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Legal Aid (Rural Wales)

Volume 565: debated on Wednesday 26 June 2013

It is a particular pleasure, Mrs Brooke, to serve under your chairmanship this afternoon. We have an extra minute or so, for which I am very grateful.

I sought this debate to highlight the increasing number of concerns about the proposals to reform legal aid, following publication of the consultation document, “Transforming Legal Aid” by the Ministry of Justice on 9 April. I hope to obtain some reassurance from the Minister that, at the very least, the impact of the reforms on our constituents will be fully considered before changes are made.

The consultation, which closed on 4 June, outlines a number of reforms to the provision of legal aid across the England and Wales that are causing a great deal of concern. I responded to the consultation, as many other colleagues did, and tomorrow’s Back-Bench debate provides another opportunity to speak on the issue—if hon. Members only have a small bite of the cherry today, there is the opportunity for a bigger bite in that debate.

I wanted to focus on the effect of the reforms particularly in rural areas—in constituencies such as mine and in rural Wales generally—because I believe that that has been lamentably overlooked in the consultation. I worry that, if enacted, the proposals will have a devastating impact on access to justice for my constituents and on solicitors’ practices, and we must be aware that the significance of the reforms is such that, if enacted, there will be no going back.

Before addressing the proposals, I want to raise concerns about the consultation itself. First, as mentioned by the Welsh Assembly Government in their submission to the consultation, there was no mention in the consultation document of the Welsh language in accordance with the Welsh Language Act 1993. The Welsh Language Commissioner, Meri Huws, states in her submission letter:

“There are several references in this consultation to assessing the impact of the proposed changes on various groups as well as assessing the impact in accordance with the MOJ’s duties under the 2010 Equality Act. With regard to the Welsh language, there is no mention of it in the consultation’s documentation.”

What discussions have there been so far between the Ministry of Justice, the Welsh Language Commissioner and the Wales Office? I am glad that a colleague from the Wales Office, the Under-Secretary of State for Wales, the hon. Member for Preseli Pembrokeshire (Stephen Crabb), is present today. It strikes many of us that the specific concerns of Wales have been low down the pecking order.

I congratulate the hon. Gentleman on securing the debate, and I declare an interest, having practised legal aid work as a solicitor and barrister. I support everything that he is saying, but it is worse than he described. As the consultation document was sent out in English only, the Ministry of Justice thereby has broken its Welsh language policy. It is only a mere afterthought, as, I am sure, is getting rid of all these firms. The proposal is for four legal aid firms alone to deal with legal aid in the whole of north Wales, and I am sure that it is just as bad in mid-Wales.

I am grateful to the right hon. Gentleman for that intervention, which illustrates the huge degree of concern. The Government embark on consultations, and we can have a debate about whether they are genuine; I hope very much that this one is, as much needs to be said and changes need to be made. However, I have to raise the treatment of the Welsh language in this case. I see, as an English speaker representing a majority Welsh-speaking constituency—50% of my constituents do so, and in large parts of my constituency, larger percentages speak Welsh as their first language—that what has happened is an insult to those people. All Departments across Whitehall need to be mindful of that when they produce any documentation.

The hon. Gentleman is making a hugely important point to many of us who represent rural parts where the Welsh language is strong. Does he agree that the consultation simply has not been acceptable, and the principal reason is the attitude towards the Welsh language, not only in the consultation, but in the fact that there will be four firms, making it impossible for them to deliver the service and pay proper account to the Welsh language?

I agree with my hon. Friend completely on that point, and I am grateful for both interventions. They illustrate points that I will make a little later in my speech.

I intervene briefly, simply to say that in answer to a question of mine the Under-Secretary of State for Justice, my hon. Friend the Member for Kenilworth and Southam (Jeremy Wright), stated that

“any criminal legal aid contract holder would be required to meet the obligations of the Welsh Language Act.”—[Official Report, 11 June 2013; Vol. 564, c. 280W.]

That sounds all right on paper, but does the hon. Gentleman share my concern that it is something of an afterthought?

As I shall say later, the delivery in practice will be a different story. There is concern that the consultation period of eight weeks is too short and does not allow people fully to analyse the proposals, particularly when reflecting on the Government’s ambitious timetable not only to get the proposals authorised, but to start tendering the contracts by the autumn. Consultation is particularly critical in this case, given that the proposals can be enacted without further primary legislation, which is why it is opportune that we discuss such matters now.

