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On 11 May there was a very interesting debate on legal aid at Westminster Hall. You can watch it here:
http://www.parliamentlive.tv/Main/Player.aspx?meetingId=8271
Surprisingly most MPs appear to get it ie that cutting legal aid isn't about throwing fat cat gravy licking lawyers off a train but a sure fire method of stopping people of low or moderate means getting proper legal advice.
In considering legal aid what must also be inluded is cost of justice systems. The Government loves to talk up how generous the English legal aid system is, but fails to include a full comparison by reference to what other countries spend on legal aid AND justice systems.
Also Elfyn Llwyd MP is trying to address the absurd and inhumane sentence that is IPP through his Criminal Justice (Amendment) Bill. Unfortunately it is making slow progress.
http://services.parliament.uk/bills/2010-11/criminaljusticeamendment.html
On 11 May there was a very interesting debate on legal aid at Westminster Hall. You can watch it here:
http://www.parliamentlive.tv/Main/Player.aspx?meetingId=8271
Surprisingly most MPs appear to get it ie that cutting legal aid isn't about throwing fat cat gravy licking lawyers off a train but a sure fire method of stopping people of low or moderate means getting proper legal advice.
In considering legal aid what must also be inluded is cost of justice systems. The Government loves to talk up how generous the English legal aid system is, but fails to include a full comparison by reference to what other countries spend on legal aid AND justice systems.
Also Elfyn Llwyd MP is trying to address the absurd and inhumane sentence that is IPP through his Criminal Justice (Amendment) Bill. Unfortunately it is making slow progress.
http://services.parliament.uk/bills/2010-11/criminaljusticeamendment.html
Westminster Hall
Wednesday 11 May 2011
[Mr Mike Weir in the Chair]
Legal Aid
2.30 pm
Dr Julian Huppert (Cambridge) (LD): I hope that this debate on legal aid—a vitally important component of our legal system—will prove timely. It is opportune because although the Government consultation, which has received around 5,000 replies, has closed, the Government have not yet published their response. I hope, therefore, that the Government will have the chance to listen to concerns from both sides of the House before publishing their final recommendations. I am delighted to welcome the Minister to respond to the debate, and more particularly to listen to it. He and I spent some time debating in 2005, and although I did not always agree with his position, he showed that he would listen to an argument and I hope he will show the same character today.
One of the basic pillars of our legal system is supposed to be that the law is accessible to all, not only to those who can afford it. Members of another Committee are seeking to reform the law of libel to ensure that success goes to those who have truth on their side, rather than to those with the most money. Legal aid is the manner in which we ensure that all have a fair chance to access the law and see justice done.
The Government have been at pains to emphasise their commitment to access to justice. We would all, I hope, agree with their stated position that
“access to justice is the hallmark of a civil society.”
Indeed, many of us would go slightly further and say that it is the hallmark of a civilised society. The Green Paper that announced the proposals suggested that the Ministry of Justice believes that legal aid has expanded far beyond its original intentions. I recognise that there is often waste, and that unnecessary costs could be eliminated or reduced, but we should avoid simply caricaturing the current legal aid system.
In my opinion, as it currently stands the legal aid system seems broadly to represent what Lord Rushcliffe intended in his 1945 report. He argued that public funding for legal aid should not be limited to those “normally classed as poor”, but should also include those of “small or moderate means.” According to the Ministry of Justice, under the current legal aid system 29% of us are eligible for publicly funded advice. One could ask whether that goes far enough. Given our unequal income distribution, even the median wage could well be described as “small or moderate means” in some parts of the country.
I accept that the wider fiscal situation and the rapidly growing nature of the legal aid budget allow room for consolidation through reductions in the budget, and there is a balance to strike between access and cost. This debate is largely an opportunity to discuss how such reductions can be achieved without harming the most vulnerable people in our society. A large portion of my speech will deal with the scope of the Government’s proposals, but I also hope to draw the Minister’s attention to the viable alternatives that have been proposed. Given the number of hon. Members from all parties present in the debate, I will try to be brief to allow others to speak. I am sure that one could easily fill 90 minutes with more detailed analyses of every issue that I cover.
It is easy to forget the recent history of legal aid, and it is important to look at the context behind the debate this afternoon and remind ourselves that legal aid underwent substantial changes under the previous Government—Labour launched about 30 consultations and reviews to try to sort the system out. Since the formation of the coalition, we have had Sir Ian Magee’s “Review of legal aid delivery and governance”, and the family justice review chaired by David Norgrove, both of which are pertinent to the debate. I am glad that the Government delayed their response to the consultation on legal aid until after the interim report of the Norgrove review was published. It is always useful to get expert advice before making decisions.
Hon. Members should be in no doubt that I appreciate much of what the Ministry of Justice has done since the formation of the coalition. In general, I admire the liberal proposals on sentencing that have stemmed from the Secretary of State and his team of Ministers—they may not thank me for that praise of their liberalism. It has been particularly good to see a renewed emphasis on evidence and reinvestment in justice, moving us away from an obsession with prisons and punishment, and renewing our desire to see criminals rehabilitated. We want less crime, not just to be harsh on criminals after the event.
There are, however, problems with the Government’s proposals, many of which will be familiar to hon. Members following this debate. If they have not already done so, hon. Members might want to familiarise themselves with the excellent report from the Justice Committee—chaired by my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith)—the large majority of which I agree with. I want to focus on the effects of the proposals concerning access to advice on social welfare law, in particular with regard to immigration law, family law and children and young people. I will also highlight what I believe are the unintended consequences of the Government’s proposals for citizens advice bureaux and other organisations.
It is worth questioning the central decision at the heart of the Government’s proposals. From the off they considered it impossible to pare down any further expenditure on criminal legal aid. Like many others, I remain unconvinced that we should leave criminal legal aid entirely untouched when it accounts for more than half the total budget, even if it has previously come in for close attention. Obviously, we do not want to deny people access to justice in criminal trials, but I believe there may be further scope for savings in that area. I hope the Minister will heed that note of slight uncertainty and address it when he responds to the debate.
In other areas, my uncertainty is more than slight. One such area is family law, and I have received many representations from organisations and individuals across the spectrum, from those who need legal aid to those who provide it and almost everyone in between. I cannot over-emphasise the concerns that people have about the possible effects of the Government proposals. Time and time again I have heard the same criticism: the Government have brought forward proposals without properly researching the effects of the current system, and without adequately justifying their stance. As a result, the unintended consequences of the proposals, if implemented, could be regressive and widespread.
Annette Brooke (Mid Dorset and North Poole) (LD): My hon. Friend makes a strong case. Does he agree that there is a danger that people in a host of vulnerable groups, including those with mental health problems, those suffering domestic abuse—as opposed to domestic violence—those with learning disabilities, and others, could be disadvantaged in front of the law? Would it not be better to raise the bar for legal aid, and look at the situation case by case?
Dr Huppert: My hon. Friend raises a number of issues, some of which I will come on to talk about. There is no doubt that this issue is a challenge, and there is no easy solution with which to protect all those vulnerable groups. Ideas such as that mentioned by my hon. Friend, or those suggested by the Law Society, may provide a better option.
Andrew George (St Ives) (LD): My hon. Friend makes an excellent case and I congratulate him on that. Does he agree that rather than being largely budget driven, the review should begin with an understanding that legal justice is inextricably linked to social justice? Homelessness, for example, will be narrowly defined by these changes at a time when the Government’s policies on homelessness, housing benefit and other areas are already having a disruptive impact in that area. We need a legal aid system that is flexible enough to assist those who will find themselves on the margins of society.
Dr Huppert: I thank my hon. Friend for his valuable contribution to the debate. He is right: social justice lies at the heart of much of what is happening. The lack of social justice in this country, and the widening disparity between the rich and poor, already existed under the previous Government. That disparity is a sorry blight for us all and affects much of public policy. We know that one of the worst problems is the effect that social injustice and deprivation have on health. That is a much more fundamental problem to be solved than exactly what happens in an A and E hospital, and the same goes for the examples provided by my hon. Friend.
