Examination of Witnesses (Question Numbers
350-419)
Mr Jonathan Djanogly MP and Sarah Albon
16 February 2011
Chair: Welcome, Minister
and welcome back, Ms Albon; we saw you on Monday. We are getting
towards the closing stages of our work on the Government's legal
aid proposals. We will have one final evidence session on the
Monday that we return after the week's break to discuss with your
ministerial colleague, Nick Hurd, what the rest of Government
is going to do about those things which might not fall within
scope if you go ahead on the basis that you are currently doing.
Before we start questioning, Members with interests may need to
declare them.
Mr Buckland: I have been
a criminal legal aid practitioner at the Bar for 20 years in receipt
of payments, most latterly for criminal legal aid. I do not have
any live cases at the moment.
Mrs Grant: I continue
to be in receipt of legal aid funds. I continue to be a partner
in a legal aid practice, so I will not be asking any questions
this morning.
Mr Llwyd: I have undertaken
legal aid work both as a solicitor and a member of the Bar. Since
April of last year I have been non-practising.
Karl Turner: I am a member
of the criminal Bar. I practise from my local chambers in Hull.
I have not undertaken any publicly funded work since the general
election, but I have done private paying work in the last couple
of months.
Yasmin Qureshi: I am a
barrister and I have received civil legal aid and criminal legal
aid in the past, but since the election I have not done any legal
work at all.
Chair: The rest of us
are not lawyers.
Q350 Ben Gummer:
Minister, the need for cuts aside, what is your assessment of
the legal aid system as it stands?
Mr Djanogly: What
has obviously dominated proceedings in some ways has been the
need for cuts, but I think your question is a very important one
because, despite the need for cuts, we do fundamentally believe
that the legal aid system needs reform. We believe that there
are significant inefficiencies in its delivery. We believe that
it needs to be directed more towards helping the most vulnerable.
We also believe that in many circumstances there are non-lawyer
and non-judge alternatives that should be better exploited. I
thank you for bringing the issue up because in some ways we do
feel, looking for instance at the media, that too much time is
being spent on looking at the proposals and not quite enough time
looking at the inefficiencies within the existing system. We have
to look at what exists to move on to where we want to go.
Q351 Ben Gummer:
Among some of our witnesses there has been a ready acceptance
that there are inefficiencies. The Lord Chancellor predicted a
tirade of complaint from many parts of the legal profession, which
has predictably materialised. On the numbers given by the Ministry
of Justice—£350 million savings—it was put to
Ms Albon on Monday that this was a speculative figure. While she
didn't concede, if you don't mind me saying that, she did not
entirely demur. How fixed do you feel that figure might be and
on what evidential basis has it been arrived at?
Mr Djanogly: The
impact assessments provide the basis of the assessments. However,
it is a middle figure and it is not just a middle figure for the
whole lot. For each element of savings there is an upper figure
and a lower figure. The £350 million is a middle figure of
all the middle figures, if you like. It would very much depend
on how things transpired. I should also point out that there is
a timing issue. That is predominantly because, even if we wanted
to, we could not bring in all of the savings immediately because
a lot of them require primary legislation. When we say £350
million, we always say £350 million by 2014-15. A lot of
the savings are back-ended because we need to bring in the legislation. I
would also say one other thing here which makes consideration
of the figures very difficult. It is important to realise that
we are not just talking about cuts here. We have as a policy objective
a behavioural change. We do believe that the system at the moment
is too lawyer-based and too court-based. We want to look for alternatives.
The implications of that are very difficult to measure.
I will give you two examples. The first was
when I went to a legal advice centre in the East End two weeks
ago. We were talking about the difference between legal help and
general help. We may come back to that later on because it is
becoming quite an important issue. When I was discussing it with
them, they said, "Do you see just across the road there is
the benefits office? Very large numbers of our clients go into
the benefits office and the benefits office tell them to come
here, to the law centre, to be told what benefits they can and
can't get." That is absolutely bizarre, because you are using
legal aid to provide a fundamental benefits advisory service.
Legal aid was never intended for that. It has only been available
for 10 or 11 years, but over those years it has increasingly become
used as a sticking plaster for other inefficiencies within the
system.
Q352 Ben Gummer:
Can I pick you up on that anecdote?
Mr Djanogly: Can
I just finish that anecdote before I go on to my second anecdote?
I will let you in, but let me just finish this anecdote. When
they go to that benefits office, they should be getting proper
advice on the benefits to which they are entitled. We need behavioural
change within Government. That is why the MoJ has been taking
this issue up, very seriously I can tell you, with Work and Pensions,
to make sure that we get those changes.
I am going to give another example, but do you
want to come back on that?
Q353 Ben Gummer:
I do, because on that anecdote you lead me to ask about a point
which is being brought up increasingly. The on-costs of that behavioural
change shift to other Departments and to other areas of public
expenditure have not been calculated or factored in with the Ministry's
savings. In fact, these savings might not materialise in terms
of net Government expenditure because of shift to other areas—for
instance, to the benefits office opposite the road from the legal
aid centre. How do you answer that charge?
Mr Djanogly: The
key is to encourage early intervention. In the example I gave
you, I am talking about the position before we talk about general
help, let alone legal advice, let alone representation. I am saying
that at an earlier stage we should be doing more with the money
that is already being spent with no extra cost involved. That
is the earliest intervention, if you like, and that is often being
overlooked, but it is not one that we are overlooking, I can assure
you. We have a significant project with the Department for Work
and Pensions on that very issue.
Can I mention one other good example of this,
and that is the idea of early intervention and the cost implications
of that, to answer your question? That would be in relation to
family law. Here, we are looking for £178 million savings.
Predominantly, we are doing that by looking to take out private
family law from legal aid. We have a policy decision there that
we don't think the taxpayer should be paying for run-of-the-mill
divorces and—
Q354 Chair: We
are going to come back to private family law later, so you will
have an opportunity to talk about that.
Mr Djanogly: Okay.
Chair: But before you
leave your earlier example, surely the Department, which causes
through so many bad decisions so much legal advice to be sought,
ought to face some consequence from that. The lack of any budgetary
impact on the Department of the budgetary impact on legal aid
of what you are doing is the fundamental weakness in the system,
isn't it?
