Legal Aid: Post-Implementation Review

– in Westminster Hall at 6:30 pm on 4th September 2018.

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Photo of Karen Buck Karen Buck Labour, Westminster North 6:30 pm, 4th September 2018

I beg to move,

That this House
has considered legal aid and the post-implementation review.

It is a pleasure to introduce this important debate under your chairmanship, Sir Christopher.

We cannot have meaningful rights without the means of enforcing them, and we cannot have meaningful justice if people have no way of accessing it. Legal aid lies at the heart of both those assertions, which is why I very much welcome the Government’s review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 six years on, and the opportunity to ask the Minister about the review’s process and substance. If she is unable to answer all my questions—I suspect she may not be able to—I would be grateful if she agreed to write to me so that we have answers on the record.

A few weeks ago, the Joint Committee on Human Rights, of which I am a member, published its report, “Enforcing human rights,” as a contribution to the wider debate. It stated:

“Access to justice is fundamental to the rule of law. We are concerned that the reforms to legal aid introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) have made access to justice more difficult for many, for whom it is simply unaffordable.”

Six years on from the Act’s passage, it is clear that the system is in crisis. Cuts to the Ministry of Justice were higher than to any other Department, at 40%. The impact of cuts on that scale is simply unsustainable.

The review of the changes must provide answers—not rhetorical answers and warm words, but practical solutions. Such solutions were set out in the Committee’s report, as they have been in expert report after expert report by bodies from the Bach review—I pay particular tribute to Lord Bach—to the Law Commission, and in evidence from the frontline of civil and criminal law. Solutions were also set out in excellent briefings for the debate from the Legal Aid Practitioners Group—I particularly praise the work of the extraordinary Carol Storer, who has been in charge of the LAPG for the past decade, and her team— the Equality and Human Rights Commission, to which I will make particular reference, the Law Society, Mind, the Families Together coalition, the Children’s Society, the Coram Children’s Legal Centre and many others.

I will ask about some of the specific points arising from all those briefings, but let me first ask about the review process. The review is currently under way, with a deadline of the end of this month for the submission of evidence and engagement with stakeholders. I put on the record my appreciation for officials’ engagement with the all-party legal aid group, which I chair, but there are a number of wider concerns about the transparency of the process.

No minutes have been published of the meetings that have been held. We understand that no independent research has been commissioned either. Will the Minister confirm whether that is the case? Will she also confirm that the report will definitely be published by the end of the year? How long does she estimate it will take the Government to respond? Critically, what will happen next? Will the review be affected in any way by Brexit? How long will the response take? What steps will be put in place to safeguard the current situation and prevent more providers from closing before there is an opportunity for recommendations arising out of the review to be implemented?

Let me return to the substantial issues that confront us in the post-LASPO world. We hope that many will be addressed by the review, and hopes are high, given the pressure under which many legal aid services are operating. LASPO narrowed considerably the scope of legal aid, with the result that it is no longer available for most private family, housing, debt, welfare benefit and employment matters. LASPO also changed the financial eligibility criteria for legal aid, including by increasing the amount that people have to contribute from their income and by removing automatic eligibility for people on means-tested benefits.

I could have filled my allocated time with any number of comments made to me by individual lawyers prior to the debate, but I picked one at random relating to housing, which I am particularly concerned about. I was contacted this morning by Russell Conway, a housing lawyer with Oliver Fisher, who said:

“Legal Aid lawyers are hanging on by the skin of their teeth. Worse still large numbers of clients cannot get access. Yesterday I turned away 10 prospective housing clients as their cases were no longer within scope”.

The latest statistics relating to the provision of legal aid confirm exactly that. Total legal aid expenditure has fallen by £600 million since 2013. The number of legal aid and controlled legal representation claims fell from 188,643 to 92,124—in other words, they halved. Mediation starts more than halved, and the number of providers has plunged by 800 in criminal law and 1,200 in civil law. It is no wonder that when the Joint Committee looked at the impact of LASPO on access to justice, concerns about advice deserts—parts of the country where advice and representation are close to non-existent—featured strongly.

In summary, legal aid is no longer available to many of those who need it. Even those eligible for help find it hard to access it, and major gaps in services are not being addressed. As is so often the case, the most disadvantaged and the disempowered bear the burden. To take just one group, important research by the mental health charity Mind found that half the people facing legal problems that were removed from the scope of legal aid by LASPO have mental health problems.

As LASPO removed significant areas of law from the scope of legal aid, exceptional case funding was brought in as a safety valve for more complex cases, such as where funding is deemed necessary to prevent a breach of human rights. Exceptional case funding was expected to support between 5,000 and 7,000 cases a year, but there were only 70 successful grants in the year after LASPO was introduced. Although that funding has picked up to some degree, it clearly has not fulfilled its intended function. We need to be reassured that addressing it will be core to the review.

Both the Equality and Human Rights Commission and the Joint Committee on Human Rights raised grave concerns about discrimination cases, the implications for human rights and the disproportionate impact of legal aid cuts on access to justice for people with protected characteristics, including disabled people, children and migrants. I hope the Minister will join me in welcoming the Equality and Human Rights Commission’s report and the inquiry it announced yesterday. Although the timing of that inquiry means that its results will not feed directly into the Government review, I hope she reflects on what the commission is doing and why.