Family law particularly concerns me. I am indebted to a number of people for drawing my attention to the issue, and I would particularly like to thank Jo Miles, a Fellow in Law at Trinity college Cambridge, where I used to be a Fellow. She has made great efforts to produce evidence-based assessments of the proposals in the Green Paper, and she has also been in touch with Ministers.
The Green Paper’s reforms for family law constitute a radical reduction in the number of private family law issues for which legal aid will be available. That policy is based on two premises. To say those are outright false is perhaps going too far, but they are questionable and not well justified. The premises are first that spending on legal aid fuels litigation, and secondly that mediation is the clear alternative.
In some cases, there is no doubt that lawyers on each side—I declare an interest as a non-lawyer—ramp up the case to earn fees, and make a tense situation worse for the individuals as well as expensive for the state and of course for the side that does not have legal aid. However, it is not clear that that is common or regular. In fact, it is probably because clients can currently see a solicitor that litigation is avoided in many cases. Solicitors can play a very important role in guiding their clients towards agreed resolutions or advising them that their case is too weak to fight. Without professional guidance, badly founded and prepared litigation conducted by the client in person will surely follow and grow. That will mean an inevitable and probably substantial rise in the number of litigants in person in the family courts and the associated costs. I have seen no evidence for the Government’s assumption that there will be no significant impact on court operating costs. I strongly suspect that what is saved in legal aid may simply be spent in court costs.
The result will be that, as ever, those with money will have access to justice. Those who do not have the cash and who also lack the energy and resources to litigate by themselves will simply not have access to justice. Those who have not been able to enforce the other party’s private law responsibilities will have to fall back on the state for housing and other support—another cost to the Exchequer.
Therefore, the removal of public funding from the areas of family law that we are discussing may have the opposite effect on the finances to that which is intended. On a related note, it may also hamper successful mediation. Studies have shown that one of the main reasons why mediation has been successful has been the threat of litigation. That encourages people to adopt sensible positions and so to settle. Will that still work in the absence of litigation as a plausible threat?
Mrs Helen Grant (Maidstone and The Weald) (Con): I declare an interest in the debate, having been a legal aid family lawyer. I want to pick up the point about mediation. Does the hon. Gentleman agree that mediation can be quite useful, but it is no panacea and frequently fails when there is an imbalance of power, which is often the case in family matters? I am concerned that the Government’s proposals rely on mediation. I am concerned also about where all the mediators will come from and who will pay for them.
Dr Huppert: I thank the hon. Lady for her comments and bow to her greater expertise in this area. She is absolutely right. There is no doubt that mediation is fantastic, but it does not solve every problem. It is a great thing where it works. Where it does not work, there must be alternatives. She also raises the important point about the number of mediators. We are trying to turn to more and more mediation and arbitration in relation to a range of areas of law, and there is a real question about how we can train enough people.
I hope that the Government will revisit their proposals on reducing the scope of family law. We share the objective of controlling costs while preserving access to justice. I hope that the Government will be able to reach a better balance than they did in their original proposals.
Let me now turn to another element of family law, which has had almost as much attention from the same organisations—domestic violence, which my hon. Friend the Member for Mid Dorset and North Poole (Annette Brooke) mentioned. That is a blight that is far more common in our country than many of us would like to believe. It is a very private crime and therefore difficult to measure, but estimates based on available data, such as the British crime survey, suggest that as many as one in five adults have experienced it in some form.
The Green Paper takes a narrow view of what domestic violence constitutes and how it can be evidenced. The Government seem to be counting only physical violence under the definition of domestic violence and then only where relevant legal proceedings have been started or orders obtained in relation to it. There are a couple of concerns about the consequences of that. First, it provides a perverse incentive for people to allege domestic violence just to gain access to funding for their other issues. In other words, it will encourage court proceedings. It is not clear whether that would involve people admitting what is actually happening or would lead to false allegations, but either way, it will increase court proceedings. Secondly, a huge amount of research shows that many victims of domestic violence do not disclose their abuse at all. For all sorts of reasons, they are reluctant to take legal proceedings in relation to the abuse. We should not make that harder.
All that would be bad enough. I hope that I need not convince anyone here that domestic violence cannot refer simply to physical violence. We must all be concerned about people suffering the threat of violence and mental torment. I hope that the Government will take seriously the criticisms that they have received on that point and will clarify and strengthen their definition of domestic violence so that those at risk have access to justice and are protected.
There is a particular issue about those people—normally women—who are in the UK on a spousal visa with no access to public funds and are subjected to domestic violence. I have met such people in the Cambridge women’s refuge. I am delighted that the Government are taking some steps to support them—for example, by extending the funding for the Sojourner project, which I hope will continue even longer. Everyone will work together to help such people. There will be legal aid funding for them to obtain an injunction against their ex-partner, and the UK Border Agency will fast-track their visa application—but there will be no support for them to apply for the visa that unlocks their future support. Surely that is not right.
Women will be disproportionately affected by the changes in legal aid. They are more often the recipients of it and less often have their own finances in place. Children and young people will also be disproportionately affected, partly because women make up the majority of primary care givers, although of course not all. I have received a considerable amount of evidence from a number of organisations suggesting that the proposals could deny many thousands of children and young people access to justice. The Liberal Democrat youth policy includes a commitment to providing young people with access to specialist support and advice on their legal rights and responsibilities—something that I hope would attract universal support. I therefore urge the Government to think again more carefully about their proposals for young people. They are clearly a group of people who are generally vulnerable and less able to represent themselves. It seems to me, then, that the current scope of legal aid should remain available to children and young people even if it must be reduced somewhat for adults. In addition, we should try to target funding and support better towards that demographic group in the future.
Similar concerns apply in relation to disabled people, whether young or old. For example, the Government plan to remove legal aid relating to matters of special educational need. The Government sought to justify that proposal in the Green Paper because there are alternative sources of support, they do not consider parents and carers bringing SEN appeals to be particularly vulnerable and they believe that the education of children should not be accorded the same level of priority as other, more critical issues. The last point is the most concerning. The coalition Government have taken some good steps to support families with disabled children—for example, the SEN Green Paper from the Minister of State, Department for Education, my hon. Friend the Member for Brent Central (Sarah Teather), is a great step forwards. However, the change that we are discussing in this debate would send entirely the wrong message to those families. Access to education is a right for all children and is a vital mechanism for removing some of the barriers facing disabled children and young people.
Mr Robert Buckland (South Swindon) (Con): On the point about special educational needs, does my hon. Friend further welcome the proposals in the Green Paper to move to a system of mediation to resolve many of the problems that parents and children have in challenging decisions made by local authorities? Should not that system of mediation be put in train with any changes to legal aid so that we do not end up with the good intentions of the Green Paper being frustrated by a lack of co-ordination between two Departments?
Dr Huppert: I thank the hon. Gentleman for his comments. Yes, mediation can play a good role. There are a number of cases in which we need to move away from the legalistic approach to resolving problems and towards mediatory approaches. However, as I said in response to the point raised by the hon. Member for Maidstone and The Weald (Mrs Grant), mediation does not always work, and where will we get all the mediators from? We must ensure that there is a fall-back—a safety net—for people.
I cannot deal with all the issues relating to this area now. I assume that the Government have seen the briefings from the Children’s Society and the Special Educational Consortium and I hope that they will consider what they say. I am sure that other hon. Members have seen them as well.
Andrew George: My hon. Friend is being very patient in allowing me to intervene again. The theme underlying this is public service and its improvement. There is an important link, which must not be lost by the Government. They must ensure that those people seeking to benefit from public services see an improvement in them. We have found this in the Select Committee on Health, which has been considering clinical negligence. The removal of legal aid is proposed in that area. How can a service move on, learn lessons and improve if those who are served poorly by it do not have access to the right kind of justice?
Dr Huppert: My hon. Friend makes an excellent point. I hope to talk later about the effect of the Jackson changes, how legal aid will work then and the double whammy that people may face with the two changes being rolled up together.
