Examination of Witnesses

Legal Aid, Sentencing and Punishment of Offenders bill – in a Public Bill Committee at 12:00 pm on 14th July 2011.

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Rachel Robinson, Roger Smith and Steve Hynes gave evidence.

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering 2:16 pm, 14th July 2011

I welcome our witnesses to the Committee. In a clear, loud voice, can you say for the record who you are and who you represent? If you would like to make a brief introductory statement, you are welcome to do so. As we went left to right last time, we will go right to left this time, starting with Mr Hynes.

Steve Hynes: I am Steve Hynes, the director of Legal Action Group. We are primarily concerned about access to justice and the general public. A few opening remarks: the Government are saying that legal aid has expanded beyond its original remit. We take issue with that and with much of what the Government are saying.

To give one example, 1984 was the largest expansion of legal aid in recent years, under Margaret Thatcher’s Government. That was the PACE Act, and nobody is talking about repealing it. On international comparisons, a lot of figures have been bandied about that are inaccurate. I can quote at length from Europe and New Zealand if need be. On rising costs, if you look at the figures, the last Government were actually quite successful at controlling costs. We took issue with the way that they went about it, but if you look at the cost of legal aid—particularly on the civil side, which is bearing the brunt of something like £280 million in cuts—it has been under control for about four years at least. The previous Conservative Government, of course, was successful in cutting back on scope, which was used as a blunt instrument for controlling costs at that time. I could go on, but no doubt Members will want to follow up with questions.

Rachel Robinson: I am Rachel Robinson, a policy officer at Liberty. By way of a brief introductory statement, we have grave concerns about parts 1 and 2 of the Bill, the impact on access to justice for very vulnerable people and their potential to create a culture of impunity, not just in public authorities but in big business, in which victims cannot challenge wrongdoing, which obviously has wider social implications. As far as part 3 of the Bill is concerned, we take a different approach. We think that it is a largely sensible set of proposals.

Roger Smith: My name is Roger Smith. I am the director of Justice. I will make three preliminary points. One is that, as you would expect, we are very unhappy with the cuts to eligibility and scope in the Bill. That is our particular concern, and you will be familiar with the arguments. Two, I think that the Bill itself is a bit of a dog’s dinner, to be honest. There are 24 pages of exclusions. I wonder whether that will be stable enough to establish so complex a situation. Three, we are concerned about the end of the Legal Services Commission and what we see as insufficient guarantees of independence in decision making.

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering

Thank you. I remind Members that this is a shorter session than the previous one. This session finishes at 3 o’clock, so we have 40 minutes. I will open the bowling with those who missed their opportunity last time, so we will start with Mr Tom Brake.

Q 281

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

A part of the Bill that we have not discussed at all is the review of indeterminate prison sentences. What is your view of it, or what are you hoping will come out of the review?

Rachel Robinson: Although we do not have a provision in the Bill, we certainly welcome a commitment to review these sentences. We have had real concerns about the use of indeterminate sentences for a long time. They are bad for rehabilitation, in that prisoners face a huge amount of uncertainty; they are unable to prepare for life in the outside world without knowing when their release date will be. We hear from our advice and information service, which takes queries from the public, that individuals are chasing courses and not being able to get on the courses that they want at particular establishments. They are therefore thwarted in their efforts to attain a certain release date. We think that these measures are very bad in cost terms; they have imposed a huge cost burden and they are very bad for rehabilitation.

Roger Smith: We agree. They are wrong in principle and they set up a Catch-22 situation—you can get out to do a course, but if you cannot do a course you cannot get out. We welcome the review: we would welcome their demise.

Q 282

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

To be clear, do you believe that there should not be any indeterminate sentences?

Roger Smith: In the sense that I think you mean, yes, there is an issue about life in prison and what that means. If you commit a crime, you do the time: that is where we begin. Once you start meddling with that, there are real difficulties.

Rachel Robinson: I would agree with that assessment.

Q 283

Photo of Dave Watts Dave Watts Labour, St Helens North

I ask you to go to the nub of the matter. The Government claim that the present system is unaffordable and expensive when compared with systems in other countries. We heard the example of New Zealand, but it seems strange given that we do not have much in common with New Zealand. You said earlier that you could give us some comparison information. What do you feel is the most appropriate comparison, and how do we compare with some of the other countries that you have looked at?

