[Relevant document: Uncorrected oral evidence taken before the Justice Committee on 11 June 2013, on price competitive tendering proposals in the Government’s Transforming Legal Aid consultation, HC 91-i.]
May I remind the House that this debate is extremely heavily subscribed, as a consequence of which I have had to impose a five-minute limit on Back-Bench speeches?
I beg to move,
That this House has considered legal aid reform.
I thank the Backbench Business Committee for allowing the House to debate this very important issue. I am hugely grateful to the many Members who have remained in the Chamber on a Thursday afternoon even though the debate is not on a dividable motion. I offer my apology for the fact that I did not ask for a full day’s debate—clearly, there is much more desire to debate this matter than I expected when I went before the Committee.
As many in the House will know, the background to the debate is that just after the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force, the Government began a new consultation, “Transforming Legal Aid.” That consultation closed on 4 June, and the Government are due to respond after the summer recess. The proposals were incredibly wide ranging and arguably more significant in some ways than those in the LASPO Act, but it looked as if the House would not get an opportunity to debate that consultation document before the Government responded. As the Government are currently proposing secondary legislation for the matter, my concern is that we may not get an opportunity to have a debate before the legislation is introduced.
Because the proposals are so complex and wide-ranging, I think it important for us to get the details right, and I therefore hope that the Minister will view the contributions of Members in all parts of the House as part of the consultation process.
I am grateful to the 31 members of all parties who supported my application to the Backbench Business Committee. I particularly thank the right hon. Member for Tottenham (Mr Lammy), who is a former legal aid Minister, and the right hon. Member for Haltemprice and Howden (Mr Davis), who I know wants to speak later about some of the constitutional implications of the proposed changes.
The fact that so many organisations, including Mind and Shelter, have contacted Members of Parliament with briefings and queries demonstrates that it is not just lawyers who are worried about these proposals.
Is it not very disappointing that that the Justice Secretary has not bothered to come to the House today? As the hon. Lady has pointed out, the debate is very oversubscribed. More than 96,000 people signed the e-petition, and I believe that 96 Members of Parliament signed early-day motion 36. The Justice Secretary should be here.
I would have been delighted to see the Justice Secretary, but I am, in fact, delighted that the Minister is present. I trust that he will listen carefully to what Members say today, and will relay it faithfully.
Like the hon. Member for Kingston upon Hull East (Karl Turner), I am a member of the Bar, but unlike him I do not do any legal aid work.
Does my hon. Friend agree that although the debate is important, it would not have had to take place had the Government chosen a better way in which to find their savings? It would have been better to continue with the proposals for further privatisation of the prisons, rather than attacking the legal aid system.
I certainly think that there are better ways of finding savings. I hope that some Members will refer to the way in which we manage some of the services that we privatise. The way in which contracts are managed is very important. The privatisation of the interpretation and translation services, for example, appears to have led to greater delay and driven up costs.
I congratulate my hon. Friend wholeheartedly on securing a debate that is clearly of interest to Members in all parts of the House. About two years ago, I too secured a debate on legal aid, which I think she attended, and that prompted a great deal of interest as well. The issue is incredibly broad, covering such matters as the residence test and, in the case of criminal legal aid, choice and diversity. Is it not important to ensure that small providers can continue to provide a service?
I think there are critical issues involving choice.
I will struggle if I try to give way to everyone. May I at least respond to one intervention before I accept another?
I intend to speak about the residence test rather than about criminal legal aid, but I know that a number of Members—including the hon. Member for Kingston upon Hull East (Karl Turner), who supported the application to the Backbench Business Committee, and my hon. Friends the Member for Redcar (Ian Swales) and for Leeds North West (Greg Mulholland)—want to refer to it specifically.
I will give way first to the hon. Lady and then to the hon. Gentleman, but after that I must make some progress.
I wanted to intervene early in the debate to crush the myth that this is about savings. It should be made absolutely clear that no money will be saved. Indeed, a barrister at Matrix Chambers has suggested that, rather than saving £6 million—which, in the great scheme of things, is not very much in any case—the changes are likely to generate on-costs of about £30 million.
I entirely agree with the hon. Lady. She was referring, of course, to the changes in civil rather than criminal legal aid. I think that the costs are likely to be significantly greater, especially if people remain in detention or cannot be released from hospital.
Let me begin by drawing Members’ attention to my declaration of interest, largely because I am immensely proud of being a solicitor. What concerns me most is discrimination against small high street practices such as Holt and Longworth and other small firms in my constituency, which, although they are the backbone of our profession, will probably cease to exist.
I find it extremely worrying that the Government should pursue a line that would put small and medium-sized firms out of business, apparently deliberately. It flies in the face of everything they are trying to do to promote growth and the high streets. I trust that the Minister has noted what the hon. Gentleman said.
I hope that the hon. Member for Stretford and Urmston (Kate Green) will catch your eye later, Madam Deputy Speaker, because I know that she wishes to speak specifically about issues relating to civil legal aid for prisoners. I shall not have time to speak about that myself, but I think that it is important for it to be covered today.
Let me now say something about the residence test. As a former children’s Minister, I know that the proposed changes have particular implications for children, and as chair of the all-party parliamentary group on refugees, I am very concerned about the impact on those who seek sanctuary on our shores.
The Bill that became the Legal Aid, Sentencing and Punishing of Offenders Act was highly contentious and fiercely debated in both Houses. Many were persuaded of the need to save money, but all sought to ensure that the most vulnerable members of society would continue to have access to justice. Time and again, Ministers assured the House of Commons that when people’s lives or liberty were at stake, access to justice would be preserved. However, the new residence test appears to undermine that directly.
Schedule 1 of the Act lists the categories that the Government sought to protect from cuts—groups whom they recognised to have a vital need for legal representation. Children who may be subject to care orders, children with special educational needs, victims of domestic violence, victims of trafficking, asylum cases, those in immigration detention, those facing immediate homelessness, and those with mental health issues are just a few of the very vulnerable groups that are identified. I am afraid that people in all those categories may be denied legal aid if they fail to pass the residence test.
Does the hon. Lady agree that what may happen—if it is not already happening—is that citizens advice bureaux and law centres will become overloaded with casework, and people in all the categories that she has listed will start coming to elected Members of Parliament for help?
I think the hon. Gentleman is absolutely right. Those in what was originally a category of people needing legal aid will still have problems after being denied it, and will arrive at all our surgeries seeking our help with problems that still exist and are still insurmountable.
I thank the hon. Lady for giving way; she is being very generous. Does she know whether the family of Jean Charles de Menezes would have qualified for legal aid under the new residence test? That is a very esoteric but important category which ought to be protected.
I understand that the family of Jean Charles de Menezes would not have qualified under the new test. As the hon. Gentleman says, that was an incredibly important case which had huge implications for policing policy, and it is for precisely that reason that we need to be careful about identifying categories of this kind.
A number of Members have said that the changes will not save money. That, I think, is the point. The Government are apparently not seeking to save money with the changes in the residence test; they say that their purpose is to shore up public confidence in the legal aid system. However, I do not think that the public will continue to have confidence in a system that denies access in certain cases, including the one that was referred to by the hon. Gentleman.
Particularly unjust, in my view, is the position of those who, having gained refugee status, will be forced to wait 12 months before becoming eligible for legal aid. I think it extremely unlikely that we would be complying with article 16 of the Geneva convention if we proceeded with that proposal. Many of the people involved are very vulnerable, and there is frequently a gap in communication between the Home Office and those who should be seeking care for them in the form of housing or benefits. Many would face a period of homelessness if lawyers did not intervene to ensure that local authorities do their duty.
Will the hon. Lady give way?
I will, but I am conscious that I am taking up the time of others who wish to speak.
I am most grateful to the hon. Lady, who has been extremely generous in giving way. She is right about immigration, which has become more complex. One of the reasons for opposing these proposals is that the few remaining specialist legal aid immigration lawyers will disappear if they are accepted.
I fear losing specialists in immigration law. I already see constituents who are consulting lawyers who are, I am afraid to say, less than qualified to do the job, and that is what creates many of the delays and bad decisions in the first place.
Several hon. Members
I have tried to take as many interventions as possible, as I know that some Members will not get an opportunity to speak, but I also do not want to speak for too long, and there are some points I want to make on the residence test, so I shall continue
Were it not for the intervention of lawyers, many refugees would be homeless at the very time when the state has recognised they are absolutely in need of protection. They will also be unable to challenge other decisions, such as on special educational needs and other forms of care. Young unaccompanied asylum seekers are particularly vulnerable. The Coram Children’s Legal Centre provided an example of a young woman from Eritrea who was just 16. The Home Office accepted that she required refugee status. However, after that happened, as is often the case, her local authority began disputing her age. Were it not for the intervention of lawyers, she would not then have been cared for by the local authority, as she had no chance of proving she had been resident in the UK for 12 months; in fact, she had not been resident in the UK for 12 months, and she had certainly not been lawfully resident in the UK for 12 months.
Those who struggle to make a claim for asylum initially are frequently particularly vulnerable to wrong decisions being made. I include in that category young people, those who have experienced sexual violence, those who are claiming asylum on grounds of sexual orientation and those who have been tortured. Many of these people fail to disclose that in their initial interviews. It is only on subsequent fresh applications for asylum that the right decision is made, because all the information is provided. Once that fresh application is accepted, they become eligible for legal aid. However, they need a lawyer to put in an application, so these people find themselves in a position of not being able to gain the status they deserve. Similarly, victims of human trafficking may need to challenge the identification given to them. Without access to legal aid, they are unable to do that.
Perhaps the most bizarre aspect of this residence test is not about asylum seekers, but about British-born children. British-born children under the age of one will fail a residence test. I do not know whether Ministers did not communicate with the Department for Education, but it is common practice in care proceedings that a child will be allocated a solicitor. That is why certain categories of children were listed at the back of schedule 1 to LASPO. Examples of other kinds of case that would be excluded are British citizens who from time to time get wrongly deported—I am afraid that does happen—and high-profile cases such as that mentioned a few moments ago. I am aware that my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) wishes to raise Baha Mousa’s case and the case of Afghani interpreters.
Perhaps the most invidious and troubling cases, however, are those involving people in immigration detention. That, too, was specifically included in LASPO because it involved the state depriving people of their liberty. They must instigate their own proceedings. We often have indefinite detention for these people; their case does not automatically review, yet they will not be eligible for legal aid, because they are not lawfully here. The chief inspector of prisons has previously expressed concerns about that group, and this makes it significantly worse.
The argument Ministers have offered to me is that I should not concern myself with this group because exceptional funding is in place to support them. I want to debunk that myth right away. First, the application process for exceptional funding is exceptionally complicated; it is extremely difficult to provide the required evidence to the Legal Aid Agency, which is why very few people have applied, and people need a lawyer to be able to fill in the form. I understand that 100 cases have been accepted by the LAA, and the Public Law Project has told us it knew of just one case that had been accepted. Secondly, exceptional funding exists for cases outside the scope of LASPO, yet all the cases I have detailed are within its scope, but are outside that of the residence test. Thirdly, there is no procedure for urgent cases. That is not much good for people who may have a pressing problem with their housing or who are seeking a non-molestation order as a result of domestic violence. Finally, there is no exemption for those with no capacity to litigate.
The residence test is likely to be seriously detrimental to many of the most vulnerable groups that we have sought to protect during previous cuts to legal aid. I want to remind the Minister—as one former Minister to a current Minister—that being judicially reviewed is annoying. I remember that; it is very frustrating when we are taken to court, but we have to be humble enough to accept that Ministers, and others in public authorities, sometimes make the wrong decisions, and we also have to be man enough to accept the risk that some of the things people will JR us about may not seem to be particularly significant. That is what we need in a free society; that is the price we pay for making sure citizens are able to hold the state to account and for preventing overbearing state power from interfering with people’s right to live in the way they choose.
Several hon. Members
Order. [Interruption.] Mr Lammy, it is not a good idea to be on the move in the Chamber when one wishes to be called to speak. It is not a good way to try to catch the Speaker’s eye.
I am very grateful, Madam Deputy Speaker. I seek your forgiveness for being on the move, but I was consulting colleagues about whether, given the importance of this debate, a vote of this House might be required, and whether I could invite colleagues to join me in the No Lobby after this debate. That would, of course, require Tellers.
Why is this so important? It is important because the Secretary of State has caricatured this debate as being solely about producers and suppliers of legal services. He has sought to suggest that it is about fat-cat lawyers and their fees. He also sought to suggest that this follows in a long line of reform to legal aid over the last 10 years and that ultimately it is about saving £220 million of taxpayers’ money. I think it is hugely important that Members are able to assert that that is not the case.
These are profound changes that would completely unsettle our constitutional arrangement, which begins with Magna Carta, where it was said we should not sell justice, deny justice or delay justice to anyone. When this House last met to discuss issues of such importance, the subject was the suspension of habeas corpus. On that occasion, the House met for three days, there was huge debate, we sat through the night, and then the House was able to vote. It is a travesty that the Secretary of State is not present, and that the Government seek to make such a profound change in our country by secondary legislation. That is why I urge Members to follow me into the No Lobby after the conclusion of this general debate.
Does the right hon. Gentleman agree that the removal of people’s choice of advocate is a very profound change?
It is absolutely the case that in our system the choice of lawyer is fundamental and essential. In fact every democratic country we can think of enables that choice. That this Government should seek now to say that someone facing criminal charges cannot choose, and therefore have confidence in, the person to be charged with preserving their liberty is a huge exception to the democratic system we have sought to preserve for so long. Of course it will lead to huge miscarriages of justice.
I am very grateful to the right hon. Gentleman for giving way and I hope he gets extra time for taking a second intervention. I hear what he has to say, but does he agree that whoever was in power at the moment, having to make difficult choices, would almost certainly have to look at what is one of the most generous legal aid systems in the world and make savings to that budget? Does he agree that the problem is not so much the principle of the savings but how this is being done and the fact that there needs to be consultation on a number of specific points that, to be fair, the Government have agreed to reconsider?
The hon. Gentleman is right. It is totally unacceptable that the Government have sought to rush this measure through after a speedy consultation that lasted less than two months. It is wrong that there should not be a vote in the House and it is wrong to caricature previous changes to legal aid as having any relationship with these changes. When I was legal aid Minister, changes were made to scope in personal injury in an attempt to take out those who were caught up in speeding or traffic cases in the legal aid system. We introduced fixed fees to maintain costs. We introduced online and phone systems for free legal advice to limit costs. Those were the sorts of changes we introduced; we did not attempt to charge and make an attack on judicial review.
Judicial review is so important. Most people in this country feel that public authorities are benign until they have a disabled child, or one with special needs, and seek to challenge the local authority or the school, until they have an elderly relative in a care home and abuse goes on in that care home, or until they live in the path of High Speed 2 or Crossrail. There are people in this country who would seek to use judicial review and it is a travesty that this Government would run a coach and horses through it for £6 million.
The hon. Member for North West Norfolk (Mr Bellingham) mentioned savings and savings can be made in other ways. Tagging a defendant costs £13.41 in Britain, but £1.22 in America. Let us find the savings through cheaper procurement. Let us find the savings in the court system. Let us not rip up a democratic, constitutional system that we have had for so many years and that has served us well.