The Equality and Human Rights Commission drew attention to how the removal of most welfare benefits law from the scope of legal aid disproportionately affected disabled people. It flagged up the fact that the number of benefits disputes cases in which legal aid was granted fell by 99% post-LASPO, from 29,801 in 2011-12 to just 308 in 2016-17. When individuals are able to challenge benefits decisions, the majority are overturned. Since 2013, 63% of appeals against personal independence payment decisions and 60% of appeals against employment and support allowance decisions have been decided in the claimant’s favour.

The Equality and Human Rights Commission also drew attention to the fact that the removal of most private family law from the scope of legal aid affects women disproportionately, and of course the removal of most immigration law impacts people from certain ethnic minorities. As the EHRC report states, many of the areas of law removed from the scope of legal aid cover issues central to domestic and international human rights protections. Restrictions on the availability of legal aid carry the real risk of preventing the enjoyment of fundamental rights and freedoms, especially when the practical effect of such measures is to hinder, dissuade or deny access to legal redress where individual rights have been violated.

The EHRC cited specifically the effects in family law or immigration cases that may involve violations of the right to respect for family life under article 8 of the European convention on human rights; in education cases where the removal of provision presents barriers to justice for those seeking redress for breaches of the right to an education, which is protected by article 2, protocol 1 of the convention; and in social welfare law cases, the removal of many of which from the scope of legal aid carries implications for the UK’s international obligations under the international covenant on economic, social and cultural rights.

The Minister will be very aware of the concerns that have been raised about the operation of the civil legal advice mandatory telephone gateway, which is often the only way for a victim of discrimination to access the legal aid system. Somehow, just 16 people have been referred to face-to-face advice in the past five years, despite more than 18,000 discrimination cases coming through the telephone gateway and an estimate that the referral rate would be 10%. Why does the Minister think that is?

Is the Minister able to say how many people with protected characteristics, including mental health problems, have been denied legal aid since the introduction of LASPO? Will the LASPO review include an assessment of the impact of legal aid reforms on groups with protected characteristics? What assessment has the Department made of the number of those people with protected characteristics who have been forced to represent themselves in court since the introduction of LASPO? Will the review consider reintroducing to the scope of legal aid issues most commonly experienced by vulnerable individuals?

Powerful evidence of how LASPO affects children has been submitted by the Children’s Society and Coram Children’s Legal Centre, among others. They and I greatly welcome the MOJ’s decision to bring back into scope non-asylum immigration advice for unaccompanied and separated children’s immigration matters before the end of 2018, yet many other children and young people with outstanding immigration matters—particularly children with parents, and young people who are over 18—will continue to miss out.

The Government estimated 8,500 cases involving claimants aged 18 to 24 and around 43,000 cases involving claimants over 25 would go out of scope for immigration and asylum matters. No data were available on how many dependent children would be affected within those cases and I do not believe there has been any assessment since then. Is the Minister aware of such information? If not, will she ensure that such an assessment is carried out, so that we have accurate data on which to plan?

We know that the status children have can change easily and sometimes frequently. The lack of legal aid available for families to resolve their immigration status can mean children fall in and out of services, leaving them exposed to considerable risk. Undocumented children are often excluded from accessing mainstream benefits, secondary NHS healthcare and local authority homelessness assistance, and their parents are sometimes not allowed legally to work. Children in such families, care leavers and young adults who are over 18 with unresolved immigration issues are at serious risk of destitution and, at worst, abuse and exploitation, as a result of hardening immigration policies and cuts to legal aid.

That is just the situation today. It could soon get worse. There is a critical need to plan for a post-Brexit future, as millions of European economic area nationals, including children, need to settle their status in the United Kingdom. Although little is known about the immigration system post-Brexit, restrictions on the movement of EEA nationals are likely to mean that more children and families will become subject to immigration control in this country and therefore will need to regularise their status. That will include thousands of EEA children in local authority care and care leavers. Making legal aid available to those cases will be critical to protecting children’s rights.

Will the post-implementation review take account of the likely issues on the horizon, to ensure that they future-proof our system of access to justice and ensure that there is consistency in access to legal aid, to help to resolve the range of complex immigration circumstances and protect children, young people and families? Does the Minister know how many children in families and young adults have been affected by cuts to immigration legal aid since 2012? What assessment has she made of the availability of immigration advice regulated by the office of the Immigration Service Commissioner as a result of LASPO? What assessment has she made of the need for advice in areas where regulated immigration advice has dried up as a result of LASPO? What steps will she be taking to ensure that action is under way to deal with the issue of advice deserts?

The withdrawal of legal aid for initial legal advice in many areas of law can result in the escalation of relatively minor problems into more complex issues. There is a clear link between receiving professional legal advice early and resolving a problem sooner. Research commissioned by the Law Society using data from the legal needs survey found that on average one in four people who receive early professional legal advice had resolved their problem within three to four months, while one in four people who did not receive early legal advice had resolved their problem within nine months.

