Legal Aid: Post-Implementation Review

– in the House of Commons at 12:39 pm on 7 February 2019.

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Photo of David Gauke David Gauke The Lord Chancellor and Secretary of State for Justice 12:39, 7 February 2019

With permission, Madam Deputy Speaker, I will make a statement to inform the House that we have concluded our post-implementation review of parts 1 and 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012—better known as LASPO—as well as the outcome of our inquests review.

Earlier today, I tabled all three reviews for consideration by both Houses alongside a new legal support action plan, which sets out how we will build on those findings. After an extended period of expansion that resulted in an annual spend of over £2 billion, the coalition Government brought in part 1 of LASPO to make significant changes to the scope of, eligibility for and fees paid under legal aid. This was essential to bring spending under control and to target the limited resources available at the most vulnerable and the highest priority cases.

The extent of the changes introduced by LASPO meant that the Government committed to carrying out the comprehensive review I have published today. Throughout a year-long process of extensive evidence gathering and analysis, we have engaged with more than 100 different stakeholders, professionals, providers and, of course, many in this House and the other place, drawing together a wealth of research and evidence to inform this detailed review.

We have heard that the legal aid system has, for too long, focused solely on delivering publicly funded advice and representation, at the expense of understanding how we can help people to find early resolutions and avoid court disputes. Legal aid is, and will remain, a core element of the support on offer, and last year the Government spent £1.6 billion on legal aid funding.

We want to move forward with a new vision, focusing on the individual and their needs, whether that be through legal aid or otherwise. We will provide a breadth of tailored support that increases our ability to intervene earlier and catch people’s problems sooner, before they escalate. We must deliver a system that enables people to receive the type of legal support that is right for them and at the right time.

I am therefore delighted to publish, alongside this review, our new legal support action plan. The action plan responds to the evidence and includes immediate action to ensure vulnerable people, particularly children, can access legal aid when it is needed. We will launch a review of the legal aid means-testing framework, specifically focusing on the thresholds and criteria in place for a person to qualify for legal aid; simplify the exceptional case funding scheme to ensure it works effectively; expand the scope of legal aid to include immigration matters for unaccompanied and separated migrant children, and to cover all special guardianship orders in private family law cases; and reinstate immediate access to face-to-face legal advice in discrimination, debt and special educational needs cases.

However, we also need to collect further evidence on what works and at what stage. We will invest up to £5 million of funding to encourage and support providers to develop new and innovative services; double support for litigants in person to £3 million for the next two years; launch several support pilots that will test how effective legal support at an early stage can help people avoid the escalation of problems; and test and evaluate the benefits of early advice in an area of social welfare law.

Elsewhere, I am also announcing today that we will continue to support dedicated criminal legal aid practitioners by completing a comprehensive evaluation of the criminal legal aid fee schemes and structures. Separately, I have published the Government’s review of the changes made by part 2 of LASPO, which introduced a number of changes recommended by Sir Rupert Jackson aimed at reducing costs in civil litigation. The evidence gathered indicates that those objectives have been met. Fewer unmeritorious cases are being taken forward and access to justice at proportionate cost is generally being met.

Today I have also published the outcome of a separate year-long review of the provision of legal aid for inquests. The review was commissioned in response to a number of key independent reports and their recommendations. This final report is the culmination of that thorough review, which was undertaken with senior coroners, the legal profession and other key stakeholders, as well as, most importantly, bereaved families themselves. It considers a number of specific concerns and looks to where we can make further improvements, including improving guidance and advice; ensuring that the inquest process is more sympathetic to the needs of bereaved families; looking into further options for the funding of legal support at inquests where the state has state-funded representation; and working closely with other Government Departments.

The publications I have launched today mark not only the completion of hard work already undertaken but the beginning of doing more to meet our challenges. I place on record my thanks to everyone who has contributed evidence and expertise to these three reviews. It is essential that this engagement continues, that we collect more evidence, exploring with our partners and stakeholders innovative ways of supporting people to access the justice system, and that we place early intervention firmly at the heart of legal support.

I commend this statement to the House.