We have heard that the parents of Jean Charles de Menezes would not have received legal aid under the changes being made to the residence system. In fact, after these changes, babies in our care system aged under one would not get legal aid, even though children sometimes need access to it. There are many headlines at the moment about Jimmy Mubenga, a young man who lost his life in a deportation case. His family would not get legal aid. Is that really the kind of country we want to live in? Is that what we want to arm our Foreign Secretaries with when they are trying to speak powerfully to foreign Governments who seek to oppress their citizens? It cannot be, so I ask the Department to think again about the decision and to think very hard about the changes it is attempting to railroad through Parliament.
Those are the reasons it is important that we have the opportunity to vote. It is deeply concerning that it has taken senior Back Benchers going to the Backbench Business Committee to bring this discussion to the House in the first place. I cannot think of an occasion in the past few years when that has happened on such a major issue. I ask the Secretary of State to be mindful of the petition signed by thousands of people because they, too, are concerned about the situation.
The caricature that implies that those who are caught up in the criminal system are thick and therefore do not need a choice of lawyer is a disgrace coming from a Secretary of State for Justice. For legal aid lawyers to be caricatured as fat cats when their average salary is less than that of nurses and teachers in this country and when we are talking about high street firms in Bristol, Swindon and Brixton—places as different as that—is unacceptable. This is not about the producer, but about the citizen and the consumer. It is about hard-fought battles that have taken place in this Chamber over many years. I ask the Government and hon. Members to join me in the No Lobby after the debate.
I declare any interest I might have as a practising solicitor, although not one who has ever done any legal aid paid work.
The Government have given a very clear explanation of how, under any reckoning, this country spends by far the most of any in the world on legal aid and will still do so after these proposed savings, which have to be made in these times of tough spending decisions.
Let us first acknowledge that the difficulties in providing criminal legal aid are not new. Indeed looking through my old notes for the debate, I found my question asking a Justice Minister in the previous Labour Administration what he was going to do about the then crisis, with barristers going on strike, some 25% of criminal law firms having closed shop in the previous four years and rates having been frozen for a decade. The then Labour Government acknowledged that the system was unsustainable and prepared, but subsequently failed, to introduce contracts for criminal legal aid tendering. Admitting their inability to reform the system, they then went for the relatively easy route of making savings through further rate cuts.
Even then, the Labour Government were so frightened of initiating the cuts that they organised them to take effect after the general election. That was the position that this Administration inherited and one of the main reasons why we decided to reform civil legal aid first to allow the criminal legal aid market to settle after Labour’s cuts.
I have no argument about whether the savings should be made, but why does the hon. Gentleman think it is right to have a widespread attack on legal aid when the chair of the Criminal Bar Association has said that banking fraud cases are taking up 45% of the legal aid budget?
They do. The consultation considers very high cost cases and identifies them as a specific area that needs to be looked at. I agree with that.
During debates on what is now the Legal Aid, Sentencing and Punishment of Offenders Act 2012, Labour spokesmen said that we should be looking at making savings by contracting criminal legal aid rather than touching civil legal aid. Now it seems that they have made another U-turn and are saying that they do not want criminal contracting at all. The position of Labour Members is not only inconsistent but deeply irresponsible, because they still acknowledge the need for legal aid savings but do not have a clue how to deliver them in practice. That is not the position of a party that can be serious about government.
The criminal legal aid solicitors to whom I have spoken in my constituency have said that they would prefer a further cut in their rate to the structural changes the Government are talking about, because those structural changes mean that a solicitor in Rawtenstall has to travel to Blackpool to go to the police station. That is completely unsustainable.
Further cuts in the rate are the easy option. The market is out of sync with the legal profession and it needs reform.
My theory is that Labour’s contracting proposals failed because they not only succumbed to the reactionary wing of the legal profession but shied from the bottom line facts of criminal legal aid contracting, which are that in order to get efficiencies and savings, contracting will always involve fewer but larger practices operating over a larger area. If the market is to be sustainable, there must be fewer firms each receiving a larger slice of the remaining pie.
Although I support the Government’s consultation and the contracting proposals in general, my personal view is that we are missing an opportunity radically to restructure the market and bring it into line with modern practice norms. At the core of that lies the need to consider the type of organisation that can bid and how they are paid. The historic position in England and Wales is that the client instructs a solicitor and then, particularly for more complicated advocacy, the solicitor employs a barrister. That involves two fees and I would strongly advocate moving to a single fee.
I wonder whether the hon. Gentleman has read the consultation document. The proposals are very different from what the previous Government proposed under best value tender. There are major constitutional differences in these proposals that will ruin the entire criminal justice system.
The previous Government were considering contracting, as were Labour Front Benchers during this Parliament. We need to appreciate that the Legal Services Act 2007, brought in by the previous Government with Conservative support, has transformed the potential for legal service provision. To cut a long story short, there is now no reason why solicitors and barristers should not go into partnership together, or indeed, with non-legal organisations, via alternative business structures. There is no reason why barristers should not take instructions direct from the client nor any reason why barristers should not themselves bid for contracts and employ solicitors. In practice, there have been blockers to this kind of progress, not least a barrister regulator that seems unable to see the writing on the wall for its own profession.
If I seem radical, I am explaining a scenario that would seem more or less natural to most Commonwealth common law countries.
On a point of order, Madam Deputy Speaker. I am sorry, but the right hon. Member for Tottenham (Mr Lammy) is on the move again. Surely right hon. and hon. Members should always stay in their seat and listen to the speech immediately after their contribution.
The courtesies of the House are that a speaker should remain for the next two speakers, having contributed to the debate. It is regrettable. I did not see him move again, but I am sure that someone from the Opposition Benches will ensure that he returns quickly to hear the debate. Sorry for the interruption, Mr Djanogly.
To retain the two-fee structure sends the wrong message either that the outdated current system can adapt to contracting or that it will soon be reversed and be back to inefficient business as usual. In the longer term both are unsustainable.
The legal profession, from mediaeval times, has always been against change. Most significant legal reforms emanate from Parliament. Our job is to create a marketplace for the future, not for the past. I support the Government’s proposals, but I recommend that we look again at bringing in a single-fee structure. Yes, that will force significant changes to criminal legal practice, but in the longer term it will provide a more flexible, efficient and sustainable platform for criminal legal aid provision.
I end by noting that it was not just the Labour Government’s inability to reform that constituted their failure but their shocking inability effectively to process legal aid payments and to monitor fraud and auditing systems. In all seriousness, when I started at the Ministry of Justice, the previous Minister had hardly been on speaking terms with the Legal Services Commission, and the delays and inefficiencies of the processing of claims, including criminal claims, were very serious indeed. Much of the processing has now been dramatically improved. The accounts published only this week are the first not to have been qualified in five years, and I congratulate the MOJ on that achievement. Significant savings have since been made by abolishing the LSC and reintegrating legal aid into the MOJ.
As the founding chair of the all-party parliamentary group on legal aid, I am pleased that Back-Benchers have organised an opportunity for us to discuss this important issue at this time and to touch on not just the “Transforming Legal Aid” agenda but the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, much of which came into effect this spring.
As we know, the predominantly civil legal aid cuts that have come into effect have taken out of scope swathes of provision for benefits, social welfare and large areas of housing and employment. It has happened at the same time as local authorities are struggling with a 30%-plus reduction in their own funding, which has added to the squeeze on advice services. That impact is being felt up and down the country. Just this week, we were sorry to hear the news that Birmingham law centre was the first major urban law centre to go under. I am struggling to see whether we can sustain Paddington law centre, the second oldest law centre in the country, which has been hit by legal aid reductions and the loss of grant funding. Shelter, a major housing charity, has seen its advice services decimated as a result of cuts.
Does my hon. Friend agree that not only will citizens advice centres be affected, with people denied public justice, but small law firms will go out of business and 400 big companies will have a monopoly?
My hon. Friend is correct. This is something that we will see in terms of the “Transforming Legal Aid” agenda. We are seeing advice deserts emerging. We are seeing the concentration of services in larger providers and, critically, we are seeing the loss of specialist services, which are so important. As is often the case with this Government, we are finding that cuts—the £350 million taken off the legal services budget—do not always mean savings. As we were warned, we are already seeing an increase in the number of litigants in person appearing in court. The Bar and judges warned that it would lead to additional costs.
A number of changes that have impacted on housing need have led to an 86% rise in homelessness acceptances in my local authority alone. Homelessness decisions remain within scope of LASPO, but debt and welfare advice provision does not and those issues are what lead people to the brink of homelessness in the first place. As a result of the loss of advice services and the dramatic increase in homelessness, we are seeing extra costs falling on local authorities and wiping out a number of the savings.
It was interesting to see in the comprehensive spending review statement yesterday further resources being directed to the troubled families programme. It is slightly ironic that we are rightly investing more in troubled families, knowing that debt and arrears are at the heart of the problems that they seek to overcome.
My hon. Friend is making a powerful argument. In my area, since April the bedroom tax has increased arrears in the city already by £750,000, pushing more families into misery and making them more in need of the very advice to which she refers.
My hon. Friend is absolutely right. It is another excellent example. I am sure that colleagues will have examples from a number of areas of service and from all over the country.
On the “Transforming Legal Aid” agenda, while it is true that a Labour Government would have faced difficult and not necessarily popular choices about the justice system and legal aid, one of the elements that we regard as critical is maintenance of the ability for the accused to have a choice of lawyers. There is a risk that the proposed changes will lead to a loss of specialist services and quality services driven by choice, and potentially to miscarriages of justice.
I want to share with the House a letter I received from one of my constituents in the run-up to today’s debate. It is from Anne Maguire, one of the Maguire Seven convicted in 1975 of possession of explosives together with her husband, two teenage sons, brother and brother-in-law and a family friend. She received a sentence of 14 years. She and all her relatives and friend were innocent and their convictions were quashed by the Court of Appeal in 1992. She says:
“Over many years, our solicitor Alastair Logan worked tirelessly without payment to overturn our wrongful convictions. Without his diligence and painstaking work, it’s no exaggeration that the miscarriage of justice we suffered would never have been put right. Under the government’s terrible proposals, solicitors’ firms such as Alastair’s would disappear to be replaced by a reduced number of large commercial operations with no interest in helping innocent prisoners.
Many more miscarriages of justice will occur if plans to award legal aid contracts to the cheapest commercial bidders such as the haulage company Eddie Stobart and to remove the ancient right of accused persons to choose their own lawyer are implemented.
I hope you'll attend the debate on Thursday”.
I am pleased to do that but also to join my colleagues in the vote.
I would love to be able to talk about the judicial review proposals and the accountability of public services that will be lost, but I want finally to touch on the issue of residency. As my parliamentary neighbour the hon. Member for Brent Central (Sarah Teather) has pointed out, urban constituencies such as ours with large migrant populations are most likely to feel the impact of the new residency qualifications. Those qualifications will have a particularly severe impact on children. I am indebted to a law company in my constituency called Just for Kids Law, which has raised with me its fears about the residency qualifications and the extent to which they will hit trafficked children and the children and families of victims of domestic violence, some of whom have come here on their husband’s visa. It will hit children and families of people who have come here to work in domestic service. This is something I am familiar with in my constituency and have many problems with. Finally, it will hit the babies and small children of British citizens who have been abroad and returned to this country, who will lose their qualification. That is a serious impact on the rights of children. I believe the measures must be resisted and look forward to joining colleagues in voting against them this afternoon.
I rise to speak as a member of the Public Accounts Committee who is concerned about the effectiveness of the proposed measures, and as a constituency MP who is concerned about access to justice for my constituents.
We are told we have the most expensive system in the world, but only last year the National Audit Office found that the cost of our system was average, after accounting for variances in the role of the civil service and the judiciary, and the costs have been reduced since that finding. As a previous speaker said, 48% of our criminal legal aid costs are for 1% of cases, so why does the Ministry of Justice not look specifically at those cases in order to save money?
One of the misunderstandings in the mind of the public is that legal aid is a principal cost. In fact, our legal system costs half that of the Swiss and three quarters of the system in the other major European countries, and it delivers better results. Surely we should be proud of that?
I am proud of that, and I am surprised by some of the comments from Front Benchers that seem to contradict what the right hon. Gentleman just said.
We also have a system in which tariffs vary widely across the country, sometimes paying twice as much for the same activity. Why does the Ministry of Justice not look into that? We often criticise the Ministry for not piloting its ideas, but they have tested this one by setting up five public defender services. They are proving to be three to four times as expensive as present local arrangements, and the one near me in Middlesbrough has already closed down. What has the Ministry learned and why is it planning to protect those offices from competitive tendering?
The Crown Prosecution Service now has a lot of in-house lawyers, who are expensive and who have pensions, significant overheads and so on. Does the hon. Gentleman agree that going back to instructing the independent Bar, as used to happen, would result in savings and that the MOJ should look at that quite urgently?
The hon. Gentleman has made his point fluently. I am not a lawyer and am unable to comment on those details, but I am sure that Ministers heard his point.
Looking at the effect on justice first, the evidence from the USA, where the MOJ’s planned approach is already in place, will give the public little comfort. Even people who are charged with the most serious crimes, including murder, are given low-cost lawyers and scant attention. Among the most serious duties a Government can have are to prevent people from dying in hospital and to prevent them from being wrongfully imprisoned. Why do we believe so strongly in choice in the first case while seeking to eliminate it in the second? Only through choice can standards be maintained and competitive pressures take effect. Yesterday, the Chancellor said:
“Our philosophy is simple: trust people to make their own decisions and they will usually make better decisions.”—[Official Report, 26 June 2013; Vol. 565, c. 306.]
I urge the Minister to follow that approach.
I also urge the Minister to look carefully at the financial incentives in the proposed contracts. As we on the Public Accounts Committee know, there is touching faith in most Departments that their private sector partners will “do the right thing”. They will—but it will be the right thing to maximise their profits. It beggars belief that firms might get the same fee for a quick guilty plea as they get for a trial lasting days or even weeks. I know that the Secretary of State is a great believer in payment by results, but is he really looking for justice through short trials with few witnesses, or for innocent, vulnerable people to be locked up through a quick guilty plea? That is what his system will encourage.
Does my hon. Friend acknowledge the serious concern that there will be an incentive for legal representatives to encourage clients to plead guilty, because the fee will be the same? That is deeply worrying.
I agree with my hon. Friend. I repeat: private companies will seek to maximise their profits. I advise anyone who doubts that to check the financial incentives in the GP out-of-hours contracts and then look at what has happened to the number of people attending hospital accident and emergency centres.
I will now deal with contracting. This time last week, I was in Westminster Hall discussing the court translation services debacle—a true horror story. The response from the Under-Secretary of State for Justice, the hon. Member for Maidstone and The Weald (Mrs Grant), showed breathtaking complacency about the overall effect on and cost to the courts system. She even seemed to be content with a present failure rate that is five times greater than the one contracted for. In addition, as has been noted, early results coming in on the new civil legal aid arrangements show more court cases, not fewer, and many cases doubling in length owing to inadequate representation. Again, I ask whether the Ministry is counting the full costs.
The most lucrative business in this country now seems to be winning Government bidding rounds, then—ideally—selling the contract for a quick profit, as we saw with the court translation service, or taking fat fees and getting other people to do the work, as we see in the Work programme.