Steve Hynes: I look behind me because Lord Bach is sitting there and I do not want him to stab me in the back. He commissioned a good round-robin piece of research from Professors Bowles and Perry at York university in his time as Minister with responsibility for legal aid. I would not read the conclusions of that report or executive summary too closely, as it seems to be slightly filleted, but if you look at the report in its entirety, it gives a fair picture.

In a nutshell, in continental Europe, inquisitorial systems cost a lost less in legal aid, but you take the cost of the court systems and they come out as similar to the UK. It has to be said that the UK has big policy differences regarding criminal law, which means that we prosecute more people and imprison more people; that means more costs in the system. That, of courses, is a decision for Parliament. That means that we have more costs compared with many jurisdictions.

New Zealand is really interesting. Things are changing there. If Members are interested, I would look at section 114 of its regulations on legal aid—what they call legal services. If you look at that, pretty much in civil, you convert the New Zealand dollar, and it is much the same level of means test that we have—slightly over average income for the average family of NZD 30,000 or so a year, and they would be entitled to civil legal aid in New Zealand. There is a different spread of services and different types of law, so you cannot draw direct comparisons, but New Zealand overall spends about £20 a head; we spend about £38 on legal aid. It is a different legal system.

The other point that I would make in the common law world is that it is difficult to make comparisons, because you have state systems in the common law world. For example, Queensland in Australia is completely different from any other state there. Ontario in Canada—Roger knows it well—has a legal aid system, and a legal aid board, very similar to us. They spend less on crime, certainly. You look at that per head of population, you look at their civil system, and I would argue that it is a much better system because they deliver it through a salaried service. The parallels that have been drawn have been slightly misleading, to say the least.

Roger Smith: The obvious comparator is Scotland. Ten or 15 years ago, the Scottish legal aid scheme was the same as ours and it has diverged. Some funny things have happened. They have retained legal aid for personal injury and they have just increased eligibility for it, to £30,000 from £10,000. How have they been able to do that? It has been a much better managed scheme, to be honest. They have avoided all the nonsense of CFAs, and they have made little adjustments on the tiller instead of going for grand gestures. In some ways, this Bill is in the tradition of the approaches by two previous Governments to legal aid. They made grand gestures: “We’ve got to do something big and enormous to get legal aid under control.” We have had all this franchising, competitive tendering and all these great things that were going to come, and the Scots have just made little amendments here and there—one or two salaried lawyers here, a bit of duty counsel there—and they have managed the system much better. It is a real criticism of how we have done it over two decades.

Steve Hynes: Just to interject there, they do not have the very high-cost cases’ costs that we do. About 400 or so cases cost around £200 million a year. Of course, they come down here to our Supreme Court for that. Broadly, however, what Roger is saying is correct and it has got to be said—their scheme has been better managed, because it has been less politicised and there has been less tinkering with the scheme and less introducing of different management systems. That has led to more stability and a more stable market in terms of the supply base.

Rachel Robinson: I just want to say briefly that I agree with a lot of what Steve said about the huge number of variables and the difficulty of making comparisons. In addition, Liberty believes that this is also a question about what kind of society we want to be. Successive post-war Governments recognised that access to free legal advice for those who cannot afford to pay is as important as access to free health care and free education, and we do not see the same sort of race to the bottom in  those areas and we do not see an attempt to justify ever-increasing cuts against the spend of other countries, heedless of the social consequences.

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering

This is a tighter session than the previous session, so we will have to make it tighter.

Q 284

Photo of Elizabeth Truss Elizabeth Truss Conservative, South West Norfolk

In answer to the question, “What kind of society do we want to be?”, I do not think that we want to be a litigious society. My fear is that the high legal aid bill is actually fuelling legal involvement in things where it should not be, such as the content of employment tribunals or the welfare system, where these issues could be easily sorted out using a proper appeals process.

I just want to come in on the point about international comparisons. The figure you quoted for New Zealand, which sounds more up to date, is almost double that of the UK. [Hon. Members: “Half.”] Sorry, the other way round. I do not think that it is right to compare the inquisitorial system. My question is about Canada. What are the income thresholds and what is the scope of cases that are eligible for legal aid in Canada? I ask that because it seems to me, when I have taken a cursory glance at these other systems, that there is generally a lower scope and lower income thresholds in those similar countries than there are here in Britain.