11 May 2011 : Column 457WH
Lastly on the subject of special educational needs, I am sure that other hon. Members have had constituents coming to see them, as I have. My constituents take special educational needs appeals for their children very seriously. They are very concerned. A number of people have come to see me. They are terrified both about what will happen to their own children and about the future. They see education as critical to their children’s future. I could talk about other aspects, but time moves on apace.
Hon. Members may be aware that I have a passionate interest in matters to do with immigration and asylum. I chair the all-party group on refugees, as well as being a member of the Home Affairs Committee, which is chaired by the right hon. Member for Leicester East (Keith Vaz), and it is a great pleasure to see him here today. I am of course pleased that asylum will remain within the scope of legal aid, but it is extremely concerning that other immigration cases have been excluded. Even under existing arrangements, immigration legal aid providers are struggling to remain viable; if we confine legal aid to asylum, it is doubtful whether good quality practitioners will continue to be available. There is already a surfeit of poor quality lawyers and advisers working in this field, and we would all benefit from better provision because many of them are not up to scratch.
Jeremy Corbyn (Islington North) (Lab): I congratulate the hon. Gentleman on securing this debate. Is he aware that many of the legal aid practitioners that used to deal largely with immigration matters in inner London have gone under? I frequently represent people at immigration appeal tribunal hearings, and I know that a disturbing number of claimants with strong cases are completely unrepresented, and that all kinds of family breakdowns and misery result. It is not necessary to invest a great deal of money in order for the most vulnerable to get reasonable access to justice.
Dr Huppert: I thank the hon. Gentleman for his comments. He is right. I am not an expert on the position in London, but I know the Cambridge area and I realise that there is a shortage of good people. I see that with my constituents time and time again.
Keith Vaz (Leicester East) (Lab): I am most grateful to the hon. Gentleman for giving way. I pay tribute to him for the work that he does as chair of the all-party group on refugees and as a member of the Select Committee.
Further to the point made by my hon. Friend the Member for Islington North (Jeremy Corbyn), if that specialism disappears—and immigration cases are dealt with by specialist legal aid lawyers—vulnerable constituents may go to unscrupulous immigration advisers, be charged huge sums, and, at the end of the day, be left with no recourse except to go to Members of Parliament, who are not really qualified to give them that advice.
Dr Huppert: I thank the right hon. Gentleman for his comments. I am astonished at how many constituents I see who have been poorly advised. The most extreme example was a lady who applied for asylum through a lawyer and got leave to remain, but when she went to renew her passport she discovered that the whole thing was a forgery. We are still trying to resolve that case. We need decent, good quality lawyers, not the rather shabby and disreputable people whom we sometimes see in their place.
The main point that I want to make is about the approach taken by the UK Border Agency. Its attitude is a well-known sticking point. It rarely allows scope for negotiation or mediation. It seems to take the view that it will stick to its decision until a court tells it otherwise almost regardless of the evidence. In so many cases, applications for the right to work were ignored until the agency was ordered to deal with them by higher courts.
Many applications for refugee reunion that are refused are then overturned on appeal, and it seems that the appeal system is being used by the agency as a safety net. Under the Government’s proposals, those cases would no longer be in scope for legal aid, and there will be no opportunity to fix the agency’s errors. I urge the Government to listen to practitioners and the representatives of asylum seekers and refugees. The Government should ensure that asylum support remains in scope as a high priority. They should also ensure that applications for family reunion are treated as extensions to a claim for asylum and thus be within scope for legal aid purposes.
There are certainly cases in which applicants with a poor case abuse the system, looking for appeal after appeal in a fruitless quest for victory. However, those with a strong case are also forced to jump repeated hurdles to get justice. The key solution is for the agency to get more decisions right first time, as was accepted by the Minister for Immigration, the hon. Member for Ashford (Damian Green) when I raised the matter in the Chamber.
I could say more about that, but I want to give a brief example of the impact that the Government’s proposals may have on service providers, and I shall then allow others to speak. I have spoken to service providers about the possible impact of the proposals on various vulnerable groups. I have received comments from a range of organisations and individuals that provide support. I wish that I could have talked to all of them, but I shall focus on the role of Citizens Advice, as I suspect that all Members will appreciate the vital role that it plays in our constituencies, not least in preventing the flood of case work that we all receive from becoming even more torrential.
Citizens Advice has produced detailed briefings showing the unintended consequences of the Government’s proposals on social welfare law work. Its cost-benefit analysis makes a strong case for retaining and even strengthening its role. For instance, its research found that for every £1 of legal aid spent on housing advice, the state potentially saves £2.34; on debt advice, the state saves £2.98; on benefits, it saves £8.80; and on employment advice, it saves £7.13. With impressive understatement, Citizens Advice suggests that the Ministry of Justice
“gets a good return from expenditure on legal help in these areas.”
It estimates that if funding were no longer available for these categories of law, at least £172 million of additional costs would accrue for both state and society.
What effect would the proposals have on the Citizens Advice service more widely? More than half of the bureaux surveyed in December last year said that the changes to legal aid scope and the reduction in fees would pose a real risk to the continuation of their local advice service as a whole. Again, I do not need to remind Members of the havoc that that would wreak in our communities, or of the large amount of extra work that would almost certainly come our way as a result. In passing, I praise the excellent work done by Rachel Talbot and the staff of the Cambridge citizens advice bureau, who are always there to help me and my constituents. I also praise Cambridge city council, which last year provided it with a 25% increase in grant. I wish that all councils did that, rather than pulling resources from such a vital public service.
Time is running short, but I wish to raise two brief points. The first, raised earlier by my hon. Friend the Member for St Ives (Andrew George), is about the effect of combining the legal aid proposals with Lord Jackson’s proposals on clinical negligence cases. Lord Jackson was clear about it. He said:
“I stress the vital necessity of making no further cutbacks in legal aid availability or eligibility…the maintenance of legal aid at no less than the present levels makes sound economic sense and is in the public interest”.
Will the Government take account of that plea, and avoid a double whammy? Legal aid changes and the Jackson proposals together would mean that those who have suffered through error would not be able to continue with their cases.
Secondly, I flag up a concern raised with me by Andy McGowan, the access and funding officer of Cambridge university students union. He is one of those rare people on free school meals who got to Oxbridge—the Government would like to see more of them—and he wants to practise as a criminal legal aid solicitor; he is driven by a motivation that I am sure we would all endorse to help the most vulnerable in society. He asks how he can fund the legal practice course in the absence of the training contract grant scheme, knowing that he will be unlikely to be as well paid as those lawyers for whom money is the principle motivation? If we lose people like Andy from the profession and from public service, we will create a less fair future for many years to come.
It is not my intention to attack the Government’s proposals without offering an alternative. That is not a helpful or effective way of approaching such debates, and I am always disappointed when others do not say clearly what they would do differently. There is clearly much in the Government’s proposals that is sensible. I cannot claim to be an expert on legal aid, and I have relied heavily on the hard work of many other people in preparing this speech. I am grateful to them for all that they do to preserve what is good about the present system, and for their wider struggle to provide access to justice for all, especially for the most vulnerable. The case that I have attempted to build draws on the research and evidence of others. The same is true of the alternative that I offer the Government.
The Law Society, which for a long time was officially responsible for legal aid, has continued to play a major role in shaping the debate on this important subject. It has produced an alternative set of proposals that aim to go beyond the savings that the Government have set out. It projects savings of £384 million, which could even reach slightly more, yet at the same time it claims to be able to protect the vulnerable about whom I have said so much. The Government are duty bound to look seriously at those proposals and, if they are workable, to adopt them. If the Government are serious about access to justice, they must listen to those who know what is necessary to provide it.
I look forward to hearing what other hon. Members have to say, and to the Minister’s response. I hope that he will signal a willingness to modify the proposals in the light of the concern that have been raised.
Several hon. Members rose —
Mr Mike Weir (in the Chair): Order. Five Members wish to speak, and we have about 40 minutes before the wind-ups. I ask them to do the maths and to be as brief as possible.
2.58 pm
Yvonne Fovargue (Makerfield) (Lab): As always, Mr Weir, it is a pleasure to serve under your chairmanship. I congratulate the hon. Member for Cambridge (Dr Huppert) on securing this debate.