I congratulate the hon. Gentleman on securing the debate. In April, the Government cut some civil and family legal aid, the consequences of which I am seeing in my office, with many parents fighting custody battles where one parent can get a solicitor and the other parent cannot. Therefore, justice is denied and courts are getting clogged up. In light of those changes, does it not make sense for the Government to slow down and have a look at what is happening already where they have cut legal aid, before rushing into further changes?

I concur with much of what the hon. Lady says. This is about process, and what her constituents will find more difficult when they are faced, I think, with nine solicitors’ practices in the whole of Gwent is physically accessing legal aid, if it is available to them.

On the proposals themselves, the model is inappropriate for rural areas. The geography of our country is such that defendants will be allocated a solicitor whom they will find it extremely difficult, physically, to meet sometimes. The proposals do not take into account the vast distances and travel challenges across my area of Ceredigion and the rest of rural Wales. If a defendant from Newtown was allocated a duty solicitor in Llanelli, a meeting would require the defendant or solicitor to make a round trip of more than five hours—not to mention, of course, the challenges with transport links that we face in rural areas.

The reduction in firms that are able to bid for contracts will lead to huge delays in solicitors attending courts, or possibly a police station, and that has serious implications for the defendant. I understand from a local solicitor that, just before Christmas, GEOAmey—one of the private companies—transported a constituent of mine from Manchester to Aberystwyth but was unable to take the constituent off the prison van. It had to take him back, as it had brought only two members of staff, and at least three are needed to escort a prisoner. That vast journey, at huge expense, was a wasted opportunity. A future with a criminal defence system providing that level of service is a worrying one.

Does the hon. Gentleman agree that affording that transport is virtually impossible for many clients and that, if they were allocated different people on different occasions, which can happen with repeat offences, they could end up with several different firms representing them at one court hearing? Again, that would be massively wasteful.

The hon. Lady pre-empts another of my later remarks. The relationship between solicitors and those repeat offenders is critical, and we risk losing that.

It is asserted that there would be four providers across the whole of Dyfed Powys. There would be real access issues, and are the proposed consortia feasible? As we have heard from hon. Members, the proposals plan to have four providers across the whole of Dyfed Powys, four across the whole of north Wales—sorry, I correct myself—and four in Gwent and nine across the whole of south Wales. By contrast, 37 contracts are planned for Greater Manchester, which has a similar population to south Wales. Again, will the Ministry of Justice, and the Whip speaking for the Ministry today, outline how that was calculated? How was rurality factored in? Although my hon. Friends from south Wales and the M4 corridor will have strong feelings about the provision of access there, for those of us who work, live and function in mid-Wales and north Wales, the picture is disastrous. We lose out yet again, and we are put at a real disadvantage compared with other people across the country.

My next concern is that competitive tendering at 17.5% less will drive solicitors out of business. The competitive tendering proposed for contracts remains a major cause for concern. It will simply drive solicitors out of business. Those remaining will be firms that are willing to cut costs, possibly to unworkable levels. That would lead to tenders being awarded to less able and potentially less experienced firms, which may find themselves unable to deliver on the prices promised to secure the tender. I am clear in my mind where I would like to go if I needed legal advice. However, there is the spectacle of Eddie Stobart or Tesco providing the service. The Co-op has been mentioned recently, and I am a great supporter of the Co-op. It is an admirable place to go to buy food and it has a fine record of burying people—the Co-op funeral service is very good—but we should not be using such examples to justify changes to the legal system.

I am greatly concerned about the capacity of companies such as Capita, GEOAmey, Serco and G4S—and whether they are best placed to represent my constituents. My colleague in another place, Lord Thomas of Gresford alerted us in a Queen’s Speech contribution to Stobart Barristers—an offshoot of Eddie Stobart trucks. Lord Thomas noted that the Stobart Barristers legal director, Trevor Howarth, had confirmed that the firm would bid for the new criminal defence contracts and had said:

“We can deliver the service at a cost that’s palatable for the taxpayer… Our business model was developed with this in mind. We at Stobart are well known for taking out the waste and the waste here is the duplication of solicitors going to the courtroom. At the moment there are 1,600 legal aid firms; in future there will be 400. At Stobart, we wouldn’t use 10 trucks to deliver one product”.

As my noble Friend concluded, the problem with that is that criminal law is not a unit and justice is not a product that can be delivered like a load of bricks. That is the contrast in terms of what we are facing. There is a real fear that many of our high street solicitors will be lost; many will go out of business. The firms with the most cut-throat prices and cut-throat tactics will be the most successful, but I believe that liberty should be in the hands of the best, not the cheapest.