Will the hon. Gentleman give way?
I am running out of time.
The Ministry has touching faith that many groups of lawyers will come together to bid; in fact, it will be largely the same magic circle of outsourcers, who hover like vultures around the award of almost every public contract—with the rumoured addition this time of a supermarket and a haulage company. One company likely to win work, of course, is G4S, with which the Secretary of State will be familiar from his previous job. G4S’s success in winning work in this sector raises the spectre that a person could be arrested, then have G4S legally representing them at the police station; providing the civilian staff processing them there; transporting them to court; representing them there; owning the court in which that person is tried; tagging them if they are on bail; and, if they are found guilty, transporting them to a G4S prison—oh, and it is quite possible that when they are released, G4S will be in charge of their rehabilitation. The potential perverse incentives in that chain are mind-boggling. I urge the Ministry of Justice to ensure that its contract packages meet its stated aims. The Ministry’s record on contracting is appalling. How will it be different this time?
I end with two questions for the Minister. First, if he or a member of his family were arrested, would he be happy with the new arrangements? Secondly, has he heard the right hon. Member for Sutton Coldfield (Mr Mitchell) express delight that he has just found the cheapest lawyer to fight his case against the Metropolitan police? I doubt it. Equal access to justice is a cornerstone of our society. The Minister has a lot to do to convince this House that that remains an objective of his Department and that it is competent to deliver it.
Prior to my election to this House, I worked as a criminal barrister from my local chambers in Hull, and before that, I was a criminal solicitor. I was never a fat-cat lawyer—in fact, my waistline has increased only since coming to this place.
I am pleased that my hon. Friend is not a fat cat, but could he say whether fat-cat lawyers actually attend police stations at 2 o’clock in the morning?
My hon. Friend makes a good point. As far as I know, it is very unusual for a partner in the firm to come out in the early hours of the morning. The important point is this: a solicitor who attends at a police station in the middle of the night is often dealing with extremely serious allegations—sometimes allegations of murder. I have been in that position on a number of occasions, representing clients who are alleged to have committed murder. The solicitor is there on his or her own, whereas the police have advice from the CPS and many officers to assist them. The solicitor is facing all that pressure and is not being paid properly, even under the current arrangements, for his or her expertise.
Of course we accept that in these straitened economic times, cuts have to be made to Departments across the board, but these plans are massively ill conceived. They will, in my respectful submission, irretrievably damage the criminal justice system. I will focus my remarks on price competitive tendering.
Can the hon. Gentleman help with this point, then? If irretrievable damage is done to the criminal justice system by any change to legal aid, why was it that the right hon. Member for Blackburn (Mr Straw), when Lord Chancellor, said:
“I hope that everyone…will accept that the growth of spending on legal aid seen in the early part of the decade and before is no longer sustainable”?
It is very disappointing, but I suspect the hon. Gentleman has not read the consultation document.
I shall go on to deal with price competitive tendering, but first let me try to bust a myth. There seems to be a suggestion that the Labour Government were particularly generous to criminal lawyers. We were not. Criminal lawyers have sustained cuts to fees from successive Governments. The current proposals are far reaching and, if they go through, they will be horrifically damaging to the criminal justice system. PCT will inevitably lead to the market being dominated by the big multinationals—the usual suspects—G4S, Serco, Capita, and probably the new entrants to the market who have absolutely no experience, Stobart.
The plans are also unconstitutional. They dismiss the notion that an accused might have the right to choose a solicitor. The cavalier ignorance of the Lord Chancellor was exposed when he remarked:
“I don’t believe that most people who find themselves in our criminal justice system are great connoisseurs of legal skills.”
Not only does he dismiss everyone requiring legal advice as a criminal before they have even been charged or had a trial, but he apparently has the naiveté to think that those who come face to face with the criminal justice system are not capable of judging the competence of their own lawyers. This is the “too thick to pick” point. The notion is completely contrary to attitudes applied to, say, health services in this country or education, where choice is deemed essential.
The proposals look to implement yet another changing fee structure. Fees would be cut by 17.5%, on top of the 2011 reduction of 10%. Firms that successfully bid for PCT will have demonstrated that they can provide the services at the cheapest possible rate. This means that advice will probably be provided by less qualified people supervised, perhaps, by a single lawyer. The “stack it high, sell it cheap” mentality will reduce the criminal justice system to a sausage factory where the quantity of cases trumps the quality of the service provided every time.
The proposals specify this in paragraph 23, suggesting that there is no need to be concerned about the quality of provision because work shall not be
“above the acceptable level specified by the LAA”—
the Legal Aid Agency. The plans also perversely propose the same fee to be paid, whether the case is resolved by way of a guilty plea or contested at trial. There is strong concern that this will inevitably lead to undue pressure being put on a defendant to plead guilty when in fact they have a defence.
The proposals will change the sort of people coming into the profession. This is not a plea for so-called fat-cat lawyers, but as the eminent barrister John Cooper QC put it to me yesterday,
“This is recognition, before it’s too late, that if the proposals go through we will be complicit in excluding many young people from less advantaged backgrounds from becoming part of what can only be described as the National Health Service of the Law”.
I have only one minute left. The Lord Chancellor showed his ignorance and lack of understanding of the profession. He showed ignorance today by not attending this important debate, yet the civil servants Box is full to the gunwales. The Lord Chancellor should sit down and meet for the first time the chairman of the Criminal Bar Association, Michael Turner QC, and Bill Waddington, the chairman of the Criminal Law Solicitors Association, and discuss alternatives to these undemocratic, unconstitutional and worrying plans.
As there are only five minutes available to me, I hope hon. Members will understand that my arguments are unlikely to be in any great detail, and I will not take any interventions. I should point out that I am a complete outsider to the issue, having no legal qualifications at all.
I note the contribution of the hon. Member for Redcar (Ian Swales). His tract on the procession of G4S throughout the legal system was particularly persuasive. It is not something that had occurred to me before, but I think it is a cause for real and serious worry.
At the heart of the Government’s proposals lies the question of what is the best method of delivering savings without threatening the quality of justice dispensed. That is the question that exercises us today. Oral evidence given to the Justice Committee on 11 June made plain very real concerns from the legal profession about the proposals. Quality was high among those concerns for completely understandable reasons, but it must be a little worrying that some of the organisations representing the profession are refusing to engage with the process of designing the quality thresholds with which the contracts will be let. I understand their concerns and I understand that these are fundamentals changes being mooted, but I hope that at some stage those organisations will reconsider their position. It seems to me that it is not incompatible to be implacably opposed to the changes, but still to co-operate with the design. Surely to do so ensures that, should the argument be lost, the system will be as good as it can possibly be.
The Justice Committee’s session also threw up evidence from the profession that there were other areas where it felt that savings could be made, and should be made, first. Principal among these were the court system, and persuasive evidence was given that there are huge costs within the court system driven by other agencies and factors outwith the control of those providing legal representation. I have some sympathy with the argument that says that to reform the cost of representation without dealing with those factors misidentifies at least some of the source of the expense incurred.
Michael Turner, the Chairman of the Criminal Bar, gave in his evidence three compelling examples of how fees can escalate owing to factors wholly outside the control of those representing defendants. Although I can see that the pressing need to make savings and the time scale that might be involved in reforming the court system create difficulty for the Minister, I would like to hear from him about any plans that are in hand to deal with these issues.
The witnesses also made clear their concern that with some 13,000 responses to the public consultation, a response date of early September to an exercise that ended in June seems, shall we say, ambitious. Finally, although those who appeared before the Justice Committee seemed reluctant to explain alternative proposals that might meet the available budgets, I have to assume that such have been made and hope very much that the Minister can confirm that they will receive careful consideration, if indeed they have been received.
Will my hon. Friend give way on that point?
My hon. Friend is very generous, in his own sober and stoic way.
Among the various alternatives that have been put forward, I have received a number of concrete suggestions about tighter court management of delays caused by the Crown Prosecution Service, and the idea of higher fees in commercial cases. Does my hon. Friend agree that such additional aspects ought to be considered by the Government?
Indeed. I thank my hon. Friend for his intervention. It was exactly such issues that Michael Turner brought up in his evidence and it seems that there are genuine savings to be made there, as well as costs incurred by those representing, which cannot be controlled by them. That is a very important point.
In the interests of timeliness, I shall move purely to the representations that have been made to me by my constituents. I have received 40 letters from constituents on legal aid and there are one or two specific, rather than general, issues that I would like to draw to the Minister’s attention. The first is about representation, which has been brought up in the Chamber today.
I met Robert Ashworth of Saulet Ashworth LLP in Portsmouth and although he did not agree with the Government’s changes, the point he made to me that people should be able to choose their representation seemed to be a good one for the following reasons. He believes there are considerable hidden cost savings in certain types of, shall we say regular, clients in having a trusted solicitor whose recommendations will be accepted without debate. A case in point would be a recommendation, after due thought by the solicitor and the representative, to offer a guilty verdict. If accepted, this can clearly lead to a large saving across many budgets. He believes, and I accept the core of his argument, that such savings might be lost to the system under the new arrangements. I know that he submitted his views to the Government during the consultation. I hope that the Minister will acknowledge that there is an issue to be considered.
The second issue that has been raised with me relates to rural sparsity. One of the concerns that has emerged from the consultation is that rural areas might be disadvantaged as a result of the proposals. In Derbyshire, Cumbria, Wales, parts of Norfolk, and indeed many other parts of the country, it is very likely that the contracts awarded will cluster in or around a small number of larger towns. In my own backyard, the Isle of Wight is a plain example, as my hon. Friend the Member for Isle of Wight (Mr Turner) has pointed out. That might limit access to justice, given the geographic scale of some of those areas. Once again, I hope that the Minister will offer some indication that that factor has been recognised.
Reform of the legal aid budget is tough. Its sheer scope and size mean that it just is not possible that it can escape savings. The industry itself might come forward with a comprehensive and deliverable package of change that recognises that reducing budgets is unavoidable and timeliness is essential. If it does, I hope and expect that the Minister will give the proposals due consideration. However, although I recognise that the Government’s proposals will lead to considerable change in the industry, they currently appear, at least to an outsider, to be the only game in town. I believe that, if handled correctly, they can be the right way forward, although, crucially, they must protect the quality of outcomes at the same time as saving money.
I congratulate the hon. Member for Brent Central (Sarah Teather) on enabling Members to debate how the Ministry of Justice is taking a hatchet to the British justice system. There is of course scope to tackle inefficiency within the justice system and to make the necessary changes while ensuring that the core elements of a sound justice system remain in place. Instead, what we see is a slash-and-burn approach to legal aid—I, other hon. Members, legal professionals and constituents have problems with it—that will absolutely rewrite the fundamental principles and values of the modern British justice system. The reforms attack the principles of fairness, justice and, fundamentally, hope.
Local justice has been a foundation stone of this country’s criminal justice system for years. Many small and medium-sized legal firms are the cogs in that local justice machine, alongside the police, magistrates, law courts and the Crown Prosecution Service. They often provide the link between each of those organisations that makes our justice system a strong and comparatively fair one.
Under the proposals, in Lancashire we would see a 70% reduction in legal aid services, which would leave just 14 firms covering a population of over 1 million. It would lead to advice deserts spreading across the country, especially in more rural areas such as West Lancashire. Local firms will be forced to close as they will be unable to compete with the large entities that are entirely commercially driven, which will be the only ones able successfully to bid for contracts. The only incentive for obtaining a contract will be to spend as little as possible on each case and to get them over and done with as quickly as possible, not to see that justice is done. There will undoubtedly be an increase in the number of miscarriages of justice, and righting those wrongs will be very costly.
My hon. Friend is making an important point. Because of the fixed nature of the contract, there could be a vested interest in a firm getting people to plead guilty.
I am sure that is exactly what will happen and that justice will be ill served by the people who support and vote for this awful idea. Has real consideration been given to the issue of conflict? The new legal corporations will reach into every stage of the criminal justice process, motivated by profit, not justice. The removal of a client’s fundamental right to choose their representative is completely unacceptable.
These proposals will cause problems for the justice system, including concerns about the right to a fair trial under article 6 of the European convention on human rights. An individual who is involved in multiple matters might end up with numerous representatives forced to deal with separate matters. That will add to the delay and the costs as there will duplication of effort in obtaining information and instructions, to the detriment of the individual. That is if they are to get legal representation at all. In a big sign of things to come, the Bar Council has already produced a do-it-yourself guide to representing oneself in court.
Does the hon. Lady share my concern that we will see an increase in the number of litigants in person, which, far from driving down costs, will take up more time and add to costs?
I absolutely agree. In fact, I think that the hon. Lady will find that that is already happening. How can that aid cost cutting or justice? It is a travesty.
Everything about the consultation strikes me as being about the easy option, not the right option for the people who sent us here or for justice. I believe that the cuts will be a false economy, as we will see increased inefficiency. One wonders how much could be saved if the Justice Secretary simply sorted out the waste in the system. For example, I know of one prisoner who was not produced in court by the Prison Service—it had nothing to do with the CPS—on three occasions, with proceedings stayed and all the associated time and costs wasted. If we tackled that waste, how much money would we save? We would still preserve justice and fairness at the heart of the system.
I wonder whether the Justice Secretary, if his family found themselves unable to afford legal representation—God forbid—would accept the crumbs that he is now throwing to everybody else. In closing, I ask the Minister, who is in his place, whether justice on the cheap is any justice at all.
I declare an interest: I practise at the criminal Bar. I will make my observations on the criminal justice system and the implications for criminal justice legal aid. I will start by saying that there is no reason in principle why the Ministry of Justice should not be asked to look at reducing its departmental spending or why its expenditure on legal aid should not be part of that review. I will not say to my constituents, who have been affected by all sorts of spending reductions across Departments, that somehow there is special pleading as far as criminal justice and criminal justice legal aid are concerned.
However, that does not mean that there are not some fundamental difficulties with the consultation proposals. First, simply as a Conservative, I do not like proposals that appear set on driving small businesses out of business. The years of dedication and expertise of those small businesses seems to me to be far more important than the fact that the business happens to be law. The principle is that we should be looking to encourage small businesses, not driving their business into the arms of large corporations.
Does my hon. Friend agree that in places such as rural Devon we will see a mass driving out of those small businesses in small towns and that people will have to travel large distances to seek justice?
My hon. Friend makes the same point very well.
Secondly, as a Conservative, I do not like the removal of choice from the market. It does not really matter that the individual concerned happens to be a defendant in criminal proceedings; after all, at that stage he or she is presumed innocent until proven guilty—we do still have that. The removal of choice in the selection of representation concerns me. The idea that the state will prosecute, that it will contract those who defend, and that those contractors are likely, under these proposals, to employ the defence advocate, is worrying. I have dealt with cases that have involved issues of security and of taking on the Government, for example in relation to what the previous Government did in Iraq. I wonder whether someone working for an organisation that had a contract with the Government would feel as able as I did to take on those issues and seek to expose them in the course of a trial, regardless of consequences, as a member of the independent Bar.
There are smaller difficulties. The hon. Member for Redcar (Ian Swales) referred to the proposed fee structure. In fact, that already exists elsewhere. Some military cases in Germany are paid for on that principle, but with an escape clause, as it were, that recognises that it is not suitable for the more serious cases. That suggests that it is therefore not suitable to be rolled out across the Crown court system for the vast majority of criminal cases.