Many quotations have been used in support of legal aid, from the Magna Carta onwards. I have one from George Washington, who said:
“The true administration of justice is the firmest pillar of good government.”
I firmly believe that the current proposals to reform legal aid risk rocking the very foundations of that pillar, and I submit that I am not alone in that.
More than 5,000 responses to its consultation were received by the Ministry of Justice. A number of common concerns were raised, one of which is the loss of most early intervention advice, with access available solely through a telephone gateway. I believe that such proposals will disadvantage the most vulnerable in our society—the disabled, the elderly, those on a low income with a pre-paid mobile phone who often ring about debt issues, those with mental health issues, those whose first language is not English and many others. Expansion of telephone advice is welcome, but it should not be the sole means of contact.
That leads me on to another issue—where will we refer the people who are found to be ineligible? The assertion is that advice and help are available from other sources, but that is inaccurate. Many of the organisations that were identified in the Green Paper do not provide, or do not have the resources to provide, specialist, face-to-face advice. Government delivery agencies such as Jobcentre Plus and independent tribunals do not, and cannot ever, provide independent advice. In the absence of alternative provision, I fully expect that many more social welfare and other legal problems will turn up at MPs’ surgeries and casework services.
Civil legal aid has been disproportionately cut, especially social welfare law, and that will disproportionately affect the not-for profit providers, which provide more than 75% of the social welfare law advice under contracts with the Legal Services Commission. It is no exaggeration to say that when the cuts in legal aid are taken in conjunction with the other reductions in funding at primary care trusts, local authorities and central Government, the effect on the sector will be catastrophic.
More than 50% of citizens advice bureaux surveyed said that they did not expect to survive or would certainly be much reduced. Again, where will the people who use these much loved and much trusted services go? They could seek help from other statutory agencies as they move from coping with assistance to not coping. They could end up at MPs’ surgeries, where we have neither the knowledge nor the resources to help them all, or they could become litigants in person, pursuing their cases without assistance or advice and causing huge backlogs in the courts and tribunal system.
As the Minister has often asserted, these cases are not simple and they sometimes involve issues of liberty. I have previously mentioned a case from Wigan citizens advice bureau in which a client had been convicted of benefit fraud. With the assistance of a specialist adviser, they appealed and were able to reduce the amount owed from £27,000 to £236.
Debt problems are often complex; they require advisers to understand time orders, unfair credit relationships, bailiffs and insolvency law. Indeed, removing help from debt cases will inevitably lead to more calls on the health service. I refer hon. Members to a paper on debt-related suicide, which was produced by Zacchaeus 2000. Its case studies provide tragic examples of the effect that debt can have on an individual’s state of mind. Taking away legal aid for people in debt will mean that 110,051 fewer people will have access to such advice. There will still be the fee-paying debt management sector, which seeks to make a profit out of misery while often providing a poor-quality and inappropriate service.
The proposals will not save money in the long run; they will merely move the expenditure to other Departments. I urge the Minister seriously to consider many of the suggestions on saving money from the independent advice sector and the other consultation respondees, and not to take social welfare law out of scope. There have been many suggestions, such as reducing bureaucracy and looking at the services that are provided. As the Legal Action Group said,
“The personal, social and economic consequences of removing access to justice for so many people is unknown”—
and unforgiveable.
3.3 pm
Mr Robert Buckland (South Swindon) (Con): It is a pleasure to serve under your chairmanship, Mr Weir. I will bear in mind your exhortation about brevity. I congratulate the hon. Member for Makerfield (Yvonne Fovargue) on following your strictures, and I shall do likewise.
I speak as a former practitioner in legal aid, at the Bar for nearly 20 years, and as someone who has had wide experience of criminal, family and civil legal aid. It has been a changing picture. I hesitate to use the phrase “permanent revolution”, but it has felt like that at times, especially over the past 10 or so years, when the previous Government bombarded the profession with consultation after consultation and literally made it revolve on the spot with the number of questions that they kept on asking of the system.
The reality is that whoever had been elected to Government last year would be dealing with the legal aid issue. Whoever was sitting in the Minister’s seat now would no doubt be putting forward proposals that would involve a reduction in expenditure on legal aid. It is important that we take out party politics from this issue. I do not believe that that either helps the debate or puts it in a proper context.
I am a member of the Justice Committee. As was mentioned by my hon. Friend the Member for Cambridge (Dr Huppert), whom I congratulate on securing this debate, the Committee produced a report in recent months, which was based on a series of evidence sessions on the Green Paper. I commend the report to the Chamber. It is the result of a lot of hard work from Committee members. Its conclusions and recommendations are being carefully considered by the Minister. I must say that the Minister has, at all times, been extremely open to suggestions, proposals and counter-proposals about the future of legal aid, and I pay tribute to him for the work that he is doing.
The report is a challenging read. One of its fundamental points is the dearth of evidence at case level to work out the key cost drivers of legal aid expenditure in England and Wales. In other words, there is precious little evidence to help decision makers come to a view on why we spend more on legal aid per head as a percentage of GDP than other comparable countries. It is the strong view of the Committee that far more academic research needs to be done domestically to work out the reasons for that expenditure on legal aid.
During my research into the subject, a couple of facts shone out. First, many more cases tend to be prosecuted in England and Wales than in other jurisdictions. Secondly, some of our processes of law are much more complex than those in other countries. One example is in the field of welfare benefits law, which, without the guidance and help of a lawyer, can be a real minefield for litigants and lay people.
An important fact that we must not overlook is the global view of expenditure on legal processes. It is wrong to look at legal aid in isolation; we should be considering the cost of prosecutions, court processes and the judiciary. When we consider those three areas together, the Council of Europe’s most recent report, which offers comparators between England and Wales and other European countries, shows that our expenditure as a percentage of GDP per head is equal to the average. Suddenly, the assertion that we spend more on legal aid compared with other countries becomes a little hollow. Perhaps, therefore, we should be careful before we base any policy developments on assertions such as that.
Having said that, it is quite clear that there are a number of areas in which we can make reforms to reduce expenditure on legal aid. We were particularly struck as a Committee by the evidence of Sir Anthony May, the president of the Queen’s Bench Division, who reminded us that when it comes to the scope of judicial review, there was a case for saying that, for the merry-go-round of appeal on appeal in asylum cases—as a Lord Justice of Appeal described it—legal aid should be removed. A substantial saving could be made there. As my hon. Friend the Member for Cambridge said, it is incumbent on Committee members or Members of Parliament to come up with constructive proposals that can offer real and effective savings.
The problem does not, however, begin and end with the law. As has been said, the quality, or lack of quality, of Departments’ decision making has led to an explosion in appeals, and the Department for Work and Pensions is a notable example. One statistic that came before the Committee showed that 92% of appeals against DWP decisions were successful, which speaks volumes, I am afraid, about the poor quality of the decision making.
The Committee’s view was that we should adopt the “polluter pays” principle and award costs against Departments that make poor decisions that result in successful appeals; in other words, we should place an incentive on Departments to get their decisions right in the first place. The counter-argument is that that merely involves transferring money from one Department to another, but we really need to get the incentives right so that we avoid the need to go to law in the first place. We should encourage such an approach across the piece when it comes to poor decision making.
The report raised many other points, some of which have been covered, and I will not repeat them. However, the Minister will forgive me for repeating something that he has heard me say many times before, and I make no apology for saying it again. Adopting a narrow definition of domestic violence and a narrow reliance on previous court orders, as opposed to undertakings or promises made by people to the court, opens up a host of problems when it comes to ensuring that people have fair representation in what are often quite serious cases. The definition is not a good one to rely on, and the report submits that it should not be relied on—or that it should, at the very least, be expanded to include domestic abuse. Indeed, I would go further and refer to a course of conduct representing domestic abuse to avoid the Government’s quite proper concerns about one-off situations being characterised as something more serious.
For all those reasons, I argue that more work needs to be done to improve the ambit of the Green Paper and to ensure that any changes to the legal aid system do not disadvantage those who genuinely need it.