I come now to the loss of specialisms.

My hon. Friend is making many very good points, but surely one of them is that the people who supply these legal services will be given a financial incentive to get their clients to plead guilty. Surely, that is a characteristic of a totalitarian state, not the liberal democracy to which we aspire.

My hon. Friend and I agree. He uses a very emotive word to describe what I think will be the reality on the ground.

Under the proposals, a call centre will allocate a lawyer from any background—an impersonal experience in itself—who might provide a minimal service to meet the requirements of the contract. People will not be able to select a firm by reputation, by personal recommendation or, sadly, by past experience. That discourages good practice and good performance among professionals, as those who gain a contract will get clients regardless of performance. Therefore, clients will be unable to choose a firm according to the nature—sometimes, the specialised nature—of their case. I have said this before and it is worth repeating: let us not understate the importance of the relationship between solicitors and clients and the trust that has been built up.

Solicitors in my constituency are concerned that the consultation document encourages solicitors not to provide a good service—not to provide the best service. The aim is to be “above acceptable levels”. That is a worrying prospect.

There will be a lack of choice. Owing to the call centre allocation of solicitors, clients will be left with no choice of representation. They may have a lawyer who does not know them or the area in which they live and who certainly does not know the background to their case. As the hon. Member for Llanelli (Nia Griffith) said, a different company could represent them at different stages. I think that that is bad.

The consultation document suggests that the same fee will be paid—this is the point made by my hon. Friend the Member for Brecon and Radnorshire (Roger Williams)—whether or not the matter is contested. Those firms that are awarded contracts will have a financial incentive to do minimal work to make their business sustainable, to the detriment of the client’s case. That could lead to a perverse incentive for legal advisers to recommend that clients plead guilty, as they would receive the same fee regardless of plea—a conclusion that certainly the solicitors whom I have spoken to are concerned about. They believe that suspicion may be created between client and lawyer.

I want to end where I started, with the effects on language. When we are talking about the consultation, there remain serious issues surrounding the provision of language services. I have anecdotal evidence that the large firm Capita is regularly unable to provide interpreting services to courts in a timely manner. In my constituency, as I said, Welsh is the first language of about half the population. In many parts of Ceredigion, it is overwhelmingly the language of everyday use, so the issue to which I refer is a worry and a barrier preventing many people from accessing the representation to which they are entitled.

I want to ask the Minister and particularly those behind the scenes in the Ministry of Justice about their awareness of Wales and of the Welsh language. As the Welsh Government pointed out in their submission to the consultation, the Ministry of Justice’s own Welsh language scheme—a point that the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) mentioned—declares the Ministry’s commitment to the principle of treating the English and Welsh languages on the basis of equality. The current system of more local provision means that someone is more likely to satisfy Welsh language needs. These proposals mean that it is much more likely that a provider will be based outside the relevant area and even outside Wales, allowing no provision for Welsh language services at all.

The proposals are socially divisive, as only the wealthy will be able to afford to choose their own lawyer. Only those who can afford to will be able to determine how they are represented. Everyone else, if they are eligible for legal aid, will be allocated a lawyer via a call centre.

Some of the public narrative on the issue has characterised it as one of fat cat lawyers acting in their own interests, although if we talk to solicitors on the ground, the story is somewhat different. In reality, it is far more worrying. It is about universal access to justice, the credibility of our court and justice system and the responsibility of Parliament to ensure the continued efficacy of our justice system.

Overall, what has been billed as a simple money-saving measure will have far deeper ramifications for society. The proposals take the fundamental principle of access to justice away from anyone who cannot afford it, but it is a right, not a commodity to be bought and sold.

The Minister knows that this is a consultation, and the deliberations will go on about the various submissions. I sincerely hope that it is a real consultation and that the Government will look at the submissions, particularly those from us in Wales and the concerns that we have raised; and I hope that the Minister and the Ministry of Justice will therefore reflect favourably on the needs of rural Wales.

I warmly congratulate my hon. Friend the Member for Ceredigion (Mr Williams) on securing the debate. I have been asked to respond on behalf of the Ministry of Justice by my right hon. Friend the Lord Chancellor and I will of course ensure that he is aware of the representations and comments made this afternoon by my hon. Friend and by other hon. Members present. I am delighted that the Under-Secretary of State for Wales, my hon. Friend the Member for Preseli Pembrokeshire (Stephen Crabb), is able to be with us at this important debate. I am well aware that the Wales Office has received many representations from Welsh MPs on these matters. I would like to point out that my right hon. Friend the Secretary of State for Wales has discussed these issues with the Lord Chancellor and we are sensitive to the interests and needs of the Principality.