The expression of support for an independent Bar in the consultation document is inconsistent with the model that is proposed, under which advocacy would be kept in-house to offset the reductions necessary to take part in the tendering process. That has implications not only for members of the independent Bar but for judicial recruitment and for the availability of experienced prosecutors. The Ministry of Justice might want to think about what it is doing not only in relation to those who defend in the Crown court but to where it will get those to whom it looks to prosecute serious cases—the murders, the rapes, the woundings, and matters of that sort.
Having criticised the consultation document, it does contain something that has not been offered to any other group of people. I used to be a soldier. Soldiers were not told, “These are the proposals—if you’ve got some of your own we’ll look at them”; they were simply told, “These are the proposals.” It is the same for teachers, firemen and everybody else. Lawyers are being told, “These are the proposals—if you’ve got alternatives and they achieve the same result, then the Department will go with them.” Anybody who works in the criminal justice system knows that savings can be made.
Does the hon. Gentleman agree that if the consultation document is really about considering alternatives, the Justice Secretary should meet the chairman of the Criminal Bar Association? He has made himself available on numerous occasions, and the Justice Secretary has refused to see him. Would it not be sensible for the Justice Secretary to agree immediately to that meeting?
The hon. Gentleman knows full well why that discussion has not taken place and that the prelude to it did not involve a method that was taught at the Bar school course that he did. I hope that those difficulties can be resolved.
No, the hon. Gentleman has had one go and that is quite enough.
The consultation has a blunt instrument to deal with the expense of long trials which impacts on the majority of Crown court work, but there is a simpler solution—the abolition of very high-cost cases. Nobody needs them, nobody wants them, and they can be got rid of. That would save money at a stroke.
Allowing choice but banning the practice of client poaching is another effective way of saving money. There are simple measures such as making prisons provide video links so that solicitors can have video conferences and therefore not have to be paid to travel to prisons. The majority of prisons will not allow solicitors to have such facilities. Other options would be controlling who within defence teams is paid to read and use material, thinking about whether those with frozen assets can be asked to pay for their own defence, and looking at how those who are convicted can be asked to contribute towards the cost of their representation. There are all sorts of ways of doing this.
If those making these proposals and those opposing them on the grounds of the consultation document, while recognising in principle that savings have to be made, were opposing litigants, a sensible judge would tell them to go outside and settle the case. The flaws in the consultation document are apparent, and the alternatives are there for consideration. I agree with the hon. Member for Kingston upon Hull East (Karl Turner) that we are getting to the time when this needs to be sorted out and resolved, because that can obviously be done with the acceptance of all.
I want to speak about these proposals specifically in relation to prisoners, not when they are on trial but after sentencing or when they are in prison on remand. The proposed savings of £4 million mean that they will no longer be able to access legal advice and will instead be expected to use the internal complaints system when they have problems.
It is unpopular to speak up for prisoners’ rights in this House, but it is so important that we do so, because it is a mark of our being a civilised society that we set parameters on what we do to people when we remove their liberty. Removing their liberty does not equate with removing all their human and legal rights.
I entirely agree with my hon. Friend’s point about prisoners. I am sure that she will apply it equally to those in immigration detention. The removal of legal aid from those people breaches the specific pledge given by the Lord Chancellor to this House on 18 December last year, when he said that legal aid will continue to be available to anybody whose life or liberty is at stake. Is it not essential that that promise be kept?
My right hon. Friend is absolutely right. I do not have time to cover immigration in detail, save to say that we are talking about people who may be returned to face homophobia, torture and appalling treatment when they have lost asylum cases or are failed immigration seekers, yet they are being denied access to legal advice contrary to the assurances that we were given in this House.
We know that people in prison are more likely to have learning difficulties or mental health problems, or to be poorly educated. They are often the product of disruptive and difficult childhoods. Many of them have arrived in prison having spent most of their childhood, to our great shame, in public care. Those people are particularly poorly equipped to advocate for themselves and to use the internal prison complaints system. It is therefore particularly important, not only in their own interests but in the interests of the smooth running of the prison, that we take the steps that we should to ensure that they are given effective opportunities to make their case.
I agree that people are often not very well equipped to use the complaints system. Is it not also the case that if they are driven to the prisons and probation ombudsman, the average cost of a complaint is about £1,000 more than it would be if we referred them to a legal aid lawyer?
My hon. Friend is absolutely right. The £4 million cost savings are very likely to be eaten up not only by the cost of using the complaints and ombudsman systems but because of the impact inside prisons if prisoners are unable effectively to have their case made.
My hon. Friend is making an excellent speech on the needs of prisoners. Does she agree that another cause for great concern is that prisoners will often go through this process when they have exhausted other routes and had unsatisfactory outcomes? Without adequate investment in the prison complaints system, there will be even greater miscarriages of justice.
My hon. Friend makes an excellent point.
What kinds of situations are we talking about when we say that prisoners need representation? It is about issues such as segregation and categorisation. It is about mothers separated from their babies who need to make the case to be with them in mother and baby units. It is about prisoners who need to access programmes that will be a prerequisite of their being considered for parole. It is about cases of bullying or discrimination, or cases where people are denied access to health treatments that they ought to get. These are really important entitlements that we must ensure that we protect for all people. We should not deny them to people simply because they are in prison serving a sentence for a criminal offence.
If we fail to deal with these cases adequately, we will, as my hon. Friends have said, drive up costs both outside and within the prison system. We will have more people in higher category prisons for longer. We will have more problems caused by failing to address their underlying health and well-being needs, and that will play out in continuing disruptive and difficult behaviour inside prison and on release. I invite the Minister, who is a very thoughtful Minister, to take account of the much broader context in which these apparently cost-effective measures will impact inside our prisons.
I particularly ask the Minister to comment on youth offenders, who are the most vulnerable group in our prisons and in our penal system. Are they too to be hit by this lack of access to legal representation? They, of all prisoners, will be especially poorly equipped to represent themselves. I hope that the Minister will at least be able to give us some assurances on young offenders.
I declare the interest that appears in the Register of Members’ Financial Interests that I am a member of the Bar, although I do not currently practise and have not done so since I have been in the House. For 25 years, I practised in criminal courts around London and the south-east. I defended almost invariably on legal aid rates and when I prosecuted, the remuneration was broadly the same. I have spent enough time at the sharp end to know and value the importance of legal aid in our justice system.
It is because I value legal aid that I find some of the responses to the Government’s consultation deeply disappointing. The criminal justice system and legal aid deserve better than the rather Panglossian view adopted by some Opposition Members and, I am sorry to say, some spokesmen of the profession that all is as well as it can be and that it would horrific to alter it.
More thoughtful Labour Front Benchers of the past have recognised that that view is not tenable. The former Lord Chancellor, the right hon. Member for Blackburn (Mr Straw), not only recognised that the growth in legal aid spending that we had seen over a decade or more was, to use his word, unsustainable, but observed that the profession needed to consider not just efficiencies, but structural change. He pointed out the opportunities that the Legal Services Act 2007 provided for such structural change. It is interesting that there is, yet again, collective amnesia on the Opposition Benches.
If we put aside the issues of cost for one moment, because there is agreement that we must always consider value for money, is the hon. Gentleman content that the Secretary of State has conducted the consultation in a timely and proper fashion? The rush in which this matter is being dealt with and the lack of a substantive vote in the House are of real concern, given the issues with which we are dealing.
It seems to me that the Secretary of State has adopted a careful and measured approach. What the hon. Lady says is thoroughly misleading. I am sorry to say that she does herself no service by making such a thoroughly meretricious point.
This matter has been the subject of great public debate. I have referred to the former Lord Chancellor’s speech in 2009, in which he made specific proposals, including bringing in fixed fees and graduated fees as a precursor to best value tendering. He may not have delivered on those proposals, but the ideas have been out there for a long time.
The Lord Chancellor has met the chairman of the Bar Council and the president of the Law Society. It is right and wise that he chooses temperate interlocutors. He has been most willing to engage with Members of this House who are interested in legal matters. The hon. Lady therefore does herself a disservice to characterise the process as rushed.
The hon. Gentleman is doing a fair job of coming to the defence of the Government, but does he really believe, as a member of the criminal Bar, that it is right to withdraw choice from defendants? That is the fundamental question.
The right hon. Gentleman had no difficulty serving in the Government of Tony Blair, who observed in 2003 that it was time
“to derail the gravy train of legal aid”.
He might like to think about his own background before he criticises anybody on the Government side of the Chamber.
Of course choice is important, but if we are to have a sensible and intelligent approach to choice, we must recognise that when choice is funded by the taxpayer, it should not come with a completely blank chequebook. It is legitimate to look at the way in which choice is delivered. We should link to the question of choice the important commitment to a proper quality standard. I hope that the Bar Council and the Law Society will work with the Ministry of Justice to develop a quality standard to ensure that the lawyers who come forward under this scheme are not just acceptable, but really good and able.
Will my hon. Friend give way?
I have given way twice, so my time is running out. I am sure that my hon. Friend will forgive me.
There might be different means by which the same objective can be achieved. It might be possible to have some form of panel system. It might be possible to have a different approach to police station work, where there is a strong argument for saying that firms need a guaranteed volume of work to make the business case sustainable, as opposed to the preparation of litigation and the ongoing court work in both the magistrates court and the Crown court. It is not unreasonable to say that choice has to be provided in the context of affordability. We must not be afraid to say that.
We must recognise that the number of people seeking work at the Bar and in the solicitors’ profession has grown greatly, frankly to an unsustainable level. The profession has to recognise that too many people are chasing a diminishing work load. The number of cases that go to court has reduced by broadly a third since I came to the Bar, whereas the independent Bar and the solicitors’ profession have become about three times as large. Something has to give. Let us sit down sensibly and find ways in which that can be achieved.
I have given way twice and am afraid that I cannot give way any more. I am sure that the hon. Gentleman will find another opportunity to make his point.
We should not be sniffy about the development of alternative business models that might deliver the service properly. I recognise the points that have been made about accessibility in rural areas and about the particular types of expertise that may be needed. We could do more within the existing mechanisms to assist people with such issues.
I have come across such a situation in my constituency. Bromley council has set up an online platform in negotiation with reputable and well-established solicitors firms in the area that puts potential clients in contact with a solicitor, who provides the initial advice without any charge. There was difficulty in setting that up because, despite the willingness of the established solicitors firms to take part, the Solicitors Regulation Authority would not provide the necessary regulatory clearance. That is a needless bureaucratic obstacle to a practical solution to a genuine problem. That could sensibly be looked at and I hope the Minister will consider what might be done.
There are other ways in which we can make savings in criminal matters. My hon. Friend the Member for North West Norfolk (Mr Bellingham) has suggested using the independent Bar more within the Crown Prosecution Service. We should look at whether more efficiencies can be made in that body more generally. Perhaps we should look at the operation of the new centralised magistrates courts service. Again, there might be scope for savings.
We spend markedly more on legal aid than any comparable common law jurisdiction. We spend about £39 per head in the UK, compared with about £20 per head in the Republic of Ireland, about £10 per head in Canada and about £13 per head in New Zealand. Those are jurisdictions with the same system and trial processes as we have, but they do it markedly cheaper. I do not believe that a reduction of 10%, which is not out of line with other reductions, is unacceptable.
It is a pleasure to follow the hon. Member for Bromley and Chislehurst (Robert Neill).
If the Lord Chancellor really wanted to engage with hon. Members, he would be sitting in the Chamber today. All hon. Members on both sides of the Chamber know how important, significant and seismic the Government’s proposals on legal aid will be if they are implemented. It is noteworthy that the Law Society, the Criminal Bar Association, the panel of counsel, the President of the Supreme Court, barristers, solicitors, the Equality and Human Rights Commission and our constituents are all ranged against the proposals and against the Lord Chancellor. We know why he is not sitting here today.
As I said in a point of order last week, the Leader of the House keeps insisting that Ministers have met the chairman of the Bar Council. It is the Lord Chancellor who has not met the chairman of the Bar Council and who refuses to meet him. He refuses to meet the very people who will be affected by the proposals.
It ought to be on the record that it is the chairman of the Criminal Bar Association, Michael Turner QC, whom the Lord Chancellor is refusing to meet, not the chairman of the Bar Council.
Absolutely. I am sure hon. Members received the e-mail from Michael Turner QC stating that the Lord Chancellor refused to meet him.
It is not clear what the Lord Chancellor is trying to achieve, other than to undermine the legal system. The Lord Chancellor does not appear to understand that if people are given access to legal services, they do not need to go to court—if that is where he wants to make the savings. Perhaps he wants to make the savings in court time. However, as a result of these proposals, court time will be filled by people who can afford going to court. In certain circumstances, companies can offset their legal costs against tax and even get the VAT back. An ordinary citizen cannot do that.
Judicial review is an important branch of law. Of course, the Executive do not like it because it holds the Executive to account—it looks at how public bodies come to a decision. Given the legislation enacted since 2010, it is no wonder that the Government want a neutered judicial review. No one can predict the outcome of a case, so having to make a judgment that there is a 50% chance of winning to receive legal aid, is absurd. Evidence has to be heard from both sides and a decision is made based on arguments that are made before an impartial judiciary. Lawyers are obliged to advise a client whether a case has merits before they proceed. What about the figures for judicial review? They are not increasing exponentially. A written answer to me revealed that in 2009 there were 2,145 cases in judicial review, with that figure going up to only 2,304 in 2011. In criminal judicial review, it was 316 for 2011. Those are just the figures for cases lodged; they are not even the figures for cases that have gone to completion.
The statistics quoted by those who want to restrict judicial review are that there are just 144 successful cases out of a total of 11,359. We should be careful about those figures, because they include only successful public hearings. Most cases are settled way before public hearing—they are settled before determination—and that is the merit of judicial review.
I thank the hon. Gentleman for that point. He speaks as a true lawyer; I know that he works very hard in his own law firm to deliver justice.
Let us blow the myth that lawyers are in it for the money. As my hon. Friend the Member for Kingston upon Hull East (Karl Turner) said, legal aid lawyers are not fat cats. Under legal aid, they do much more work than they are paid for. Treasury counsel, whom I had the privilege of working with when I worked for the Treasury Solicitors Department, have also expressed concerns about the reforms. They undertake Government work at incredibly low rates—much lower than if they were working in the private sector. They do both, but they bring the same intellectual vigour to Government cases as they do to anything else.
What of price competitive tendering? The number of contracts is to be reduced from 1,600 to 400. The west midlands can expect only 20 firms. According to the Law Society, however, approximately 800 firms operate in the west midlands. The Magistrates’ Association, another voice against these proposals, says that there appears to be little consistency in the number of contracts allocated to each area. The idea that one would get paid irrespective of how one’s client pleads is absurd. That is not justice; that is plea bargaining. The Lord Chancellor should know the difference. It is not choice either, as it concentrates representation and funds in a few hands. Lawyers pride themselves on their reputation—that is how they get their referrals. This will deny people the chance of choosing who they want to represent them. The hon. Member for Dewsbury (Simon Reevell) said that that is anathema to Conservatives. It is anathema to everybody when small businesses go out of business.