Mr Djanogly: They
do contribute to the cost of the tribunals.
Q355 Chair: But
not in proportion to how many bad decisions they send them.
Mr Djanogly: Of
course, Chairman, we are talking here about robbing Peter to pay
Paul to some extent, one Department of Government paying another.
So far as the taxpayers are concerned—
Q356 Chair: We
are talking about achieving behavioural change.
Mr Djanogly: As
far as incentivising Work and Pensions, yes, because we do charge
them more if there are more cases coming from them. If I can just
say, from the family law point of view, on the one hand we are
getting savings, but on the other hand, we are spending more,
because we are going to be investing more in mediation, but not
as much as we are getting in savings. Then people say, "Ah
yes, but you will have more litigants in person." From our
calculations, the number of cases that we will decrease will not
be increased by very much through litigants in person. There will
still be a significant net saving. But I do agree that all these
things knock on against each other. It is complicated.
Q357 Ben Gummer:
I am sure we will come on to that, but right at the beginning
we hit on one of the big problems that this Committee has had.
It is not the fault of this Government. It is a systemic fault.
It is the complete lack of evidence and research into any of these
issues that we are looking at. We are dealing sometimes with huge
decisions being based on one research paper from which conclusions
are being drawn to justify very big decisions. How does the Government
think that it can base so much on very limited amounts of research,
and what is it going to do in the future to ensure that the evidence
base has improved, so that action and decision making can be improved
as well?
Mr Djanogly: We
are looking to improve the evidence base. I can say that the area
where this has been most felt has been the not-for-profit area,
where Government knowledge was very limited. Even when you speak
to some of the not-for-profit organisations, the centres often
have very limited knowledge of what is happening on the ground
in their own organisations. Getting information has been difficult.
We saw this early on. For instance, I brought this exact issue
up with the CAB at a very early stage. They did say they would
provide us with evidence. Of course, the consultation closed two
days ago and I don't know what has come in yet. We have had about
5,000 responses, by the way, which we are going to be looking
at very carefully. I hope that a lot of evidence will have come
in on these sorts of areas, yes.
Q358 Chair: Going
back to something I was asking you a moment ago, the point I was
putting to you was a sort of "polluter pays" principle.
If, as an organisation, you generate a large amount of legal aid
or legal help cost, you should feel the impact of that on your
budget in order to create some degree of behavioural change. That
is the whole basis on which the "polluter pays" principle
works. Is there scope for that within the Government system or
is it too radical to cope with?
Mr Djanogly: There
are elements of "polluter pays" within the system as
exists. For instance, court costs are technically "polluter
pays". If you lose, you pay the other side's costs. We do
have charging systems between Departments. For instance, if DWP
are giving us more tribunal cases then they will pay for that,
so they have an incentive not to do so. That does exist within
Government. The problem as far as the taxpayer is concerned, though,
is that there is not necessarily an overall net saving to the
taxpayer. Indeed, if you have "polluter pays" outside
of Government, then it is possible that the taxpayer could pay
more if it is Government that has been doing the polluting. You
can't necessarily say that the "polluter pays" principle
is going to have a better result for the taxpayer.
There have been alternative proposals. By the
way, I can't discuss what has come in on the consultations, but
I remember about three months ago the Law Society was talking
about the "polluter pays" principle in terms of having
some kind of levy on alcohol that would go towards lawyers. I
think, Mr Chairman, you saw what the tabloid press made of that
one: "a penny for lawyers". Of course, these things
are seen as a tax.
Q359 Chair: I
hope you are not wholly influenced by the tabloid press when you
reach conclusions on these kinds of decisions.
Mr Djanogly: Not
at all, but I would say they can be seen by the taxpayer as a
tax rather than a levy.
Q360 Chair: We
had another example given to us in evidence in the area of special
needs education, where over 90% of appeals were successful. If
that is happening, there is clearly something wrong with the decision-making
process. Money which might have been better spent on looking after
the children in the first place is being spent on legal processes
to overturn nearly every decision.
Mr Djanogly: The
key here is early intervention. This is very much a policy objective
of the current Government. In DWP, we want better decisions to
be taken at an earlier stage so that fewer appeals come through.
In relation to employment tribunals, I have just put out a consultation
document, together with Ed Davey in BIS, where one of the proposals
we are looking at is that all cases should go to ACAS before the
employment tribunal to try and sort out the issue before lawyers
are even needed. In relation to education, we are looking at the
possibility of mediation pre-tribunal. In many of these areas
we are now switching to looking at early intervention, which is
the key.
Q361 Elizabeth Truss:
Minister, I wanted to address the point on "polluter pays".
You are essentially saying that there will be a zero sum game
if it just transfers from one Department to the other. Is it not
the case that, if DWP sorted out their system and reformed it
so that it worked effectively, it would save money in the long
term and paying high legal bills in the short term might incentivise
them to do that? We are comparing the cost of lawyers to the cost
of personnel within the DWP getting it right first time. Certainly,
as an MP, I experience a lot of the DWP getting it wrong the first
time. The greater pressure that can be put on in the short term
will result in a long-term saving.
Mr Djanogly: I
absolutely agree that we have to get DWP to do more right earlier
on. We are working on that. In the short term I have to say that
from the Ministry of Justice's point of view we have to provide
a service. The service is making sure that people who want to
have their benefits decided have them decided within a reasonable
period of time.
Because the benefits system is rapidly changing at
the moment we are getting an increase in appeals. That will take
a year or two to calm down until we get into the new system. We
are seeing a spike in appeals and that has meant, I am afraid,
that in the short term we have had to respond to that as a Department
to make sure that people get their benefits within a reasonable
period of time when they are entitled to them. We have, I can
tell you, increased the number of medical advisers on the tribunals
by 170 in the last few months. We have also increased the number
of judges by 20. We did have a backlog on this. We are now in
a position where I can fairly confidently predict that we will
get back to normality by the end of the year. We are on top of
it. We do have to deal with these issues as they come up, and
we are dealing with it.
