hearing, the UK Borders Agency said that
if he got parole they would deport him. It became absolutely essential
then to make representations before the hearing, to make sure
that he would not be deported if he got parole, because it would
completely undermine all the work we had put into the parole,
and having legal aid for one would have meant he would suddenly
be deported to a country he had never heard of, and you could
not even have an effective hearing, because you would have to
look at risk in the new country. That would be out of scope, so
it would totally undermine all the legal aid spent on the parole
hearing. We were able to make sure he had help and that decision
was made. He was given a decision to be released, and that was
an effective use of public funds. It didn't undermine the work
that we had done. It would have been meaningless for him to go
through the motions of having a parole hearing if all it meant
was that he was going to be deported and had no access to justice
to fight that.
For the clients, it is about providing that
kind of holistic service. What we find with the access to justice
service we have is that we have a member of staff who spends practically
all her time at the Howard League ringing up other solicitors
and seeing if they can help. It is a terrible waste of time and
energy. Being able to provide holistic, good-quality services
would make much more economic sense.
Q240 Mr Buckland:
You are making a case for legal help at the threshold, which can
cover a variety of issues, because the client doesn't come in
saying, "I'm a debt problem." It is, "I'm a whole
range of different problems which need an answer."
Laura Janes: Absolutely.
Q241 Mr Buckland:
Representation obviously comes further down the line if necessary,
but you are talking about the first stage, aren't you?
Laura Janes: Hopefully,
you wouldn't need representation in those kinds of cases. At our
commission of inquiry that we held jointly with the Haldane Society
last week, we heard from clients giving live testimony about legal
aid. There was a woman who had had care proceedings. Yes, that
would still be able to be funded under the current arrangements,
but what she said that was compelling was that it was the help
she got with her divorce that was important because until she
managed to make that separation with her husband, which she found
a very difficult process to navigate, nothing was fixed in her
life. She wasn't able to take the children back and look after
them carefully because it was the partner that was the problem.
Without that little bit of extra help with navigating through
the divorce, the money on the care proceedings was virtually wasted
because things didn't come together. That is the kind of holistic
The Green Paper is very clear about not wanting
to have lots of unnecessary bureaucracy and over-legalism. Trying
to pare that away rather than saying, "We are only going
to help this bit of you or that bit of you" would make much
more sense, in our submission.
Steve Hynes: In
response specifically to Mr Buckland's question, one of the suggestions
that is floated in the Green Paper, and certainly one that LAG
supports, though we qualify that support, is the client account
interest. There are various estimates floating around of how much
could be obtained from it: between £6 million and £100
million. That is what we have heard. In the common law world,
it is very common for client account interest to be used in this
way. Certainly LAG would argue that the money should not go to
the Treasury. There is potential, though, for creating a jointly
administered fund that could pick up quite a large portion of
the funding that has been lost from various areas of law, but
it would meet with great hostility from the legal profession,
and I think they would be particularly hostile if they thought
that the money was just going to disappear into the coffers of
the Treasury. Certainly, if the Government were willing to look
at this problem in the round, that is something they should seriously
be looking at.
Chair: There are two more
topics I want to move on to.
Q242 Mr Buckland:
Can I deal with one final point? It certainly won't be relevant
to crime, because as we know, matters under indictment are not
traditionally reviewable. Judicial review will remain in scope
and there seems to be a general exclusion of JR. Do you think
there is a danger, particularly in immigration cases, that there
will be a flight to JR as a means of getting legal aid when other
areas have been removed from scope?
Laura Janes: There
are two dangers. I think there is that danger, and we have seen
that already with the huge increase in litigants in person for
immigration in judicial review. I think there is also another
issue, which is that the effective removal of legal help from
a huge range of areas will mean that problems which could be solved
by judicial review, which are judicially reviewable, go undetected.
That will be a detriment to justice, because if education cases
are not in scope but there is a gaping injustice in an education
matter, it is never going to come anywhere near a lawyer, who
is able to say, "Hang on a minute. Actually you are entitled
to this and there is a remedy."
As a solicitor working with children in custody,
I often have to threaten judicial review and rarely have to bring
it. There is a great benefit in that remedy of last resort, which
costs virtually nothing. It is done on legal help. We frequently
threaten judicial review on legal help, at which point, once the
authorities are reminded of their duties they are generally happy
to back down.