Lack of early legal advice can cause problems to escalate unnecessarily, potentially increasing the burden on the courts and increasing costs to the public purse. That has a clear impact on access to justice and the rule of law. The Government anticipated that people with legal problems in areas taken out of scope by LASPO would use alternative means of resolution. When removing legal aid for family matters, for example, the Government predicted that there would be increased uptake in mediation as an alternative, so that families could resolve their problems outside court. In fact, there has been a decrease of 56% in mediation assessments in the year after the reforms and the number of mediation cases that started fell by 38% in the same period. It may be that solicitors providing early advice referred people to mediation, so that removing access to such advice from a solicitor resulted in fewer, rather than more, cases being resolved that way. Has the Department conducted such research into the extent to which people have found alternative means of resolving disputes or obtaining representation? What research has been carried out or commissioned within the review looking at the cost of displacement to other services?

One obvious area of displacement is the rise in the number of litigants in person—people representing themselves in court. LASPO has resulted in an increase in litigants in person in family law proceedings, with 19,000 more unrepresented parties in 2016-17 than in 2012-13—up from 42% to 64% of such cases. Litigants in person often struggle to understand their legal entitlements and the complexities of court procedures. As the National Audit Office found, litigants in person are less likely to settle cases outside court, likely to have more court orders and interventions, likely to lack the knowledge and skills to conduct their cases efficiently, and create additional work for judges and court staff, which can make court listing processes less efficient. The Joint Committee on Human Rights report welcomed the fact that the Government are considering the impact of the increase on litigants in person, both in terms of outcomes for the individual concerned and on the court system. Has the Minister considered the recommendations of our report? Will she ensure they are reflected in the LASPO review?

Finally, the Joint Committee on Human Rights heard compelling evidence about the extent to which pressures caused by the reforms in legal aid impact on legal aid professionals. By damaging morale, and undermining the legal profession’s ability to undertake legal aid work, access to justice, the rule of law and the enforcement of human rights in the UK are further undermined. In the area of criminal law, data suggest that in five to 10 years’ time, there will be insufficient criminal duty solicitors in many regions of the country, leaving those in need of legal advice unable to access their rights.

I will quote just one message from the many that I was sent before this debate. A lady wrote to me to say that she has been a family lawyer and latterly a mediator for 35 years. She continued:

“Since 1996, I have been mediating under the legal aid scheme. I have always done legal aid work, as a solicitor as well as mediator…I will leave it to others to give facts and figures…I just want to put in a plea for the people who provide these services. We, the mediators, are paid the same rate as we received in 1996. This is no pay rise for 22 years…This has the consequence that services are not viable any longer. I have not had a pay rise for 22 years and carry on out of the goodness of my heart. Unless this issue is addressed, even if legal aid is reinstated in many cases, there will…not be the lawyers or the mediators to provide the service at all.”

Let us recognise that reality and praise those people who work so hard, frequently in very stressful environments and for precious little money, despite all the rhetoric about fat cat lawyers.

How is the review addressing the issue of future provision? How will any restoration of services be guaranteed when no new providers are operating in certain parts of the country? How many firms does the Minister estimate do not see a future for legal aid in their future business plans? How many legal aid lawyers expect to retire and how will they be replaced? What immediate steps are being taken to try to encourage young lawyers who want to do legal aid work to obtain training contacts and pupillages, and to overcome the reluctance of those with student debt burdens to enter into this work? Truthfully, it is impossible to wholly separate the impact of LASPO on those who need advice and representation from the needs of the people who provide that service. I hope that the Minister will reassure me that the review is considering the issue of pressures on those working in the sector and recruitment and retention, not just nationally, but across all parts of the country.

I doubt that many people working in legal aid will have been reassured by the contract debacle this weekend. It would be helpful if the Minister said something about how that is going to be swiftly resolved. Almost every aspect of the legal aid debacle was predicted and objected to at the time, hence the large number of defeats in the other place—only very minor, although welcome, adjustments have been made since. There is an opportunity in this review to learn from what has gone wrong and to put it right. The moment must be seized before it is too late.

Photo of Hugh Gaffney Hugh Gaffney Labour, Coatbridge, Chryston and Bellshill 6:48 pm, 4th September 2018

It is a pleasure to follow my hon. Friend Ms Buck, who spoke passionately and effectively on a subject that I know is dear to her heart, as it is to mine. I do not want to speak too long today, but when I saw that she had secured this debate, I wanted to come along and say a few words on behalf of the people of Coatbridge, Chryston and Bellshill, and in the defence of access to justice.

I want to say a few words on legal aid because of its vital importance to our society and our country and every single person in Scotland, England, Northern Ireland and Wales. I welcome the comments from the Justice Committee. Earlier this year, it warned that the cuts we have seen from this Tory Government and the Liberal Democrat/Tory coalition before it have damaged the fundamental right of legal defence. Rather than being empowered, supported and protected, people across our country are ever more vulnerable to abuse at work from bad employers and to domestic abuse at home. Those are just two examples.

