I beg to move,
This this House has considered the spending of the Ministry of Justice on legal aid.
It is a pleasure to see you in the Chair today, Mr Robertson, and to move this motion on behalf of my colleagues on the Select Committee on Justice, which I have the honour to chair. I am delighted to see a number of colleagues here today.
People might think that spending on legal aid is a technical and rather dry subject, but it is not, and nor should it be, because ultimately it is about access to justice. When preparing for today, I was struck by a comment from the late Lord Diplock, one of our very distinguished jurists, who said:
"Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access.”
The last point is important. It is the realistic ability to access justice that is important, if we are to talk about genuine access to justice, as opposed to the theoretical.
Rightly, after world war two, the legal aid scheme was set up under the Legal Aid and Advice Act 1949. Governments of all parties have sought to provide means of access. To quote another distinguished late jurist, Lord Bingham:
“Denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law”.
In a democracy, we are all committed to the rule of law. We debated it not long ago in Westminster Hall, Mr Robertson. To achieve that, it is important that those who have rights that they seek to enforce have a means of going to the courts to do so. They should not be constrained in exercising those rights by their means. The test ought to be the merits of their claim, rather than the means they have to bring it. In the same way, in criminal matters, those whom the state charges with an offence are entitled to a proper means of putting the state to proof as to whether that offence is made out against them. Their ability to do that should not be constrained by their means either. The test in a criminal case should be whether the state can prove the case against them on the merits and the evidence, to the appropriate standard. Those are basic things we all sign up to.
We have to ask how we can do that effectively in reality, in circumstances where many of the population find affording to pay for litigation, which no one embarks upon lightly, not viable or within their grasp. It is not just about litigation. I remember that when I started as a young barrister—I refer to my declarations in the Register of Members’ Financial Interests—some of the most important things were those done through the green form scheme, such as giving important early advice on whether a contract case, or a case for possession of property, or a matrimonial case, had merits. It is not purely legal criminal matters that we are concerned with. Often, that early advice saves a great deal of trouble for individuals and for their families, either enabling them to resist an unfair claim against them, or warning them off pursuing an unwise course of action that might get them into more expense.
Access to justice and an effectively functioning legal aid system are in everybody’s interests and a societal good. Governments of all complexions have had to balance the need to do that with the need to sustainably fund it at times when there are other pressures on the public purse. It has struck me throughout my time in this place, that governments of all complexions have, from time to time, reduced spending on legal aid. No one is entirely free of that, and it is almost inevitable at a time when the Ministry of Justice also has to deal within its budget with prisons, probation and many other matters. It is very easy for legal aid spending to be seen as one of the more discretionary elements in the system and to be squeezed out.
That is why on a number of occasions over the years the Justice Committee has carried out inquiries and issued reports on spending on legal aid and its sustainability. Indeed, very recently we conducted an inquiry into legal aid in the context of the pressures placed on the legal profession and the court system by the covid-19 pandemic. We have now embarked on a fresh inquiry into the future of legal aid; we started it on
Of course, the current statutory basis of legal aid is the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO, but the Government have rightly undertaken to review that. There have been delays in that process and it has taken some time, but we need to see how effective that Act is. Some of the changes it made were sensible; others have not necessarily stood the test of time and we need to be honest about that. Perhaps the problem was that the introduction of LASPO was linked with a very significant reduction in legal aid spending. It was not the first time that had happened; the Labour Government before the coalition reduced spending on legal aid quite significantly in a number of areas. Now, however, we have a chance to consider what is a sustainable basis for legal aid. I hope that eventually we reach a degree of consensus so that legal aid ceases to be something of a party political football, which any type of public spending can sometimes become. I hope that the Minister will be able to update us on the progress of the Government reviews.
That does not mean that in the future we have to deliver legal aid in exactly the same way as before. However, it is important that people should have access to early advice, and there is no doubt that, for various reasons, the financial pressures on the system are creating real difficulties in delivering to people the level of service that we would wish to see. I note the briefings that have been provided by both the Law Society and the Bar Council in that regard.
As many will know, I spent most of my life in practice at the criminal Bar. A great deal of my work, either prosecuting or defending, was publicly funded. There is no doubt that there is a real problem now in attracting bright young lawyers, either solicitors or barristers, to undertake that sort of work. The cases that I worked on started with a solicitor attending the police station—in those days, the duty solicitor scheme had been brought in quite recently. We have heard compelling evidence over the last two or three inquiries, and indeed over the last two or three years, from solicitors and other practitioners that there is now a real dearth of people who are willing to undertake the fairly onerous task of turning out, sometimes in the middle of the night, to sit in a police station when somebody charged with an offence—often a serious criminal offence—is interviewed. It is part of that person’s constitutional right—part of ensuring both that the guilty are properly prosecuted and the innocent are defended—but in many areas now it is very hard to find legal aid solicitors available to undertake that work. The average age of a duty solicitor is pushing 50, whereas the average age of those in the legal profession as a whole is much younger, so disproportionately legal aid work is becoming an older person’s part of the profession. If we do not recruit new people to do the work, the supply of duty solicitors will dry up.
In the civil field, there is a geographic difficulty regarding the availability of housing advice; that was a particular example that we were given. I suspect that post covid more people will be in financial difficulty, facing problems of debt, and housing possession actions will loom even larger in the courts. However, in many places, including quite large local authority areas, it is physically very hard to find more than one legal aid practitioner who will provide advice on housing law for people. That is not a sustainable position.
The position is similar at the Bar. Even large specialist sets of criminal chambers—such as mine, and I suspect the Minister’s—will probably say anecdotally that far less of their work is publicly funded than was the case in the past. That bears particularly hard on young barristers just starting out, who very often cut their teeth on this sort of work. We need a sustainable means of making sure that people can make a living. I am not talking about a grand living—one of the most unpleasant and annoying things for those of us who understand this area is these ridiculous headlines about fat cat lawyers doing criminal work; that is simply not the case. The facts clearly demonstrated to our Select Committee in reports over the years show that that is not the case, but of course the easy headlines make the most noise, as far as public debate is concerned.
