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Session 2010-11
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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 681-vi

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

JUSTICE Committee

Access to Justice: Government's proposed reforms for legal aid

Wednesday 16 February 2011

Mr Jonathan Djanogly MP and Sarah Albon

Evidence heard in Public Questions 354 - 423

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Oral Evidence

Taken before the Committee

on Wednesday 16 February 2011

Members present:

Sir Alan Beith (Chair)

Mr Robert Buckland

Chris Evans

Mrs Helen Grant

Ben Gummer

Mr Elfyn Llwyd

Claire Perry

Yasmin Qureshi

Elizabeth Truss

Karl Turner

________________

Examination of Witnesses

Witnesses: Mr Jonathan Djanogly MP, Parliamentary Under-Secretary of State, and Sarah Albon, Director for Civil, Family and Legal Aid Policy, Ministry of Justice, gave evidence.

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.

Q354 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.

Q355 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.

Q356 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?

Q357 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-

Q358 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.

Q359 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-

Q360 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.

Q361 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.

Q362 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.

Q363 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.

Q364 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.

Q365 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.

Q366 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.

Q367 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.

Q368 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.

Q369 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.

Q370 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.

Q371 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.

Q372 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.

Q373 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-

Q374 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.

Q375 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.

Q376 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.

Q377 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?

Q378 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.

Q379 Chair: So you have yet to come to a conclusion on that?

Mr Djanogly: Absolutely.

Q380 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-

Q381 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.

Q382 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.

Q383 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.

Q384 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.

Q385 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.

Q386 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.

Q387 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-

Q388 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.

Q389 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.

Q390 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.

Q391 Elizabeth Truss: The Committee has looked at other common law countries and they have much lower legal aid costs.

Mr Djanogly: Much lower.

Q392 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.

Q393 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.

Q394 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.

Q395 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.

Q396 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.

Q397 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-

Q398 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.

Q399 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.

Q400 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.

Q401 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.

Q402 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.

Q403 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.

Q404 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.

Q405 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.

Q406 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.

Q407 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.

Q408 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.

Q409 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.

Q410 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.

Q411 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.

Q412 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.

Q413 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.

Q414 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.

Q415 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.

Q416 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.

Q417 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.

Q418 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.

Q419 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.

Q420 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.

Q421 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.

Q422 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?

Q423 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.