After the last decade of austerity, it is clear that working people in this country are paying the price of decisions made by people in this place. Of all that we have seen taken away from the most vulnerable, the poorest and the most in need across the United Kingdom, the cuts to legal aid have been among the most disgraceful.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

The hon. Gentleman is, like me, a Member for a Scottish constituency, and will be aware that the legal aid system in Scotland is completely different, with much wider scope and eligibility.

Photo of Hugh Gaffney Hugh Gaffney Labour, Coatbridge, Chryston and Bellshill

I thank the hon. and learned Lady for her intervention. I do understand that Scottish legal aid might be different, but this is still something that affects all people. Having been a representative of the Communication Workers Union across Britain, I am here to stand up for the whole country—that is why I have come down here.

Not only is legal aid no longer available for those who need it, those who are eligible are finding it harder and harder to access. I hope that the Government, as part of their review, will do all they can to right the wrongs, and acknowledge that the cuts have not worked, have not been just and must be reversed. They must be reversed for the age-old principle that is access to justice but also because of the people who use legal aid, the people eligible for legal aid and the people who deserve it.

Legal aid is often used for housing cases, and we must not forget that many people across the country, particularly in our inner cities, are dealing with overcrowding pressures and, increasingly, with rogue landlords, who evict families if they can find tenants willing to pay a higher rent, or worse, when a tenant speaks up about damp or other structural issues that pose a risk to the lives of those living there. Legal aid is also used for family-related issues, whether a refugee parent seeking to keep their children away from an abusive partner or any other unpleasant situation.

I have said in this House, since my election, that I was sent here to stand up for and defend working people, seeking justice for those who need and deserve a better deal. I am a proud member of the Communication Workers Union, and I have seen first-hand the support provided to people who cannot afford to represent or defend themselves. In those circumstances when the union movement is not able to defend a member, legal aid has been the route to ensuring that people are not on their own.

I said I would be brief, so I shall leave my remarks there. I hope that the Government will listen to the Law Society’s request for an economic review of the long-term viability of the criminal legal aid system and that they will think again about their approach to this issue. I thank my hon. Friend the Member for Westminster North for her work on this incredibly important issue and for letting me take part in the debate. I look forward to working with her and with colleagues around the House on these issues over the coming months and years.

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith 6:52 pm, 4th September 2018

It is a pleasure to serve under your chairmanship, Sir Christopher, and to take part in this important debate. I congratulate my hon. Friend Ms Buck on securing it, on her excellent speech setting out the main issues and on her continuing work as the chair of the all-party group on legal aid.

There is no doubt that part 1 of the landmark piece of legislation that is LASPO rolled back 70 years of development in social welfare law. I have nothing complimentary to say about the Government—not even about the review, because it was one of the concessions that was wrung out of them during the passage of the LASPO Bill. Even then, they left it until the last possible moment—five years on from the implementation of the Act—before introducing it. I wonder what we will see from the review. I appreciate that work is being done and that substantial work is being carried out by practitioners and others to influence the Government. I am interested in hearing from the Minister how much money there will be and how seriously the Government are taking the review.

The legislation was very controversial at the time, with double-figure defeats in the other place. The fact that we ended up with only nugatory changes had nothing to do, I am sure, with my lack of eloquence as shadow Justice Minister, and more to do with the coalition Government’s substantial majority. The Liberal Democrats deserve a mention. I dwell on the number of times they waxed lyrical about the importance of legal aid but voted time and again to destroy it as part of the tawdry deal—perhaps that is why we see none of them here today.

Since 2013, we have moved on, and favourable decisions in our higher courts have restored legal aid in some respects—on prisoner law, on exceptional case funding, and on non-asylum immigration by unaccompanied and refugee children. There have been accompanying decisions in analogous fields—a Supreme Court decision showed that the disgraceful fees for employment tribunals were unlawful. Such decisions are important and benefit large numbers of people, but they only scratch the surface.

Opposition has crystallised around certain areas regarding eligibility for early funding, particularly in housing and law on family reunion. I hope there will be specific concessions when the review takes place in those areas and perhaps in others. The Legal Aid Agency’s lack of independence was raised in Committee, and we have seen a series of High Court judgments about unlawful patterns of behaviour on behalf of the Legal Aid Agency. The way the system is run is quite shocking.

Rather than dwell on the details, which my hon. Friend the Member for Westminster North has dealt with expertly, I will talk about the profundity of the changes that the legislation has brought in. It has, of course, affected millions of vulnerable people and people with protected characteristics, which we see in the number of successful appeals in welfare benefits cases. If people have the ability—cynically, the Government hopes that many people do not, or can no longer get advice—to get before a tribunal, they often succeed. Two thirds of appeals are succeeding in many cases.

We can look at what happened with what was supposed to be the safety net—the telephone gateway that provided ready access for exceptional case funding, which has not been used at all. There was only 2% of the anticipated demand for exceptional case funding in its first year. I know that has grown since, but it is still at very low.