Steve Hynes: First, we spend around £5 million on employment law. That is just for initial advice and some preparation. There is no representation in employment law—there never has been—although we have campaigned for it. We think that there will be further costs if people do not get initial advice in employment law cases, because one of the advantages is that you can tell somebody that they have got a rubbish case and they should not waste their time by clogging up the tribunal system.

On the Canadian point, in Ontario they certainly have a stricter means test on the criminal side.

Q 285

Photo of Elizabeth Truss Elizabeth Truss Conservative, South West Norfolk

What is the means test? Can you give us a number?

Steve Hynes: I cannot give you chapter and verse on the means test. I actually have that information in the office in the file.

Photo of Elizabeth Truss Elizabeth Truss Conservative, South West Norfolk

It would be really helpful if you would send that.

Steve Hynes: It definitely is a stricter means test for the criminal side. I have used one example—an anecdotal example. One of my colleagues over in Canada said, “Well, you get accused of a crime and you have property in Canada, you often have to get loans against your property”. I just do not think that this Government would want to go down that path.

The New Zealand example is very interesting. If you look at section 8 of their Legal Services Act, one of the criteria for legal aid is whether a person accused of a crime has had legal aid before. Again, I just do not think that that would be permitted in English law or European law.

Roger Smith: Canada is a series of provinces, so it actually differs greatly between the different provinces. There is no doubt that eligibility levels are lower. Payment  levels are lower. Ontario has just finished a major strike where counsel refused to appear in guns and gangs cases, rather shrewdly keeping up their other business to keep the income flowing. It brought the Government to heel, interestingly. Canada is not a very happy place. I think 20 years ago it was at the cutting edge of legal developments. Canada is not really there any more.

Rachel Robinson: To reiterate the point, if we are talking about countries like Canada and Australia, there is huge variation between different provinces. I emphasise again the real difficulty, which has been acknowledged by drafters of comparison research, in making these kinds of strict comparisons when there are so many variables.

Q 286

Photo of Elizabeth Truss Elizabeth Truss Conservative, South West Norfolk

It seems to me that on each variable the scope is wider, the income threshold is higher and the cost per head is higher in the UK. Whichever variable you look at, it does seem to be that we are at the high end.

Steve Hynes: That is not true. The Bowles and Perry research does not say that. It says that in the Netherlands, which is a good example in Europe, they actually spend more on criminal. Look at the civil legal aid systems: ours has been diminishing in recent years, compared with other jurisdictions. It is no doubt the case that if you look at headline figures, particularly in continental Europe, we do spend more on legal aid, but that is because we have an adversarial system.

Photo of Elizabeth Truss Elizabeth Truss Conservative, South West Norfolk

I said similar legal systems. I did not say inquisitorial systems.

Steve Hynes: If you want the figures, they are here. Page 27 of Bowles and Perry’s report has chapter and verse. It does not have Germany, which is a federal system and spends slightly more. We spend €80, Sweden €71, Netherlands €90 and France €51. Germany is actually about €90 per head of population, but it is a bit more like a common law jurisdiction because it is has a federal system. So its costs are higher because it is analogous to a federal system like Canada or the common law world.

Roger Smith: Canada is by and large cheaper, but there are twists to it. Ontario has a province-wide network of what we would call law centres, which is more expensive relative to its system than we would have. The basic point is right: Canadian services are cheaper, narrower and, frankly, less acceptable in terms of the quality that they give.

Rachel Robinson: Also, we are talking about variations not just within the legal aid system, but outside of that in the justice system—variations in the complexity of legislation and in social circumstances more generally—which impacts on what you can read into statistics dealing with legal aid. You cannot just simplistically say, “Oh, there is a higher spend on legal aid; we are being wasteful.” There are lots of other things to consider and that is why there is a difficulty in making comparisons.

Q 287

Photo of Helen Goodman Helen Goodman Shadow Minister (Justice)

I would like to ask Mr Smith some questions about the sentencing part of the Bill. You have been critical of the extension in the curfew requirements. I wonder if you could explain to the  Committee why that is, since many people think that curfew requirements are a particularly efficient way of dealing with offenders.

Roger Smith: I think our issue is about the length.

Roger Smith: It is not about the principle, in a sense. We are not arguing that you cannot have curfews, but if you are having curfews in the region of 16 hours a day, or whatever, we think that gets very close to being house arrest and therefore crosses a line.

Q 288

Roger Smith: It crosses the line between an acceptable restriction of liberty towards creating what is more effectively described as house arrest.