3.12 pm
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC): It is a great pleasure to serve under your chairmanship, Mr Weir. I will truncate my remarks because other Members wish to speak.
I do not wish to trump the hon. Member for South Swindon (Mr Buckland), but I have 35 years’ experience of family and criminal legal matters, and I have been publicly and privately funded. However, I totally agree with most of what he said, and when people agree across the House, there is obviously something to worry about because there is a problem. The hon. Gentleman laid out some important facts. Like me, he is a member of the Justice Committee, and he made several of the points I was going to make.
I really wish that the Government would slow down. Many of their proposed changes, including those we are discussing today, are being rushed, and there is not adequate time for real consultation. Yes, there have been 5,000 consultees in this case, but the consultation has been a rushed job, and it has left a real fear out there. For example, Desmond Hudson, the chief executive of the Law Society, has said: “If the government persists with these proposals it would represent a sharp break from the long-standing bipartisan consensus that effective access to justice is essential to underpin the rule of law.”
To that I say, “Hear, hear.”
Given the time constraints, I will confine myself to family law, although I recognise that there are problems in relation to immigration law, welfare law, housing law and many other parts of the social welfare legal system. As has been said, a mistake has been made, albeit one whose consequences were not imagined at the time. The way in which the qualification criterion relating to violence has been framed is utterly unworkable. As a practitioner, like the hon. Member for South Swindon, I have seen accusations made for various reasons, and it is as sure as the fact that I am standing here that people will make accusations of violence simply to avail themselves of a legal aid certificate, that being the only way in which they will be able to get representation.
Victims of violence may be brought to court by those seeking to continue their control over them. As has been said, we need to look at the definition. It could cover abuse, including mental abuse and all kinds of other dominant abuse. It will not always be male on female, but it will mostly be. To use European parlance, there will be an inequality of arms, which will, in effect, mean that if one party can afford a lawyer, and the other party is honest enough to say that there has been no violence, that party will not avail herself—it will probably be a woman—of any assistance. That must be wrong.
I accept, by the way, that mediation is a good step forward in some ways. It has been tried for many years in relation to a great number of issues, including some that are as far from the one we are discussing as multimillion-pound shipping contracts; indeed, it seems that London is the mediation capital of the world, and good luck to the lawyers involved. However, the issue before us is an entirely different kettle of fish.
I have received dozens, if not hundreds, of letters from lawyers practising in this field. Every time a lawyer claims that the loss of legal aid will damage members of the public, that is thought to be special pleading on behalf of the lawyer. Let us cut to the chase: legal aid lawyers have not had an increase in fees for the past 11 years, so anyone wanting to become a fat cat would not open a legal aid practice. As a lawyer yourself, Mr Weir, I suspect that you know that, too, although you should not get involved in the debate. This is not a question of self-serving special pleading; the people we are talking about are dedicated to providing a service, and as anyone will know if they have been in court when there has been the possibility that a family will be permanently broken up and one party will never see the children again—I have been in court on such occasions—such cases are very fraught and emotionally charged.
Mrs Grant: The proposals also rely on judges, chairmen of tribunals and magistrates having the time to give advice to litigants in person. Does the right hon. Gentleman agree that that time simply does not exist? Judges already have back-to-back lists. To give an example from Kent, there is already a five-month waiting list to see a judge for parents who are being denied access to their children. That is totally unacceptable for any parent.
Mr Llwyd: Yes, that is absolutely right. That is partly because of judges’ time, but it is also to do with the Children and Family Court Advisory and Support Service and various other things. I should add that if a person seeking legal aid to protect their relationship with their child is denied legal aid, they will not walk down the road and say, “Tough. That’s it. I’m not going to have anything done about this. I’ll walk away.” That person will go into court, very often without the expertise, knowledge and learning to do the job properly, and they may even do themselves down.
When he gave evidence to the Committee, Sir Nicholas Wall said that people do not give up easily in matters involving a child, and nor should they. As he and others have also said, the courts will be flooded out with litigants in person, and any conceivable saving that the Government are looking at will be swallowed up in dealing with that issue, let alone anything else. As we know, there is the “no order” principle in the Children Act 1989, and it will drive people to go to court to ensure that they have contact with their children.
I urge the Minister, by the way, to look at section 64 of the Family Law Act 1996 as some kind of backstop. That provision, for which I was responsible, would give the children independent representation. Nobody in this Chamber or anywhere else would want the children to suffer, because they are what this process is all about. When parents break up, they might throw things at each other and do whatever they want, but ultimately the damage is done to the young person or persons in the middle. I do not want to stand idly by and see that sector of society not being looked after properly; anything short of that is downright uncivilised.
Jim Shannon (Strangford) (DUP): Will the right hon. Gentleman give way?
Mr Llwyd: Very briefly, because others wish to speak.
Jim Shannon: In my experience over the past 30 years as a councillor and so on, I have found that those who need legal aid most are those who come looking for it. Does the right hon. Gentleman agree that if we are not careful, the changes that the Government are proposing will lead to a two-tier system—one for those who can afford it and one for those who cannot?
Mr Llwyd: I am sorry to say that that is exactly it. We are rapidly reaching that point, and one might argue that we are already there. Some people will get access and others will not, and that is abhorrent. We are all equal before the law, and are all entitled to equal access to the law and its procedures. It appears that these measures will definitely limit that scope. There will law for some and not for others. I urge the Government again to look once more at the issue.
I will not go beyond the changes in family law today, for obvious reasons. The National Association of Guardians Ad Litem and Reporting Officers—if it does not know what it is talking about, nobody does—says that the changes are premature, that they have no sound evidence base and that children have not been considered as stakeholders for the purposes of the impact assessment.
In conclusion, I merely refer to page 71 of the Justice Committee’s report, the main part of which the hon. Member for South Swindon mentioned, about domestic violence as a criterion. In fairness to the Minister, he said when he came before the Committee that he would look at the issue again. With respect, he has had time to look at it again. Will he tell us today whether he has a better definition that will not work against the best interests of the children we are here to protect?
3.24 pm
Tom Brake (Carshalton and Wallington) (LD): I congratulate my hon. Friend the Member for Cambridge (Dr Huppert) on securing the debate and setting out succinctly many of the challenges that the coalition Government face in both reining in the budget and minimising the impact on those reliant on legal aid. What is not in dispute today is the fact that budget reductions need to be made. Given that the Ministry of Justice’s budget consists principally of staffing costs, prisons and legal aid, there are not many areas to which the Government can go to identify savings. It is also true that a number of organisations that I, and I am sure other Members, have met have confirmed that their view is that there are potential savings. The Law Society and others have set out ways in which those savings could be made.
I will not run over the growth in expenditure on legal aid in recent years, because it is well known. It is clear that the budget reductions will have an impact on many organisations. I do not know whether the Minister has read all 5,000 submissions; I doubt he has, and we would not expect him to have, but he may have read a sample of them and I am sure he has had a large number of meetings with a range of organisations, so he will have heard the main concerns. I thank him for meeting me with my local citizens advice bureau and Citizens Advice to hear their concerns about some of the proposals.
Given the limited time, I will restrict my comments to telephone advice, medical negligence, the impact assessment and savings. I think that telephone advice can play a key role. It is accessible to people who do not feel able to access a face-to-face contact because they are put off by it in a way that they might not be put off by telephone contact. However, there remain many queries about how telephone advice will work.
There will clearly be people, as other Members have said, for whom telephone advice is inappropriate, and therefore a clear pathway from initial contact, to a referral, to a face-to-face contact will need to be provided by that service. How will urgent inquiries be dealt with? What referral process will be used to ensure that the calls are passed to the relevant organisation to deal with them? Can the Minister do any more to flesh those details out? I know many organisations that would be interested to hear more.
I am sure that many Members have been lobbied about medical negligence—particularly those cases involving children who have been most seriously affected by it and how they can continue to be supported. As an aside, the Minister might want to talk to Health Ministers about whether introducing a duty of candour—in other words, requiring health professionals to confirm when an accident has taken place—could play a role in reducing the need for cases to go to court in the first place. Other Members have referred to family law, so I will not touch on that. As the impact assessment confirms, because black and minority ethnic communities, women and low-income groups are more represented in the group of people who receive legal aid, the impact on them will be disproportionate. However, I hope that the coalition Government will still want to redress that, not simply accept that it is the case—put more emphasis on ensuring that those groups are not disproportionately affected by the change because they are disproportionally represented in the group that receives legal aid.