Q362 Elizabeth Truss:
Would it not be cheaper for the DWP to have dealt with those issues
rather than it going to another Department and having all these
additional costs and experts involved? If it was just a systemic
failure of DWP to get it right in the first place, it strikes
me that we have experienced a ballooning in cost because the process
isn't being done. Will DWP be charged for those extra people that
you have just been discussing?
Mr Djanogly: The
tribunal costs, yes.
Q363 Elizabeth Truss:
But will they be charged for the extra advisers?
Mr Djanogly: It
forms part of the tribunal costs, and so the answer is yes. I
think there are two issues here. First, there are historical systemic
problems that you are talking about that we are addressing. Secondly,
there is the fact that we are significantly changing the benefits
system. That would have had a lot more people appealing, whatever
the systemic issues are. So there are two issues there. But, ultimately,
that is a good question to put to the DWP as much as me.
Q364 Chair: Can
I raise a slightly different point but a related one, which is
that in civil legal aid the cost of funding representation is
more than double the amount that is spent on help? It is at least
possible that, if the balance was different and help was provided
in more cases, then some of the need for representation might
be avoided. Some of the help that is needed is not necessarily
even qualified lawyer help but specialist advice, if one takes
areas like housing, for example. If that specialist advice is
not available, then it pushes up the amount of representation
that takes place because more cases go to court. It is the balance
between representation and help.
Mr Djanogly: Yes,
that is a very important issue. Of course, Chairman, you made
the distinction between civil presumably as opposed to criminal.
Chair: Yes.
Mr Djanogly: But
within civil the positions are very different. For instance, if
you take welfare law, most of the money goes on help. If you take
family law, most of the money goes on representation. Within those
areas you probably have differences as well, so you can't look
at it quite like that.
Going to the highest level, we do believe that we
have had to relook at the system—given that we have to put
in place cuts and we want to make an efficient system—to
decide where the help most needs to go to help the most vulnerable
based on our criteria. If someone's liberty, security or their
home is at immediate risk of repossession, then they are priority
issues. Less priority issues are where people are looking for
damages or to increment their income. It is not that those are
not important issues for those people, but I am afraid Government
do have to prioritise. We have the most expensive legal aid system
in the world and we do not believe it is sustainable at the current
rate. That means we have to look for savings and that means we
have to make priorities.
I would like to take this opportunity—
Karl Turner: Chairman,
I wonder—
Mr Djanogly: If
I could just finish, because there has been a lot of confusion
on this area of representation. I would like to take this opportunity,
if I may, just to clear this up. There has been a lot of press
comment and articles. I am looking here at an article by the shadow
Justice Minister. I have to say that Mrs Grant wrote a letter
in The Guardian which made the same point. The misconception
in all of these is that, in benefits legal aid, legal aid currently
pays for representation. This is a common mistake, and I am seeing
it again and again and again. It is getting a life of its own.
Let me make it quite clear. At the moment people do not get legal
aid for representation for benefits in either the lower tribunal
or the upper tribunal. By the way, the cost, we reckon, of providing
that would be about £500 million.
I am very prepared to have a rational debate
about any of this, but in some areas the debate is getting out
of the bounds of reality. I just think we need to pull it back
a bit and I am pleased to have that opportunity.
Chair: Mr Turner had a
supplementary question.
Q365 Karl Turner:
I am very grateful, Chairman. Minister, I really must pick you
up on this. You have suggested that you are very keen to protect
the most vulnerable, but the reality is that you are taking debt,
housing, immigration and welfare cases all out of scope.
Mr Djanogly: No.
Q366 Karl Turner:
How is it possible?
Mr Djanogly: Incorrect.
Chair: I am sorry. I think
that is anticipating a question that I was going to come to with
Mr Evans after Ms Qureshi has dealt with family law. Could we
just leave that until we come to that section?
Karl Turner: Okay, Chairman,
thank you.
Chair: Yasmin Qureshi?
Mr Djanogly: Can
I just—
Chair: I am going to give
you an opportunity to talk about all of that. I just want you
to do it in the order of questions.
Q367 Yasmin Qureshi:
Minister, you started off by saying that you visited a law centre
in which you were told that people were advising people as to
what benefits they can have. Are you suggesting that perhaps most
of the law centres and Citizens Advice Bureaux are giving people
advice on benefits they can have? Are you seriously saying that
is the case? I can assure you, as one who has done a lot of work
for the Free Representation Unit and for law centres, that at
no time in my 20 years have I ever advised anyone on what benefits
they can have. It has been about when they have been refused something
and they have been advised on it.
Mr Djanogly: Let
me start by saying that I, and indeed the Government, very highly
values not-for-profits. I agree that they provide very frequently
a fantastic service to vulnerable people. That is not the issue.
At the same time, the reality is that people who should be receiving
general advice are getting it paid for by legal aid and, in a
state of affairs where we have to very carefully ration and look
at where we are spending our money, that is not the right way
to go. In effect legal aid has often become a sticking plaster
for the problems that came into the system.
What do I mean by that? About 10 or 11 years ago,
when the last Government decided to allow not-for-profits to use
legal aid—because before then they weren't allowed to—at
that point there should have been a review of the entire sector,
but there wasn't. The result is that money is being inefficiently
spent. There is huge duplication of services across the sector,
and there are significant inefficiencies. I am afraid that, now
the money is not there any more and we have to look very carefully
at how we spend the money, all of these inefficiencies are suddenly
coming out of the woodwork. Are we going on to not-for-profits
later?
Chair: Yes, we are.
Mr Djanogly: So
we can discuss that in more detail.
Chair: We are trying to
turn to family law at the moment.
Mr Djanogly: I
would just make the general point to answer Ms Qureshi's question.
Q368 Yasmin Qureshi:
In relation to the provision of legal aid, the Green Paper states
that "the provision of legal aid in"—private family
law—"is creating unnecessary litigation and encouraging
long, drawn-out and acrimonious cases." Can I ask the Minister
what the evidential basis is for that assertion?
Mr Djanogly: This
is in family, is it?
Yasmin Qureshi: It is
in family.
Chair: Yes, private family
law.
Mr Djanogly: It
is unnecessary litigation. Let us first realise that in family
law 90% of cases do not go to court. In 90% of cases, people agree
how they are going to proceed as far as their divorce, their family
assets and contact with their children are concerned without a
court. They will sit down and agree. The question is, what happens
to those 10% of cases?