We have recommended that a particular focus should be given to ensuring that we can uplift the funding for criminal legal aid. I recognise that the Government have put more money into this and revised some of the payment schemes. I welcome that, but I say to the Minister that there is more still to be done. Particular issues have been raised with us about interim payments to ensure that at the present time, during the covid-19 pandemic, cash flow for solicitors firms and sets of chambers undertaking publicly funded work continues to be available.
I know the Minister had an important role in securing the valuable money that has been expended in support for legal advice centres. That is important and welcome, but we need to ensure that they are put on a sustainable footing, too. There is a concern about the very high level of administrative costs in the Legal Aid Agency. An administrative budget of £88.8 million seems an awful lot for the organisation, which is supposed to be a light-touch operator.
That comes against the background—as the Minister himself rightly said when he was a distinguished member of the Select Committee—that spending on legal aid is a fraction of a fraction of total public spending in the United Kingdom,; it has been said to be about 0.1% of total spend. We are not talking about large sums of money in the overall scheme of things, but those sums of money make a profound difference to the citizen’s ability to enforce their rights or to defend themselves against unjust accusations.
I have not had time to talk about family or civil work, but I know that some of my hon. Friends will show their expertise in those areas. I will, however, make two points. Since certain changes were made, there has been a real collapse in the number of people able to access the employment tribunals. I suspect that, given the pressures of an economy damaged by the pandemic, demand will grow in that area.
It was always thought that changes to family legal aid would lead to more mediation. In fact, we found that mediation fell through the floor, because early access to the lawyer was the gateway for pointing people to go into mediation as a cheaper and less confrontational means of resolving their family disputes. Actually, the risk is that some of the savings that were taken out have not been cost-effective; they have been false savings, because there has been a growth of litigants in person, making the cases longer to deal with, resulting in greater burden on the judges and court time, and less good outcomes for the individuals and society as a whole.
I know the Minister understands these matters much better than most. I hope that the Government will commit to continue the review of LASPO in a timely fashion, and that we will not be afraid to come to certain interim conclusions and put some interim money in, where it is appropriate and justified by the evidence, to keep the legal aid market sustainable under the current pressures. I hope we will take a broader view about the sustainability of legal aid going forward.
Finally, perhaps all of us could use this as an opportunity to improve public awareness of the importance of the law. The law is not a purely transactional matter. I think Lord Kerr put it well in the Unison case. This is not purely a matter of private concern between the individuals; there is a public good in access to the courts. It is important constitutionally that people should be aware of their rights and how they enforce them.
We should not be afraid, therefore, of saying that any civilised society should resource its justice system just as much as it would resource any other social service—as much as we would expect to resource education, care for the elderly, healthcare or housing. Those are all matters that we would regard as part of the fundamental social fabric. Access to a workable court system is an equal part of that, requiring proper funding of the courts and judiciary, as well as, where appropriate, ensuring that those who have meritorious claims—a test to ensure that is fair—are not deterred purely by want of means from bringing them.
I hope that serves as an introduction to this debate. I have tried to explain why we think this is important, and why we regard the inquiry that the Select Committee is currently undertaking as important. I hope the Government will be able to respond positively.
It is a pleasure to have you in the Chair for this debate, Mr Robertson. I congratulate the Chair of the Justice Committee, Sir Robert Neill, on securing the debate and on the content and nature of his speech, which I think will strike a number of chords across the Chamber. He made, as always, a powerful case for the principles on which legal aid rests. It underpins the rule of law in this country. If people are unable to access representation in civil and criminal cases, the rule of law is effectively denied to them. That is a powerful and important point. He also laid out some of the ways in which the pressures on the legal aid system are affecting individuals and communities, which I am sure will be reinforced, and which I certainly intend to reinforce myself.
[Siobhain McDonagh in the Chair]
Two years ago almost to the week, I was fortunate enough to open a debate in this Chamber on legal aid and to set out a number of the facts of what has happened to the legal aid service in the years since the LASPO Act was introduced. The grim truth is that, in almost every respect, the situation has got worse in those two years, and I will refer to a few of the figures in a moment. However, I particularly want to adopt as the context for my comments—as was briefly introduced by the hon. Gentleman—the impact of coronavirus. Grave as the situation was before, we are about to enter a period in which all the inequalities in access to justice and in the experiences on which that rests will become significantly worse.
We all have different experiences in different parts of the country, but I can say that my case load as a Member of Parliament has doubled in the past six months or so. Of those cases, a worrying—indeed, terrifying —number are outside my capacity to do anything about. They include people seeking urgent advice, help and representation on aspects of their lives that have been fundamentally disrupted by covid, particularly in the area of employment. Although there are sources of advice out there, and although—I will reinforce this again in my comments—I am lucky, in terms of the access to services that I have in my part of inner London, it has been absolutely terrifying how little assistance there is to refer people to.
I spoke to my local citizens advice bureau, which is superb, about that demand and about the early advice that it has been able to give. It told me that it received 6,000 separate inquiries between April and June, with 1,400 about social security—people losing incomes and jobs—1,000 housing-related inquiries and 500 employment- related inquiries, covering self-employment, redundancy or dismissal, the furlough scheme and access to employment tribunals.
It is absolutely clear from my case load, the citizens advice bureau’s and many other organisations’ that under the surface of the volume of need for advice, advocacy and representation, some of it is a need for early help and some is a need for being guided to the right kind of advice for people to make the right decisions in their own circumstances. However, it conceals a significant number of cases involving rogue employers or rogue landlords—sometimes rogue employees and claimants too, it must be said—where people are at severe risk. They are being exploited and need legal representation, which they are unable to get. I do not consider myself able to give any form of employment advice, so I have to signpost people to sources of help that are often simply not available to them.
I have had to deal with the number of illegal evictions during these past months. There was an evictions ban, now lifted by the Government, during the worst of the coronavirus months, but we know that people have been exploiting the vulnerability of a number of tenants and there have been illegal evictions. We need to be able to provide representation for those individuals. While we all agree that early help is a good thing and is frequently lacking, access to a legal aid solicitor is crucial in those circumstances, and far too often it is simply not forthcoming.