We have advice deserts all over the country—areas where there are single practitioners, or sometimes no practitioners, which applies to entire counties for certain areas of law. How can the Government defend their record? It is about the day-to-day effects on individuals seeking justice or redress legitimately and not being able to get it. The Minister, who is a senior practitioner, should be ashamed of that, as should her colleagues.

The effects go far beyond that. Legal aid was often at the forefront of important test cases in establishing and developing the law. That has gone in many cases. I cannot emphasise enough that having an effective system of justice, and particularly challenging the decisions of the state and other powerful institutions, promotes good behaviour. It stops bad landlords and bad employers doing what they want to do, because they know that they are subject to legal challenge. Again, that has gone. I am sure that that is deliberate on the Government’s part, but they should dwell on it.

It affects the operation of the whole justice system. The courts are now overwhelmed with litigants in person. With all due respect to litigants in person, in complex areas of law, particularly when there is an inequality of arms and the other side is represented and they are not, or even when there are two litigants in person, it is very difficult for justice to be done. What a difficult and insidious position that puts the tribunal in, where the established adversarial process of law, which has grown up over several hundred years in this country, is suddenly turned into an inquisitorial one, where the judge has to suddenly act in the role, effectively, of both counsel and an interventionist, rather than simply as somebody who is keeping order and arbitrating in proceedings. The Minister may think that I am exaggerating, but the rights of defendants in the courts have been established over many hundreds of years, and an important part of that has been established through legal aid in civil justice, as it was previously in criminal justice, over that time.

I wish I could be in two places at once, because I would like to be taking part in Second Reading on the Civil Liability Bill. That is another strong attack on the justice system in this country, where another swathe of claimants will be prevented from getting justice by arbitrary decisions by the Government. That says to me that the Government have not learnt their lessons from LASPO, and therefore it is very unlikely that the review will get us where we want to go.

I would love to be proved wrong, but in fact we are seeing the effect not only of the lack of representation and advice, but of the huge, swingeing cuts in the Courts and Tribunals Service, which have led to court closures, the inability of courts to function properly and the inability of the prison system to function properly, which was referred to in the main Chamber today.

The Minister took over at a rather difficult time, when the fruits of austerity were becoming apparent across the Ministry of Justice which, as my hon. Friend the Member for Westminster North said, has suffered the largest cuts of any Department over the last seven or eight years.

I made my opening speech in a political debate and it lasted for a mere three hours—you would not consider that to be a long speech, Sir Christopher. However, the point I wanted to emphasise was that legal aid was an important part of the welfare state settlement. It was about looking after vulnerable people; it was about providing a safety net; and it was about providing justice and equality for people. That is how important it is to our society and that is what LASPO has destroyed.

When the Minister replies, she may not be able to deal with all the points that my hon. Friend has made. However, I hope that when the Government give their response to the review, they will dwell on that point, as well as on the individual points and the individual cases that are crying out for justice.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs) 7:01 pm, 4th September 2018

It is a pleasure, Sir Christopher, to serve under your chairmanship.

I congratulate Ms Buck on securing this important debate. It has been a pleasure to work with her on these matters in the Joint Committee on Human Rights and I very much admired her tenacity in getting to the bottom of things. As she has said today, this issue is fundamentally about access to justice; it is one of Lord Bingham’s eight principles that are fundamental to the rule of law that there should be equal and ready access to justice.

As the hon. Lady explained in her speech, the Equality and Human Rights Commission is very concerned about these reforms in England and Wales, because it feels that they have restricted access to justice. Ensuring that there is access to justice is a principle that is required not only by the common law of England and Wales, and indeed by the common law of Scotland, but by article 6 of schedule 1 to the Human Rights Act. As the hon. Lady went on to say in her speech, the Equality and Human Rights Commission, like other bodies, has underlined the fact that there is evidence of a disproportionately negative impact on people who share certain protected characteristics, such as disabled people, as a result of these so-called reforms. The commission has also said that there is evidence that LASPO has limited access to redress for breaches of human rights and for discrimination claims.

Hugh Gaffney raised an important issue. I know about it because I have to declare an interest from a previous life, when I was a practising member of the Scottish Bar and did a lot of legal aid work for people who had had accidents at work. It has been very important over the years for ordinary working people to have access to legal aid in order to realise their rights, and we must take very seriously anything that undermines that. Like the hon. Gentleman, I am anxious that there should be access to justice south of the border, as there is north of the border.

In my speech today, therefore, I will take a few moments to outline the findings of a recent independent review of legal aid in Scotland, which may be of assistance to the Minister as she considers how to deal with the shortcomings of the current system in England and Wales.

Despite a succession of cuts to the Scottish budget by the UK Government, the Scottish Government are committed to promoting access to justice, and they have managed to maintain a much fairer system of legal aid, with much wider scope and eligibility than exists south of the border. The hon. Member for Westminster North will recall that those of us who serve on the JCHR heard evidence about this from a number of witnesses. In particular, we heard evidence about an independent review of legal aid that was carried out in Scotland earlier this year. It was independent of Government; it was chaired by Martyn Evans, the chief executive officer of the Carnegie UK Trust; and it reported at the end of February this year.