Photo of Richard Burgon Richard Burgon Shadow Lord Chancellor and Shadow Secretary of State for Justice 12:45, 7 February 2019

I thank the Secretary of State for the advance copy of the report. It is regrettable that journalists were briefed on the report’s contents this morning, with new articles appearing on websites before this statement and before the report was available to me.

The Government announced their LASPO review more than two years ago, and it has since been delayed time and again, which is simply unacceptable given the human costs and suffering caused by legal aid cuts. The question is whether this report has been worth the wait. Sadly, the answer from the Opposition has to be a clear no. It has been a wasted two years.

Some of the review’s conclusions call for more reviews. Does the Secretary of State seriously think that the measures outlined today will undo the damage done by his predecessors? LASPO set out to make savings of £410 million and, according to the Department’s figures, it has saved almost £200 million more than that since April 2013. Does he regret that his Department has cut even more than planned? Will he explain why it has happened? Will he confirm that the Government are going to provide just £8 million in extra legal aid investment?

Beyond the budget figures is the very real human cost behind these cuts. In the last few weeks alone, there have been yet more shocking press reports on the social damage they have caused. The number of people who have been refused legal aid to secure court orders against abusive ex-partners is at a five-year high. The number of parents forced to represent themselves in child custody battles has doubled in six years, and new analysis shows that up to 1 million people live in areas with no legal aid provision for housing. How will this report help people in such situations? Can the Secretary of State give more detail about how this review will offer legal help to those faced with a rogue landlord, a difficult family break-up or the Prime Minister’s hostile environment?

Legal advice on welfare benefits cases has been cut by an eye-watering 89%. The UN special rapporteur labelled the legal aid cuts as a denial of those people’s human right to a remedy. Does the Secretary of State believe that the very limited pilot outlined today for just one area of social welfare law will do anything substantial to reduce this inhumane suffering? Does he really think that a little investment in Skype services is the way to restore access to justice?

From the outset, the Opposition have sought to make reasonable demands of the Government’s review. Labour initiated the extensive Bach review to inform how legal aid will be turned around under a future Labour Government. We accept that this Government will not deliver the widespread change recommended by the Bach review, so we called for emergency measures to ameliorate the worst effects of legal aid cuts through the restoration of early legal advice. The Government should accept that there are strong arguments for early legal help, so why does the Secretary of State not have the political will properly to address it? With increasing evidence that cuts to legal aid have been a false economy, can he confirm whether he has commissioned any independent economist to look at the savings that could be made through early legal advice? If not, why not?

This year marks the 70th anniversary of the Legal Aid and Advice Act 1949, introduced by that great Labour Government. Access to health and education is rightly recognised as the right of every single citizen. Access to justice should be recognised in the same way but today we see, with this delayed review, yet again how the Conservatives are not the party to restore to legal aid the respect it deserves.

Photo of David Gauke David Gauke The Lord Chancellor and Secretary of State for Justice

I hope it will be helpful to the House if I put this debate in a little context. A significant rise in the cost of legal aid took place over a number of years, a point recognised by the last Labour Government. If the hon. Gentleman wishes me to, I could give him a long list of quotations from Labour Ministers raising their concerns about the increase in the cost of legal aid. That is why Labour’s 2010 manifesto contained a commitment to cut the costs of legal aid, and I suspect it is the reason why in both 2015 and 2017 Labour gave no commitment to reverse those cuts. Therefore, there has been a consensus that we cannot return to what happened in the past. What is important is that we find a way in which limited resources are directed in the most effective and proportionate way, and that is what this review has been about.

The hon. Gentleman raises the issue of early intervention. The conclusion from our research is that the empirical evidence is not necessarily clear that early intervention will make savings, but there is a strong case for wanting to explore this further. That is why we are proceeding with pilots in the area of social welfare. It may be in the context of housing that we should look to proceed in this area to see whether there is a case that early intervention can make savings and we can build that case. That is precisely what I want to do.

There will continue to be areas of disagreement with the hon. Gentleman. I am sorry that he has not been more welcoming for what has been put before the House, because this is a constructive attempt to address this issue, in an environment where there are not unlimited resources. I point the House to the comments made by the Law Society this morning about how there is much to be welcomed in what we have announced.