Q243 Mr Buckland:
I will come back to you in a moment. I just want to make this
point. The scenario I was looking at was, in effect, that lawyers
would not be involved for example in an SEN tribunal. The tribunal
would take place and then the lawyer would come in, get legal
aid and say, "The procedure was wrong and we are challenging
Laura Janes: Yes.
That would be the only way to challenge it. Those are the two
risks: increased judicial reviews or things not being spotted.
Can I make two points in relation to that? The first is that it
is not just immigration. Obviously immigration cases can end up
in the High Court as well. If we are going to look more broadly
across the whole of civil and family legal aid, the number of
cases that will end up in the High Court and the Court of Appeal,
as opposed to being resolved, with immigration, at the Home Office
decision stage or a tribunal, is going to be hugely increased.
It is this front-loading that we are trying to suggest to you,
where £1 spent on early intervention legal aid will save
£8.80 later on. The CAB have done work on this on employment
Yes; we have seen the CAB figures.
We don't need to go into that, but it makes logical sense as well.
If you can resolve things early, then you are going to save the
public purse. Secondly, in relation to tribunals, obviously there
is not legal aid for representation in most tribunals at the moment
but there is legal aid for the early stages. That means that bad
cases are headed off so they don't get into tribunals, and appellants
are aided and assisted to properly prepare their cases, which
can be very complex in terms of the documentation required, etcetera,
so that their cases can be properly determined by the tribunal
judges. I don't think that we can count as a measure of success
less cases going to court. That is probably representative of
unmet legal need and people not having their problems resolved
rather than resolving them if there is no early intervention.
There will be a much higher use of all levels of
court and an inappropriate use of their time. If you talk to any
judges about this, they are extremely clear that they would be
very worried that their already limited resourcesand we
are talking about the same budget of coursewill be stretched
to breaking point if there are more litigants in person before
Chair: On that very topic,
Mr Llwyd is going to ask a question.
Q245 Mr Llwyd: The
question has been answered before I have put it. Professor Richard
Moorhead did some research in 2005. He said that, if there is
to be an increase in litigants in person, he is concerned that
they sometimes damage their own interests and they probably will
create more work for their opponents and the courts themselves.
The question I would put is: how will this affect the efficiency
of court proceedings, the likelihood of reaching agreed settlements
and is there any danger to the fairness of those proceedings?
Of course, the increase of litigants in person will inevitably
have a hugely negative impact on the efficiency and the fairness
of the court process. The Moorhead research, which I think was
misused in the Green Paper, is very clear that unrepresented litigants
are more likely to make errors, and serious errors at that. They
are more likely to file very flawed documents that don't assist
the court. They are less likely to even attempt to settle their
cases. All of these things will impede the good workings of the
court system and, importantly for those individuals, will mean
that they don't have a proper and fair hearing.
I was talking to some of the senior family judiciary
who say that, even if cases were dealt with more quickly, their
experience is that they have a litigant who sits there and does
not say a word because they are so petrified. No matter how they
try to make the process inclusive and non-intimidating, just by
being in a court, especially if there is a representative litigant
on the other side, it is hugely intimidating. Just because it
goes through quickly does not mean that justice is served in that
Q246 Mr Llwyd:
You say "goes through quickly". I remember doing a family
case a couple of years ago which was listed for three days. To
my horror, the other side were not represented, and it took seven.
That is my anecdotal experience. I represent a lot of children
in private law proceedings. When the court is so concerned that
neither of the parents are able to act in the child's best interests,
they appoint a lawyer to represent that child. Often I am the
only lawyer in the court and it takes a very long time. That is
because if people have not had the advice at the early stages
they just don't understand what the relevant issues are. That
leads to a lot of frustration and, going back to domestic violence,
may lead to people taking the law into their own hands with, I
am afraid, quite concerning consequences.
Q247 Ben Gummer:
Might I ask a follow-up question to that? Yesterday Sir Anthony
May was the first person to broadly agree with the Ministry of
Justice's view that somehow the increase of time posed by litigants
in person would be offset by a decrease in cases being brought,
but he is the only person so far to have agreed with the MoJ.
Can I very briefly have your opinion about whether you thought
the MoJ was right in its assessment or incorrect?
Can I give you some figures from the impact assessment in the
Green Paper, which is in my area of family law? The impact assessment
says that there are going to be 3,300 more publicly-funded mediations.
There are currently 53,000 family cases that go to the court.
If there are only 3,500 or thereabouts of those that are going
to go through mediation, you have a huge number of people who
will be in the courts litigating in person or likely to be litigating
Q248 Ben Gummer:
Do you think that that number will reduce by a similar amount
to the increase in time caused by litigants in person?