As I say, I am aware that we are well-resourced in London—nothing like compared with the level of need, but certainly compared with some other parts of the country. We know from the figures what has happened to the number of legal aid suppliers in different parts of the country. For example, when the LAA carried out its civil tender exercise in April 2013, it found that there were 3,500 civil provider legal aid offices, but as of October 2020 that had dropped to 1,774, or half the number of civil providers. In crime the picture is not so different: in 2013, there were 2,338 offices practising criminal legal aid. As of this month, that figure has now dropped to 1,058.
The number of providers has plunged and some parts of the country are simply deserts—we know the phrase—in terms of legal aid and access to services. As for access to civil aid in community care, the Law Society figures show that 37 million people in England and Wales are in a local authority area without a single community care legal aid provider and 37% of the population now live in a local authority with no housing legal aid providers at all. As need has intensified and as the coronavirus has exposed the level of need and vulnerability even more starkly, the providers are simply not there, and that is reflected in the expenditure figures and in the numbers of matter starts in all those areas of service.
We know how grave the situation is. We rely on legal aid lawyers now to carry out their work effectively, in some parts of the service almost for nothing. The level of remuneration is so poor that we rely heavily on the goodwill, dedication and vocation of legal aid lawyers to do this work. The Chair of the Select Committee, the hon. Member for Bromley and Chislehurst, referred to the kind of demands we place on people in the criminal service to provide services in the middle of the night in police stations, but in civil law we are also asking people to carry out work on very complex cases for an extraordinarily low level of remuneration.
At the same time, we are asking this overstretched and under-resourced service to cope with more and more demands on it. We have a constant, but increasingly faster, drumbeat of abuse of the legal profession: they are all too frequently labelled “fat cat legal aid lawyers” who are regarded as if they are growing rich at the public’s expense. Also, sadly all too frequently, there is this smearing by associating lawyers with political motivation and the label of “activist lawyers”, which is a highly dangerous way of labelling a profession. I am sorry to introduce a non-partisan element to the debate, but it is disgraceful that Ministers—I exempt the Minister who is here today—are not standing up for the legal profession in the way that they should. In not defending those professionals, they are undermining the rule of law, which we all agree that legal aid is such a central part of.
The need is greater than ever it was. If it was a dire situation in 2018 when we last had a full debate on legal aid, we are now on the edge of the abyss in terms of legal aid provision. As we say again and again, the expenditure is not great, proportionately in public expenditure terms, but the expense of failing to invest in legal aid properly is great. I am not saying for a second that rising homelessness is a consequence of the lack of legal aid services, but I do say that when people are unable to get proper advice and representation in dealing with debt or housing benefit claims, that is part of the reason that people lose their homes. We have seen street homelessness double and family homelessness increase by 50% in the last 10 years. Those figures are not wholly accidental and that is an expense that falls on other parts of the public purse. It is truly a false economy.
I am delighted that the Justice Committee is conducting its inquiry. The all-party parliamentary group is also conducting an inquiry; we will have the first meeting next week, looking at criminal legal aid. We are looking at legal aid in the context of the recovery from coronavirus, and it is absolutely right that we should do that. We need to embed our public policy in the context of a set of pressures that we have never seen before in this country; it cannot be isolated from that. I look forward to what the Minister has to say, but I echo what the Chair of the Justice Committee said: we need assistance for the sector and we need it urgently.
It is a pleasure to serve under your chairmanship, Ms McDonagh. I am grateful to the Chair of the Select Committee, my hon. Friend Sir Robert Neill, for securing this debate and for raising the points he has.
When I looked at the figures, the overall cut in expenditure for the Ministry of Justice since 2010 was about 38% and the reduction in legal aid spending was about 18%. My first question to the Minister is, was it worth it? Have we cut out a tremendous amount of abuse of the legal aid system, or have we merely tinkered away at the edges or cut out things that we ought not to have? In that context, and particularly in the context of the overall reduction in departmental spend, just how much have the changes that are occurring in the legal system been recognised? Have they been factored into the changes to its budget and to the legal aid budget? There has been an enormous advance away from litigation to mediation and arbitration. I must declare an interest as an associate of the Chartered Institute of Arbitrators, which I happily do. The Minister and I were talking about it earlier. He was amazed that I had the time to be able to carry on any work at all, but there we are. There is an important point here, however. Yesterday, I spoke at a very big event, with about 200 mediators and arbitrators. The question that came up was: what we can do in order to get the message out? Many of the disputes of the kind that Ms Buck has mentioned can be better sorted by mediation, and occasionally by arbitration.
I pointed out that when I did an Industry and Parliament Trust fellowship in the law, I sat for the first couple of times with a judge in the commercial court. Both cases were quite complex, but personal—one was a lawyer who was complaining about his treatment by a firm of lawyers. The judge made the point that they should go away and conduct mediation before they came back to him. I have no idea whether that person was eligible for legal aid, but the point is that mediation can sort things out much more quickly, and it can do it much more cheaply. As chair of the all-party parliamentary group on alternative dispute resolution, I am trying to get that emphasis on mediation and arbitration pushed through the whole of Government and outside, so that people are able to take it on. There have been great successes. In family law, many people take mediation before they go into divorce proceedings, and I know from my own experience that that is done at a cut-price level. Again, I ask the Minister: has that been factored in? Is it part of the benefit that we are getting out of the reduction in legal aid?
The Chairman of the Justice Committee mentioned not-for-profit legal organisations, which provide a lot of experience. Education is needed there, too, about the fact that mediation is a better way of approaching things than going for expensive litigation in the first instance. I am pleased that the Government have put almost £5.5 million into that, but they need to look at the role that not-for-profit legal organisations play and whether they can be used in a far better way.
There is no doubt that this covid experience that we are all going through has changed how people access and want to access legal services. I am sure it has meant that a lot more people want to go for mediation and arbitration, rather than litigation. We should seize the moment to press these points home, enable people to do that and encourage the development of these skills in the legal profession, but not just there—one of the great advantages of mediation is the breadth of the types of people who have the skills to conduct it. I have to say that I think politicians are ideal to conduct mediation. We deal with it all the time when we resolve disputes between constituents and big organisations. I do not know about hon. Members in the Chamber, but I certainly approach that with a mediation bias, and use the skills that I have acquired in the process of looking at this. A lot of work could be done to ensure that the provisions are there for litigants in person to be provided with the right sort of legal aid to take this forward.