At the moment we are providing a very significant
amount of legal aid for people to go into courts to decide whether,
for instance, a child should be picked up on a Wednesday by one
parent or whether they should spend one holiday or another holiday
with one parent. We fundamentally think that that is not a priority
for legal aid. Again, I am not saying it is not important for
the family concerned, but we are saying that for the most part,
from a policy directive, those people should be deciding how they
run their own lives. We, as Government, are prepared to help them,
which is why we are going to significantly increase the amount
of spending on mediation, which is proven to be quicker, cheaper,
less contentious, less adversarial and actually where the parties
buy in to the results rather than having a judge telling them
what to do. That is why in those cases, where people haven't decided,
we want them to certainly look to see whether mediation is appropriate
in the first instance.
Q369 Yasmin Qureshi:
Resolution has told us in a Committee hearing that, without targeted
funding for early advice on all non-court options, parenting information
or solicitor negotiation, the courts could in fact become too
easily the first port of call rather than the last.
Mr Djanogly: That
is simply wrong in 90% of cases and I can't see how that is going
to change. We are talking about that 10%, so I think that is a
huge exaggeration to start with. But there will be cases where
people do not agree. I think, when they are on an equal playing
field in terms of not getting legal aid, they will perhaps be
more interested in taking the mediation alternative. That is something
we would certainly encourage. Some of them will end up in court
as litigants in person. They do now.
This is an important point, Mr Chairman. People
often take the existing system as a fair one, but we need to appreciate—and
I am not just talking here about Fathers 4 Justice—that
many thousands, perhaps tens of thousands, of people who are going
through the court system at the moment are feeling prejudiced
and unhappy with the system. This is not coming out.
This e-mail came in to me on the 4th,
and I have another one here that came in on the 8th. I think it
would be of interest to the Committee, Sir Alan.
Chair: It depends rather
on how long it is, because we have a lot of questions to ask you.
Mr Djanogly: It
is not very long.
Chair: I will be the judge
of that.
Mr Djanogly: Let
me just read it to you. "I want to draw your attention to
the actions of my ex-husband who has been in receipt of legal
aid since April 2009. He has a dispute with me over contact with
our two children. Because of his serious mental health problems
and his abusiveness towards me, I have obtained a Controlled Contact
Order. Despite having contact every 7 to 8 weeks for a whole day
he takes little notice of court orders and continues to bring
new hearings at the Family Court and harasses me. This is of course
extremely detrimental to my family's peace of mind. So far there
have been five hearings. He is supported by at least two solicitors
and once a barrister"—
Chair: I think we have
got the message.
Mr Djanogly: Just
the end of the story, Sir Alan—
Q370 Chair: Order,
order. Most of us have received a wide range of very similar e-mails
in the course of our Committee work. I take it you are making
the point that a legally aided litigant in such cases can place
someone who is not legally aided at a disadvantage.
Mr Djanogly: I
am making the point, Sir Alan, that this case has cost her parents
£30,000 because she can't afford it herself. She is not entitled
to legal aid. I am also making the point that these are coming
in to me at a very rapid rate. The idea that the current system
is fair is hotly disputed by many thousands of people. I don't
think that is coming out.
Q371 Yasmin Qureshi:
Minister, has any research been carried out on the impact of removing
legal aid funding from private family law cases on the number
of cases reaching court? It is one thing for you to give your
opinion about it, but has any research been carried out by the
Department?
Mr Djanogly: Yes.
HMCS management information shows that in 2009-10, so this is
very current, divorce cases where both parties were represented
took over 50% longer on average than those where neither were
represented. We can have a debate as to whether it is fairer or
not but legal representation is certainly slower, which by the
way runs totally contrary to a lot of the anecdote that we have
been receiving that if you don't have legal representation cases
are going to take longer. Our evidence is showing that it takes
50% shorter.
Q372 Yasmin Qureshi:
But have you looked at the impact of removing this legal aid funding
from people? What would the effect be on people if you took the
legal aid away from them?
Mr Djanogly: On
the basis that they are not represented, I certainly don't think
that we have any evidence to show that cases are going to take
longer.
Q373 Yasmin Qureshi:
No, but what I am trying to say is that you are taking away somebody's
legal aid on these family law matters, but it seems that no one
from the Department has looked at the impact that would have on
the people when you take the money away. Has any research been
carried out on that?
Mr Djanogly: I
think it is hard to research what would happen when it hasn't
happened yet.
Chair: Can I get one further
point out which we do need to have cleared up. Do you want to
deal with it or shall I?
Q374 Yasmin Qureshi:
According to the proposals, individuals who have experienced non-physical
domestic abuse do not qualify for legal aid at the moment. Can
you clarify for us how you define domestic violence?
Mr Djanogly: The
proposal that we have for the definition of domestic violence
is stated in the consultation document. I can tell you that in
the consultation meetings I have been having this has come up
as an issue very frequently. We can see it is an important issue
and it is one that we will be studying very carefully in our responses
to the consultation.
Q375 Chair: So
you have yet to come to a conclusion on that?
Mr Djanogly: Absolutely.
Q376 Chris Evans:
You said in the House on 3 February "our aim is to direct
our scarce resources towards the most vulnerable." Who do
you define as the most vulnerable people in society?
Mr Djanogly: We
have eligibility criteria. In criminal terms, those were set by
the last Labour Government and we are not proposing to change
those until we see how they work. In civil terms, we have put
a set of proposals into the consultation paper and we are changing
the eligibility criteria. In certain situations at the moment
I believe someone with £300,000 of assets can get civil legal
aid, which we think is unfair. So the criteria as to who is eligible
exist—
Q377 Chris Evans:
Do you think these people are going to need help with debt, housing,
immigration and welfare cases?
Mr Djanogly: As
a guiding principle, as I said before, Mr Chairman, if someone's
life, liberty or their home is at immediate risk, then they will
be eligible.
Q378 Chris Evans:
How are you going to direct these resources if you have taken
them out of the scope?
Mr Djanogly: Sorry?
Chris Evans: How are you
going to direct the resources if you have taken them out of the
scope of legal aid for things like debt and housing?