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

I welcome the action plan. Particularly on the civil side, the Government seem to be improving the situation for those who need help. I welcome the extra help for litigants in person and the further reviews that are to take place. A lot of money was taken out of legal aid and it is right to see a building back, which is certainly happening on the civil side, with further reviews to come.

I note there is to be an evaluation of criminal practitioners and the way forward. Does my right hon. Friend agree that it is important to our justice system to have a good pipeline of talented criminal lawyers? That is one of the strengths of our system and the fact we have that is widely admired around the world. In the evaluation, will he look to see that there is an adequacy of income for people as they come through the pipeline, so that we can continue to have the high-quality criminal lawyers we have in this country?

Photo of David Gauke David Gauke The Lord Chancellor and Secretary of State for Justice

My right hon. and learned Friend raises an important point. It is important that we have a strong and vibrant criminal Bar and I want to do everything I can to support that. I make it clear that it is important that we have a vibrant situation for solicitors as well. He will be aware that last year we announced changes to the advocates’ graduated fees scheme. I hope we have a constructive relationship with the criminal Bar, and we have been able to take steps and prioritise this area. We are also undertaking the review, which we anticipate will report in mid-2020.

Photo of Tommy Sheppard Tommy Sheppard Shadow SNP Spokesperson (Cabinet Office), Shadow SNP Spokesperson (House of Lords), Shadow SNP Spokesperson (Scotland)

I thank the Minister for advance sight of his statement. As others have remarked, at the core of this discussion is access to justice, a principle enshrined not only in the common law of England and Scotland, but in the Human Rights Act that applies throughout the UK. The House will be aware that these matters are dealt with differently in Scotland, as they always have been, with the Scottish Government responsible for the provision of legal aid in Scotland. Not for the first time, people in Scotland have reason to be grateful for this differentiation because in Scotland, despite cuts to the block grant available to the Scottish Government, they have maintained a system of legal aid that is more generous in its scope and application than any part of the UK. Some 75% of all civil cases in Scotland are eligible for some form of legal aid, whereas the corresponding figure in England and Wales is 25%. So although I am sure Members will welcome this is a step in the right direction to widening the scope of legal aid, I make the observation that there is still an awful long way to go. Will the Secretary of State consider emulating the targets that have been set in Scotland?

On the question of fees for those who provide legal aid, the Secretary of State will be aware that the Scottish Government have recently approved a 3% increase in fees across the board, whereas in England fees are to be increased by only 1%, and I believe that is just for barristers in the legal aid service. Will he consider bringing England and Wales into line with the more generous provision of fees in Scotland?

Photo of David Gauke David Gauke The Lord Chancellor and Secretary of State for Justice

As I said a moment ago, we announced reforms to the AGFS last year, which see the biggest increase for some time in those fees. Let me make a point about the wider issue of access to justice. Access to justice is very important, but we should not consider that the test of it is purely about legal aid in the form that it has been. We need to be more innovative and to think ahead. I regret the dismissive tone taken by the shadow Justice Secretary about the potential for new technology in this area. To ensure that we can expand access to justice, we have to be prepared to innovate and make the best use of technology.

Photo of Bob Neill Bob Neill Chair, Justice Committee, Chair, Justice Committee

I welcome the considered and balanced tone that the Secretary of State has adopted, which is what the subject deserves. This is a substantial and thoughtful review, which the Justice Committee will wish to examine in some detail, along with its proposals. I wish to raise a couple of points. The additional funding is welcome, as is the extension of eligibility in a number of areas, which the Committee has highlighted in its reports, among other things. We also welcome the changes in relation to inquests and the approach to criminal legal aid. I know he will understand that there will be a concern in some quarters that, as this review has taken some time to prepare, the further review, for example, in relation to the means-testing framework and the setting up of the pilots, although all justified from the evidence in the text, might delay necessary changes even further. Will he assure us that those will be proceeded with in a timely fashion, that they will be sharply focused, and that there will be very full practitioner and judicial involvement in making sure that they are brought to an early conclusion and acted upon wherever necessary?