I will end on two questions to the Minister. First, what are the challenges for the future of legal aid, and has he taken mediation and arbitration into account? Secondly, what has been the impact of covid on legal aid? That is the basis on which we seek to provide the access to justice that so many people want, but they do not necessarily want it in court. As long as they get their access to legal justice somehow, they are very happy with that sort of solution.
It is a real pleasure to serve under your chairmanship, Ms McDonagh, and to follow the Chair of the Justice Committee, Sir Robert Neill; the chair of the all-party parliamentary group on legal aid, my hon. Friend Ms Buck; and a fellow member of the Justice Committee, John Howell. We have Laura Farris, a shadow Home Office Minister and the shadow Justice Secretary to come. I hope the Minister is taking that on board and realises the quality, if not the quantity, of what he has. I hope he is not thinking, “Oh, it’s Thursday afternoon in Westminster Hall. It must be Members from London and the home counties present.” I know he is a better man than that.
To save time, I would like him to make a series of admissions. I think he probably would admit that the cuts to the Ministry of Justice have been some of the highest, if not the highest, in any Government Department over the past 10 years, that legal aid has been in the frontline of those cuts and, indeed, that those cuts have gone too far. I think that is axiomatic: given that the Government are rowing back from some of the cuts now, there must be some appreciation of that fact.
I do not know whether I can stretch my luck and ask the Minister to admit that the premise of LASPO and the criminal legal aid changes that followed it was the wrong approach. As Members present will know, the main feature of LASPO was that it overturned 70 years of practice in legal aid. Instead of allowing matters to come within scope unless they were specifically excluded, it required matters to be entered into. The consequence was that the majority of welfare law, private family law, social welfare law, and a whole range of other disciplines—housing, immigration, and so on—was wiped out, or almost entirely wiped out. In practice, those disciplines were wiped out, because most firms could not keep going with what little remained in scope. That was a mistake, and I hope the Government will come to admit that. If they do not, I hope that a future Labour Government will reverse that trend, which has been detrimental to access to justice and equality of arms in the courts ever since.
I do not want to dwell on this too much, so I will race through what I think have been the developments over those 10 years. I am afraid that Ken Clarke, now Lord Clarke, who we all appreciate for his stand on Brexit and other matters, was the axeman in these cases, as he so often was in other Governments. He cut a swathe through civil legal aid in particular; that was not his area of practice, so I wonder whether that is a case in point. He was followed by the next Lord Chancellor, Chris Grayling, who caused the chaos and confusion in criminal legal aid that we are still living with to this day, not just through the cuts in funds but through the way in which it has been so shambolically reorganised. Of course, his reverse Midas touch is known across the piece in the MOJ, and is now a matter of legend.
A number of concessions were allegedly made in response to the Government’s many defeats in the House of Lords when LASPO was going through, which turned out to be nugatory. There were a number of significant—but again, small—victories in the court under judicial review in the areas of domestic violence, children’s law and refugee law, which corrected some of the worst features of LASPO. There have been several very moderate and well-reasoned reports over the years, such as the Bar Council report and the Low commission, which have tried to appeal to the Government’s better nature by saying, “At least look at these areas of law in which the most suffering has occurred.” Those reports have mainly fallen on deaf ears.
Finally, we got the review of LASPO, slightly beyond the five-year period in which it had been promised during LASPO’s passage. I distinctly remember that report, because it was a well-written report by civil servants that gave all the justifications for why LASPO was wrong, and then threw a few crumbs on the table at the end of it. Yes, it is welcome to have £3 million to support the now huge number of litigants in person; yes, it is great to have £5 million for innovation in the justice system; but compared with the hundreds of millions of pounds that have been sucked out, those sums of money really do not touch the sides.
I am struck by the fact—I noticed it in one of the briefings we had for today’s debate, from the Bar Council—that there has been a slight change of approach by the professions, perhaps because they have been bashing their head against a brick wall for 10 years. In the Bar Council’s spending review submission, to which it alludes in today’s briefing, it is almost starting from scratch: rather than saying, “Can you put this back into scope? Can you change this back?” it is saying, “This is the basis of what a modern legal aid system should look like.” It talks about access to early legal advice, non-means-tested legal aid for all domestic abuse cases, and early access on social welfare issues. Those are laudable aims, but I would nevertheless urge the Bar Council, the Law Society and other representatives of the profession not to give up yet, because I do not think we can turn our back on LASPO quite yet.
I heard what the hon. Member for Henley said, but my understanding of the briefings I have read is that there has been a cut of about 38% in legal aid funding over the past 10 years, from about £2.6 billion to about £1.7 billion. At its lowest point, it was £1.6 billion. In any case, there have been such large cuts that they have threatened the whole sustainability of the field.
The changes to the means test have excluded many people on low and moderate incomes from having any access to legal aid. We have the abhorrent the innocence tax. I am sure that if the Minister were speaking freely, he would say it is wrongly conceived and executed. It is a sin crying out for justice, if not vengeance.
The Chair of the Justice Committee said quite a lot about criminal legal aid, so I will not say a great deal about it. The most striking figure is the 8.75% cut in fees—until very recently there had been no increase in fees for about 20 years. There was a cut in 2014 and the net effect of that—the median net profit for practitioners after that—was minus 3%. In other words, businesses were on average running at a loss. Where else would the Government, even in their most intolerant mode, expect people to work for nothing or less than nothing and not complain about it?
It is equally true on the civil side. The number of providers of civil legal aid has been cut by half over the last seven years, but the number of cases starting has gone down by more than 80% over the period 2010, when austerity first came in, to 2017. A particular point of sorrow for me is the way that law centres and other advice agencies have been treated. I declare an interest as a non-practising barrister, but also as somebody who sat on the management committee of Hammersmith and Fulham law centre for nearly 30 years, and have seen it struggle for survival. Organisations whose very existence is to help other people in need were themselves living hand to mouth from month to month, just to keep going. Frankly, sometimes they were not able to provide anything like a comprehensive service. I am pleased to say that, thanks to the generosity of the local authority and others, but in no sense thanks to the Government, our law centre is now growing and thriving again. It is now almost entirely reliant on grant aid and charitable funding rather than legal aid starts.