Mr Djanogly: To
those who remain within scope.
Q379 Chris Evans:
What about those ones who are outside scope? Where do they go
now?
Mr Djanogly: You
can't generalise, Mr Evans, because in some circumstances it will
be more suitable for general help. In other circumstances we would
be saying that it would be more suitable for non-court alternatives
such as mediation.
Q380 Chris Evans:
Could you give me an example? You have been very anecdotal today
with stories. Could you give me some sort of example of the type
of person who is outside the scope and what help will be available
to them?
Claire Perry: It is a
general question.
Mr Djanogly: I
don't really know where to start. If you want to give me a particular
area, then I can perhaps address a particular area.
Q381 Chris Evans:
If we looked at someone whose house wasn't at risk but they needed
help with housing, what about them?
Mr Djanogly: The
consultation document in that situation says that if the repairs
that were required were very serious because of a safety problem,
coming back to the principle of their safety being at risk, then
they would still receive legal aid. I have to say in relation
to a point made by Mr Turner earlier, who I think said that we
were taking housing out of scope, we are not. We are reducing
the scope. If someone's home is at risk or if there is a serious
security issue—for instance, gas is creating a security
problem—there will still be legal aid—£38 million
on legal aid will still be spent afterwards on housing. We are
not taking it out of scope.
Q382 Chris Evans:
With the concerns about Citizens Advice Bureaux, what about debt?
Mr Djanogly: Debt
is generally a matter for general help rather than legal assistance.
It is a complicated area in relation to how it is bound up. It
is not mainly Justice of course who funds it, let alone legal
aid. It is mainly Financial Inclusion and that is a Treasury-led
one. That comes to the end in March. I would say that dealing
with debt from a general help point of view is an important issue.
If we are coming on to not-for-profits later we can discuss it
then, but it is certainly an issue that should be included in
the discussions with the OCS.
Q383 Chris Evans:
I want to move on a little now. Do you agree with the Legal Action
Group's belief that "legal aid will cease to be viable as
a nationwide public service" in future should these proposals
go through? What are your thoughts on that?
Mr Djanogly: Absolutely,
absolutely. We are proposing to cut legal aid—
Q384 Chair: Do
you mean "absolutely not"?
Mr Djanogly: Absolutely
not; sorry. I don't agree with their supposition.
Chair: I just wanted to
clarify.
Mr Llwyd: I rest my case.
Mr Djanogly: Thank
you, Sir Alan. We are proposing to cut legal aid by £350
million, but that is off a £2.2 billion budget. In certain
areas we are not looking to touch the scope at all. In criminal
law we are not looking to touch the scope at all, for instance.
We are just redirecting resources to where we think they should
be redirected.
Q385 Chris Evans:
What will you do to prevent legal aid deserts, should they occur?
Mr Djanogly: That
is an important issue and it is one that comes out of this consultation.
It is going to be dealt with, as we have said in the consultation
document, on a stand-alone look as to how we take forward competitive
contracting, which will be done first in relation to criminal
law. Yes, there is most certainly an issue when we view how the
contracts should be formed as to geographical area and as to how
many firms practise in these areas. I can assure you that one
of the main aims will be to avoid advice deserts.
One other important issue in this consultation paper
is our belief in the need for an effective telephone advisory
service. This came out quite significantly in oral questions yesterday.
We do see an effective telephone advisory service as a way of
helping those who are in remote rural areas, those who are disabled
and those who can't afford transport. You can call up this advisory
service and they will call you back. You don't even have to pay
for the phone call. We see this as another way of directing our
resources to where they are most important and getting the best
advice to people. We think there is a lot we can do through the
use of the telephone.
Chair: Elizabeth Truss
has a supplementary point before I come to Mr Turner.
Q386 Elizabeth Truss:
I am very interested in how you balanced the scope issues compared
to the cost per case issues. It seems to me that, when you look
internationally, England and Wales has a problem on both fronts.
How have you compared internationally to other common law countries
in terms of the scope of legal aid provided? Also, could you talk
a bit more about cost per case? Over the witnesses we have seen
quite a lot of people complaining about the inefficiencies within
the CPS and Legal Services Commission. How is the MoJ bearing
down on its internal functioning to make sure that these things
are dealt with much more efficiently? Do you see cost per case
or scope as being more important in terms of reducing the overall
cost burden of legal aid?
Mr Djanogly: They
are both important issues. The CPS currently has a review going
on. They are very keen to improve the CPS service. They are looking
at various areas. It is clear to us that on any measure, taking
Northern Ireland out of the equation for this purpose, that we
are spending more than any other country in the world on legal
aid and we will still be doing so after our proposed savings.
The Council of Europe data that we have suggests that our expenditure
per head on the court system and public prosecutions is in line
with comparable western European jurisdictions. There is a further
issue that is often brought up, and that is that the nature of
our system—that is an adversarial rather than an inquisitorial
system—means the actual format of representation is more
complicated because you spend a longer time arguing.
Q387 Elizabeth Truss:
The Committee has looked at other common law countries and they
have much lower legal aid costs.
Mr Djanogly: Much
lower.
Q388 Elizabeth Truss:
Have you looked at countries like Canada, for example, and what
lessons would you draw from those countries? Where is your ideal
model?
Mr Djanogly: We
have had an international report. It mentioned many, many things.
That is something that I would like to write to the Committee
on separately.
Chair: It may be a document
we already have.
Mr Djanogly: We
will check that, but there are many aspects to that. It is an
important one.
Q389 Karl Turner:
In relation to tribunals, Minister, we have heard from His Honour
Judge Martin, the President of the Social Entitlement Chamber.
I think it is fair to say that he has some concerns. He has told
us that, regardless of presenting their case, applicants at tribunals
need help in preparing for them and that without such help cases
would take longer. What estimates has the Department made of the
implications of the cost on tribunals by not allowing individuals
that assistance?
Mr Djanogly: We
don't think there is going to be a fundamental cost implication.
Don't forget, as I said before, that there is no legal aid for
representation. It is for legal help. There is an issue, of course,
as to when legal help is required and when it is a question of
general help. A lot of benefits or debt advice requires general
help rather than legal help. Very often, the issues are very basic
rather than of legal complexity.