Photo of David Gauke David Gauke The Lord Chancellor and Secretary of State for Justice

I thank the Chair of the Justice Committee for his characteristically thoughtful comments. It is worth pointing out that the means test was not fundamentally changed by LASPO, as he knows, but we do want to look at the evidence. We need to crack on with that straightaway, but this is a complex area and we are going to need to consider it properly and ensure that we end up with a sustainable position.

Photo of Bambos Charalambous Bambos Charalambous Opposition Whip (Commons)

I welcome the Secretary of State’s acknowledgement that early advice is an issue, but I am disappointed that the pilot on social welfare law does not go far enough. It should go further and consider immigration law, family law and housing law. The report outlines how people with protected characteristics may not be able to access online or telephone help and signposting well enough. Will the Minister consider extending the pilot to cover the areas I have mentioned?

Photo of David Gauke David Gauke The Lord Chancellor and Secretary of State for Justice

The technology pilots could apply to any area of law, so that certainly does not preclude their applying to the areas the hon. Gentleman mentions. The early intervention pilot is looking at social welfare law as the right place to start. That is where the case for early intervention making a positive difference is strongest, so we are looking into that area. The hon. Gentleman mentioned immigration; we are extending the scope to unaccompanied minors and immigration. I hope that is helpful to him.

Photo of Tim Loughton Tim Loughton Conservative, East Worthing and Shoreham

The Lord Chancellor did not specifically mention the Legal Aid Board exceptional cases fund, although he did refer to inquests and the possibility of guidance, advice and support for bereaved families. He will know that I have raised the Shoreham air show inquest with the Prime Minister as well as with him and his Ministers. The inquest still has not happened. Hopefully it will happen this autumn, but that will be more than four years since that tragic accident. As it stands, the families have still not had official confirmation that legal aid will be available for their representation at the inquest, while all 18 other interested parties have legal representation. What among the changes the Lord Chancellor has announced will make it much easier for clearly exceptional cases with a clear wider public interest to gain legal aid funding? Is the Lord Chancellor able to confirm what I hope is the case, which is that those families will get the legal representation that they absolutely need and deserve for the inquest this year?

Photo of David Gauke David Gauke The Lord Chancellor and Secretary of State for Justice

I pay tribute to my hon. Friend for his work in this area. We are changing the process for the funding for exceptional cases to make it easier to apply. Fundamentally, I believe the inquest system should continue to be inquisitorial, but it is very important that bereaved families do not find themselves excluded or disadvantaged—my hon. Friend has made that point with great persistence. That is partly about ensuring that coroners and their staff are properly trained to protect the position of bereaved families, but we are also working with other Government Departments to ensure that there is not unfairness in the system. We continue to engage with other Departments to make sure that bereaved families are not put at a disadvantage.

Photo of Barry Sheerman Barry Sheerman Labour/Co-operative, Huddersfield

The Lord Chancellor knows of my long-term interest in this policy area. Let us be humble: no party or Government have got this right. It is a very difficult nut to crack. I welcome many of the things the Lord Chancellor has been saying this morning. We look forward to digesting his announcement and commenting and being helpful on this matter.

The central thread must surely be access to justice for all, not just the wealthy, privileged and well educated. That is of course the principle that we must have, and that is what I think about when I look at my struggling constituents in Huddersfield. The fact is that there are issues in particular areas of law. The Lord Chancellor will know that I and the Chair of the Justice Committee, Robert Neill, are involved in cases of miscarriages of justice, which is one area in which the lack of help in the form of legal aid has been really debilitating. I understand that the Ministry of Justice has had more cuts than any other Government Department, and he has my sympathy, but will he look in particular at the impact on miscarriages of justice? We have just launched a commission on miscarriages of justice and hope to publish a report to help the Lord Chancellor shortly.

Photo of David Gauke David Gauke The Lord Chancellor and Secretary of State for Justice

I very much look forward to receiving that report. I thank the hon. Gentleman for the work he does in this policy area, which he and I have discussed in the past. As he says, he has a long-standing interest in this matter, and I hope we can continue to engage in a constructive way to address it. I agree with him about the importance of access to justice, but I stress that that access does not end with legal aid. There are other aspects to consider, and it is important that any sensible Government look into what can be done.