Michael Turner QC has come up with decent proposals, if only the Lord Chancellor would meet him. He has pointed out that 45% of the criminal legal aid budget of £1.1 billion is spent on fraud cases. If there is a banking case and the bank cannot recover the money, the fraud loss can be written off against tax, despite the state having spent money on investigation.
This is another policy from the Government that will benefit those who can afford it at the expense of the weak and vulnerable. There is no evidence for the policy. The Lord Chancellor has no mandate from the people, and no moral, legal or financial argument to continue with this course of action. He is tampering with one of the important checks and balances of the state. He is trying to weaken the golden triangle of Parliament, the judiciary and the Executive that underpins the rule of law and the framework of a good society—our society. These proposals are toxic to society and should be withdrawn.
My name is on this motion not because I do not think we need to control the cost of legal aid—we do—but should it be done in this way and at this speed? I think not. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 is barely complete, and has had no assessment. The consultation was extremely brief and we understand that the Government intend to place contracts in the autumn. Frankly, without primary legislation, the likelihood is that this business will be challenged in the courts. We will have more haste and less speed on the delivery of savings.
I want to deal with some fundamental points. This is not, as has been intimated, about the protection by silver-tongued lawyers of serial offenders: in the Crown courts in contested cases, half are found not guilty. What we are talking about, therefore, is providing justice to the innocent and to victims.
Does my right hon. Friend agree that one of the discrete risks of allowing large firms to swallow up small firms may be a loss of small specialist firms capable of demanding the trust of specific local communities —in particular, practices representing victims such as in the Stephen Lawrence case and others?
My hon. Friend makes a good point that I will return to later. He is exactly right—this is one of the likely unintended consequences of what is being proposed in the consultation.
In their efforts to cut legal costs overall, the Government are overlooking a far bigger cause of waste in the system than legal aid, namely the sheer inefficiency of the Crown Prosecution Service. In 2011-12, more than 123,000 prosecutions failed after charge because either no evidence was presented or the case was eventually dropped. The cost to the service, the courts and aborted defences was measured in tens of millions of pounds, not to mention the stress faced by people who were, presumably, innocent.
Will the right hon. Gentleman give way?
If the hon. Lady will forgive, I am very tight on time. I will give way if I can a little later.
That does not tell the whole story, however. Time and again, we see trials delayed and extended by CPS incompetence. In my part of the world alone, the newspapers are littered with cases of lawyers not turning up, evidence not being presented and cases being adjourned again and again. I suspect we all have constituency cases just like that. This happens right across the country. We should not pretend that the legal aid system is a model of efficiency, but when it comes to finding savings and better, effective justice across the whole system, we should look first at the CPS itself before we let the axe fall again on legal aid.
I am yet to be convinced—this addresses the point made by my hon. Friend the Member for Esher and Walton (Mr Raab)—by Government assurances that the quality of legal aid providers will be guaranteed by a state body. This debate comes barely a week after the Care Quality Commission scandal. That demonstrates how difficult it is to guarantee the quality of complex intellectual services, which, of course, justice is. We should notice that even where the state has direct control—namely, the CPS and the Serious Fraud Office—it cannot guarantee quality there either. A judge in a recent murder case described the CPS lawyer as “completely inadequate”. The judge said that the lawyer cited old law, did not understand the current law, fell out with the prosecution team, and then simply did not show up on the following Monday. As a result, the trial had to be held six months later. If we cannot guarantee our own system and our own service, how are we going to guarantee 400 private operators around the country?
Does the right hon. Gentleman also recognise a Conservative idea that competition can drive down costs?
The right hon. Gentleman is almost taking the words out of my mouth. I cannot believe that a Conservative Government are going to mandate how many companies and providers there should be. I know of no example in the world where a Government mandated the number of companies and then improved the efficiency of provision—not one. This is a Soviet proposal that I do not want to see. I do not mind if there are better ways of finding efficiency—as has been said, that is what we must find—but please do not lay down laws like that.
I wish briefly to discuss a couple of other troubling issues in the consultation document, the first of which is the 12-month residency test. That could deny justice to people who have suffered because of the actions of the UK Government—under UK jurisdiction—which we are responsible for resolving. Just to mention cases in which I have been directly involved, I can cite those of Binyam Mohamed, Serdar Mohamed, Yunus Rahmatullah, who is still in Bagram prison, and Baha Mousa. We are talking about: people who were subject to torture in which Britain was complicit; an innocent man beaten to death by British soldiers; people who have been rendered—and still are—to other countries; people who have been handed over to our allies—[Interruption.] From a sedentary position, my hon. Friend the Member for Esher and Walton mentions de Menezes, who was shot, although accidentally, by the British Government. All those people would be denied their justice. More important, given that in many of those cases the person is deceased, the British people would not know about the misdemeanours of their own Government.
That brings me to my final point, which is about judicial review. I sympathise with Ministers who find it irksome that we have so many judicial reviews, but the Government are in danger of getting themselves a reputation for wanting to act above the law. Irksome as it is, judicial reviews are what keeps British Governments honest—it does not matter of which party or of which origin, they keep the Government honest. I say to the Government that before they strike down these things at their own convenience, they should think again, come back more slowly and present this House with some primary legislation we can then be proud of.
It is good to follow the right hon. Member for Haltemprice and Howden (Mr Davis), as I agreed with so much of what he said, particularly the need to save within the system but not in this way and certainly not at this speed. I am grateful for the opportunity to speak in the House on this important topic, which has caused great concern across the country and about which I have received an unprecedented number of representations, from constituents, barristers, solicitors and charities. Not least, I note that the Government’s own Treasury counsel have expressed opposition, as have Crown Court justices. This is a major issue of concern for all of us and all our constituents.
Access to justice must not be determined by the ability to pay. That is one of the most important safeguards we have in a state that believes in liberty and fairness. Labour has supported finding savings in the legal aid budget, but not in this way. We support people who can afford it paying their own legal fees. We support the use of the frozen assets of criminals to fund their legal costs. We also agree on the need to address the problems of very high-cost cases, not to mention the need to root out inefficiency in our courts and wider justice system—we would all like to see that done.
The problem is that the core of the Government’s proposals are likely to have consequences that go against the grain of so much that we are proud of in our system. We surely cannot go through a process of reform that leads us to a system that puts quantity ahead of quality, and risks leading to an increase in miscarriages of justice. The Government’s reforms will replace the current model whereby the Ministry of Justice purchases legal aid services from 1,400 local providers with a model involving just 400 larger providers. The fee structure will be changed so that lawyers’ fees are paid regardless of whether there is a guilty or not guilty plea.
I wish to raise a number of concerns, the first of which is about choice, which has been mentioned by so many hon. Members. Choice is vital to ensuring that people have trust in the person representing them. Under these proposals, defendants who want to change their provider will have to apply to a court and then it will be the Legal Aid Agency that will determine which other provider services their need. On quality, the tendering process will be skewed to the lowest-cost provider; lowest cost will trump quality. If it is hard for someone to change their solicitor, what is the incentive to firms to ensure that they provide the best quality to the vulnerable? There is a great concern that the state—the prosecutor—will also be picking someone’s defence. No doubt, that will again lead to concerns about conflicts of interest and miscarriages of justice.
I also wish to raise the issue of the impact the proposals will have on black and minority ethnic firms, which form a large proportion of solicitors, particularly in London. Some statistics show—the Society of Asian Lawyers has done some excellent work on this issue—that four years ago 4,000 firms of solicitors were able to offer legal assistance to those in the criminal justice system in London, and 40% of those firms were owned by Asian and black lawyers. Changes over the past few years have reduced the figure to 1,600, with a disproportionate number of the firms that have closed having been run by those from ethnic minorities.
It is not only Members who are raising concerns; research undertaken by the Legal Services Commission, as was, talked about the importance of BME firms. It said:
“The presence of such firms, positioned as they often are in the heart of the communities that they serve, provides reassurance to these communities, giving voice to their grievances and serving to boost social cohesion and confidence.”
Under the Government’s proposals, where BME firms secure a contract there is no obvious way in which BME defendants will be able to be allocated those providers should they so choose.
Legal aid is vital in ensuring that, after due process, those who are guilty are found guilty and the innocent are able to clear their names. We must ensure choice in access to legal representation and ensure that that choice is available to everybody, regardless of wealth or income. We must ensure that we do all we can to protect the British justice system, in which we all have great pride.
I wish to make a few short remarks about the “Transforming Legal Aid” consultation, which has sparked such lively debate in this House and across the profession, to put it mildly. I qualify my comments by making the point that I am a member of the Select Committee on Justice, as is the hon. Member for Feltham and Heston (Seema Malhotra), whom I follow. The Committee is conducting a mini-inquiry into these proposals. Representatives of the profession have been before us already, and we will see the Lord Chancellor on Wednesday next week. So I have to say that I do not recognise some of the knockabout from the Opposition about the Lord Chancellor somehow being absent on this one. Members from across this House will be very welcome to come along when he comes before the Committee—we have never been so popular.
Some claims have certainly been made about these proposals in the past few months, one of which was made at the Committee’s first hearing on the subject, on 11 June: that the proposals will spell the end of the independent judiciary in this country, no less. That is quite a claim, but I do not think it is true and I do not think it helps the debate. Concerns certainly exist about the reduction in the number of those at the Bar if these proposals go ahead—future judges are, of course, drawn from these people. That point has not been aired enough in this debate so far, so perhaps the Minister will touch on it and allay the fears. Another point that has been made is that the effect of the proposals will be a fundamental change to the criminal justice system, and that is certainly true.
Many Members still wish to speak in this debate and I know that they will discuss many of these fundamental changes and what they might mean, so I wish to focus on the issue of choice. It has been repeatedly raised with me by constituents, as it has been raised by other hon. Members who have spoken this afternoon. During the consultation, a practising barrister in my constituency sent me what I thought was a useful case study—and one that I hope will show the human side of this point. Under the current system, he explained, a young man with profound mental health problems was again arrested for having a knife in a public place. My constituent, an experienced solicitor, whom the young man knew and trusted, was called. He had the defendant’s previous psychiatric reports on file and even his psychiatrist’s number in his phone. The defendant was questioned by the police and advice was tendered. A number of appearances in the magistrates court led to the case being committed to Crown court, at which point my constituent was instructed, as he had been before, and updated psychiatric reports were obtained.
Following various pre-trial hearings to sort out reports, a two-day trial was held, at the end of which the young man was acquitted and further psychiatric treatment was ordered by the judge. Happily, according to my constituent, the young man is now on the right medication, and has a diagnosis of Asperger’s. He even has a job for a couple of hours a week. My and my constituent’s concern is that under price competitive tendering, the duty solicitor, who almost certainly would not know the defendant, might well advise a guilty plea, with an alien barrister, either in the magistrates court or at first appearance in the Crown court. My constituent tells me that the fee is the same for a guilty plea as it is for a short trial, so what is the incentive to have a trial?
There is a huge potential conflict of interest for the advocate, says my constituent, with the young man possibly being sent to prison, resulting in devastating consequences for him and the state. I think he makes a powerful point. Putting aside the arguments about a reduction in choice in relation to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the European convention provisions on the right to a fair trial, which I understand opponents of the proposals will bring forward, if they are pursued, Ministers must address PCT and the choice issue, so that we do not throw the baby out with the bathwater and lose this fundamental right.
Hon. Members might know that Winchester is the home of the western circuit—or, more precisely, the chambers there have for centuries been the major providers of legal advice and advocacy for the large area they cover. The depth of specialist knowledge available across the circuit is its strength and benefits those whom I and others in the area represent. Many members of the western circuit will recognise the example I just gave and share the concern that many of us have about the future of specialisms.
My hon. Friend is making a powerful speech. The aim of the reforms is to cut the number of firms from 1,600 to 400. On the four to five-year tendering periods, does he share my concern about the countervailing risk that we might see a small number of large firms snuff out the competition, creating a monopoly and leaving no incentive to compete on quality?
I am not sure that that is the aim of the reforms, but it might be one of the consequences. I am concerned that without such competition, at the end of the contract period, a firm would be in an incredibly strong position to say to the Government, “Well, this is what we want to continue”.
PCT is seemingly not that popular, but I wonder whether it has to be the start and end of this conundrum. It might be the future, but perhaps not now and not to this very tight time scale. As we have seen this week, there is no money left. Clearly, savings must be found—we are told £220 million—so what is to be done? My right hon. Friend the Lord Chancellor has rightly said that we have one of the best legal professions in the world, and he is dead right that in a time of major financial challenge, the legal sector cannot be excluded from the Government’s commitment to getting better value for our constituents’ money. I asked the chairman of the Criminal Bar Association at a Select Committee evidence session whether he took at face value the Secretary of State’s assertions that we needed to make significant savings, and the response was this:
“There is at least £100 million that can be saved by plugging the gaps in the system. As we have also pointed out, if he wants real savings to the taxpayer and listens to the proposals that we have put forward, he can have himself £2 billion for a legal aid budget. The real sadness, for us, is that we are just not being listened to.”
I disagree with that. They are being listened to. The very fact that this debate is happening on the Floor of the House is proof of that. I suggest that the Criminal Bar Association, the Bar Council and others get these proposals into my right hon. Friend’s hands and give him some options.
I do not accept that this country faces a choice between well-funded public services that we cannot afford and terrible public services that we can. We need sustainable public services that we can afford in the long term, and that is as true in legal aid as anywhere else. It is true that we have one of the best legal professions in the world—a lot of it resides in my part of the world—and I want to see it live within its means. It is open to reform, but we might need to think, slow down, find initial savings and then reform the system in a way that leads to reliable savings in the long term. I still think that the Government and the profession can jump together on this one, if they slow down and talk. I remain ever the optimist that we can do that.
I am pleased to be able to contribute to a debate in which we have heard many thoughtful contributions from both sides of the House. The number of speakers clearly illustrates the concerns on this issue, but time does not permit us to do justice to them all or me to reflect all the detailed representations I have received from my constituents. I shall therefore focus on the main ones.
The first concern is about price competitive tendering. To demonstrate the breadth and depth of concern, let me refer the Minister to his more senior colleague, the Attorney-General, who told The Law Society Gazette:
“I cannot see that competitive tendering in criminal legal aid makes sense—legal aid contracts do not pay market rates. If firms want to win a competitive tender, the only way they will be able to undercut each other is by steps that could open them up to potential allegations of incompetence”.
“There are ideas creeping into the system that treat legal aid as if it is just about the economic provision of a service. That approach will lead to problems with lowered standards”.
Those comments were made in 2004, but are even more pertinent to today’s proposals. Furthermore, they were made by someone who not only is the Government’s chief Law Officer, but has considerable personal experience of the criminal justice system, and he clearly understands not only how the legal system works, but how markets work, so as Eddie Stobart prepares to dispense justice off the back of a lorry and G4S prepares to bring its expertise from the Olympics to the criminal justice system, we need to ask what the legal landscape will look like if these proposals are forced through.
As hon. Members have said, in the three months that businesses have in which to bid, small legal practices will be squeezed out of the system. It is deeply ironic that the Government are proposing a system so damaging to small businesses. Unable to grow to the scale needed to compete for contracts and unable to offer the loss leaders of the big companies that want to get into the market, hundreds of firms will go to the wall, and as was pointed out, this will affect not fat-cat lawyers, but many honest, hard-working and often poorly remunerated solicitors, who, with their modest earnings, make a real commitment to justice in this country.