The reviews that are under way have already been mentioned and we welcome them. I am pleased to be taking part in the Justice Committee and the all-party parliamentary group reviews. I hope they will throw up some arguable points to bring to the Government. I am also aware that the Government are themselves undertaking a series of reviews. Will the Minister tell us a little more about the scope and timetable of those reviews and their ambition? Part 2 of the criminal legal aid review was announced in August—part 1 did not do very much—but there is no timetable. Two years after we were first promised a review, there is still no timetable for the principle of sustainability and the majority part of that review.
We have a review of the means test—again, long overdue—but that was paused in June. What is happening on that? Although we do not have a formal review of civil legal aid, I will here quote from the Select Committee’s brief, which, as always, is extremely useful. The Lord Chancellor’s cover letter, which is attached to the Government’s response to the legal professions report, states that, alongside the legal aid means test review, the Government are
“looking into the sustainability of the civil legal aid system and will consider the delivery and contractual model for civil legal aid within this work.”
Again, that is long overdue. Can the Minister say a bit more about what is promised from those reviews?
In a way, it is dispiriting that we are still looking at reviews 10 years on. We all know about the level of need, but it is in the Government’s hands. Can we at least have a sense of urgency and a promise that if it is a fair review and serious problems are found, as I think will be the case—underfunding, or the way that the Ministry acts with the profession—they will be seriously corrected?
I repeat what the chair of the all-party parliamentary group, my hon. Friend the Member for Westminster North, said: it is not an auspicious time when we have the Home Secretary, and indeed the Prime Minister, making frankly childish and incendiary remarks about lefty lawyers, legal activists and things of that kind. It is trivial and it is what we have come to expect, particularly from this Prime Minister, but it has serious consequences, as we saw with the attack on lawyers’ offices. The specific aim of the attack—a man has been charged with serious criminal offences as a consequence—was to punish people for simply doing their job. Given the Minister’s distinguished career in the profession, I know he will share those views. I hope he is able to say them publicly.
We are told that the Lord Chancellor and the Attorney General have expressed their reservations privately to the Home Secretary. I know the Minister is a trusting and ambitious man in Government, and perhaps he will want to put on the record that he also deprecates those attitudes. It is a serious matter. We cannot expect the Government to deal fairly with the profession and, more importantly, with its clients—particularly their poorest clients, who go without representation now—if at the same time they are denigrating those who are trying to carry out this essential work.
I, too, thank the Chair of the Justice Committee, my hon. Friend Sir Robert Neill, for securing the debate. It feels to me like a really important opening to be talking about legal aid. Perhaps for the first time in about a decade, there is a real opportunity to shift the terrain.
When I was preparing for the debate, I returned to my earliest days in practice in order to remind myself what the atmosphere around legal aid was in 2007. We were swimming in such different waters. I read Lord Carter’s review of legal aid procurement, which had been commissioned by Lord Falconer. He was dealing with a system that he described as bloated and inefficient, and he talked about wasteful legal practices and the budget, which had swelled by about 35% to £2 billion. It kept on going from there, because by 2010 Jack Straw said on record that we were
“in grave danger of becoming over-lawyered and underrepresented.”
When we got to 2010, it was therefore inevitable that a Government of any stripe would have to make some tough choices about legal aid. Then we got to LASPO. It is fair to say that those choices were deep and dramatic, and they affected the criminal side and the civil side, particularly by removing from scope housing and welfare and by circumscribing a lot of education law —apart from special educational needs—and a lot of private family law, as has been observed.
When the post-implementation review was published last year, some people said it was overdue, but it was a really important moment to take stock. I want to focus my remarks on a few conclusions that emerge from that. I will start with aspects of civil law, then I will talk about criminal law. On the civil law side, one of the things that really came through from the review concerned representation. Access to justice has a number of component parts, and being able to access affordable representation is one of them. Any significant cut to legal aid runs the risk of denying the people who most need recourse to the courts the ability to get legal advice and representation. It does not matter whether we limit the scope of claims that qualify or reduce the eligibility thresholds. The reality is that it leads to two outcomes: either the person abandons their claim, in which case there is a rank denial of justice, or they proceed with their claim on their own. A lot of judges have either written or spoken about what that means in court: pressure on court staff and judges having to act as quasi-lawyers and perform the representative function. It leads to delay, inefficiency and extra costs, and, in my own experience, it sometimes does not lead to the right result.
There has been investment—I think it is £3 million—in the legal support grant for litigants in person, and there was more previously, since 2015, but I hope that when the civil legal aid review is undertaken, this sphere will be kept under close review and investment considered.
The second thing I want to talk about is the quality of support available for early resolution. When Baroness Hale retired and did her circuit of valedictory speeches, I was struck by the fact that in almost every single one she talked about legal aid. When she addressed the Legal Action Group last April, she did an exercise where she imagined herself as a hypothetical mum in her hometown of Richmond—I think there is a military barracks in Catterick—and she created an example of a serviceman who had come back from war. He was drinking, the relationship with his wife had become violent, and social services said that they would take the kids into care unless she resolved it. So she needed to separate from him and get herself housing and a non-molestation order. She needed to make arrangements.
Baroness Hale took herself to the library in Richmond. Approaching it as the young mum, how could she find out what she had to do and who would help her? It is not all bad; it is not a story with a terrible ending. She found quite a lot of information, but she said that the picture was patchy in terms of the level of the service offered and the extent of the information available. She said that developments in online information and filing may help to iron out the differences, but they do not make up for the lack of properly informed advice from a skilled person who is not necessarily a lawyer, who can not only give advice and information but set about doing something concrete to help, whether that is making calls, writing letters or filling in the court forms. She said that she believed the Secretary of State understood the problem and was trying to think creatively, but that where securing the right result depends more and more on the early resolution of claims, the focus must remain on the accessibility of adequate legal advice.
I think I am right in saying that law centres have got all the money that they asked for during the crisis, but also that they have a backlog and there are delays, so the funding of not only law centres but equivalent services is something that the MOJ should keep a particular focus on.