I am not saying that the Scottish legal aid system is perfect—indeed, Martyn Evans suggested some ways in which it could be reformed—but crucially he found that, although the Scottish Government spend less per capita on legal aid than the UK Government spend in England and Wales, the scope of legal aid in Scotland is broader, and a larger percentage of the population of Scotland is eligible. The report shows the contrast between what is done with a smaller budget in Scotland and what happens in England and Wales.

As others have said—Andy Slaughter made an eloquent speech—according to last year’s figures from the Ministry of Justice, legal aid expenditure in England and Wales has been cut from £2.5 billion to £1.55 billion in real terms in a few short years. In England, that has led to a substantial reduction in the scope of family, social welfare, debt, housing and immigration cases. We do not have the same problem in Scotland. Legal aid is still available for family, social welfare, debt, housing and immigration cases, and the Scottish Legal Aid Board manages to make it available, despite spending less per capita. Do not take my word for it; take the word of the independent review.

The independent review looked at three key areas of legal aid in Scotland—scope, eligibility and cost—and compared the service in Scotland with that of other jurisdictions in relation to them. On scope, it found that the provision of criminal legal aid in Scotland compares very well with other systems. In almost all criminal cases prosecuted before a jury, the accused receives legal aid, which potentially pays for the best criminal defence lawyers available. I can vouch for that, not because I was one of them, but because I used to have to prosecute people and I regularly found myself up against some of the best criminal silks in Scotland, who were paid for by the legal aid fund.

For civil legal aid in Scotland, the scope is also broader than in many other jurisdictions, with comparatively few areas excluded. Approximately 70% of the population of Scotland are eligible on the basis of income for a degree of civil legal aid to fund at least part of their actions. That is one of the highest levels of eligibility in Europe.

On cost, Scotland’s expenditure per capita exceeds €30—it is in euros because this is European research. The European average is €9 a head, and the median is €2 a head. The figure spent in England and Wales is €38 a head, and in Scotland it is €33. That shows that it is possible, with a lesser spend, to have greater scope and greater eligibility for legal aid.

The report found that Scotland is one of the leading jurisdictions in Europe for the provision of legal aid on the basis of scope, eligibility and expenditure. In drawing attention to that, I do not say that the situation is perfect in Scotland. I am sure many of my former colleagues would want me to say that they do not think it is perfect, but lawyers will always moan about legal aid. What we as politicians must be most concerned about is access to justice for our constituents.

Does the Minister agree that the Scottish experience shows that, with less spending per capita, it is possible for legal aid to involve a wider scope and more eligibility, and to cover the sort of cases that hon. Members are concerned are not covered at present in England and Wales? Will she look to the Scottish example to see how the system in England and Wales can be reformed? Will she consider commissioning, rather than the in-house review of LASPO, an independent strategic review of legal aid in England and Wales similar to the one commissioned by the Scottish Government, about which I have spoken today?

Photo of Yasmin Qureshi Yasmin Qureshi Shadow Minister (Justice) 7:08 pm, 4th September 2018

It is a pleasure to serve under your chairmanship, Sir Christopher. I congratulate my hon. Friend Ms Buck on securing this important and timely debate, and on the excellent points she made in her speech. I commend the work she does as chair of the all-party parliamentary group on legal aid. Her record on this issue is outstanding, and her spirited defence of legal aid was stupendous.

Before I come to the crux of my speech, I acknowledge the hard work of my hon. Friend Andy Slaughter, who was the shadow Minister who led on the LASPO Bill in the Parliament of 2010-15. At that time, I was on the Justice Committee. I remember the hours of work that my hon. Friend put into the scrutiny of that Bill. The sadness of it is that many of the predictions he made, and those of the Justice Committee that examined LASPO at the time, have come to fruition. All the warnings and worries that we had then have turned out to be justified now. That is really sad. I do not think any of us wanted to be proved correct; we would have preferred to be proved wrong, but we have turned out to be correct.

The reforms have caused an enormous amount of sadness and misery for many ordinary people who are not familiar with the legal system. Often they are not the most literate people, who may not have the most excellent advocacy skills and are probably coming to the judicial system—criminal or civil—for the first time. Most are utterly bemused, and do not know what they are doing. I am sure many Members of Parliament have constituents who have come to them with such problems, and will know that most of them are completely confused, are not sure what to do, do not know their rights and do not have the finance to afford legal support. Because there is no legal aid, they cannot access a solicitor or a barrister or get legal advice.

My hon. Friend Hugh Gaffney spoke about the problems of tenants and landlords. It is a shocking situation that many people now live in squalid accommodation but cannot do anything about it and do not know their rights. In any case, enforcing any of their rights costs too much. They live in squalid accommodation, and their options are to shut up or try to move elsewhere—and often the alternative accommodation they could move into is not great. That is another area where vulnerable people are affected.

My hon. Friend the Member for Westminster North spoke about immigration—another sector where there have been big cuts in legal aid—and particularly the impact on children and families. Immigrants are not flavour of the month in most parts of the world, but they are human beings with children and family ties, who have legal rights and need to be able to access legal advice. There has been a massive reduction in their ability to understand what their rights are in trying to keep their family unit together.