Our bigger concern, however, should be about the impact on justice. We are looking at a cost-driven race to the bottom, with firms competing simply on price and, as was pointed out, being incentivised to cut corners and find the innocent guilty. As the consultation document makes clear, lawyers will receive the same fee for entering a swift guilty plea as for providing several days’ legal defence. Constituents have also made the point to me that losing the opportunity to choose a lawyer is a fundamental breach of rights. I am disappointed that the hon. Member for Bromley and Chislehurst (Robert Neill) minimised the importance of that. On that issue, the Justice Secretary’s own comments are as enlightening as they are shocking. He gave a real insight into his thinking when he said:
“I don't believe that most people who find themselves in our criminal justice system are great connoisseurs of legal skills”—
“often come from the most difficult and challenged backgrounds”.
He seemed to suggest that wisdom comes only with someone’s position in society, and that only those who can afford it should have a choice of representation.
Throughout the proposals, the same casual disregard is shown for those who are not considered worthy of justice. They include survivors of domestic violence—whose position was raised with me by the local medical committee in Sheffield—trafficked people, separated children who fail the residency test, prisoners whose cases cannot be addressed through the complaints system, legitimate asylum seekers wishing to challenge decisions, and those seeking access to judicial review.
Bargain basement representation will damage this country’s reputation for justice. I urge the Justice Secretary to listen to the wise counsel of the Attorney-General back in 2004. He should also listen to the widespread concern being expressed throughout the country and to the views being expressed on both sides of the House, and he should go back to the drawing board.
I am delighted to be able to take part in the debate. I must declare straight away that I am not a lawyer. I hope that I can therefore approach the debate in an impartial manner. I have been listening to it, and I am concerned to hear that so many small firms of lawyers could be excluded from the large contracts. Devon and Cornwall cover 40,000 square miles, and that will be viewed as one contract. That is a huge area to cover. I am not against the principle behind the reform, but we must be careful about introducing contracts that will cover such huge areas. We must ensure that smaller companies have a chance to tender for that work.
My hon. Friend makes a good point about small firms. I work in one such firm as a criminal defence solicitor. Does he recognise a certain irony, in that the Government want to avoid the legal aid deserts that it has been suggested could be created as a result of the equal-sized contracting model, and that the small firms, the medium-sized firms and the large firms are all saying that the proposed model is unviable?
My hon. Friend speaks with a great deal of experience as a lawyer in a law firm. He has identified the problem with the reform, and I can relate to what he is saying. I suspect that all Conservative Members recognise the need to make savings, but we need to do so in a way that will still allow people to have a choice. Hon. Members on both sides of the House are keen to see small law firms get business and stay in business.
It is estimated that about £20 million is being spent on the defence of criminals, many of whom are probably not declaring all their assets, and I agree with the Government that that needs to be sorted out. That is perhaps a slightly different issue, but it is none the less essential that taxpayers’ money is used to the best effect. A cut-off point can be set on a person’s income above which they will not qualify for legal aid, but there are also cases in which someone who is eligible for it carries on a vexatious case against a person who is just above the threshold and has to fund the case themselves. That is perhaps not a matter for debate today, but it is essential, if we are to ensure that people can get access to legal aid, to ensure that those cases that are pursued are legitimate and not simply vexatious.
It has been pointed out that we are seeing a great many judicial reviews. It is right that the Government should be challenged, but it is not necessarily right that everyone should have access to a judicial review, as they are often unnecessary.
I broadly support the Government’s attempt to reduce the costs of legal aid, but I am concerned about certain aspects of it, as I live in and represent an area of Devon that is very rural and the proposed contract will be very large. I believe that the Secretary of State and the Minister are listening to these arguments; the Minister is nodding his head. I do not want us to be a Government who reduce choice, who drive out of business many small firms that do an excellent job and, perhaps, who do not save anywhere near as much money as we believe we will. Before we go ploughing on with this, let us sit down and have a proper consultation. I am hopeful that the Government are not just saying this and that they will have meaningful talks. I look forward to that happening.
May I first of all declare an interest? For many years, I practised family and criminal law, both as a solicitor and barrister, and many of the cases were legally aided.
The effects of these reforms will be extremely detrimental to solicitors and their practices. Inevitably we will have advice deserts and this will impinge even more on the situation in Wales, where there is a requirement to provide services through the medium of Welsh. The Justice Secretary, sadly absent, has admitted that the Ministry only considered this factor a month into its consultation and his impact assessment does not even mention the Welsh language.
The consultation process in general so far has been nothing short of a sham allowing professionals only six weeks to get up to speed with proposals that will fragment the professional world they inhabit. To add insult to injury, the Government intend to introduce these reforms by secondary legislation without proper scrutiny by Parliament. This is scandalous. Unless these plans are stopped now and quickly, there will be no turning back.
I was in Wales at the weekend and was struck by the major rurality issues in that part of the UK. Is the right hon. Gentleman concerned that the loss of high street lawyers in rural areas could damage access to justice?
Undoubtedly so and, as one who used to practise in a small town, I speak with a little authority. The right hon. Gentleman is absolutely right.
It goes further than the point made by the right hon. Member for Tottenham (Mr Lammy). It goes to the Bar as well, as the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) and I know. If the good barristers leave because they cannot afford to remain within the criminal legal aid system, we will not get the silks and we will not get the circuit judges and Crown court judges. In that way, we will see a diminution in the quality of justice that we all expect to receive.
The hon. and learned Gentleman is absolutely right and I could not have put it any better.
One of the most contentious aspects of these so-called reforms is the removal of the client’s right to choose. Instead people will be allocated a provider, regardless of the complexities of the case or whether they have any particular needs or vulnerabilities.
The right hon. Gentleman will know that the clause in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 that guaranteed the right of the individual to choose was deemed to be incredibly important and now is being completely ignored. Does he agree that there is a very real risk that the public simply will not have confidence in a system where the defendant’s lawyer is chosen by the very state seeking to convict them?
That is a very important point, because it was considered vital in the civil context and yet curiously not even regarded as being of passing interest in the criminal context, where people risk their livelihood, liberty and everything else.
Comments made recently by the Justice Secretary in the Law Society Gazette make one rather suspicious that there is something ideological in the calculated removal of choice. He said that he does not believe
“that most people who find themselves in our criminal justice system are great connoisseurs of legal skills”
or to paraphrase—as we have heard—they are “too thick to pick”. These condescending comments display a sinister lack of compassion for the vulnerable in society and a cavalier disregard for these individuals’ best interests.
Denying an individual the right to choose their legal representation is arguably in breach of the European convention on human rights, article 6 of which sets out specific rights for criminal defendants including that they should be informed of the offence they are accused of in a language they can understand.
A loss of expertise will also follow, unfortunately; the point made by the hon. and learned Member for Harborough (Sir E. Garnier). It will deprive the legal system of practitioners, firms, solicitors and counsel with specialist knowledge of particular cases and areas of law. In the event of price-competitive tendering being introduced to the so-called market, the quality of service will be considered at only a preliminary stage of the process. The final stage of bids will be determined on price considerations only. Even at the starting price, following three previous cuts to legal aid fees over the last eight years, the Government have specified that bids must be at least 17.5% lower than the current rates.
The first casualty of this race to the bottom will be the quality of service. Astonishingly, as has been said, providers will be paid the same unit price for preparing each case regardless of the offence and regardless of a push for either a guilty plea or trial. This presents a conflict of interest, but the Justice Secretary has said that he is sure the professionals can be relied on to act in the best interest of the client—but the professionals will no longer be around; that is the point. They will have been priced out of the market altogether.
The proposals provide that daily payments to solicitors, for example, will be reduced after a second day. There are many reasons for delays in court—interpreters not turning up, people speaking the wrong language, change of court date at the last minute, Crown Prosecution Service witnesses and so forth—but the individual lawyers are now apparently to be penalised. With 400 remaining providers, advice deserts will develop in rural areas.
At present, there are 249 law firms in Wales undertaking some form of criminal work. Under these proposals, only 21 contracts will be awarded to provide legal aid criminal services in Wales. Providers will be expected to service work across large distances without any additional payment for travel costs. There will be no guarantee of work after the initial three-year contracts have come to an end. It is difficult to imagine small local firms being able to survive. With them will go knowledge of the local area, local police, courts and agencies and local access to justice. Instead, we shall have Eddie Stobart, Tesco, G4S, the Co-op and so forth. There is even talk of call centres. The prospect of tendering cases out to “Stobart Law” or “Tesco Law” fills me with absolute dread. It will mean an attack on the criminal Bar and will make a cataclysmic impact on the future of our criminal judiciary.
These proposals will, I am afraid, seriously undermine the rule of law. Why is it, then, that the Council of Circuit Judges vehemently opposes these plans? Why is the Judicial Executive Board similarly opposed? Why is Lord Neuberger, until recently the President of the Supreme Court, vehemently opposed? Why? It is because they are right. The Justice Secretary—a non-lawyer—knows better than the finest legal brains in the British Isles. It is time to reconsider, and if this consultation is not to be a sham, the Government must reconsider.
I am grateful to the hon. Member for Brent Central (Sarah Teather) for securing this debate. I shall concentrate mainly on the proposals relating to price competitive tendering. My concern is that these are not suitable for a county such as Suffolk, which covers a large geographical area, much of it rural in nature. Suffolk has three principal urban centres: Ipswich, Bury St Edmunds and Lowestoft, the latter being the principal town in my constituency. All are some distance from each other.
Having lived in Suffolk my whole life and having worked there as a chartered surveyor for many years, I do not believe that it is practical for a firm of solicitors based in one of the three towns to provide a good service across the whole county. If the proposals are implemented in their current form, I fear it could result in significant parts of the county being left without ready access to good legal advice. One would, in effect, be creating advice deserts, as many Members have said.
This would be bad for my constituents and bad for those towns and market towns where the presence of solicitors on the high street, often long-established family firms or partnerships, could be put at risk. There is a need for their continued presence. Large multi-discipline firms have their place, but we do not want a system that encourages all solicitors to locate on business parks, often inaccessible to public transport, on the edge of remote urban centres. My worry is that the proposals could eradicate those small legal firms who best know their clients, and this would be bad for community justice. These high street firms are not legal fat cats gorging on legal aid.
I do not like the idea of a state-imposed system of providing criminal legal aid, rather than that of allowing a market to develop organically. I shall make three observations to highlight my concerns.
First, I do not believe that four firms can provide comprehensive coverage across the whole of Suffolk. Rather than applying the same straitjacket to each of the 42 criminal justice service areas, would it not be more appropriate to look more closely at the make-up of each area and come up with a system that takes account of such features as rural sparsity and the location of the main police stations, police investigation centres and local courts?
Secondly, I am concerned that requiring firms to expand substantially to cover such large procurement areas could mean that solicitors spend most of their time sitting in their cars driving to courts and police stations. In Suffolk, Lowestoft is 45 miles from Ipswich and 54 miles from Bury St Edmunds. Is it realistic to reduce automatically by 17.5% fees that have been pegged back in any case for many years, and then expect a firm in, say, Ipswich to provide a comprehensive and good service in Lowestoft? Will such firms have a proper and full understanding of the needs, challenges and concerns of people in the Waveney area? Is it practical for solicitors to drive an hour through the night to attend at police stations? Driving up and down the A12 or along the A143 are not the easiest journeys at the best of times.
Thirdly, it has been suggested that one way in which solicitors can improve their productivity is to make greater use of paralegals. That would involve those who are not fully qualified and have lower hourly charge-out fees carrying out more routine work. Such an approach may well be practical in other legal fields where there are fewer legal obligations, but not in criminal legal aid, which is fundamentally different from other legal work.
We all must accept that savings have to be found. To find them, one must adopt a strategic approach, looking at the whole criminal justice process, from the police station through to the courtroom. I would be grateful for an update from the Minister on whether the Government will increase magistrates’ custodial sentencing powers from six months to 12 months, which will enable justice to be delivered more efficiently and quickly by magistrates who live in, and have a good understanding of, the communities they serve, and, according to my understanding, would produce significant savings of up to £40 million a year.
On that point, I listened carefully to what my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) said about the Crown Prosecution Service not being up to the job. Surely more savings could be made there.
To find savings, we should look across the whole criminal process, from the police station on the first night through to the courts, whether magistrates courts, which I believe should have a bigger role, or the Crown court. We must look at the CPS as well, and my right hon. Friend the Member for Haltemprice and Howden, who is not in his place, made a very good point about that.
The Secretary of State should look again at the proposals for price competitive tendering. There is a need for a more local approach that takes account of the individual features and characteristics of different areas and communities, an approach that enables small and medium-sized firms of solicitors to have a sustainable and viable future, and an approach that provides local communities with access to legal advice and support from professionals who have local knowledge of the particular problems and challenges in their area.
Several hon. Members
Order. A large number of Members still wish to speak, and there are only 30 minutes left before the debate will conclude. I hope that Members will try to make their comments succinctly so that as many as possible can speak, and that those who are tempted to make interventions will avoid doing so if at all possible, and save them for the Minister and the shadow Minister, so that Back Benchers get their comments on the record.
I will try to remember your advice, Madam Deputy Speaker.
Although I am not a lawyer, I should mention that my eldest daughter is a lawyer working in prison law, so I have drawn much of what I will say from her experience.
On the proposals being an attack on access to justice for all regardless of means, we must ensure that such access is protected. Even the Government’s Treasury counsel has roundly condemned the proposals. What concerns me particularly is the fact that they will not require primary legislation, but will be pushed through in secondary legislation. That is an insult to Parliament.
A system that would restrict access to criminal legal aid to people with assets of less than £35,000 would be very different from the current system. The Government say that they do not want to pay for the defence of wealthy criminals, but people who are charged are not criminals. Indeed, that is the point of charging them. The proposed restriction breaches the fundamental principle in our legal system that those who are charged are presumed innocent until proved guilty. Article 6 of the European convention on human rights requires that they have the right to a fair trial and to professional legal representation. I agree with my right hon. Friend the Member for Tottenham (Mr Lammy): this is akin to what might happen in a country run by a despot. It is entirely unacceptable. Our proud tradition of the right to access to the law dates back to Magna Carta, and we should not threaten that tradition.
I was also concerned to learn that in the autumn there is to be consultation on a proposal to restrict access to legal aid for recipients of benefits. The restriction of access to the law for the poor and vulnerable would take us back to the dark ages, and we must not let it happen.
Some Members have referred to the introduction of price competitive tendering, which many believe will lead to a race to the bottom and a dramatic reduction in the quality of services.
The importance of the right to choose one’s lawyer has also been mentioned. One of my constituents, who is a solicitor, told me of a vulnerable young woman who had been abused. She had been charged on three occasions, but because she had built up a relationship with her lawyer and trusted him, he was able to provide a high quality of representation, and she was acquitted. That would not happen under the proposed new system. Again, we should not jeopardise access to the law for the most vulnerable members of society. According to my daughter, it can take weeks for a trusting relationship to develop; in the early stages, one-word sentences may be the only form of communication.