Photo of Kevin Foster Kevin Foster Conservative, Torbay

I once worked in a criminal legal aid practice, so the reference to that area of law in the Secretary of State’s statement was particularly welcome. Will he outline how he will ensure that the evaluation takes into account the needs and views of those who provide criminal legal aid in places such as Devon and Somerset, where the challenges may be different from those associated with providing it in central London?

Photo of David Gauke David Gauke The Lord Chancellor and Secretary of State for Justice

My hon. Friend is of course right. I believe that the process we have undertaken in the past year has been a thorough engagement with stakeholders from throughout the country, and that is very much the feedback I have been getting. It is important that we continue to engage. As my hon. Friend makes clear, there are different challenges in different parts of the country, and that needs to be reflected in our approach.

Photo of Jessica Morden Jessica Morden Opposition Whip (Commons), Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee), Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee), Chair, Statutory Instruments (Select Committee)

One consequence of the Government’s deep cuts to legal aid has been the emergence of an unregulated legal advice sector, which has stepped in to fill the gap. What work have the Government done to look into the quality of advice and redress in the sector?

Photo of David Gauke David Gauke The Lord Chancellor and Secretary of State for Justice

Of course, we have to keep this matter constantly under review to ensure that citizens are not misled or taken down a wrong approach. Innovation and competition should be part of the context, but the hon. Lady is quite right that we must ensure that citizens get the correct advice and that we are not in a position where the unscrupulous are able to take people in the wrong direction.

Photo of Kate Green Kate Green Chair, Committee on Standards, Chair, Committee of Privileges, Chair, Committee of Privileges, Chair, Committee on Standards, Chair, Committee on Standards

To what extent was the review able to consider the concerns raised at the time of LASPO about the impact on the diversity of the legal profession? He will know that in particular younger lawyers, those from black and minority ethnic backgrounds and women were more likely to undertake legal aid work; what is the situation now?

Photo of David Gauke David Gauke The Lord Chancellor and Secretary of State for Justice

We have had a welcome from Young Legal Aid Lawyers, which said it would look positively at what has been set out and look to engage with it. I share the hon. Lady’s desire to ensure that we have diverse legal professions in this country.

Photo of Ian Lucas Ian Lucas Labour, Wrexham

There is a paucity of legal advice in family law, which is complex, difficult and emotional. Is there any comfort in the Lord Chancellor’s proposals that will address the difficulties caused by the blanket removal of such advice?

Photo of David Gauke David Gauke The Lord Chancellor and Secretary of State for Justice

Let me highlight a couple of points in the review. I have already mentioned the proposals on unaccompanied minors in immigration cases. It is also worth pointing out that with special guardianship orders, we are extending the scope of legal aid. Those are all steps that go some way towards addressing the hon. Gentleman’s concerns.

Photo of Karen Buck Karen Buck Labour, Westminster North

Will the Lord Chancellor confirm what everybody involved in legal aid knows, which is that the post-LASPO cuts have led to expenditure in other service areas, specifically the courts service? Does the report quantify that expenditure? Will he confirm that the report confirms that the Department does not know whether the reductions in legal aid have resulted in the service being targeted on those in greatest need? Finally, will he confirm that, welcome though it is, the extra money provided today represents less than 2% of the total reduction in the budget since 2013?

Photo of David Gauke David Gauke The Lord Chancellor and Secretary of State for Justice

First, I pay tribute to the hon. Lady, who is among those who have worked tirelessly in this policy area and who, as ever, brings great expertise to this matter. In respect of evaluating the overall impacts, we do need more evidence, which is why we want to have pilots to bring in more evidence and test the system to see whether we can reduce costs on the system as a whole through, for example, greater and earlier intervention. I want to build up an evidence-based business case to see how we should move forward. In respect of evaluating the impact on particular groups, one has to consider the system on an area by area basis. It is important that we continue to engage and look at the evidence that emerges.