Q390 Karl Turner:
I do not know what your vision of a tribunal is, Minister, but
mine I suspect is very different from yours. It is a terribly
complex, procedurally difficult arena. The law is extremely difficult
for even lawyers to get an understanding of. Have you considered
those points?
Mr Djanogly: We
have. What I am looking for is a statistic—I can't find
it now so perhaps we can send it on later—which basically
shows that in the vast majority of cases the issues that come
up in a tribunal are of a general nature rather than a legal nature.
Don't forget, tribunals are not designed for representation. They
are designed for people to go there and talk in normal, non-lawyer
speak and they are aimed at people being able to represent themselves.
Q391 Karl Turner:
I wonder when you were last in an employment tribunal scenario,
or in fact any tribunal situation, Minister. I suspect your version
of what happens there is very different to many hon. Members on
this Committee who have had experience in those situations.
Mr Djanogly: Can
I just make the point that people do not get legal aid for representation
in employment tribunals now?
Karl Turner: Yes, I understand
that.
Mr Djanogly: They
may have union support. They may sometimes have pro bono support,
but they don't get legal aid.
Q392 Karl Turner:
I understand that, Minister, but there is a suggestion that assistance
for preparing cases prior to going to a tribunal will stop. Do
you not accept that there will be implications on cost? Do you
not accept that by allowing someone to go to a tribunal unrepresented,
who has not had any experience of dealing with this area, who
has not had any help in preparing the case, which is very complex,
very difficult stuff, is likely, in my view, to slow the system
down dramatically? Would you accept that?
Mr Djanogly: It
depends on the circumstances. In the most complicated scenarios
I do accept it. Don't forget, in many of these complex scenarios
we are keeping legal aid for them or where there is the most risk.
This also misses another point. I pull us back to the need for
early intervention. If we can take the example of employment tribunals,
as I have said, we have looked very carefully at this and we see
a need for early intervention, before people go to tribunal, which
is why we are saying that all cases should go to ACAS for early
mediation review. We think that will give people an opportunity
to sort out their cases at an early stage and in a non-confrontational
manner.
Q393 Karl Turner:
I am pleased, Minister, that you speak about that because His
Honour Judge Martin also picked up on the fact that legal assistance
in preparing cases also acts as a triage. It gives people an opportunity
to consider things. It gives lawyers an opportunity to advise
and potentially avoid going to tribunal. Do you not worry that
more people will go to tribunal without having been advised against
doing so?
Mr Djanogly: I
hear what the judge says but I have to say that we are moving
to a different position, and this is a policy decision.
Karl Turner: I can see
that, Minister.
Mr Djanogly: We
think that the triaging, where it can, should happen before you
get to judges, before you get to lawyers. In too many situations
cases—
Q394 Karl Turner:
How do you propose that is going to happen, Minister, in real
terms?
Mr Djanogly: I
have just told you: through ACAS, in the example you gave, and
in family through mediation.
Q395 Karl Turner:
What about the inequality? People are often represented at tribunals.
For example, in an employment tribunal scenario I would guess—I
am not an employment lawyer—that the vast majority of employers
will be represented. What about the inequality of people not represented,
who are applying—
Mr Djanogly: Is
the implication of what you are saying that people should receive
legal aid for representation in tribunals? I have already told
you, Mr Turner, that in Work and Pensions alone—
Karl Turner: The implication—
Claire Perry: Let the
Minister finish.
Karl Turner: The Chairman
is in his chair. I would be grateful if the Chairman directs the
proceedings.
The implication, Minister, is that I think the process
will be slowed down. It will be more costly in the long run. It
will provide inequalities in the system. People will not be assisted
with legal advice in what are very complex scenarios. In my view,
that is not fair and it does not protect, as you say, the most
vulnerable.
Mr Djanogly: Mr
Turner, you have switched between legal help and legal representation.
The implication of what you said earlier, I think, is that people
should receive legal aid for representation. You may suggest that,
but you must realise that that does not exist at the moment and
it has very serious cost implications. I don't know what they
would be in employment tribunals, but we reckon that in Work and
Pension tribunals it would be about £500 million. It is very
easy to talk about spending money, but if you come up with the
commensurate savings—
Karl Turner: Minister,
I have not suggested that at all.
Chair: Mr Gummer has a
supplementary point.
Q396 Ben Gummer:
Minister, I had the pleasure of listening to His Honour Judge
Martin's evidence, which Mr Turner was not present for and the
main point—
Karl Turner: I have read
his evidence.
Ben Gummer: We were here
and we heard what the judge majored on, which was the problem
and the extent of the legal guidance he had to deal with in tribunals.
He said it has gone from a small handbook when he started to 7,500
pages over six volumes. This is a systemic problem that originates
in the Work and Pensions system, doesn't it?
Mr Djanogly: I
am very pleased to be able to say that on employment tribunals,
in particular, we have a consultation paper out just on reforming
tribunals. They are too bureaucratic. People are increasingly
thinking of them as unfair. We do want to see earlier intervention
before people get bogged down in all the procedure that Mr Gummer
is talking about.
Q397 Mr Llwyd:
Can I first of all ask Ms Albon about the letter which she wrote
to the Chairman on 15 February? On Monday I asked you whether
there was any evidence to show that there has been a substantial
increase in instructing guardians ad litem in family matters.
The response is, you say, that the Commission does not indicate
whether a guardian was appointed in a matter and as such is unable
to provide the information. I find that rather surprising because
it is clearly a cost driver, is it not?
Sarah Albon: Yes.
We are seeking this information for you from Cafcass so that we
can still provide it to the Committee, but the way the Commission
keeps its data means they know what they are paying solicitors
and barristers, and then they know what they are paying in disbursements.
They don't keep data in any centralised way that allows them to
break out what those disbursements were, so they can't separate
the cost of a guardian from other disbursements in a case.
Q398 Mr Llwyd:
Do you think that is sensible?
Sarah Albon: It
probably comes down to issues around the cost of different data
systems and new data systems. The Commission would be the first
to accept that they are not always able to provide us with all
of the management information that either they or we would like
them to be able to do.