Other Members, including my hon. Friend the Member for Cambridge, referred to the savings that we can derive through providing advice services: £1 of legal aid expenditure on housing advice saves £2.34, and employment advice saves £7.13. I hope that the Minister, if not now then later, can provide some analysis of the impact of the measures that we, as a coalition Government, are proposing, to ensure that we do not see the cost-shunting that many people believe will arise as a result of the changes. Simply passing costs on to other organisations or Government Departments will not be helpful.
Finally, my hon. Friend the Member for Cambridge referred to the proposals from the Law Society. How will those concrete, detailed suggestions be taken on board as part of the consultation process? I am sure that the Minister is also aware of the proposals that Keir Starmer, the Director of Public Prosecutions, put forward on how costs can be saved in the wider legal arena.
I hope that the Minister will respond to those points. The Government clearly and quite rightly have to address the budget, but there are ways and means of addressing it most effectively. I hope that they are looking carefully at the proposals on the table from a range of organisations about other ways to address it and that they take those proposals on board where appropriate.
3.27 pm
Jeremy Corbyn (Islington North) (Lab): I congratulate the hon. Member for Cambridge (Dr Huppert)on obtaining the debate and on how he introduced it. It is a valuable subject. I apologise in advance to the Minister as I might miss part of his reply because I have a delegation from Disability Action in Islington to meet just before 4 o’clock. I hope that he understands that I need to be there to see them.
This is not the first or, I suspect, the last debate that we will have on legal aid. I hope that the Minister will give us an idea of when the Government will respond to the consultation. I hope that there will be adequate time for us to digest their response and a full day’s debate on the Floor of the House long before any legislation or changes are put in place.
It must be almost unprecedented to have 5,000 replies to a consultation of this nature—I am sure that the Minister has read all of them. I hope that he read the one from Jeremy Corbyn, MP for Islington North, because it was greatly laboured over. It did not involve only my views; I called a consultation meeting of local legal aid practitioners, advice agencies, the local authority and others, so what I put forward is on their behalf as much as my own. They have extremely strong views about the situation, as one can imagine.
The knock-on effects of legal aid and Ministry of Justice budget support to advice agencies are very important indeed. I do not believe—any more than anybody else does—that people should litigate for the sake of litigation. However, effective citizens advice bureaux play a very important part in giving people access to justice ahead of the danger of going to law. Cuts in CAB budgets or advice budgets are simply not very sensible at any time—particularly now, when many people are facing economic difficulties.
I pay enormous tribute to Islington council, which has just managed to reopen the CAB in the borough. It reopened on 1 April and it is already heavily overloaded, as we had predicted, but it is doing its best in the circumstances. Commendably, there is a liaison arrangement between the CAB, Islington Law Centre, Islington People’s Rights and the local authority, to ensure that they share out responsibility and specialist knowledge to offer any particular help that is required. That is very good as it ends the idea of competition between advice agencies, particularly where funding is concerned.
There are many issues to be covered in this debate, but I want to be brief as the Front-Bench spokesmen obviously need to respond. Housing issues are massive and they are faced by people in inner city communities, such as the one that I have the honour to represent, probably more than by anyone else. I will just quote from an e-mail that I received from Anne Baxendale of Shelter about this issue:
“The government is proposing to remove all housing benefits cases and a third of other housing cases from the scope of legal aid. Shelter is alarmed that this is happening at the same time that huge changes are taking place within homelessness legislation, social housing tenure and the housing benefit system.”
People are already coming to my surgery or advice bureau about this issue and the same is true for Islington People’s Rights, Islington Law Centre and the CAB. Those people are being told that their housing benefit, or housing allowance, is insufficient to meet the new rent levels; even with the transitional payments, they are nowhere near meeting them. In some cases, they are £100 a week—or even more—light on the demands being made of them. The only alternative for them is to move to somewhere else that is cheaper—if they can afford to do so, given all the associated uprooting. These people are scared, even terrified, and they desperately need access to good-quality legal representation to protect themselves at a time of emergency. Taking legal aid away from such people is simply grossly unfair—it would be unfair at any time, but it is particularly unfair at this time.
I will be very brief on the issues relating to children, as there is not much time left. The question of children and immigration issues is a very great one indeed. I understand, appreciate and welcome the fact—indeed, I applaud it—that asylum cases have been removed from this picture. Contrary to what the hon. Member for South Swindon (Mr Buckland) said, I do not believe that there is an endless merry-go-round of appeals. What I have found is that there is an incredible degree of inefficiency at the Home Office and the Border and Immigration Agency, such that asylum cases often hang around for years.
I am embarrassed to tell people that they must wait a year for a reply to a letter and that if they phone up the Home Office they will only make things worse. That is not how a Government Department or any public service should ever deal with or respond to anybody. I say to the Minister that he should keep legal aid for asylum cases, but he might ask his colleagues at the Home Office kindly to reply to letters and not lose files. I have said that to every Government I have had dealings with, so it is not a party political point; I said it to my own Government and I will say it to any Government.
The decision to give legal aid only for cases of detention is simply unfair. If legal aid is given, an application is made and the person is then released from detention. However, they then lose legal aid; they might end up back in detention where they might get legal aid again, so that they are on a merry-go-round. It is simply not credible that such an arbitrary distinction can be made between support for detention and support for immigration cases. Immigration cases should either be supported or not; I do not see how a simple distinction can be drawn in that way.
John McDonnell (Hayes and Harlington) (Lab): My hon. Friend and I are part of a 10-year campaign to try to get the proper inspection and registration of immigration advisers. These measures could take us back to those back-street advisers again, whereby the most vulnerable people are exploited in dreadful ways and wind up in detention as a result.
Jeremy Corbyn: I was just talking to my hon. Friend the Member for Makerfield (Yvonne Fovargue) about the exploitative individuals—and, frankly, the chancers—who have now become involved in immigration law. Basically they are spivs, who charge very vulnerable people very large sums of money for writing letters. They do no more than that. Some of them are not even qualified.
My hon. Friend the Member for Hayes and Harlington (John McDonnell) is absolutely right. For many years, we campaigned in this House for proper registration of immigration practitioners and for an end to immigration advisers, who in any case are often unqualified. The late Bernie Grant, the former MP for Tottenham, was extremely active on that issue and we basically got rid of most of those immigration advisers. However, they are all back now, big-time, and they are making a great deal of money out of extremely vulnerable people. I am sure that the Minister is aware of that problem. It has been reflected in many of the submissions made to him and I look forward to a response from him that recognises that.
The final point that I want to make about children is about the removal of legal aid for education cases. I have a distressing number of immigration cases in my constituency involving education. I do not have a vast number of them, but they are often very distressing and the people involved need representation. That is because some children who are suspended or expelled from school then have to go to another school. Unfortunately their representation and their files often follow them around and they end up being almost totally excluded from the whole education system. That is not good for them and it is not good for anybody. Proper representation would often prevent that situation from happening.
The number of cases that are dealt with by legal aid in this country at the moment is 934,000, apparently. Unless the Minister is going to give us some very good news at the end of the month, or whenever the reply to the consultation comes, the cuts being proposed will mean that more than 600,000 people will not have access to legal aid. If we want a fair, decent and just society, everyone must have access to the law. We are not seeking a litigation society, but a justice society and I hope that the Minister will understand the strength of feeling expressed in the representations that he receives on this matter.
The vast majority of solicitors and barristers acting on legal aid cases do not make much money out of that work. They make far more money on commercial cases, libel cases, media cases or “personality”-driven cases. The majority of solicitors I meet who deal with legal aid cases that are hard to sort out are paid very little. They work very hard and they are doing us a lot of good.