No, because litigants in person do not have advice that steers
them away from the court process. That is what good family lawyers
do. Court is the measure of absolute last resort. Nobody wants
to see parents and children having to go through the court process.
Every other way of resolving cases is tried before that. Something
that is really lost in this debate is the benign effect of involving
lawyers at an early stage rather than thinking that each lawyer
is trying to push their clients into litigation. The reverse is
true. My worry is that if you remove that layer of support and
timely and appropriate advice you will have a flood of people
who have no choice but to turn up at the court.
Q249 Claire Perry:
I would like to press a little further on the alternative provision
of help and advice that we have touched on during the debate so
far. One of the arguments the Government has made for restricting
legal aid application is that there are other sources of help
and advice available, and perhaps there are some new creative
ways to offer help and advice. The analogy I would like to use
is that, as an MP, you clearly get very complicated problems brought
to you that require in-depth face-to-face analysis, but you also
have lots and lots of things that come in that you can deal with
in a telephone surgery or relatively quickly. Do you think that
there is, or could be, appropriate support provided from the existing
universe or potentially from some new models of provision?
Steve Hynes: The
main problem, as I think I have said before, is that other arms
of governmentBirmingham City Council being an exampleare
cutting back on the alternative providers. If you look at the
Financial Inclusion Fund in particular, as I said before, that
will mean something like 1,000 debt counsellors across the country
will no longer be providing a service. The other problem that
I see is that there is an over-confidence in the pro bono community
to take up the slack of the legal aid cuts. I sit on the London
Legal Support Trust, which is a trust that has City firms sitting
on it. It raises money from a sponsored walk and other activities
to distribute money to law centres and other not-for-profit organisations.
It is a relatively small amount of money that we raise but it
is successful. Many of the firms we have links with have pro bono
rotas and undertake pro bono cases in law centres, particularly
in London. What they tell me is that if you don't have the provision
on the ground of law centres and Citizens Advice Bureaux, then
we don't have anybody to partner with for pro bono services.
Chair: We have taken evidence
from them on that point.
Steve Hynes: I
will not reiterate what has probably already been said. As I said
before, though, if the Government want to look at this in the
round then they should, and look at the other areas of funding
and look at the outside potential funding arrears. I have given
the example of the client account interest. It is not something
that is going to be done overnight, but it is certainly something
that could be done within the spending review period. My fear
is that the MoJ are rushing to cut this money, around £50
million, with the non-family legal aid, at a time when the rest
of the alternative provision has been decimated.
Q250 Claire Perry:
Ms Janes, you have mentioned the Howard League's phone line advice
provision. Would you be able to expand on this broader theme as
to whether there are alternative sources that could deal with
cases that perhaps do not need to be dealt with by qualified solicitors
receiving legal aid, or different ways of doing it?
Laura Janes: Yes.
At the Howard League we will take all the information from the
person calling and talk to them about what their problems are.
Quite often, as you say, there will be certain things that can
be dealt with easily by non-legal entities. We will try and refer
them on to those organisations.
What is also very interesting is that we often
get people in quite desperate situations who have been working
with very well-meaning other third-sector organisations for a
very long time without great effect. That is because that organisation
just may not know that there is a very simple legal solution to
this and, if you were to know it, and point that out to the local
authority or the relevant body, things would become a lot easier.
It is about the appropriate use of resources. We are in danger
of trying to push so much away from lawyers, which will eventually
ping back and even come back into court, that it can become a
diversion. It is about the appropriate targeting.
Certainly for young legal aid lawyers, it has
become almost a given that you will be doing some sort of voluntary-type
advice work if you are going to be able to make your way. The
provision of additional pro bono help is a wonderful asset as
an extra add-on. Whatever way we are looking at it, we are not
going to be getting more money. Any help we can get is great,
but, in terms of having services as of right and to make sure
that justice does not suffer. it can't be a replacement. It is
really about making the most appropriate use of resources.
Just a couple of points. The CABs offer excellent generalist advice,
but they would say that they refer a lot of cases out to solicitors.
In fact we work hand-in-glove with a number of CABs and deliver
the advice from the CAB centres themselves because they don't
do family work and the higher level of housing work. There is
a limit to what Citizens Advice can do.