On criminal legal aid—I need to use the right expressions—the August announcement was part of the accelerated asks scheme. I know that it is welcome and viewers will know that the criminal Bar or criminal lawyers have said that it is not enough. It is fair to say that—I do not want to say too much—it has been a really long road for criminal practitioners and criminal legal aid. I will confine my remarks to the point about retention and diversity, which is so important. The nuts and bolts of how each piece of work gets remunerated will be a question for the next stage of the review, but it should be informed by a sense of who we want to recruit and retain to do this difficult and important work. This question has to be asked: what is the pathway for a young person who does not have any public funding and is considering a career at the criminal Bar? They can use the Inns of Court scholarships to get them to the door, but then they have to try to earn a living.
I spoke to a practitioner yesterday, who gave me a really neat case study. She said that if someone was a young junior in her chambers and they covered a sentencing hearing, they would have three to four hours of prep and maybe two hours on their feet, so six hours’ work for a case where the stakes are high. It concerned the deprivation of liberty and the person might be looking at 10 years behind bars. For that they get a standalone fixed fee of £126. That has a chilling effect on not only recruiting talent, but retaining it.
One of the most eye-catching features of the Government’s published response in August was at the end. I am sure that others noticed it, too. It was the equality impact assessment where they said that the focus of the funding was about proportionately increasing fees at the junior end of the criminal Bar, and that is where we find the majority of ethnic minority practitioners and the majority of female barristers. We know that this kind of diversity at the junior end of the Bar is not just desirable, but essential. It is from there that you get the pipeline into silk and the pipeline into the judiciary. If we do not act, in 20 years, we will have a judiciary that does not look as we would wish it to look.
The August announcement was interim, and a comprehensive review remains ongoing. It is an independent review, but the choices that follow it will be political. Of course I know that it is important that public funds for legal services are used efficiently and economically, but when it comes to early and effective legal advice, less is definitely not more. Also, remuneration for those engaged in the system has to be commensurate with the level of skill and expertise. It should be possible to say what a junior legal aid criminal practitioner should earn, and ask how we set about putting the mechanisms in place to achieve that.
It is a pleasure to serve under your chairmanship, Ms McDonagh. I will be as brief as I can.
I start by pointing out—as already mentioned by my hon. Friend Andy Slaughter—the cuts to legal aid since 2010. The budget was cut from £2.6 billion to £1.7 billion. For criminal legal aid, that figure dropped from £1.4 billion to approximately £897 million today. That is a huge cut. Those cuts were made by the coalition Government under the guise of austerity, which underpinned LASPO. The guiding principles of LASPO were to discourage unnecessary adversarial litigation at public expense, to target legal aid towards those who needed it most, to make savings to the cost of the scheme, and to deliver better overall value for money for the taxpayer. Only one of those objectives was achieved, and that was saving money. That money was obviously swallowed up by the Treasury because it was not reinvested in justice and legal services.
Moving whole areas out of scope, such as family, employment, immigration, welfare and benefit law, has led to more litigants in person. As Laura Farris said, that has caused huge problems in various proceedings. I recently read “Fake Law: The Truth about Justice in an Age of Lies” by The Secret Barrister, and it draws an analogy about litigants in person attempting to navigate legal proceedings with someone trying their hand at removing a gallbladder for the first time. The author says that it would take far longer and create more of a mess than if it were carried out by a trained professional. That is true. The expertise is needed to make sure that things are done properly in the legal sphere.
Although I welcome the £3 million made available to support litigants in person, it is woefully inadequate when we consider the £900 million that has been taken out since 2010. We do need more money in that area. The book gives various examples of people in circumstances that are not in scope, who do not get the legal aid help they need with their cases. Rachel was fleeing domestic violence and a sexually abusive husband. She had to deal with his legal proceedings to have contact with the children. Florence was bought to the UK as an undocumented minor by her mother, then abandoned and made homeless. At 16, she was taken into care, and on reaching the age of 18, she faced detention and deportation unless her status was regulated. Jenna had life-changing 50% burns to her face and body following an acid attack, leaving her housebound and unable to work. She needed help to appeal the decision of the Department for Work and Pensions to strip her of her disability benefits. Those people would have been helped had legal aid been available.
The Bar Council reported that, among their members in 2018, 91% of respondents found a significant increase in litigants in person in family law, and 77% found an increase in civil cases. My hon. Friend Karen Buck referred to advice deserts, and the Chair of the Select Committee referred to criminal legal aid being a problem.
The Law Society has noted that there is an existential threat to criminal legal aid firms. Shockingly, there are 124 fewer legal aid firms in 2020 than there were in 2019, which in turn was far fewer than the 1,861 there were in 2010. The Law Society has also highlighted a number of instances of criminal legal practitioners being in decline, and it has highlighted the existential threat. It believes that in five to 10 years’ time there will be insufficient numbers of criminal duty solicitors in many regions, leaving many people vulnerable, in need of legal advice and unable to access justice.
I know that the Minister understands that because he and I served on the Justice Committee when we produced the report on criminal legal aid and the need for more support for practitioners. I ask him to listen to the Law Society and Bar Council’s call to fast-track the criminal legal aid review, particularly on legal aid fees, and promise the significant investment in the criminal justice system that is desperately sought. Post the implementation of LASPO, there was also a promise to look at the pilots for early legal advice in civil legal aid by autumn 2019. That is way behind and we very much need to see it take place now.
As the Secret Barrister puts it:
“Without legal aid, without access to the knowledge and the skills by which we can enforce our rights, we are voiceless.”
It is therefore up to us to ensure that those voices are heard.
It is a pleasure to speak under your chairmanship, Ms McDonagh. I congratulate the Chair of the Justice Committee, Sir Robert Neill, on securing the debate, and I associate myself with the remarks of my hon. Friends the Members for Westminster North (Ms Buck), for Hammersmith (Andy Slaughter) and for Enfield, Southgate (Bambos Charalambous), and those of Laura Farris, in particular, to whom I am very grateful. I declare an interest as an associate tenant at Doughty Street Chambers, which uses legal aid.
The right to a fair hearing is a human right guaranteed by the Human Rights Act 1998 under article 6. Just like the right to no punishment without law, the right to freedom of expression and the right to participate in free elections, it is a fundamental part of our democracy. A legal verdict is not fair if one side is able to pay a team of expensive lawyers to fight on their behalf while the other is left to make their case on their own. That is why paragraph 3(c) of article 6 states that if a party
“has not sufficient means to pay for legal assistance”, they should get
“it free when the interests of justice” require it, and they do require it. In this country we have legal aid, which gives assistance to people who are unable to afford representation.