Furthermore, the loss of training contracts means that many of the solicitors of tomorrow will not be around to represent people. Many young people are studying law in universities and colleges at present. We want them to use their skills and we want them to represent the hardest-hit and most vulnerable people in society. I ask the Minister to think carefully about the very thoughtful and very carefully prepared representations that I know he has received on this subject.
3.37 pm
Mr Andy Slaughter (Hammersmith) (Lab): May I start, Mr Weir, by saying what a pleasure it is to serve under your chairmanship? I also want to congratulate the hon. Member for Cambridge (Dr Huppert), not only on securing this debate but on making a very thorough and persuasive speech.
It was in November last year—six months ago—that the Minister first produced his proposals to restrict the scope and availability of legal aid. A lot has happened since then. In fact, this is our third debate on the issue in this House and I know that the Minister has also debated it outside the House with others, including my noble Friend Lord Bach. The other place is debating the issue again next week. As a result, many of the arguments should be familiar to the Minister, but what we have not had so far is any effective response to those arguments.
Several Members have already spoken in the debate. We have heard from Members from all parties who are committed to legal aid and understand its importance in our system. Among the many good points that the hon. Member for Cambridge made was one about viability; he asked whether the cuts will actually leave a viable legal aid service at all.
My hon. Friend the Member for Makerfield (Yvonne Fovargue) drew on her own experience to make the point that telephone advice, however important it is, cannot be the only entry point to the system. She said that the alternative provisions that have been suggested are not adequate and that the alternative providers suggested by the Government are not equal to the task that has been set them; they have said so themselves.
In addition, the hon. Member for South Swindon (Mr Buckland) nailed the allegation that legal aid is hugely expensive in this country. As he said, spending on legal aid as a proportion of the costs of the legal system is not high. Clearly, it must be restrained but I think that there have been false arguments that it is disproportionately higher than similar spending in other jurisdictions.
The right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), who has, I think, more experience in this field than any other Member here, urged the Minister to think more slowly and carefully, and to make the decision not in the rushed way that has been portrayed so far, but in a way that takes account of all the views that have been expressed. That, perhaps, is the key point coming out of this debate. My hon. Friend the Member for Islington North (Jeremy Corbyn) talked about housing—a subject very dear to my own heart as well—and the effect on our constituents in London, and the hon. Member for Carshalton and Wallington (Tom Brake) talked about the false economies that there will be in making the cuts to legal aid.
All those arguments might be familiar, but the Minister needs to respond to them today. He has had the benefit of the report from the Justice Committee, which took evidence from senior judges, the Minister himself and leaders in civil society, and criticised the lack of an evidential basis for the Minister’s proposals. On issue after issue, from the increase in litigants in person to the additional cost to the public purse and the inability of alternative providers to pick up the pieces should the proposals come into force, the Select Committee told the Minister to slow down, do some research and come back with revised proposals.
Other organisations, in particular practitioner organisations, have done the work that the Minister and his civil servants have not done, in providing evidence of the effect of the changes. I mention in particular the Legal Action Group, which took the original figure of 500,000—my hon. Friend the Member for Islington North said it was more than 600,000—and added in the most up-to-date figures for the past financial year and for the telephone advisory service. The resulting figure was nearer 725,000, which is almost 50% more than the Government initially said.
The Legal Aid Practitioners Group has considered the point about viability. The fact that the entry point has to be through telephone advice has its disincentives. Many people will not be able to cope with the telephone system; they rely on face-to-face advice, and will simply not access the system at all. The figures by local authority area show that if we relied on such a system, the reduction in the service that could be provided face to face would bring the service down to something like 7% to 10% of existing levels, which would not be sustainable. Purely by way of example, in my own borough of Hammersmith and Fulham that would take us from the current 1,600 case starts to 155 under the new system, which would not be sufficient to pay one person’s salary for a year. If that situation was replicated across local authority areas, there would be no service at all.
The Law Centres Federation has looked at the impact of cuts that have already taken place, including local authority cuts, which are at 53% in law centres—61% in London and 100% in my own borough. Those figures ought to be considered before any legal aid cuts are brought into effect this financial year. A Citizens Advice survey has shown that more than 50% of its members do not believe they will be financially viable once the cuts take effect.
I ask the Minister to listen to those hugely experienced and articulate voices. Labour Governments over the past 65 years have fielded a good record in this area, setting up the legal aid system, funding the first law centres and increasing spending on advisory services such as Citizens Advice, and on social welfare legal aid.
But we also restricted the growth in legal aid funding from 2003 onwards, and would continue to do so if we were still in government.
I am at a loss to understand why the Government have abandoned some of the plans that we had to restrict that growth further, particularly in the tendering process, and particularly in the criminal legal aid field. Social welfare legal aid is only 5% of the total legal aid budget, and I hope that the Minister is giving a lot of scrutiny to that area in deciding on the revisions to his plans. Removing social welfare legal aid from scope will, I believe, give the whip hand to large public and private corporations, and will allow an inequality of arms that is unacceptable in our civil and criminal justice systems.
I would like briefly to deal with the issue of who is most affected. The Minister has said previously that it is inevitable that poorer people will be affected because it is they who are in receipt of legal aid—but that is a slightly glib answer, if I may say so. The excellent brief prepared for this debate by a young legal aid lawyer drills down into the figures and shows that, were the proposals introduced, 44% of people who received representation last year and 68% of those who got legal help would not now receive that assistance, and that more than 80% of people who would lose the assistance are in the poorest fifth of the population. Also, 80% of people who will be affected by the eligibility changes are in the poorest fifth of the population. Not a lot has been said about those changes, but they are highly significant.
When one looks at the discriminatory effects of what the Minister proposes, one sees that 31% of those affected by the scope changes in housing are from the black and minority ethnic population, compared with 8% in the general population; some 63% of those affected by the scope changes to welfare benefit legal aid are disabled, compared with 18% in the general population. The Minister might say that that is a truism, but his Government should be ashamed that changes of that kind are being proposed, given the disbenefit that they will have. It is a myth that representation is not for legal purposes, but for general advice—people need it to understand complex legal issues and to make appeals to higher courts—and that the people who currently benefit are in a position to represent themselves.
The Minister has heard from both sides of the House today, including very eloquent speeches from Government Members who have many years’ experience of this issue. I notice that Joanna Lumley has joined the growing campaign, which should provide the Minister with pause for thought, given her track record on such matters. I do not expect a full response today, but when the Minister finally comes to respond to the 5,000 responses—compared with the 50 received in the last consultation on legal aid by the previous Labour Government—I hope that, even if he has not read each response, he will have considered the overwhelming weight of opinion on the effect that the measures will have, not only on very vulnerable people and on those of us who still try to provide an advice service with very limited means, but on the whole criminal and civil justice system. That will be in jeopardy if we take away access to justice, removing the right of anyone with a meritorious case to get the initial advice, representation and assistance that they need to bring the case to court.
That is not, I hope, something that the Minister, given his background, would wish to see. I hope that he will give an indication in his response today, and a fuller indication in that formal response—the date of which he will no doubt provide now—that the Government have been listening to all those voices and will respond with a more sympathetic and pragmatic attitude to the continuation of legal aid.
3.48 pm
The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): I congratulate my hon. Friend the Member for Cambridge (Dr Huppert) on securing the debate. I am always pleased to debate with him. Many important points have been covered by the hon. Member for Makerfield (Yvonne Fovargue), the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), my hon. Friend the Member for Carshalton and Wallington (Tom Brake), the hon. Members for Islington North (Jeremy Corbyn) and for Hammersmith (Mr Slaughter) and my hon. Friend the Member for South Swindon (Mr Buckland).
I of course recognise the strength of feeling about our legal aid system and the importance that Members here attach to that system, and to access to justice. I share that feeling, and can assure Members that the Government do not look to reforming legal aid lightly. As Members know, the context of the Government’s overall reforms is to recognise the need to tackle the deficit that we inherited on entering office. It is hard to overstate how serious the situation we found was. Robust action was essential to maintain market confidence and to create conditions for recovery, which is why the Lord Chancellor agreed with the Home Secretary to significantly reduce real-terms spending in the broad area of justice and law and order, and why the Department is playing its part in taking the necessary steps to get our economy back to growth and stability.