Law Centre Federations do much more specialist
work. We were told yesterday at the Westminster Policy Forum that
their funding will be cut from £21 million to £7 million
because of this. They are not going to be able to do what they
are doing at the moment, so you are looking at a huge and devastating
cut across all of the sectors that deliver this sort of advice
The third point I want to make is about other
ways of resolving problems, such as mediation. I am a family mediator
and I have been for 17 years. I am still very shiny-eyed about
family mediation and what it can do for individuals and for their
children. It is a marvellous resource and way of resolving problems
for appropriate clients. But it is not the right thing for everybody,
so you do need other provisions around it. I make that general
point that, yes, there are other services out there. They tend
to be more at a cottage industry level, which means that they
are serving a small and specific community. Those that are broader
are having all of their funding attacked every which way.
It is not necessarily that solicitors are very
well paid. If you look at the National Audit Office
statistics, which I am sure you have had quoted to you, legal
aid solicitors get paid on average less than sewage workers. The
average legal aid solicitor's salary is under £25,000. We
are not talking about this enormously expensive resource. The
Law Society doesn't think that people should make an enormous
amount of money out of the public fund. We are suggesting a cap
of £250,000 for any individual to earn out of legal aid.
We can see that it is important that people are not making huge
sums of money out of this, but, believe me, legal aid solicitors
Q251 Ben Gummer:
Does the Bar Council agree with that cap?
Can I make a slightly separate point which I hope is related?
Chair: Wouldn't you like
to answer Mr Gummer's question before you make your separate point?
The short answer is yes.
Ben Gummer: You do agree.
Yes. Can I make a slightly separate point, which is this? So far
as telephone advice is concerned, I think the last figure from
the Legal Services Commission said somewhere around £175
million is spent on telephone and police station attendance advice.
I am not quite sure what the split is between the two.
Q252 Claire Perry:
Sorry. Telephone and what was the police station advice?
Police station attendance advice.
Claire Perry: The use
of the police station's phone to the duty solicitor.
Attending the police station and telephone. Working from memory,
I think it is about £175 million. Policy Exchange, which
is a think tank, published a report last year which suggested
that, of that, about £125 million was face-to-face advice.
There is an argument one could mount to say that we could cut
a lot of that. We could stop people going down to the police station
in certain circumstances, and it is not difficult to construct
those circumstances in which you would cut back on police station
attendance. You might save £40 million or £50 million
Q253 Claire Perry:
Who is attending? Is this solicitors attending when somebody is
in the police station exercising their right to phone a solicitor?
Yes. As matters stand at the moment, generally speaking, the solicitor
has a discretion as to whether he or she goes down to the police
station. It would depend on whether the defendant is going to
be interviewed, but if the defendant is going to be interviewed
they have to be there. You can construct circumstances in which
you could cut the costs of that by limiting the circumstances
in which the solicitor attended.
It varies enormously around the country, but
the MoJ's data shows that not every case where a solicitor attends
results in a charge or in a representation. It is sometimes a
third or a half of those cases that don't result in a charge.
Is that because the solicitor has attended? Is that because the
solicitor has attended, advised the defendant to answer questions,
in answering questions an explanation has been put forward and
that causes the police and CPS not to charge? I don't know the
answer to that question.
Q254 Claire Perry:
Forgive me, Mr Mendelle, but I think the issue is about telephone
advice. It is not the existing model, but to say, look, in a world
where more and more of our transactions are conducted over the
phone or indeed on the internet, rather than the rigid adherence
to the face-to-face model for delivering what I am calling low-quality
legal adviceI don't mean that in a derogatory sense but
around some of these tricky areas of benefit advice and employment
questionscould you not envisage a model where that could
be delivered in a far more cost-effective way by having legal
aid practitioners essentially using technology to offer advice
to far more people at this sort of low level of complaint?
I am obviously looking at it from the criminal practitioner's
point of view. A lot of defendants who are arrested do not have
a lot of documents. It is a much easier ask to give telephone
advice. But what I am saying to you is this. We don't know, because
there is no proper research about this, the consequences of only
giving telephone advice. It may be that the saving you make at
the start of the system is lost because at the end of the system
you have more cases coming into court.
Q255 Claire Perry:
Yes, but you could make that case about poor legal representation.
That is impossible to prove, is it not, because we just don't
have those sorts of benchmarks in the legal system currently?
That is a very good point.