I apologise for not being present at the very beginning of the debate. Is the Minister saying that he is looking favourably at a Welsh dimension to the whole consultation process? In addition to that, we are talking about rural areas that are on the periphery—areas that have lost court services and lost other forms of access to justice.

I am grateful for that intervention. Of course, we are aware of and sensitive to the issues that are being raised. We will obviously take into account everything from the debate and the consultation.

The Government must always be mindful of the impact of their policies on those affected by them. Debates such as this are most welcome, as they help to strengthen and improve Government policy by ensuring that hon. Members’ expertise and local knowledge are fully considered. Before I respond to the substantive parts of the debate, I would like to make three general points about the changes that have been consulted on in respect of legal aid.

First, the Government will continue to uphold everyone’s right to a fair trial. We do, however, have a duty to look at how the system is working, taking into account the taxpayer, legal aid applicants and the legal profession as a whole. Secondly, access to justice and access to taxpayer-funded legal aid should not be confused. We have a duty to ensure that all public expenditure is justified. Thirdly, the Legal Aid Agency would ensure, as part of the tendering process, that all providers were capable of delivering the full range of criminal legal aid services under contract across their procurement areas. Quality-assured duty solicitors and lawyers would still be available if these changes were implemented, just as they are now.

I would like to outline the rationale behind the legal aid proposals and their potential impact in Wales. In its programme for government, the coalition set out its intention to undertake a full review of the legal aid scheme. Following consultation, the Government’s final proposals culminated in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. As well as reducing the scope of the civil legal aid scheme, the Act made sweeping reforms to the central administration of the legal aid system. Through the introduction of the Legal Aid Agency, we have strengthened accountability and introduced a more rigorous approach to financial management. We estimate that those and other reforms will save about £320 million per year by 2014-15, but our legal aid scheme remains one of the most expensive in the world. Legal aid spending in Wales has increased, as it has dramatically in England.

First, spending is in the median area of the league; it is not being compared with like common-law jurisdictions. Secondly, the Act to which the Minister refers has a specific section that says, “Of course, people will always have an entitlement to choose their own lawyer.” That is now being swept away.

The right hon. Gentleman does not highlight the fact that the cost to the taxpayer of criminal legal aid is still around £1 billion a year, which is a phenomenal amount of money.

And yet we are talking about a phenomenal amount of taxpayers’ money.

The Government’s latest reforms, published in the “Transforming Legal Aid” consultation in April this year, tackle the cost of criminal legal aid, as well as finding further savings from the civil legal aid scheme. In particular, the proposal to introduce price-competitive tendering into the market for criminal litigation services has attracted a number of comments, such as those made by my hon. Friend the Member for Ceredigion and others this afternoon. If our proposals are implemented, the number of contracts tendered by the Legal Aid Agency will reduce from about 1,600 to about 400.

For the record, I would like to dispel a few myths, which have been highlighted this afternoon, about the model on which we consulted. The 400 figure relates to the number of contracts the Legal Aid Agency would tender, not the number of firms in the market or the volume of work available. The proposals on which we consulted do not prescribe how many lawyers would be available or how those who have the contracts can divide the work allocated to them. The proposed model would result in a consolidation of the market, but that does not mean that smaller firms of solicitors will go out of business. Some may choose to join together to bid for contracts. Others may decide to act as agents.

I would like to make a little progress, because otherwise I will not answer my hon. Friend’s points.

Importantly, specialist services—vital for niche areas of law and for clients with particular needs—will be able to continue. We received approximately 16,000 responses to the consultation, many of which address the competition model in detail. We are carefully considering all responses before final decisions are taken. This afternoon’s debate will go forward as part of that consultation and will be fed back to the Lord Chancellor and Ministers in the Department. It will be examined in the pot with the other considerations.

I will not be able to answer the questions and points raised if I take lots of interventions, but I will take one in a minute.