Rachel Robinson: While we recognise that extended curfews are less restrictive on liberty, for example, than a custodial sentence, Liberty has a residual concern. While we welcome many of the sentencing proposals, these kinds of extended community penalties may not actually be used in practice as an alternative to custody. They may be used in circumstances where custody would not be envisaged, and we have to make sure that we have proper safeguards in that respect.

Q 289

Photo of Helen Goodman Helen Goodman Shadow Minister (Justice)

I am sorry, Mr Smith, I do not really understand the point that you are making. If you are making a linguistic point that you do not want something called house arrest, but you do want something called curfews—I think you are making a more fundamental point than that. I am not a lawyer and when I say that I do not understand, I really mean that I do not understand the point you are making.

Roger Smith: What I am saying is that we are not against the principle of curfews, so you can keep somebody in their house for a period of time. I think that that has to be a proportionate, reasonable period of time. I think that 16 hours is too long.

Q 290

Photo of Helen Goodman Helen Goodman Shadow Minister (Justice)

Is that because you think that for the kinds of offence that a person will have committed it is disproportionate? If you think that, presumably what follows is that you do not think anyone should ever go to prison. I am sure that you do not think that.

Roger Smith: No. We feel that 16 hours is just too long. If it were shorter than that, it would be acceptable.

Q 291

Photo of Helen Goodman Helen Goodman Shadow Minister (Justice)

Thank you. I want to ask you about what you have said about bail and where you think the adult bail provisions have gone too far. I take it that you mean you think there should be more reasons for remanding people to prison than the Government have included in their proposals.

Roger Smith: I will have to write to you on the bail proposals because it was not me who did the work on that. I will set out our arguments in relation to bail in writing to you.

Q 292

Photo of Helen Goodman Helen Goodman Shadow Minister (Justice)

You are very critical of the police being able to issue conditional cautions without reference to the CPS. Why does that worry you?

Roger Smith: We are concerned about mission creep in relation to the police. The essential job of the police should be that of an investigator who obtains the evidence on the basis of which there is a prosecution. We are concerned about a mission creep, where they go beyond that to effectively giving someone a sentence. That is an unfortunate extension of role that is wrong in principle and potentially has practical problems if it starts to figure in the kind of negotiations that might occur between a police officer investigating a case and the suspect.

Rachel Robinson: We also have grave concerns about the use of out-of-court disposals, and proposals to take prosecutors out of the equation exacerbate those. A moment ago, you also mentioned bail. I would like to acknowledge Liberty’s support for proposals that will mean that those who are unlikely to face a custodial sentence are not clogging up the prison systems in circumstances where it is not sensible. It is a common-sense proposal as far as we are concerned.

Q 293

Photo of Ben Wallace Ben Wallace Conservative, Wyre and Preston North

May I go back to what Mr Smith said about the Scottish system? Steve Hynes was correct about the very high cost of cases. That mostly has a big impact on the Serious Fraud Office and down south. But the contention seems to be—this came across from both yourself and Mr Hynes—that the Ministry of Justice should be looking more at taking some money out of criminal legal aid. If there is money to find, we should be tougher on criminal legal aid than on civil. The Scots did save some money in that way. I have had meetings with academics from Scotland who have said that. But they have also found themselves in trouble in relation to Cadder and things like that, where the withdrawal of legal advice from the police station has landed them in hot water with the European convention on human rights and the courts. That aside, do you still think we should be looking at criminal legal aid and whether there is money to be taken from that?

Roger Smith: I was making a general point that Scottish legal aid has been well managed in terms of the use of salaried lawyers here and there very strategically. We had a big experiment with the public defender solicitors operation that was set up to fail, and did. The Scots have been much shrewder about making small practical rather than non-political—

Q 294

Photo of Ben Wallace Ben Wallace Conservative, Wyre and Preston North

They make tremendous savings because the prosecutor chooses the venue of prosecution. That in itself would save a lot of money, but I do not think we would get the removal of such trial rights through this Parliament.

Steve Hynes: To answer the question, you could look again at fees within the system. Again, Lord Bach knows all about this. He reduced fees by 12% in criminal cases. The last one coming through in the current year was a stepped reduction. You could look at very high-cost cases again. Most members of the Committee will be aware of Sir Bill Callaghan’s letter of 7 February from the commission. He sets out some savings that could be made from criminal.