There are also proposals to restrict access to legal advice in prisons. As I have said, my daughter works in prison law. I have been told that a very vulnerable client who was sentenced at the age of 15 and had served three times her sentence tariff was recently released following a judicial review. That would not happen under the new system—and she is not unique. As we heard from my hon. Friend the Member for Stretford and Urmston (Kate Green), many prisoners are extremely vulnerable, and may have mental health problems or learning difficulties. It should be recognised that punishment is not the only purpose of prison. Opportunities for rehabilitation should be offered, and prisoners should have access to the law when that does not happen. It should also be ensured that facilities are appropriate for those with learning difficulties or other disabilities.
It is a myth that restricting access to civil legal aid will save money. It has been suggested that the changes relating to prison law will save £4 million, but, as we know, there will be a cost of £10.3 million.
Order. The hon. Lady’s time is up.
Before I make some brief remarks on behalf of the many members of the legal profession and the general public who have approached me, may I say a word to the House on behalf of the Backbench Business Committee? The Committee granted this debate to the hon. Member for Brent Central (Sarah Teather) and the right hon. Member for Tottenham (Mr Lammy) as a general debate with no Division to allow for a wide-ranging and frank discussion, which I think all Members would agree the House is having. We are also extremely mindful of the fact that the debate is over-subscribed and the House needs to give more time to this subject. Does the right hon. Gentleman want to intervene on me at that point to say anything?
The hon. Lady is a member of the Backbench Business Committee, and I wonder whether she is saying more time could be made available for us to return to this topic and have a vote. I am also mindful that the shadow Secretary of State has not yet spoken, however, and that I may not need to press this debate to a Division.
I hope it is possible not to do so, for the reason I have just explained. There is also a short, but important, debate to follow.
If it helps, may I say that as the Justice Secretary is running scared and is not here today, and as the Government are failing to allow a vote on this issue, the Opposition will use some of the limited parliamentary time available to us to hold an Opposition day debate on it?
I thank the right hon. Gentleman for his intervention.
I am not a lawyer, but many points have been put to me by people in the legal professions, and I therefore wish to pick up on a few of those points. Of course I do not think it is unreasonable to look for savings from this budget, just as savings are being looked for from all the others, but the question is how they are to be found. There seems to be a consensus emerging in the House that there are better ways to find savings in this budget than through these particular savings.
May I quote from one of the criminal barristers who wrote to me directly? She said:
“We who work at the ‘coal face’ know where the money can be saved and where the problems are. We are acutely conscious that every Department must sustain a cut in spending. But this is not the right way to do it—we would like to sit down with the MOJ and discuss how we can save money and preserve the justice system at the same time.”
Those are wise words and I think all Members would want us to try to find consensus as to how to proceed.
On the residency test, I represent the last British resident of Guantanamo bay, so I can think of obvious exceptions—people who very much need access to justice and who certainly would not qualify under that test. Turning to a slightly less dramatic aspect, I am also particularly concerned about victims of human trafficking. I said this in my submission to the consultation:
“Had I applied this test as an MP, a number of vulnerable constituents who I have been able to help would not have qualified. I would particularly wish to be assured that the proposed residency test would not stop victims of human trafficking or modern slavery being represented.”
Much has been said about the issue of high street firms. Not every high street firm is absolutely brilliant, and that is especially in an area in which I work a lot. I have a large immigration case load, and about 15% of my constituents do not receive notification of their leave to remain or get their papers back in a timely fashion, and we often have to chase them up. I would therefore just say that everyone can look to improve.
Price competitive tendering has been discussed, and I was particularly struck by the point made by the hon. Member for Redcar (Ian Swales) about the potential for end-to-end vested interests. That is particularly concerning and gave us all pause for thought. I also fundamentally agree with the points made by Conservative colleagues about price competitive tendering, and in particular the comments of my hon. Friend the Member for Dewsbury (Simon Reevell). It just does not feel like a naturally Conservative solution to a problem potentially to drive choice and competition out of the market. That just does not feel like what we should be doing.
Finally, I want to say a few words about the smooth running of the justice system, drawing on my own experience of particularly complex cases involving, sadly, people stuck in the revolving door of prison and the justice system, and often involving drugs and so forth. The Government are seeking to address that in a way I applaud, but these people often have very complex problems, and the cause of ensuring justice in the courts is almost certainly served by their being able to have some kind of continuity of representation, rather than starting again with a new solicitor every time.
I shall finish a little early to try to ensure that every Member has a chance to speak. To those constituents who may feel I have not touched on their particular point, I say those points have all been touched on in this debate, and I will make sure each of them is aware of what has been said.
The last point I want to make is about the money to be saved by the smoother running of the justice system. In recent weeks I have been stopped on the street by two part-time judges—there is obviously something about Battersea, as part-time judges just stop people in the street. They said that there are enormous savings to be made through the system running more efficiently, with fewer delays and mishaps. They also made the point that a rise in the number of litigants in person will almost certainly have a knock-on impact on the justice system, and not in a helpful or money-saving way.
I want to talk about the impact of the proposals, the process and the politics of the situation. Before I start, however, I should mention that I have raised the issue with the National Audit Office, particularly after its very good work on interpreters in the criminal justice system. The Secretary of State ought to be a little worried, because the NAO will be watching and monitoring the situation and waiting to assess the impact. Of course, it always does that retrospectively, but the Secretary of State could save himself a lot of grief from an NAO audit if he improved the scheme from the beginning. What the NAO can do well is consider the system as a whole. I have asked it to do that and it is considering that request at the moment.
As time is limited, I will not repeat the arguments on the impact of the scheme that have been made eloquently by so many Members. Let me touch on a couple of points, however. The system is often painted as dealing with criminals but, as my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams) said, people are innocent until proven guilty. A local solicitor in my area has pointed out that more than 50% of the people who rely on legal aid with whom he deals are innocent and are neither charged nor cautioned. This is an attack on the innocent, as well as on those who appear in the picture painted by the Government.
One of the big impacts is through cost-shunting. We have heard a lot about self-representation, more time and duplication of work. Those are serious issues. I am a member of the Public Accounts Committee and when we consider such issues, we see time and again that one Department makes cuts and pushes the cost on to another. We must consider the system-wide elements and I am not convinced that the Government have done that.
I will not repeat the other arguments, save to mention what happened when I was a Minister dealing with challenging issues, when I took on dealing with children detained with their families. In that investigation, I uncovered the immense cost of not getting proper legal advice at the beginning of a case. It caused huge problems and damage to those children at a later date. There was also a huge issue with the geographical spread of cases. I did a round table in Wales and swathes of that nation in our country did not have immigration lawyers. I fear that this change will only exacerbate that.
On the process, the consultation has been rushed. There has been no proper opportunity for debate in this House and we have heard of some of the inadequacies in the consultation. The statutory instrument in the autumn will be the only opportunity the House gets to vote on these proposals and I am delighted that my right hon. Friend the Member for Tooting (Sadiq Khan) has said that the Opposition are not afraid of a debate on the issue.
There have been no pilots. The points about changes made elsewhere should also be considered and perhaps pilots could compare this option with some of the others. I was a witness in court in the past year and was appalled at how much time was wasted. I was in a room with four other witnesses, some of whom were also victims. Only one was called into court that morning. One woman had some sandwiches and I realised as I left that she must have been prepared—indeed, she had been before and knew that her case might not be heard. What a waste of everyone’s time and money! It is everyone’s—it is taxpayers’ money, it is my constituents’ money and the situation needs to be considered. This is not the way to do it. It is a cack-handed approach, but the situation is presented in a very political way.
Costs have gone down, as legal aid spend figures published yesterday show, but I have not time to go into that.
The Government are trying to paint the picture that they are being tough on criminals and immigration. That rhetoric is unhelpful. It attacks many of my constituents, who need good advice. Even with legal aid, we have a two-tier system. The changes will cut the vulnerable adrift. Many of my constituents have suffered because they cannot afford expensive lawyers and legal aid lawyers are already stretched.
There is politics attached to this. We have heard from the Deputy Prime Minister, who is quoted in the Daily Mail as saying:
“You could say it’s perverse that a Government with Conservatives in it is reducing public choice”—
we have heard that already—
“rather than increasing it…on the back of the consultation we should see if there are alternative, less disruptive, less unpopular ways of delivering”
So there you have it, Madam Deputy Speaker. If the Liberal Democrats decide that this is unpopular, they might persuade the Government to drop it. Given that we have no vote on it, that might be our best bet. So I urge those who are listening to this debate to turn up in droves to the surgeries of Liberal Democrat Members and persuade them that it is unpopular. Then perhaps the Deputy Prime Minister will have his way.
I refer the House to the Register of Members’ Financial Interests. My interest is as a criminal defence duty solicitor, so I have a particular interest in relation to the criminal legal aid proposals. It is important that we focus on this issue, but we should not have this debate in a vacuum. Certainly, yesterday’s statement ensures that we do not have a vacuum; there is a need to make the £11.5 billion saving, and legal aid cannot be exempt.
We also heard from the Chancellor that this is about fairness. Reference was made to the national health service as an institution that we can be proud of, that the people are proud of and that is about fairness. The legal aid system is also an institution that is about fairness. It is one that we can be proud of, but it is not one that in polls people say is a No. 1 priority. That makes it even more important that we as a Parliament and a Government make sure it has integrity, but it cannot be excluded from the Budget round.
Why can we proud of it? Members do not have to take my word for it. Just take the word of the Secretary of State, who has been maligned and caricatured in many ways, but I am convinced is open and is listening to this consultation. We need to take his word for it—
Where is he?
Let us not get into the “Where is he?” business, or who he meets with. Let us take this a bit more seriously. Let us listen to what he said in the document. He said:
“Access to justice should not be determined by your ability to pay, and I am clear that legal aid is the hallmark of a fair, open justice system.”
That is what we have all been saying throughout today’s debate. He went on to say:
“Unfortunately, over the past decade, the system has lost much of its credibility with the public. “
I look at the criminal legal aid system, predominantly in police stations and magistrates courts. The Secretary of State went on to say:
“Taxpayers money is being used to pay for frivolous claims, to foot the legal bills of wealthy criminals, and to cover cases which run on and on racking up large fees for a small number lawyers.”
The proposals seek to deal with that; for very high cost cases, I welcome that.
Police stations and magistrates courts have been under cost control for a number of years, with real-terms cuts. Is there evidence that the system has lost credibility with the public and we must change the system wholesale by introducing price competitive tendering? I think not. When we look at the elements of our system and ask what is delivering quality and what is making us proud of it, we see that it is the fact that it is based on the principle of choice. Yes, we can look at procurement going forward, but we cannot undermine the principle of choice.
When we look at those that I and others have represented over the years, we can characterise them as the good, the bad and the ugly. Choice ensures that the most heinous, wretched criminal is represented and has a choice of lawyer. The most worthy of saints also gets the choice of lawyer, without judgment or conditions. That is an important principle of which we can be proud. It means that, when dealing with the regular clients that I have represented over the years, we can enter a timely guilty plea, which is efficient; we can achieve a sentence that takes account of their mental health needs or drug needs and go the extra mile to make sure that they get drug rehabilitation.
We can also represent the young innocent because their parent has asked us to go down to the police station. They want to choose someone they trust, who can understand the person’s special educational needs, problems of communication or learning difficulties. They need their own solicitor to be involved. We must have choice, yes to protect the vulnerable but also to ensure quality, to ensure that there is a client base that is protected and maintained but also to ensure mutual trust and good will in the system.
Let us look at the costs of justice so that we can deliver efficiency. But let us also listen to the Ministry of Justice over the years, which has said that choice is the key deliverer of quality. Let us listen to Lord Carter, who conducted an independent review and said that choice had to be maintained. Let us also recognise our small firms, who make up three quarters of legal aid firms and do the business end—the 90% of cases that go through to magistrates courts. They are delivering out of good will—yes, they are paid, but a fairly limited wage—because they care about the system. They need to be maintained and encouraged. We need to go along with it, with a timetable and proper consultation so that we deliver an efficient justice system for the benefit of all.
Rightly, a lot of attention has been given to the changes to legal aid for criminal law and the removal of choice of solicitor, and those are serious matters, but I will focus on the cuts to legal aid for judicial review. I do not speak as a legal expert—I am not a solicitor or a barrister—but I will illustrate how judicial review has worked in the past and how the proposed changes will militate against good outcomes.
A 12-year-old boy was excluded from school and his local authority placed him in the pupil referral unit. After a couple of days he stopped going, because the PRU was in an area where a different gang was based and he was scared. For two years, the boy received no education: the local authority occasionally organised meetings with the family and occasionally threatened to take his mother to court. Understandably, she wanted her son to be educated, but she understood his fears.
A local charity recommended a solicitor, who made repeated attempts to resolve the problem with the local authority. They were ignored. Eventually, the mother issued judicial review proceedings. They were ignored. An order was made for the matter to be expedited, with a date for the authority to set out what it steps it was taking to provide the boy with an education. That order finally galvanised the authority into action to avoid judicial review. A package was worked out, with good will, between the council, the PRU and the local college—a right and welcome outcome. Under the Government’s proposals, the case would not have received legal aid, as it was settled before the permission stage.
There are other cases that illustrate my worries about the future, such as the woman receiving treatment for cancer who was evicted because the landlord wanted to sell the property unoccupied. She would no longer be able to challenge the council’s decision not to provide her with emergency accommodation. A 16-year-old girl fleeing the physical abuse of her alcoholic mother and stepfather was living on the streets until the threat of judicial review convinced the council to find her accommodation. Shelter, which represented the girl, would not have been paid for the case because the local authority acted after it was threatened but before the case got to court.
What do those case studies tell us? They tell us that under the new regime, lawyers are unlikely to take on a case where there is a likelihood that it will be settled before permission stage, as they will not be paid. Perversely, the strongest cases will not be funded and taken up. People on low incomes will have much less chance of getting access to judicial review and to justice. We are told that cases such as the ones I have described are less likely to have a good outcome. The young man whose case I described is now enjoying learning and, hopefully, he will grow up to have a decent job and contribute positively to society. Imagine what might have happened if that intervention had not occurred early enough.
Does my hon. Friend agree that when changes are so far reaching, there really ought to be some sort of pilot scheme and evaluation before anyone takes any steps any further to try to implement any changes of this nature?
I absolutely agree. In the examples I gave, if the outcomes that were, in effect, negotiated before the cases got to court had not been achieved, the costs of the alternatives in terms of alienation, unemployment, ill-health, petty crime and worse, replicated across the country, would far outweigh the £1 million that I understand the change is designed to save. How much more would it cost us to keep that young man in the criminal justice system and to replicate that across the country?
Will the hon. Lady give way?
No, I will not.
Even if we were to save £1 million, would that be worth the cost of losing the ability to change the lives of people like those in my examples? People must be able to hold power to account, and I fear that the proposals are a serious attack on the right of the most vulnerable in our society to do just that.
Several hon. Members
Order. I am dropping the time limit to four minutes. I am going to get everybody in, so nobody will miss out.
I will keep my comments brief. As the mood of the House has made clear, there is an acceptance across the Chamber that reform is necessary and cost savings must be found in the legal aid budget, but there is an overwhelming view that although change may be necessary, the ones proposed are very clearly the wrong changes. Coalition colleagues have been keen to point out from the Conservative Benches that in their opinion this is not a Conservative reform and not one that they can support from their own philosophy. I understand and sympathise with that.