Among the particular needs to be met in the provision of legal aid is of course the provision of services in Welsh for those who want them. The Government have no intention of changing the requirements placed on legal aid providers operating in Wales to offer a bilingual service—I can nail that concern for my hon. Friend. That that issue, alongside many other practical considerations, is not expressly addressed in the consultation document reflects the fact that it will be, as at present, given effect through the Legal Aid Agency contracts with providers. The document does not propose any change in current practice, but that issue has been raised by some respondents to the consultation and we will provide simple reassurance when we publish the Government response. As well as raising the provision of services in Welsh, a number of legal aid providers have set out their concerns about the operation of the proposed competition model in rural areas, including rural Wales. Some of those concerns have been echoed here this afternoon, and I propose to raise them, highlighting the points made, with the Lord Chancellor to inform his decision making when the consultation concludes.

The consultation sets out a model of competition to cover the whole of England and Wales and seeks to address the needs of both urban and rural areas. In the cases of two regions—the areas covered by West Mercia-Warwickshire and Avon and Somerset-Gloucestershire—it makes an exception to the rule that procurement areas will be based on current criminal justice areas, by combining each pair into a single area. That proposal, however, is based on the volume and type of work, rather than the areas’ rural geography. The consultation in fact sought views on whether the geographical arrangement of contracts it set out was the right one and sought alternatives. We are of course open to good suggestions and urge the profession to work with us to come up with the best solution. The appropriateness of the model to rural Wales was raised during the engagement events held by the Ministry of Justice during the consultation period. We will consider carefully the views raised, before finalising our proposals.

Concerns have been expressed about the Government’s decision to publish the transforming legal aid consultation in English before the Welsh translation was ready. I shall address that issue directly, because it is unfair to suggest that the Ministry of Justice has not taken its commitments under its Welsh language scheme seriously. The Department has committed to treating English and Welsh equally, as far as is reasonably practicable, and that is what we did. Translating a document of that length and complexity takes time, and it was published as soon as it was available. In translating the entirety of the document, we have gone further than the previous 2010 legal aid consultation. In deciding not to delay publication of the English version until the Welsh version was ready, we were conscious that the majority of the target audience in Wales comprises legal aid providers required to provide services in English, as well as Welsh. Moreover, when the previous legal aid consultation was published in 2010, only the executive summary was translated; the Department did not receive requests for a full translation in Welsh and we did not receive any responses in Welsh. We have so far identified about 10 responses to the current consultation in Welsh. That we have had responses in Welsh reflects, I hope, that legal professionals working in Wales have shown their own expertise in responding to our proposals.

Officials are in the process of studying all the consultation responses received and will consider carefully all views on how Wales’s particular rural geography should be accounted for before final decisions are taken.

I have two questions. The first relates to remarks the Minister made some time ago. The consultation ends on 8 June and we have a short time to get the system up and running. How optimistic is he that that can happen and in particular that the consortia he mentioned, of small solicitors, practices coming together, can be realised? Finally, he mentioned a consultation event in Cardiff, where I know some of my local solicitors were keen to ask Ministry of Justice officials about the extent of their detailed knowledge of rural, north and mid-Wales and the challenges of rural transport. How much detail has gone into the assessment of rural Wales, or for that matter rural England?

I will have to write to my hon. Friend, because I do not have that information to hand. All I will say is that we have engaged with many professionals and received lots of consultation responses in the Department. We are very aware of the difficulties and the particular issues he raises.

Time is ever so short, but I want to mention the Government’s compliance with the Equality Act 2010. We are mindful of the importance of considering the impact of our policies on different groups. In accordance with our obligations under the 2010 Act, we have considered the impact of the proposals, in order to give due regard to the need to eliminate unlawful conduct, advance equality of opportunity and foster good relations. Our initial assessment was published with the consultation paper, and we will update it in light of responses, before final decisions are taken on the equality issues.

I am aware that a half-hour debate is not long enough, but there is of course a debate tomorrow on the Floor of the House, where issues can be developed further. I thank my hon. Friend the Member for Ceredigion for securing this important debate and I thank right hon. and hon. Members for the contributions that they have made. I am confident that, after long discussions and a long thought-out process, which will include the consultation information, the Ministry of Justice will publish final proposals that command the confidence of those who provide and use legal aid-funded services in Wales. Final decisions have not yet been taken, and today’s debate will certainly be read and noted by the Lord Chancellor and his ministerial team. I have listened to the views raised. I again commend my hon. Friend for securing the debate. I will certainly pass on to my right hon. Friend the comprehensive views that have come up this afternoon. The Under-Secretary of State for Wales and I will discuss the issues raised. I am grateful for the opportunity to put forward the Government view.