Also hanging in the air is competitive tendering. There is a split within the profession on that; quite a few of the larger firms believe that if they have the volumes of work from police stations to Crown court and High  Court work, they would save money, of the order of 10%. You can probably say that it will be more than that. I warn that one danger is the potential for cartels. Indeed, when he was my predecessor Roger Smith did some work in North America on that.

Yes, you could look at criminal again. You cannot look at scope, obviously. You mentioned the case of Cadder. You can also look at fees, but there are two warnings. You can make savings, but it means consolidation in the market, lack of choice and the potential for cartels. Then you have the potential to lose excellence within the system. Lawyers will obviously tend to oversell themselves in terms of their excellence and their worth, but you can push and push and you will get to a stage where you may lose, particularly at the top end with the advocacy and other skills that you need.

Q 295

Rachel Robinson: Liberty in general is very cautious about mandatory minimum sentences. However, in this particular example there is a clause that allows for judicial discretion in the interests of justice to come into the equation. We are not overly concerned because we think that flexibility is built into the system.

Roger Smith: It is difficult to see why the offence is necessary; somebody carrying out the act will be committing other offences anyway. This is pandering to the public in the usual way. As a principle, mandatory sentences are a nightmare, because you would always find that a bad case comes up that makes them ridiculous.

Q 296

Steve Hynes: I concur with what Roger Smith said.

Q 297

Steve Hynes: I have to comment. Would we be having this same debate if events that happened over the last couple of weeks had happened a month ago? The Lord Chancellor was pilloried by sections of the Murdoch press and we ended up with the Bill that is before us. Much of what was originally planned was along the right lines, but I gather that the other side do not agree with that.

Q 298

Photo of Yvonne Fovargue Yvonne Fovargue Labour, Makerfield

I do not know whether it was the Legal Action Group that coined the phrase “advice desert”, but it certainly warned about advice deserts in the past. What do you think the advice landscape will look like if the proposals to remove social welfare law go through?

Steve Hynes: I wish that the Legal Action Group had coined it, but it was James Sandbach of Citizens Advice, who, I note, was sitting behind us earlier.

The landscape will be decimated. On the civil side, our estimate is that we would probably go down to something like between 500 and 900 firms undertaking legal aid; in family, it will mean that pretty much in  every parliamentary constituency you will have problems if there are conflicts of interest. I think you have already heard evidence about the not-for-profit sector.

The Government have got their impact assessment up to date. Around £60 million would be lost in what we call social welfare law, and the specialist end of Citizens Advice, 18 law centres, quite a few of the independents. We have produced a lot of data on this. In this month’s Legal Action magazine, we have an article outlining the effects on child poverty zones—where there is a high instance of child poverty, the top floor being in London. It is difficult to exaggerate how bad the effect will be.

To be devil’s advocate, the Government know that. It is in their impact assessment. The Lord Chancellor criticised Lady Hale for quoting from the impact assessment. As a matter of policy, the Government are saying, “We know the Bill will affect poor and marginalised communities, but we are going ahead with it, because we have to save money.” To be fair to them, they have been up front about that.

Q 299

Photo of Yvonne Fovargue Yvonne Fovargue Labour, Makerfield

Access will be through a telephone gateway in future. Do you have any comments about the appropriateness of that for the range of clients?

Steve Hynes: Oh dear. You have already had some answers to that. Telephone gateways can work and can complement a system of providers on the ground. We did an opinion poll in November last year to coincide with the consultation. It was an NOP piece of research that found that the people who are less likely to use the internet and telephone services are social group DE, and they are the ones who qualify for legal aid. There you have your answer. If you want a legal aid system that people do not use, deliver it through telephone advice, because the ones who pass the means test tend to be the ones who do not have telephones. The big issue with that is mobile phones and pay-as-you-go. Obviously, those in social group DE tend to have that type of mobile phone contract.

Q 300

Photo of Kate Green Kate Green Labour, Stretford and Urmston

I would like to ask Roger Smith to expand on something he said in his introductory comments on his concerns about the insufficient guarantees of independence in the Bill. I assume what you are talking about is the plan to take the key functions of the Legal Services Commission back in-house, as it were. Assuming that the Government are going to proceed with that proposal, can you suggest any safeguards that we ought to stick in the Bill?