Photo of Ben Lake Ben Lake Plaid Cymru, Ceredigion

Wales has seen the largest decline in legal aid providers over the past five years, with a decrease of some 29%. How will the Lord Chancellor ensure that citizens in Wales, particularly those in rural areas, are not put at a greater disadvantage and are able to access legal aid without having to travel prohibitive distances?

Photo of David Gauke David Gauke The Lord Chancellor and Secretary of State for Justice

For rural areas as a whole, this review underlines the need to ensure that we are prepared to look at technology and innovation so that access to justice is greater and we have the ability to point people in the right direction. There is a real opportunity here, and it is important that we embrace it. The innovation fund of up to £5 million will encourage investment in this area so that we can find new and better ways of ensuring that, wherever a person is in the United Kingdom, they are able to access justice.

Photo of Thangam Debbonaire Thangam Debbonaire Opposition Whip (Commons)

Although I welcome the inclusion of separated children in legal aid for immigration cases, the plan otherwise does little to deal with the many problems faced by people in the asylum and immigration system in getting good quality advice. Inadequate legal advice has a damaging impact on people with a right to sanctuary, but no advice is worse, so will the Lord Chancellor please reconsider the decision to keep legal aid for refugee family reunion out of the scope of civil legal aid?

Photo of David Gauke David Gauke The Lord Chancellor and Secretary of State for Justice

As I have said, the change that we have announced today in the context of unaccompanied minors is an important step. I am grateful to the hon. Lady for welcoming that. We do spend money on the legal aid system—I think it is something like £40 million on immigration and asylum—and it is important that we provide support in this area. There is a wider point that must be accepted: there are limited resources available, and we need to ensure that they are targeted in the best way possible. It is right that we have announced changes today in the particular context of unaccompanied minors and immigration.

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith

May I ask the Lord Chancellor two things? First, will he use his considerable influence to get us a whole-day debate on these reviews? The Act took about a year to get through. We have had three reviews and an action plan—almost 500 pages today—and this review has taken two years. With the best will in the world, I do not think that this statement will do justice to that.

Secondly, can we look at the overall cumulative effect on his Department of the 40% cuts that will take place in legal aid and the courts? Will he sit down with the profession and the judiciary to discuss that? I was the shadow legal aid Minister during the passage of the Act. We did warn about many of the consequences, but we probably underestimated the overall effect on the court system. This is very important to individuals who are seeking redress. There is also a dysfunctionality in the courts now, particularly in areas such as the family courts, and we have to sit down seriously and address those issues.

Photo of David Gauke David Gauke The Lord Chancellor and Secretary of State for Justice

First, on the matter of a whole-day debate—it sounds as if this were a continuation of business questions—the hon. Gentleman has made his point. I know that the Under-Secretary of State for Justice, my hon. and learned Friend Lucy Frazer, has been replying to Westminster Hall debates on this matter fairly regularly, but I am sure that his point has been noted, and we will of course give consideration to it.

On the overall effect on the courts and justice system, let me make two points. First, it was widely accepted that, after the financial crash, there was going to be a need to bring public spending under control, including in this area, and any responsible Government would have had to make some difficult decisions, including in this area. Secondly, the Government are investing £1 billion in a court reform programme, making sure that we bring our system up to date. In ensuring careful stewardship of public money while also ensuring that we have a world-class legal and justice system, we will have to embrace innovation and technology and do things differently, and I do not shy away from that in any way.

Photo of Louise Haigh Louise Haigh Shadow Minister (Home Office) (Policing)

Thank you, Madam Deputy Speaker.

In the past six years, there has been a shocking 134% increase in the number of parents facing child custody cases without legal representation. Surely the Secretary of State agrees that no parent should find themselves forced into that situation, so what steps is he introducing today to remedy that?

Photo of David Gauke David Gauke The Lord Chancellor and Secretary of State for Justice

We are taking adoption cases out of the means test, so that is a change. I have already addressed points about special guardianship orders and unaccompanied minors, so there are steps that we are taking in this area. We already spend considerable sums of money in this field, and I hope that when the hon. Lady has an opportunity to look in detail at some of our proposals, she will see that we are trying to address those concerns. We do not have unlimited sums of money—there is no bottomless pit—but we are taking steps to ensure that the system can work as effectively as possible.