Too often, legal aid is not given to those who deserve it. Consider the case of Zane Gbangbola. On the evening of
Over the course of the past seven years, Zane’s mother and father, Kye and Nicole Lawler, have fought tirelessly for answers to what caused his death. One of the reasons justice does not appear to have been reached in this case is that Zane’s family were denied legal aid after the case was deemed not to be in the public interest. It is completely unjust that the family, at the time of their greatest need, were left to present their case with just one crowdfunded lawyer against a team of six QCs. Extraordinarily, the coroner was also given his own legal team. Of all those present at the inquest, Zane’s parents were the only ones not to have a barrister in some way funded by the public purse.
Access to the justice system and the ability to enforce our rights should be open to every person, regardless of their wealth, social class or background. Legal aid has long provided this for many of us, and for many of the most vulnerable people in society at their most vulnerable moments, but legal aid spending and access to justice has reduced significantly since the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. A review of the Act published in February 2019 moved in the right direction, but there is still so much more to do.
Two years since the post-implementation review, recommendations on early advice, legal aid, means tests and support for litigants have not been implemented in full. The impact of LASPO, combined with the 8.7% cut to criminal legal aid providers in 2014, as well as inflation and small profit margins, have resulted in the contraction of the market for both criminal and civil legal aid.
The criminal legal aid review is designed to look at the sustainability of the profession, but we do not have time to wait for action. The report is not likely to be published until 2022. By then it will be too late to save money, or to save many firms that are going out of business. Already in June 2020 there were 124 fewer criminal legal aid firms than the 1,271 there were in 2019, a drop of almost 10% in the past year and far fewer than the 1,861 firms that existed in 2010. How many more firms are the Government prepared to lose? Without urgent steps there is a genuine risk of the system collapsing on itself.
Between 2010 and 2016, net spending on legal aid fell by an eye-watering 38% in real terms, from £2.6 billion to £1.6 billion. It has since increased slightly, to £1.7 billion, out of the Ministry of Justice total budget of just more than £10 billion. As the Chair of the Select Committee put it, it is just a fraction of a fraction.
To put that £1.7 billion into perspective, last night Serco CEO Rupert Soames revealed to UK taxpayers that his outsourcing company had £1.2 billion per year of Government funding. That is even before its failed £12 billion experiment with track and trace. Labour has repeatedly called for access to legal aid to be a priority for this Government, especially during a time when people are so vulnerable.
As a result of LASPO, large areas of civil legal aid are deemed out of scope. This leaves thousands of people each year without the representation they need. When legal aid was first introduced by Clement Attlee’s Government after the second world war, around 80% of people were eligible for it. By the 1990s, that figure had dropped to 45%. Today it is a miserly 20%.
In 2020, most housing, employment and family disputes do not get legal aid. This causes real injustice. In 92% of domestic violence cases in the family courts in 2019, one or more parties was left without legal representation. But it is not just for adversarial cases that we need legal aid. It is a crying scandal that those who were deported and detained as a result of the Windrush scandal could not access legal aid.
At a time when the court backlog is approaching 50,000, we cannot expect legal aid practitioners to weather the coronavirus storm with warm words alone. Even before the pandemic, there was a 45% reduction in prosecutions over the past decade, but since the crisis began, many areas of legal aid work have been nearly cut in half. There has been a 41% decrease in police station attendances, a 45% decrease in applications received for representation in the Crown courts, and a 42% decrease in applications received and representations made in the magistrates court.
When asked what support this Government would offer to keep the professions functioning, the Minister responsible pointed to unbilled work. He stated that legal aid providers were sitting on hundreds of millions of pounds for unbilled work, interim payments and hardship payments. This, he explained, was why legal aid providers were being hung out to dry. Legal aid providers were essentially told to pull themselves up by their bootstraps in the worst crisis since the second world war. The implication behind that was that they were not working hard enough to claim unbilled work.
Even if we accepted the dodgy maths, is the total that the Minister pointed to enough to keep a vital part of our democracy functioning? The Minister’s statement was made back in May, when the Government pretended that they had a grip on the crisis. Now we know that the crisis will go on right through 2021, what will happen when the unbilled payments are billed? Will the Government finally rethink? The breaking point is likely to arrive early in 2021, especially when the volume of completions in the Crown court remains so low. The legal aid profession has received little support, if any, during the covid-19 crisis, and that must change.
Much of this debate has been financial. It is about CLAR 2—the second criminal legal aid review—LASPO, court backlogs, funding cuts and legal aid, but if we zoom out of the detail, this is a debate about the type of society that we want to build. There are two paths we can go down. The first is to continue on the route that the Government have set, letting legal aid collapse and allowing advice deserts to grow. A new legal wild west would result, and how someone does in legal disputes will depend not on their right to a fair trial but on how deep their pockets are compared with the person against them. The vast majority of the public will be unable to pay for representation in any serious legal matter. The wealthy 1% will be able to bully and buy their way to the verdict that they desire. That is a vision not of a democracy but a plutocracy—a society controlled by people of great wealth or income. It is a step back to pre-enlightenment, a period we should have long left behind.
However, there is room for hope. The second option is to give legal aid the support it needs, restoring it to where it was as a public service back in 2010. By doing so, we can build a better society at the heart of a real democracy founded on justice, fairness, equality and opportunity for all. I know that is a society worth fighting for.
It is a pleasure to serve under your chairmanship, Ms McDonagh. I congratulate the Chair of the Justice Committee, my hon. Friend Sir Robert Neill, on securing the debate and on opening it in such a full, balanced and helpful way.
In preparing this speech, I looked back at previous debates, and what a joy it was to see that Ms Buck secured a debate here in 2010. Andy Slaughter was there, as indeed was Mr Lammy. There was a rather lovely moment when the hon. Member for Hammersmith paid tribute to the hon. Member for Westminster North’s
“unrivalled record in pursuing such matters”—[Official Report,
Vol. 520, c. 207WH.]