Roger Smith: Yes. There should be an independent appeals process. That is an idea that we have pinched from New Zealand, where legislation has just gone through and there is an independent appeals process. It wound up its Legal Services Agency in the same way that the Bill will do, but it provided an independent appeals process, which is the minimum that you need. What you are going to get is people—who may be politically motivated—wanting to judicially review the Lord Chancellor. They will be refused legal aid, so they will take judicial review against a refusal to give them legal aid for a judicial review, and that will spiral out. In a way, it is a gift, but if you want to close off people who will bring cases against the Department and make a fuss, it is the minimum you should do.

Steve Hynes: I would make a plea to the Government to do something about that on Report. You have transposed the old section 20 of the Access to Justice Act 1999 into clause 33, and I again refer you to Sir Bill Callaghan’s letter of 7 February. I do not think that it gives sufficient protection. You need an internal ring-fenced system, whereby there is no chance of the Lord Chancellor or other Ministers interfering or, more importantly, being seen to interfere with decisions in individual cases. I think that that is a political liability for any Government, and you should not be putting yourselves in that position. Roger is right: the minimum should be an appeals system. You do not need an expensive tribunals system; you can adapt what you already have and have review panels or set something up. That is a plea to look again at what you have, because I do not think that clause 33 will achieve what you want it to.

Q 301

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

May I ask you about clause 12, which provides the possibility for the directors about whom we are talking to set merits and means tests in relation to the police station advice? What are the views, particularly of Liberty and Justice, on that?

Steve Hynes: We have already had good signals from both the Minister and the Secretary of State that they will look at that again. I hope that, on Report, the Government will bring something forward to repeal or withdraw those provisions. I was amused by the Secretary of State’s performance on Second Reading, when he blamed the Opposition for it. Clearly, it might be their fault, but he is in government and I gather from the Minister that you will look at that again, which we are encouraged by. The case of Cadder has already been mentioned. It is a given that we need to retain the police station advice that we have.

Roger Smith: It is also a requirement of the European Court, which was what the Cadder case was about. We intervened in Cadder, so we have some responsibility for the case, which requires the Scots to have a duty solicitor scheme that they have not had so far. The problem is that if you do not see a solicitor and get advice before you are interviewed by the police, what you say in that interview may not be admissible in court. I hope, in that light, that policy will remain as it is now and that the Bill will be changed. What is more important is what actually happens.

Rachel Robinson: I can also voice Liberty’s concerns in this respect. This clause, like many others in the Bill, gives the Lord Chancellor powers in secondary legislation to do potentially very damaging things. While we have had assurances that there are no immediate plans to introduce means and merits testing, this remains a possibility and that is very concerning—from a justice perspective and, as others have said, from a practical perspective—as well as being unworkable. We will have people escorted into custody and then an attempt to make a means assessment without any of the available documentation to make it possible.

Q 302

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

In our previous session, we asked about some of the specific scope areas, so I think I ought to give you the opportunity to say whether there are any areas we are removing from scope that give you more concern than others. Clearly, we will be looking at many of the specific areas in Committee, but it will be useful to discuss them while you are here today.

Steve Hynes: Thank you for the friendly question. I would say particularly social welfare law and, for the practicalities, I cannot understand the logic of the Government deciding that repossession should be the criterion for a housing case. You have a situation of litigation not being prevented: people have to get to the stage of repossession before they get legal aid to spend in court. It makes eminent sense to me, and to most thinkers in this field, that you get early advice—housing advice or housing benefit advice—before you ever get to a property being repossessed. Looking down those areas, they are very common areas of law which affect ordinary people up and down the country. I think it makes sense to retain them because although you can argue about the economics, ultimately, the state and the private sector save money.

We were disappointed that the Government did not look at alternative methods of funding which we think are out there and could be looked at. The Government already have an alternative method of funding: it is called the legal aid impact test. It has not been changed in policy. Money is transferred within Government when legislation is shown to have a legal aid impact—family credit introduction led, I think, to about £30 million being transferred from the Department for Work and Pensions. It would make sense to give that sort of market-based inducement for Departments to get their decision making right first time and to save a lot of problems, mainly for people at the sharp end of legal disputes.