Chair: I am not sure you
have convinced yourself by your answer, but that may be a little
unfair on you.
Q399 Mr Llwyd:
I am somewhat underwhelmed by the passion of your argument. Can
I refer the Minister to what Sir Nicholas Wall, the President
of the Family Division, told us? He expected a "massive increase"
in litigants in person. He thought that cases will take longer
and there will be more difficult experiences in court. He thought
the Green Paper did not recognise this problem adequately. Furthermore,
Sir Anthony May, President of the Queen's Bench, said that some
presented their cases well but large numbers did not and therefore
increased the length and expense of court cases.
You said earlier
on that it was purely anecdotal that there would be some difficulties
in court. Are these two gentlemen labouring under some problems
of believing anecdotes, or do you think they are relying on their
own experience?
Mr Djanogly: We
do think that there will be an increase in the number of litigants
in person, but there will be a significant fall in the number
of cases going to court. As to how far that goes, it depends on
the extent of the behavioural change which we are promoting, not
least the move towards mediation. It is hard to go firm on figures,
I would say, from any point of view. However, we are sure that
the rise in litigants in person will be much smaller than the
decrease in cases. Does that make sense? But I would also say
that it is important in this that we realise litigants in person
have problems now and we have identified this as an issue. We
have a report being commissioned at the moment on litigants in
person. We also appreciate that they need to be given better advice
on how to demystify the court process. We are looking at that.
One particular aspect of that we are looking at is to use IT,
and particularly a walk-through IT system that you can look at
that takes you through the court process. I have looked at a pilot
and I can tell you that it is a very interesting development.
I think it will do much to help litigants in person find their
way round the system.
The other point I would make is that, if you
take family law, which is what we are talking about, it is a much
more inquisitorial process on the whole than other parts of the
legal system. I have sat in on cases and very often, when people
are not represented now or even when they are represented, the
judge will take quite an inquisitorial approach to the case and
guide people through. If you add all that together, I think it
is an interesting question and one we will have to look carefully
out for, but I don't have concerns.
Q400 Mr Llwyd:
It is not exclusively family, because the President of the Queen's
Bench has also expressed a similar view, hasn't he? Have you any
estimate of the cost of the impact of an increased number of litigants
in person, which is recognised in your Green Paper?
Mr Djanogly: It
is built into the impact assessment.
Q401 Mr Llwyd:
Do you have any concerns about the ability of people with mental
health problems, disabilities, drug dependency or alcohol addictions
to represent themselves?
Mr Djanogly: We
do. We are interested to see how people respond to the consultation
on these particular issues.
Q402 Mr Llwyd:
Have you made any pre-assessment of this particular area?
Mr Djanogly: You
can't generalise. For instance, if you take mental health, we
are proposing to keep that within the scope of legal aid in the
Green Paper. You have to look at it on a case-by-case basis.
Q403 Mr Llwyd:
Presumably you will have an impact assessment after you have considered
all the responses; is that right?
Mr Djanogly: It
will be reassessed, yes.
Q404 Mr Llwyd:
We were also told that it would not be possible to fund, for example,
drug tests or psychiatric assessments where these might be needed
in a situation where there is no legal aid available in family
matters. It is to determine whether a child's safety, for example,
is at risk. Is this correct?
Mr Djanogly: If
it is about child safety, there is a so-called rule 9.5 issue
which has been mentioned to us by many family practitioners in
the consultation meetings that I have had. It is something that
we believe does need to be looked at carefully.
Q405 Mr Llwyd:
In other words, if a litigant in person requires that test to
be undertaken, applying rule 9.5, there will be public funding
for that to happen.
Mr Djanogly: It
would relate to the child being represented.
Q406 Mr Llwyd:
Sorry, the point I am trying to make is that you have a litigant
in person in a family matter to do with child welfare and that
parent wants a psychiatric assessment of the other parent in the
interests of the child's safety but is not publicly funded. Will
there be an application of rule 9.5 to cover that public funding?
Mr Djanogly: I
don't want to get too specific.
Mr Llwyd: I would like
you to be specific actually.
Mr Djanogly: My
understanding from the facts that you gave is that there would
be legal aid funding in that scenario.
Q407 Mr Llwyd:
So as not to be unfair to you, Minister, would you care to write
to confirm whether that is correct, in due course, because it
is a very important point?
Mr Djanogly: Yes,
it is. I appreciate that.
Q408 Chair: While
we are on family law, you have laid quite a lot of emphasis on
a shift to mediation, a wide use of mediation, among that 10%
which currently goes to court. Who is going to do it and how is
it going to be paid for?
Mr Djanogly: There
are mediation organisations. Our view is that the initial demand
can be met from those organisations. The practice of mediation
will be developed rapidly once mediators realise that they are
going to be in demand. I should also point out, Sir Alan, that
there appear to be very large numbers of mediators out there—so-called
"sleepers"—who are waiting for the call and who,
when they realise that there is a demand for mediation, will be
able to come on tap quite quickly. There are issues surrounding
mediation in such areas as the training that mediators should
have. These issues are being debated within the profession itself.
Q409 Chair: But
the cost?
Mr Djanogly: We
do see that there will be an additional cost through mediators.
Our initial assessment is in the region of £5 million, but
those who are eligible for legal aid now will be eligible for
mediation.
Q410 Claire Perry:
Many of us think mediation is a good solution but I don't think
it is good enough to just say lots of it is out there and people
will find it. What could you do to signpost or divert people to
mediation? What active steps are you going to take to do that?
Mr Djanogly: Mrs
Perry makes a very good point. I can assure the Committee that
this is an issue of particular concern to me. Since I have been
a Minister I have made some half a dozen speeches on the issue.
We are publicising it. We are providing a new website which will
be on the Directgov website. People will have easy access to mediators.
In the last few months the number of mediators across the country
and also the number of mediation outlets has increased dramatically.
We do not have those figures to hand, but we can provide them.
Chair: Add to them to
the letter you are already sending to us.