If she had an unrivalled record in 2010, it is even more unrivalled now. I genuinely congratulate her on the work she has done over so long in raising these issues.
I begin by emphasising some important points that have been made powerfully but bear emphasis. Legal aid stands as a pillar of our constitution and a bulwark of our freedoms. For a great many people, it operates out of sight; they may go through their entire lives without encountering it, and in that way it is not like the NHS or schools or policing. However, for those who do encounter it, its importance is immediately understood. Legal aid ensures that the guilty are convicted and the innocent walk free; that those facing conviction, punishment and disgrace on the accusation of the state will have those allegations properly tested. It is there to ensure that the rights and liberties of ordinary citizens, often created by this Parliament, are upheld. To paraphrase Lord Reid in the Unison case, legal aid ensures that statutes are not rendered a dead letter.
I echo the points that the hon. Lady for Westminster North made about practitioners. She referred to the good will, dedication and vocation of those who practise in legal aid work, and I cannot use any better words. She put it very well. They are not fat cats. I make the point, as I made in an earlier debate, that those who act in these cases, or indeed any cases, may very well not agree with their clients on the substance of what is being advanced, but they know that their first duty is to the court and their second duty is to their client. They must defend those interests and fight that case, within the law, without fear or favour. Those principles underpin why the Government spent £1.7 billion last year funding legal aid for those who need it. It is imperative that we properly protect this support and that it continues to be available in the future.
The hon. Member for Hammersmith asked me to concede that funding is less now than it was in 2012. That is a fact, so he is right about that. In fairness—I pay tribute to the entirely appropriate tone that the debate has been conducted in overall—in 2010 there was a sense that, whichever Government came into power, there were going to be some cuts. However, the question at this stage, as we take stock, is what legal aid should be required for and to what extent. That is a careful consideration that we intend to apply.
Over the past few months, the importance of the advice and legal sectors has been brought into sharp focus. My officials and I have been engaging extensively with various organisations across the advice sector throughout this period, and I know how challenging it has been for providers and their service users alike. I also know how many providers and practitioners across England and Wales have gone above and beyond to ensure that vulnerable people across society can continue to get the help they need.
As a Government, we have tried to support that work as best we can over this difficult period. I am delighted that, as my hon. Friend Laura Farris pointed out, we were able to secure £5.4 million of emergency funding for the not-for-profit advice sector, to ensure that providers across England and Wales were able to adapt their operations and continue to provide their important services. In the early days of the pandemic, we understood that almost half the law centres in England and Wales were facing potential collapse, and I am extremely pleased that our funding helped to prevent that outcome. I do not suggest for a second that it solved all problems, but I hope it is fair to say that it was of some significant assistance.
I am also grateful for the close working relationships we have built with actors across the sector to ensure that funding can be utilised in the most effective way possible. Beyond the funding, we made a number of changes to support legal aid providers in the short term, including changing rules for payments on account and ensuring that providers can claim the same for remote hearings as they can for face-to-face hearings. In August we announced additional funding of up to £51 million for criminal defence lawyers through the criminal legal aid review.
Respectfully, and notwithstanding the point that can always properly be made that there needs to be more, £51 million is a significant sum. The point that I would gently make is that that was the first occasion when people were being paid for reviewing unused material. As practitioners in this room no doubt well understand, it is those hours spent between 10 o’clock at night and midnight reviewing the unused material that all too often discloses that critical point that allows them to advance in court the key issue that might lead to the acquittal of their client. That is now being remunerated in a way that it was not before.
I have very limited time, so let me try to deal with the issue of sustainability. Although I maintain that we have made some positive changes in the time available, I think everyone here would acknowledge that there is more to be done to ensure that the legal aid and advice sector thrives into the future. Many of us here will be well aware of the challenges faced by the sector, and we do not seek to suggest that they do not exist or to downplay them. The demands on providers, and indeed on the courts, are high and will likely remain high over the coming months as the covid-19 recovery gathers pace. Those impacts will no doubt be felt across society.
We are already doing important work in this space, and we want to go further in the coming months. As has been trailed, I recently launched our new legal support for litigants in person grant, which builds on the more than £9 billion that the MOJ has invested. There are some who would say, as did Bambos Charalambous, who is no longer in his place, “Look, it’s not enough.” I understand why he says that, but we need to look forensically at what it is going to develop. The answer is that law does not stand still, just as the rest of the world does not stand still. There are other mechanisms by which legal advice and assistance can be delivered using technology, and we must be alive to that.
In some of the excellent conversations that I have had with law centres, they have started to recognise that maybe their catchment area of need is not simply the area around, say, North Kensington for North Kensington Law Centre or the area around Hammersmith for the Hammersmith and Fulham Law Centre—which, incidentally, I know fine well the hon. Member for Hammersmith has spent many years supporting. Is there scope for technology to widen that catchment area, to broaden access to justice?
We have also launched a new project considering the issues relating to the wider long-term sustainability of the civil legal aid system. I am only too well aware that many practitioners and stakeholders say that this is a long-standing issue, but now, of course, it has been made more pressing due to the current situation, and we are taking a broad look at the system. Some hon. Members have raised the point about fee levels, and that is fair. In addition to considering the fee levels, we will look at structural issues such as the delivery model for civil legal aid and will seek to improve the remote delivery of advice where appropriate, to ensure support is available for those in hard-to-reach places, learning both from what has worked well during the pandemic and what has worked less well.
I have only a minute left, sadly, and I want to give my hon. Friend the Member for Bromley and Chislehurst time to speak. I could have talked about the means test review. I wanted to talk about CLAR, the accelerated areas, the courts estate, which is getting more money, and my principal passion, early legal support and advice. I am absolutely of the view that intervening early makes a huge difference.
Let me end by saying that covid-19 presents a great challenge to our way of life, perhaps unknown in the modern era outside wartime. Other priorities will likely dominate the headlines—jobs, schools, hospitals, debt—but in a nation of laws, legal aid is vital, now and in the future. Legal aid work will never provide the personal financial rewards for practitioners of a commercial or chancery practice, and nor should it, but we need a system that continues to attract lawyers of sufficient calibre, prioritises acute legal need, achieve redress and improves people’s lives. That is the platform for those priorities that I have set out today.