Last month’s spending review set out the considerable scale of the challenge for the Ministry of Justice: it has to reduce its budget by £2 billion in 2014-15. We are looking for savings in various ways. Legal aid, one of the three big areas of spending in the Ministry of Justice, will need to contribute substantially to that reduction, as I believe the coalition parties—and indeed the Opposition—accept.
However, as I have mentioned in previous debates, our policy cannot and will not be determined simply by the need to deal with the deficit. One need not be well acquainted with our justice system, legal structures or legal aid system to see considerable potential for reform. Financial considerations and the need for reform come together, which presents us with an opportunity to develop new policies that secure access to justice and a legal aid system for the future. The coalition Government’s aim is a more efficient and effective justice and legal aid system, not just a more affordable one.
In that context, we make our proposals to reform a legal aid system that has grown considerably over the years. Since the modern legal aid system was established in 1949, its scope has been widened far beyond what was originally intended. Without indulging in caricatures, as my hon. Friend the Member for Cambridge put it, the facts of the matter show that by 1999, legal aid funding was available for virtually every type of potential issue, including some that should not require any legal expertise to resolve. Legal aid forms a vital part of a justice system of which we can all be rightly proud, and the Government are committed to maintaining and safeguarding that system, not least by ensuring that legal aid is appropriately targeted and set at levels that are sustainable in the long term.
The scheme now costs more than £2 billion a year, making it one of the most expensive in the world, even—I say to my hon. Friend the Member for South Swindon—taking jurisdictional difference into account. We must understand that, even after reform, we will still have one of the most expensive schemes in the world, if not the most expensive. In developing our legal aid reform proposals, we went back to basic principles in order to choose which issues are of sufficient priority to justify the use of public funds, subject to people’s means and the merits of the case.
The proposals in the consultation paper aimed to take into account the importance of the issues at stake, litigants’ ability to present their own case, the availability of alternative sources of funding and routes to resolution and our domestic and international legal obligations. I can confirm to my hon. Friend the Member for Cambridge that help for the most vulnerable will be prioritised under our proposals. As hon. Members will be aware, the consultation closed on 14 February. Since then, we have been considering all the responses received, around 4,800 in total. I also received during the consultation many letters from hon. Members representing their own views and informing me of their constituents’.
This is our third debate in the House on legal aid. I welcomed the helpful input in the recent report of the Justice Committee, and I can confirm to hon. Members that we in the MOJ are listening hard. We expect to announce our way forward in the next few weeks. I hope that hon. Members will see then how the coalition Government’s response shows that we are committed to working with them and stakeholders to ensure access to justice and a legal aid system fit for the future.
I am, of course, unable to give details about the Government’s response today, but it might be helpful for me to recap some of our proposals. In order to focus financial support where it is most appropriate and necessary, the proposed reforms involve significant change to the scope of legal aid funding, about which many hon. Members have raised concerns. We did not propose any changes to the scope of criminal legal aid. It was also proposed that legal aid should remain routinely available in civil and family cases where people’s liberty is at stake or where they are at risk of serious physical harm or immediate loss of their home.
For example, we proposed to retain legal aid for asylum cases, for debt and housing matters where someone’s home is at immediate risk and for mental health cases. It will still be provided where people face state intervention in their family affairs that might result in their children being taken into care, in cases involving domestic violence or forced marriage and in immigration detention cases, where the appellant’s liberty is at stake. We also proposed that legal aid should remain available for cases in which people seek to hold the state to account by judicial review and cases involving discrimination that are currently in scope. Legal help to bereaved families in inquests, including for deaths of active service personnel, would also remain in scope.
I can confirm, particularly to the hon. Member for Makerfield and to my hon. Friend the Member for Carshalton and Wallington, that we are looking closely at telephone advice proposals. I maintain that to a great extent, our proposals will help rather than hinder access to justice, particularly for the disabled and those in rural areas. That will be covered in our response. We openly accept that there will remain times when face-to-face meetings are required.
The Government further proposed to remove claims of clinical negligence from the scope of the civil legal aid scheme. In many cases, alternative sources of funding are available, such as no win, no fee arrangements. We also proposed to remove from scope the categories of employment, education, immigration, some debt and housing issues and welfare benefits, except for cases involving risk to anyone’s safety or liberty, risk of homelessness or discrimination. In many such cases, the issues are not necessarily of a legal nature, but resolving them requires information, practical advice or other forms of expertise.
We recognise that international or domestic law require some cases within the areas of law that we proposed to remove from scope to be funded by the taxpayer. We therefore proposed a new exceptional funding scheme for excluded cases. In those cases where it is appropriate to keep supporting with legal aid funding, it is important that the Government secure the best possible value for money in procuring legal services. The consultation paper therefore announced the Government’s intention to introduce price competition for legal aid in criminal proceedings and, in the longer term, for civil and family cases, too. Further, more detailed consultation on criminal competition will follow later in the year.
In the meantime, the paper proposed more immediate changes to criminal fee schemes that should encourage cases to be brought to justice more quickly and efficiently. They include harmonising the guilty plea fee paid for certain either-way cases regardless of venue and for other Crown court guilty pleas regardless of the stage in the proceedings. We also proposed to reduce all fees paid in civil and family matters by 10% and to exert greater control over the rising costs of expert fees. We proposed to increase the proportion of advice delivered by telephone through the existing community legal advice helpline, as I have discussed.
We recognise that the proposals would affect funding for not-for-profit legal aid providers such as Citizens Advice. I have had numerous helpful meetings in recent months with representatives of not-for-profit organisations to discuss the impact of the legal aid proposals and listen to their concerns during the consultation, although I must say that in the past, I have queried the Citizens Advice figures mentioned.
However, legal aid is only part of the picture. Local government, not the MOJ, is the largest single funder of the not-for-profit advice sector, and several other Departments provide significant funding. Indeed, legal aid accounts for only about 15% of the total income of citizens advice bureaux. Around half of bureaux do not receive any funding from legal aid. That is why a cross-governmental approach is needed.
I can confirm that the Ministry of Justice is working actively with colleagues in the Cabinet Office, the Department for Business, Innovation and Skills and other Departments that fund advice providers or deal with the impact if people do not receive the advice that they need to identify how best to work across Government to examine the issue. I have had several meetings with ministerial colleagues to consider how that can be achieved.
In the very little time remaining, I will try to cover some of the specific points raised. My hon. Friend the Member for Cambridge mentioned immigration. We proposed to keep legal aid for asylum cases. In the consultation paper, we proposed to remove immigration cases from the scope of legal aid, except in detention cases where a person’s liberty is at stake and cases before the Special Immigration Appeals Commission in which a person may be removed or excluded from the UK on the grounds of national security or other public interest. The tribunal process in immigration cases is designed to be straightforward, and interpreters are provided. I can confirm that, separately from the legal aid consultation, we are piloting the provision of legal advice earlier in the asylum process to help to improve the quality of asylum decision making. We are currently considering the responses to the consultation on that issue and will publish our own response in due course.
On the relationship between immigration and domestic violence, the consultation paper did not propose to make an exception for immigration cases under the domestic violence rule. Although we recognise that domestic violence victims may need more help with forms and procedures than other immigration applicants, what is needed is not necessarily specialist legal help. We are currently reconsidering responses on that issue, and we will come back to the House. However, I confirm that we proposed that legal aid should remain available to those seeking an injunction to prevent domestic violence, regardless of their nationality or immigration status.
My hon. Friend the Member for Cambridge mentioned domestic violence in the context of private family law and asked whether the definition of domestic violence was too narrow. That was also mentioned by my hon. Friend the Member for South Swindon, the right hon. Member for Dwyfor Meirionnydd and others. In the consultation, we proposed that private law family legal aid should continue to be available where there is objective evidence of domestic violence. We have asked for views on what might provide objective evidence and therefore trigger private family law legal aid. We have been giving careful consideration to the points raised in response—
Mr Mike Weir (in the Chair): Order. I am afraid that we have run out of time for this debate.