Those are just two areas. We also know about people who are employed but who are in not particularly good working conditions or have employers who are not the fairest, and they cannot access employment tribunals. Many people with health issues cannot get advice on the benefits they may be able to get or, if they have a disability, on what their rights are. Such vulnerable groups are badly affected. Prior to LASPO, a reasonable, decent amount of legal aid was available and accessible. A lot has now gone.

We have also talked about ordinary family law cases, not just family law issues in relation to immigration—where parents may be going through divorce or separation, or where children are involved. That is a lot of stress for families. Often, they cannot go and get legal advice because, frankly, they cannot pay for it, and that causes distress.

Even if we ignore the human costs of the changes in legal aid, our court systems have not benefited, either. I distinctly remember hearing from a number of judges sitting in the civil courts, who came to give evidence on LASPO to the Justice Committee. They said, “One effect of the legislation will be that you will have a lot of unrepresented litigants turning up in court, taking more time, clogging up the court, which in the end will cost us more.”

Let us face it: even an hour in a county court, a magistrates court or the High Court costs thousands and thousands of pounds, because there are all the costs of running the court and paying people. When there is an unrepresented claimant or person before the court—or a defendant, in the criminal courts—they can take up a lot of time. Any saving of a few hundred pounds that might have been made by preventing them from getting the preliminary advice that could have helped them ends up being wasted, because the courts will, and do, take longer to deal with those cases and those cases clog them up. I think that if hon. Members speak to judges, they will find that that problem is still occurring.

Of course, one of the things the Government plan, which we have not touched on but which will have an additional impact on unrepresented people, is the increasing introduction of virtual courts and online court systems, where they will not be speaking to anyone, nobody will be able to guide them and they will be even more confused. One of our great worries in the criminal justice system is that we may have people pleading guilty or making admissions to things they should not.

As a practitioner in the current system—in which we do not have so many virtual courts—I remember being in court when somebody would come in who was unrepresented. Many legal professionals in court, when they hear that somebody is not sure about their case, will often give them voluntary advice and guidance or signpost them as to where they should go. That will not happen in a virtual court. The availability of legal aid becomes even more important in this technical age, where there will be less interface with people and there will be fewer people able to guide litigants.

I am sad that the Government, even now that they are carrying out a review, are taking so long about it. We were told we would probably have the review by the end of the summer; now we are talking about the end of the year. My first question for the Minister is, when will the review be completed?

The second question that I hope the Minister will answer is, in light of what we know is happening, will there be any real changes to legal aid to make it applicable and available to many more people? The Ministry of Justice must be aware of the issue that I and other hon. Members have raised about the effect on people’s lives. It is pointless to have rights if we cannot enforce them; they might as well be meaningless if we have no mechanism to enforce them. The lack of legal aid means that those rights often cannot be enforced for the people who are the most vulnerable.

Another problem that has occurred as a result of the legal aid cuts is that even those people who might qualify for legal aid often find that there are not enough lawyers out there who are willing to do legal aid work, because the rates have gone down. The Government’s attitude is, “These are all ‘fat cats’ or people who are living a lavish lifestyle.” That is not true. Most legal aid lawyers are not fat cats or people earning hundreds of thousands of pounds; they are just trying to make a reasonable living. Therefore, it is more difficult to find people who can do legal aid work, and many small high street firms have closed down because they cannot afford to continue to run a practice. Even when people are able to get legal aid, finding lawyers who will do legal aid work for them is problematic.

I ask the Minister to look at this issue again. Legal aid was introduced by a Labour Government in 1949 as one of the benefits that people need the most, and I hope the Minister and the Government will reconsider the whole issue of legal aid and make it much more widely available to people.

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice 7:19 pm, 4th September 2018

It is a pleasure to serve under your chairmanship, Sir Christopher. I thank Ms Buck for bringing the debate. I acknowledge her work, as others have done, as chair of the all-party parliamentary group on legal aid. I am delighted to have the opportunity to respond, because legal aid is an important part of our legal system. It is fundamental that individuals have access to justice—the ability to determine their rights in a fair and impartial way—and, as the hon. Lady said at the beginning of her speech, legal aid is an important part of the process for those who cannot afford to pay for legal representation.

Before I address many of the important points made, I want to make three points, which concern the amount of money we have invested and continue to invest in legal aid, the recent steps we have made to expand the scope of legal aid, and the significant investment we are making in our justice system, which will assist all litigants more broadly. First, on spending, it is important to recognise that the Government spend £1.6 billion a year on legal aid, which is a fifth of the Ministry of Justice budget. That is in addition to other sources of funding to ensure justice and the fair determination of rights. For example, in the last three years we have spent almost £6.5 million in addition through the litigants-in-person support strategy to help people to navigate the legal process.

Secondly, in recent months the Government have increased the scope of legal aid in a number of areas, as Andy Slaughter kindly highlighted. In January, we broadened the accepted evidence for domestic violence and removed all time limits. Since then, in the first quarter of this year, there has been a 21% increase in applications for legal aid for domestic violence and a record number of legal aid grants were made.