Q411 Mr Buckland:
We have concentrated on areas where scope is to be reduced. I
just want to ask you a question about judicial review, where there
are no proposals to reduce scope. Sir Anthony May gave us evidence
a week or so ago about his concerns about a potential rise in
judicial review cases around asylum. It arises from a particular
Supreme Court judgment. It is the Cart case. I am not sure
they have determined that. He was concerned that if the judgment
went a certain way there could be an explosion in judicial reviews
under that particular head, which of course would have a big impact
on the legal aid budget. I use that as an example, but I simply
ask the more general question: is there more that we can do to
look at dealing with the merits tests for applications for legal
aid for judicial review and, for example, a wider public interest
test when it comes to granting legal aid applications for these
cases?
Mr Djanogly: I
have to say that the starting point in our consultation paper
is that we are not proposing to make any changes to the scope
of judicial review at all, it being the citizen's right for redress
against the State. Having said that, I note the points you make.
I will look forward to receiving the consultation response from
the judge you mentioned and we will certainly take that on board
and consider it.
Q412 Chair: In
your Green Paper you refer to a number of groups such as Child
Poverty Action Group, Disability Alliance, Free Representation
Unit, Age UK and others you have talked about such as Citizens
Advice Bureaux, Shelter and Neighbourhood Law Centres. Almost
all of these groups have queried their ability to plug the gap
which they think will arise. So those upon whom you are relying,
and many of us rely on as Members of Parliament, to assist in
cases of this kind are all worried about whether they will have
the critical mass to maintain the kind of advice which you envisage
people will go to them for in the future. What do you say about
that?
Mr Djanogly: First,
Sir Alan, although we did mention these groups in the consultation
document, we did that out of respect knowing that they were players
rather than because we wanted to take their names in vain, if
you like. Indeed we have had very significant consultation and
ongoing meetings with nearly all, if not all, of them. I would
like to make it very clear that this is an area we take very seriously.
We do see it as an important issue. We do see it as an issue where
the existing circumstances and the existing provisions are not
coherent enough given the fact that there is going to be less
money in the system so that reform is required.
If you take CAB, for instance, the Ministry
of Justice funds CAB to about 15%. Most of CAB's money locally
comes from local government, although an average CAB may have
a dozen or more funding streams. There is a great lack of knowledge,
as we discussed earlier, as to where these funding streams come
from and how they tie in nationally. Most of the national money
on CAB, for instance, comes from the Department for Business.
There is a great need to have a cross-governmental review of how
we support our not-for-profits and how we don't duplicate services.
In certain areas, particularly debt, there is huge duplication
around the country. This is something to which certainly the Ministry
of Justice is very committed.
I have already had a meeting with the Office
for Civil Society, part of Cabinet Office, and Nick Hurd, who
I am very pleased to see you are going to be meeting with shortly.
We have been in constant correspondence with him at ministerial
level and officials are in constant discussion. Of course, it
involves most of the Departments of State, not just Justice, but
this is an area that the Government takes seriously and that we
are going to be looking at on a cross-governmental basis.
Chair: Finally, Mr Turner
is going to ask about the consultation itself.
Q413 Karl Turner: Thank
you, Chairman, yes. We are very lucky to have you here, Minister,
just a couple of days after the consultation period closed. Thank
you for that. I do have some questions around the consultation.
I do not know if time will permit, but perhaps you might want
to put your answers to us in writing. First, I think you have
said 5,000 people responded to the Department. What type of organisations—
Mr Djanogly: I
can't tell you that.
Q414 Karl Turner:
Okay. My concern is around the staff. How many members of staff
has the Department held over for considering the consultation?
Is there a timeline for the responses from the Department?
Mr Djanogly: I
think just about anyone with an interest has responded. A lot
of the 5,000 responses are standard form letters, it has to be
said. They are not all individual responses. Some are several
hundred pages long and some are one-page standard letters. I cannot
give you a breakdown of that two days after the consultation has
finished, but it is about 5,000 of them and they will all be considered
and looked at. We are hoping to come back before Easter.
Q415 Chair: We
will report, of course, before then. We will expect you to take
account of what we say. Clearly, it is going to take quite a lot
of staff to absorb all that material and make sure that you have
a full and accurate summary.
Mr Djanogly: This
whole exercise has been a very major exercise for the Ministry.
Right from the formulation of the consultation paper we have had
a very significant team on it.
Q416 Mr Buckland:
Minister, I think you have said this before but the Committee
would welcome reassurance. This is going to be the last such consultation
for a considerable period of time, bearing in mind we had 30 between
2006 and 2010.
Mr Djanogly: Absolutely.
I have made a point of that myself. The idea behind this consultation
is that we have a composite look at legal aid across the board.
Indeed we put out the Jackson proposals on the same day so that
people could look at funding not only from the State-funded sector
but also in the privately-funded sector. I have to say, though,
there is always an exception and that is, as is mentioned in the
consultation paper, that we will have a separate consultation
on the competitive contracting which will be for criminal, as
I mentioned earlier on today.
Q417 Chair: If
you don't carry out a proper consultation, you may find yourself
in court subject to legally aided judicial review.
Mr Djanogly: Indeed,
Chairman.
Chair: A final question
from Yasmin Qureshi.
Q418 Yasmin Qureshi:
Minister, sometime ago you said that if Citizens Advice Bureaux
and other places close down people can always go to their Members
of Parliament to seek assistance.
Mr Djanogly: I
said that?
Chair: It was very unwise
of you.
Mr Djanogly:
Did I say that?
Q419 Yasmin Qureshi:
I have mentioned it in the House previously and I think it was
reported in a newspaper that you suggested that they should be
able to go to their Members of Parliament. My Citizens Advice
Bureau in Bolton saw 14,000 people. Are you really expecting me
to be able to deal with all those 14,000 people?
Mr Djanogly: First,
I don't recall saying that every CAB case should go to their Member
of Parliament. Secondly, I would hope that the Committee would
have understood, from what I have said earlier, that I am fully
supportive of CABs, I am fully supportive of not-for-profits and
I am certainly supportive of general advice being provided by
these organisations. What I have said on the floor of the House—I
said it in the legal aid debate two weeks ago and I said it in
answer to a question yesterday in Justice oral questions—is
that I do hope that Councils across the country look carefully
before they decide to stop support for their local not-for-profit
general advice provision. I repeat that again today.
Chair: Thank you very
much indeed. We will report to you in due course.
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