Roger Smith: You could take the view that the Government are going to make these cuts broadly and that there is nothing that any of us really can do about that, except perhaps here and there. I am not dissociating myself from what Steve is saying about the broad picture, but if you are looking for one potential winnable issue, I would say it is clinical negligence. That is the most vulnerable issue for the Government—people with catastrophic injuries, or birth injuries and defects—and you will get major publicity coming down the line, while the cost is relatively small. The logic is incoherent—they were exempted from conditional fee arrangements for very good reasons in the first place. Were you to ask what I would concentrate on as the one winnable issue, my answer would be clinical negligence.

Rachel Robinson: If I can sketch out one overarching category of concern, it is where the proposals in the Bill will place many individuals who challenge decisions of public authorities, whether of a Department or more widely. They are going to lose their practical ability to do make such challenges. We are concerned that that will have a real impact of constitutional significance and will, to some extent, change the relationship between the individual and the state. We know that public authority problems, in the standard of decision making in Departments such as the Department for Work and Pensions or the UK Border Agency, already impose burdens of their own on the legal aid system. As far as Liberty is concerned, these measures, rather than trying to deal with the underlying problem of the poor quality of administrative decision making, will just prevent people from challenging decisions, which is not the right way of going about it and cutting waste out of the system.

Q 303

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I was going to ask about clinical negligence, bringing in part 2 as well as part 1 of the Bill. It was put earlier, I think by Elizabeth Truss, that it  would be better to improve the quality of Government decision making, as you would not then need to spend money on legal aid. You may want to comment on that. What do you mean by greater constitutional significance? I see what you mean in relation to being able to review the decisions of corporate bodies. What do you see as the overall impact on access to justice of the Bill as a whole?

Rachel Robinson: There is an overarching rule of law point here. The idea is that everybody is subject to the law. That does not just mean the fact that there are laws in place that are, in theory, applicable to all; it means that people can vindicate their rights. People have practical access to justice. When I talk about the constitutional argument, I mean equal access to justice, and nobody being above the law and not having to face the consequences of their administrative failures, for example. That is the specific point that I was seeking to address there.

Overall, the impacts of parts 1 and 2 on access to justice will be huge. Liberty is extremely concerned about proposals in relation to conditional fee arrangements and after-the-event insurance. We think that that is another example of a situation in which victims are going to be unable to challenge very serious wrongdoing and, in the case of conditional fee arrangements, wrongdoing by very powerful multinational companies, such as in the Trafigura case. This will have an impact not just on the individuals involved in a particular dispute, but on the culture: how decisions are made in big business and whether considerations about human rights and due process are taken into account by those who have a lot of power.

Roger Smith: The phrase “access to justice” drives me mad. It is completely meaningless. Chipped on to the architrave of the United States Supreme Court is “equal justice.” That is the phrase that the Americans use. I take that to mean that, in any dispute between two institutions or people, the result will be determined by the intrinsic and inherent worth of the arguments, and not by the relative money and resources that each has. That is what is really important. The Bill threatens that in a variety of ways. One thing that we do not have time to explore now is in relation to divorce. Poor people and women will be shoved into mediation. Rich people and men, predominantly, will have the luxury of having lawyers. You had a discussion earlier about mediation. Mediation is a really good thing. Mediation for one is mediation for all. You could exclude all lawyers from the divorce court so that Prince Charles and Princess Di do not get one, either—everybody does mediation. But the Bill is a mess because some categories of people will not get lawyers and will be shoved into mediation, and others will get what they will see, probably rightly, as a better service.

Q 304

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

May I take you back to a different part of the Bill, on conditional cautions, about which you have expressed great concern. Can you set out any safeguards that you think could be put in place to address, or partially address, your concerns about those?

Roger Smith: Consultation with the prosecutor.

Rachel Robinson: Absolutely.

Q 305

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

Does that not do away with the immediacy of the conditional caution?

Roger Smith: It provides what I would say is the minimum acceptable check. It could be a phone call, but some measure of check from another person in another agency—in the prosecution agency.

Rachel Robinson: As things stand, if the Bill passes in its current form, a police officer will be acting effectively as investigator, prosecutor and judge. That is a matter of huge concern. We have seen a recent report by the Her Majesty’s inspectorate of constabulary that talks about inconsistency in different areas in the use of these protections. We have concerns about maintaining open justice and ensuring that justice is both done and seen to be done by the wider community.

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering

That brings us to the end of our time for this session. I thank our witnesses very much indeed for giving up their time to give evidence to us today. Thank you very much indeed. We will now hear evidence from the NSPCC, the Children’s Commissioner for England, the Local Government Association and the Standing Committee for Youth Justice.