In February, as the hon. Gentleman mentioned, we broadened the scope for legal aid for prisoners, and in June we updated the legal guidance for inquests on cases involving deaths in custody. In doing so, we have ensured that the starting presumption is always that legal aid should be available for such cases. I have also recently committed to laying an amendment to LASPO before the end of the year to bring immigration matters for unaccompanied and separated children into scope of legal aid.

Thirdly, it is important to mention that the Government are making a significant investment to transform our courts and tribunal services—we are investing £1 billion to bring our justice system into the 21st century. That helps vulnerable people in a number of ways. It enables traumatised and vulnerable witnesses to give pre-recorded evidence. It enables those who find it difficult to travel to court the opportunity to take part by video link. It enables those who are time-pressed to make applications to court online, for example, for divorce or for probate. It enables those who wish to resolve money disputes up to £10,000 to make claims online and, should both parties agree, to settle without going to court. It also enables those making welfare claims to do so online, get updates about those claims online and deal with queries and issues before a hearing by liaising with the judge online. All those mechanisms and that investment make our justice system more accessible and more available to all. The Government are investing in our justice system in so many ways to protect the vulnerable and to facilitate justice outside the provision of legal aid.

I turn to the changes made by LASPO. The hon. Lady rightly highlighted that the Joint Committee on Human Rights on which she serves recently published a report, which I read with interest. She and Hugh Gaffney are right to identify that changes were made to legal aid by the coalition Government through LASPO in 2012, but it would be wrong not to mention the context in which those changes were made.

When the programme to reform legal aid commenced in 2010, the scale of the financial challenge facing the Government was unprecedented. As the then Chancellor said in November 2010, the Government faced

“the greatest budget deficit in our peacetime history”.—[Official Report, 29 November 2010;
Vol. 519, c. 529.]

The Government’s financial deficit for the fiscal year 2010-11 was almost £144 billion, according to the Office for National Statistics. The savings required from public services to cut the deficit were substantial, in which circumstances the Government made difficult choices. They rightly focused their resources on the most vulnerable people in our society and set the following principles for LASPO: to discourage unnecessary and adversarial litigation at public expense; to make significant savings to the cost of the scheme; to deliver better overall value for money for the taxpayer; and to target legal aid at those who most need it.

The hon. Member for Westminster North was right to identify that we are in the process of a review. My officials have met more than 70 organisations to gather evidence from across the justice system. Over recent months, I have met representatives of Resolution, Women’s Aid, the Law Centres Network and the Low Commission to gain a greater understanding of the impact of the legal aid changes. I am also pleased to have recently led a number of roundtable discussions focused on topics such as domestic violence and improving the use of technology in the justice system. Those discussions, and this debate, will better inform our thoughts and views on the LASPO review.

I will respond to some of the points made by hon. Members from both sides of the House. In the short time that I am on my feet, I will not have time to address all the points that the hon. Member for Westminster North made, but I will take up her offer and address those that are outstanding in writing. I will try to go through as many as I can in the time remaining. Many hon. Members asked about the timing of the review. The Government remain committed to responding by the end of the year. The hon. Member for Westminster North suggested that there was a lack of transparency, which I hope is not the case. I have mentioned the large number of third parties with whom we are engaging and having extremely transparent discussions. In July, we published an update on gov.uk about the progress of the review, which included the agendas of the consultation groups.

The hon. Lady started and finished with the impact of the changes on providers, which she said meant that providers were closing. She asked how we were going to deal with that. The Legal Aid Agency regularly reviews market capacity to assess capacity around the country. In a recent retender of face-to-face contracts, it received tenders from more than 1,700 organisations that wished to deliver face-to-face civil legal aid work. Those organisations submitted more than 4,300 individual bids, so it is confident that a good quantity of people are providing work at the moment.

The hon. Lady mentioned solicitors more broadly and the recent Law Society study. There is a further study in relation to the age of the profession, which I have looked at with interest. I am meeting the Law Society this month to discuss that and several other matters. In relation to barristers, we recently launched our consultation on the advocates’ graduated fee scheme, with a commitment to put a further £15 million into criminal advocacy.

The hon. Lady mentioned exceptional case funding and human rights. Quotes and figures were given about the start of the exceptional case funding scheme. Concerns have been expressed, but it is important to point out that the number of applications has risen significantly in recent years. In the first quarter of 2018, 745 applications were made through the ECF, which is a 40% increase on the previous year. Not for the first time, concerns were also expressed about the telephone gateway. As a result of those concerns, I recently had a meeting in Nottingham with the Legal Aid Agency and the provider of the telephone gateway service to understand how that service operates. I was interested to hear that they say that more than 90% of people find the service helpful, but I will continue to look at that.

Briefly, Joanna Cherry mentioned the Scottish law review. I have read it, and it is interesting that some of the ideas in it are already being put in place by this Government—for example, video links and the online court. I have not been able to address all the points that have been made in the debate, although I would have liked to, because these are important matters. However, I am pleased that I have had the opportunity to touch on some of the issues that are so important to the House.

Motion lapsed, and sitting adjourned without Question put (Standing Order No.10(14)).