Q256 Claire Perry:
You had a very helpful table in the submissions about the number
of telephone help lines. It was a bit like the Howard League one
that we talked about where this is provided. Again, as we are
facing this crippling budget deficit, can we not have some thinking
about how to deliver this high-quality advice in a lower-cost
method, perhaps even using the internet? What is to stop having
web-chats with legal aid lawyers, which would essentially cost
nothing because it is already in your infrastructure?
Steve Hynes: I
don't think any of the expert submissions are disagreeing with
the concept of delivering legal services through the telephone
and internet. Certainly LAG's position has always been that these
are useful services that can act as a very good gateway and often
provide diagnostic services. However, you have to think of the
clients. With regard to civil legal aid clients, we did a recent
opinion poll a couple of months ago and we found that only 24%
of people in the D and E social group were prepared to use telephone
and internet advice. They are, as a group, very much excluded
from telephone-type services because of pay-as-you-go mobile phones
and communication and other problems that mean they tend to prefer,
as a client group, face-to-face advice. We would emphasise that
you have to deliver a service that is effective and that people
Q257 Ben Gummer:
That is not an insuperable problem, is it?
Steve Hynes: It
is not, no. Certainly we would say that there is a potential here
to look at a national telephone advice service. You could perhaps
reconfigure what Citizens Advice do nationally to provide such
a service. I am sure the Government are looking at that, but it
can't be the only option. Certainly, our feedback from clientsand
the Legal Action Group is not representing lawyersis that
they want face-to-face services. Certainly, when there are complex
problems, language difficulties and difficulties of comprehension,
then you can't just rely on telephone advice to provide the service.
You can have the telephone doing the diagnostic work, referring
appropriately and making appointments at a local level for a client.
Q258 Ben Gummer:
Mr Hynes, can I make quite a simple point about this? In my previous
life running a business, I knew every time I rang up my lawyer
for advice that it cost far less to pick up the phone and speak
to him. Of course it would be nicer to have a nice long chat in
front of them, and it might have been slightly more value-added,
but when people are paying their own bill they make decisions
about that every day. Why should that be any different for people
where the taxpayer is paying the bill?
Steve Hynes: I
don't have a problem with that. Certainly, a service that was
front-loaded with well qualified and experienced people could
provide that type of diagnostic service. It is quite appropriate
and analogous to what somebody would do in business. However,
you do have clients with specific needs. To use the analogy of
business, when the stakes are big and you can't just explain the
matter over the phone, you go and see your lawyer, whether you
can afford to or not. Certainly in business that is what you do.
Why shouldn't people at the lowest end of the social
scale have a similar sort of service? Yes, they will be able to
access through telephone and also, where appropriate, get face-to-face
advice. As I say, these people will often have needs around comprehension
and language that means sometimes the telephone just doesn't work
for them. The classic example is the debt clients with a plastic
bag full of letters from creditors, with no idea what to do. They
are under stress and probably depressed. They are not going to
be able to go through that sort of information over the phone.
You could have a client ringing you up, getting an appropriate
referral, going in with a plastic bag of letters and putting it
to the Citizens Advice Bureau adviser or whoever.
Don't worry. They come to see us with that sort of pile of letters.
We are running out of time.
Can I make a couple of quick points about the actual proposal,
which is that the telephone helpline is the only gateway into
accessing civil legal aid services? Supporting everything that
Mr Hynes has said, the Law Society can see that telephone, internet
delivery and all sorts of new media delivery of legal servicesone
to many deliveryis a very robust and appropriate way forward
for a lot of information giving in terms of legal advice. We are
supportive of that, but we are not supportive of it being the
only gateway into legal aid for the reasons about the clients,
which Mr Hynes has set out, but also because of the reliance upon
the current system being of such excellent outcomes.
We would say that there are excellent outcomes for
those people who are contacting the current telephone provision
because they are a self-selecting group with alternatives. There
is no evidence or research in relation to whether there is any,
what I would call, double-dipping. That is people phoning up,
getting a bit of advice and then going to see a solicitor. It
may be that a lot of the cases that go through telephone help
lines at the moment are that sort of toe-in-the-water type, "Well,
I'm just going to phone up and get a bit of advice and then when
I want to access or do something about my legal issue I'll go
and see a lawyer." We treat the evidence about 90% plus satisfaction
with some caution, because it may be that if everybody had to
go through it the satisfaction rates would bottom out.
Chair: Thank you very much indeed for giving
us your time, advice and help this morning. We much appreciate
it. Thank you.
1 Note by the witness:The
statistic referred to comes from the Office for National Statistics
and not the NAO as stated. Back