Let me say from the Liberal Democrat Benches that these changes are not liberal. They undermine the principles of liberal democracy and the justice system that is a key part of it. They threaten the liberal values of justice and fairness that our justice system should be based on. I am therefore saying clearly that as Liberal Democrats we should oppose them. As colleagues have said, we have already had substantial cuts to the legal aid budget through the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the lower fees built into the 2010 criminal legal aid contract.
I have further concerns, apart from the financial ones. My hon. Friend the Member for Redcar (Ian Swales), as a member of the Public Accounts Committee, has laid out the Committee’s concerns. I am a member of the other overseeing Committee, the Public Administration Committee, and we have already expressed our concerns that in a number of areas Government procurement does not sufficiently allow small and medium-sized enterprises to bid. Here we have something that the Government are doing which will make that difficult or impossible and will damage or destroy many small businesses. As Members have said, many of the high street solicitors are not fat cats. Many of them operate in the heart of communities, and that will be ripped away by the proposed changes. That seems to undermine a number of other Government initiatives, including the Portas review, for example.
In 2011 at the Liberal Democrat federal conference we passed a motion noting that those least advantaged in society are often those who most need assistance in getting access to the courts and to legal aid, and that fair access to justice and to the courts is a mark of a modern, civilised and democratic society. The Liberal Democrat party as a whole therefore agreed that before any substantial changes are made to the legal system, full consideration, assessment and trials should be carried out, which is not the case at present.
Liberal Democrat lawyers have come up with a number of proposals to show that there are different ways of achieving the same aims. These proposals are worthy of consideration, and I hope the Government will consider them. They include lifting the bar on assets subject to a criminal restraint order from being used to fund reasonable legal expenses; removing long and complex fraud cases entirely from the scope of legal aid and instead requiring company directors to take out insurance against the costs of defending in prosecutions arising out of the conduct of their company; the use of penalties which could reimburse legal aid against the Crown Prosecution Service where prosecution conduct leads to wasted costs, long trial extensions and so on; a strategy for decriminalising minor offences and reducing the use of custody through restorative justice alternatives; and making savings from the administrative budget.
Liberal Democrat lawyers oppose the proposed changes and the Liberal Democrat party as a whole opposes the changes. I believe that the Liberal Democrat parliamentary party should oppose those changes, and that is the message that I want to send today.
Thank you, Mr Deputy Speaker, for reducing the speaking time and ensuring that all Members are called. There is a message here: I hope we have another debate, at greater length, when we can have a vote on this important topic. Although it is always regrettable when the Secretary of State cannot be present, the good news is that he will be before the Justice Committee next week, so we will be able to ask him a few questions there.
There are some serious questions to be asked. We have gone through the miserable experience of LASPO, we have already seen the effects of the loss of legal aid, we have seen in our surgeries many people who cannot find a lawyer to help them, and many legal aid practices have already gone under in high-cost inner-city areas where low-income families are desperate to receive justice. I hope that we will have a serious response to the Ministry of Justice’s rather rushed consultation.
Like all Members who have spoken, I have received many representations on this matter. I do not have time to quote from or refer to them all, but I would like us to remember one important underlying principle. When the current legal aid system, more or less, was introduced in the 1940s—it was built on the rather ineffective system that existed before—the then Government, who were much more far-sighted than this Government, considered legal aid to be as valuable to justice in our society as health, education, housing or the welfare state system that prevented people from falling into destitution. What we are approaching, if we are not already there, is a system in which if someone is poor, destitute, marginalised and up against it, they will get no help and no justice and will continue to suffer. Legal aid is fundamentally important in a democratic, civilized society in which a person can have their day in court to get a verdict in their favour or otherwise.
I will mention the representations I received from INQUEST, a good organisation based in my constituency. It rightly points out that the cases of Jean Charles de Menezes and Jimmy Mubenga could not have been taken to court had these proposals been in operation. It also points out that the proposals are likely to breach article 2 of the European convention on human rights, which concerns the right to life. The Immigration Law Practitioners Association, which over many years has done fantastic work on ensuring that everyone is represented and gets advice, points out, in relation to judicial reviews:
“This is not an immigration problem or even a legal aid problem. It is a problem of access to justice, of equality of arms, of holding the State to account.”
That is what a judicial review must be about.
For those busy telling us that every lawyer is a venal fat cat interested only in practising commercial law and leaving the rest of the people to rot, I have an interesting e-mail from a young solicitor in my constituency. Jed Pennington, who has a good law degree from Cambridge university, turned down work in the commercial sector to work pro bono on many other things and on legal aid the rest of the time. He, like many others, is not a fat-cat lawyer. They are doing it because they believe in justice.
Matrix and Bindmans have pointed out that the proposed savings are nonsense. The cost increase will be at least £24 million if the proposals go through. It is time for this House to assert itself and listen to organisations such as the Islington Law Centre, which does great work in pointing out that loss of legal aid is loss of right and loss of justice. Reject it.
It is a disgrace that the Secretary of State is not here, but hon. Members should count themselves lucky that there is a Minister here at all, because in yesterday’s Westminster Hall debate on legal aid in Wales, secured by the hon. Member for Ceredigion (Mr Williams), we had a Whip replying, rather than a Justice Minister.
I hope that today the Minister will be able to respond to two very important points. One concerns a pilot. It seems that the idea of firms having to tender will be rolled out across the whole country without even first trying a simple pilot. A pilot scheme is absolutely essential. The other issue is the time scale. The way the proposals are being brought forward is so rushed.
Will the hon. Lady give way?
I will not, because of the time available.
There seems to be absolutely no time to consider the proposals, certainly for small firms. If they are to contemplate trying to work together, they will need far more time to put together their tender and fully understand how it would work.
I come from the Dyfed Powys area, which is the largest police force area in England and Wales. It takes three and a half hours, for those who know the roads well, to drive from Llanelli to Machynlleth. The idea that only four firms could provide for that vast rural area is complete nonsense. Many local solicitors will be unable to participate and will effectively lose all the business. That means the clients will be unable to access the justice they need, never mind access to specialised areas or in the Welsh language. Even one of the larger firms in the area, which is obviously very small by national standards, has said that it cannot see itself tendering through the process. It is absolutely essential that clients have a choice. As many Conservative Members have pointed out, it is quite ironic that a Conservative Government are proposing to eliminate choice. Many clients have problematic backgrounds. They want to go to somebody they know who may also know their family, their circumstances and the community they come from.
We hear about all the stereotypes of clients who need legal aid, but Thompsons Solicitors has pointed out that it will often be used by someone to clear their name, such as a paramedic or teaching assistant who has been wrongly accused of assault or suchlike. My hon. Friend the Member for West Ham (Lyn Brown) made an extremely compelling case for the use of legal aid not only for judicial review but for the preparations leading up to it. JR is vital in holding our public services to account and avoiding many other complications for the clients involved further down the line.
The real threat that these proposals pose to justice is that people may be tempted to plead guilty rather than innocent. That is extremely worrying; it really is a recipe for miscarriages of justice. As for people trying to represent themselves, we should think about how that will clog up our courts, which will be completely overwhelmed. With the current staffing levels in courts, people already have difficulties in trying to get information, and they will not be able to cope.
Absolutely fundamental in all this is the fact that there is no redress for the ordinary person. We have seen this time and again with this Government, whether it is in trying to damage the employment tribunal system or trying to drive down wages in the context of rising prices. Every which way we look, it is the poor and the vulnerable who suffer. I very much hope that the Government will look again at these proposals.
I congratulate the hon. Member for Brent Central (Sarah Teather) on securing this important debate.
When the Bill that became the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was being debated, I genuinely thought that things could not get much worse—that the Government would not go any further in what appears to be a crusade to dismantle universal access to justice—but I was wrong. Since then we have had the deeply worrying Justice and Security Act 2013, and now we have these proposals for secondary legislation that will deny access to legal aid to some of the most vulnerable and disadvantaged in our communities. Like many other hon. Members, I have been lobbied extensively by my constituents who share my passion about the importance of a justice system that supports the right to a fair trial. Yet that right is being fundamentally undermined, with precious few opportunities for MPs to scrutinise the details or to object.
Much has already been said about the impact of price competition tendering. I simply point out that many legal experts in my constituency have told me that if the changes go ahead, then cost becomes the determining factor, not quality, with the inevitable result of a huge loss of knowledge and expertise that will never be recovered. One of them notes that the effect will be more delays in court and a detrimental impact on victims and defendants in the criminal justice system. The system is already under immense pressure and only works because of committed judges, court staff, probation officers, barristers and solicitors who do what needs to be done out of professional duty and pride. Another expert issues this stark warning:
“PCT will in all likelihood destroy the independent criminal bar. A Bar that is held in the highest esteem throughout the world and which continues to adapt to a changing landscape.”
A constituent who works as a defence solicitor describes the likely impact of another proposal—namely, people having no choice about who represents them and the creation of a single fixed fee payable regardless of whether an individual pleads guilty. He says:
“The right to a fair trial will no longer be assured. Innocent people will end up in jail. Vulnerable and high maintenance defendants will be left unrepresented. The high maintenance clients will create delays and inevitable injustices in the Court and the vulnerable or weak will have inadequate protection from the police looking to meet their government imposed disposal stats.
In practice this will mean them accepting cautions at the police station and pleading guilty at court for offences they haven't committed. The police will have ‘solved’ many crimes. But it is unjust, and with criminal records, those affected will be prevented from becoming teachers, lawyers, doctors and MPs.”
I want to end with a few words about the judicial review process. Like many other hon. Members, I am deeply concerned about these proposals utterly undermining the JR process, which is one of the most important ways of achieving public body accountability. Environmental cases, social welfare cases, and cases about library closures, schools and so on were all done by way of judicial review. A consortium of non-governmental organisations working with refugees and migrants has commented:
“In our opinion the proposed change would result in an increase in unlawful decisions relating to access to services with disastrous effects on the individual and/or an increase in the number of individuals who seek to ask the court to intervene without the assistance of a properly qualified representative. This is not in the interests of justice.”
The homelessness charity, Shelter, has also raised concerns:
“Judicial review is the main mechanism Shelter uses to ensure local authorities meet their legal duties to help homeless people.”
It has stated that the proposals to limit legal aid funding for judicial review will have a significant impact on the ability of people on low incomes to question council decisions and, ultimately,
“will make it even more difficult for us to help homeless families find a place to stay for the night.”
The environmental charity, WWF, warns:
“These measures will significantly affect our ability to protect the environment… Individuals and civil society groups should not be denied their fundamental constitutional right to check an abuse of power and protect the environment on the basis of costs-cutting.”
Moreover, the Coalition for Access to Justice for the Environment has found no evidence to support the claims that the changes are justified because the Government are overwhelmed by judicial reviews on planning issues. That is not the case, nor are there any data to support a credible claim that judicial review is a significant impediment to economic progress.
If the planned changes go ahead, they will seriously damage public access to justice, the equality of citizen and state before the law, and our ability to hold the Government accountable.
I congratulate the Backbench Business Committee on holding this debate.
The Justice Secretary may be a rising star in the Conservative party, but this policy and his non-appearance this afternoon are misjudgments. More than 30 Members of Parliament have applied to speak on a Thursday when there is a one-line Whip and more than 98,000 people have signed a petition expressing concern about the proposals.
I have only 10 minutes to address the various points that have been made, so I will rush through the most pressing of them. First, I will make the position of the Opposition clear. We support efforts to find savings across the justice system. We support making those who can afford to pay their legal fees do so and restricting legal aid to those who are most in need. We support using the frozen assets of criminals to fund their legal costs. We would support moves to address the problem of very high-cost cases. We would support a root-and-branch review of our criminal justice system to cut out the waste and inefficiency that anyone who works in the sector or has used it knows is rampant.
We do not support the Government’s proposals to place the quantity of cases processed ahead of the quality of legal provision and to remove choice from defendants. We believe that those proposals could lead to more miscarriages of justice. We do not support legal aid being run by the same global corporations that run prisons, probation services, courts and tagging. I should say that those are the proposals not just of the Justice Secretary or the Conservative party, but of the Government, including the Liberal Democrats and Lord McNally.
I pay tribute to all 32 Members who have contributed to today’s debate. I agree with much that has been said and look forward to the Minister’s response. Will he clarify whether the changes will require primary legislation and when parliamentarians will have a chance to vote on the proposals? My right hon. Friend the Member for Tottenham (Mr Lammy) spoke about dividing the House this afternoon. I tell him that although we have a limited number of Opposition days, in the light of the Government’s failure to move on this issue, it will be a priority for us. We will have a debate on a motion that divides the House because of the issues that have been raised this afternoon.
The Government’s latest proposals on legal aid are this Parliament’s second attack on access to justice. Social welfare legal aid has been decimated. We were accused of scaremongering during the passage of those proposals. However, law centres have closed—we hear today that the law centre in Birmingham will be closed—leaving the most vulnerable without recourse when they suffer wrong decisions by the Government and other organs of the state. In the recent past, more than 600,000 people have been denied access to advice in areas such as social welfare, debt, employment and housing law. There has been a 30% fall in the providers of civil legal aid and a 12% fall in the providers of criminal legal aid. None of those providers was a fat cat or ambulance chaser.
It is disappointing that the Justice Secretary is not here. If he was, he would have heard 30 mini tutorials on our legal system. [Interruption.] The hon. Member for Bromley and Chislehurst (Robert Neill) would know all about that. Fundamental to our legal system is a presumption of innocence. A decision on guilt is taken by a court of law only after the evidence for and against a prosecution is presented and cross-examined in an open and transparent manner. Due process needs to happen. After all, removing an individual’s liberty is one of the most important powers in the gift of the state. Properly administered legal aid means that all individuals charged with a criminal offence have legal representation, not just those who can afford it, and ensures that our country’s precious rule of law applies to everybody. Legal aid helps those who are wrongly accused to maintain their innocence, and ensures that the state proves, beyond reasonable doubt, the case against a defendant. Please note that I use the word defendant, not criminal. I do not, unlike others, make sweeping generalisations that all those who receive legal aid are guilty criminals. The last time I checked, we still had a presumption of innocence in this country.
Many miscarriages of justice have happened because of an absence of proper representation for defendants: the Birmingham Six, the Guildford Four, the Maguire Seven and others. Because of legal aid, victims have confidence that genuine perpetrators of crime are prosecuted and punished. Victims of crime want certainty that the true perpetrator has been found guilty. They do not want the wrong person pleading guilty or being found guilty, and they certainly do not want the guilty walking the streets. Legal representation for defendants is crucial in minimising miscarriages of justice. These proposals introduce perverse incentives that could unbalance the criminal justice system, with representatives being paid the same whether someone pleads guilty or stands trial.
The Justice Secretary may not have turned up this afternoon, but he has sought to portray legal aid solicitors and junior barristers as fat cats. He knows that the profession has a public relations problem, and he has sought to exploit that in the media to further his own political aims. That is all a tough veneer that masks the real impact of his proposals. Local providers, often high street firms that know their local authorities, courts, police and probation, will be replaced by big corporations, maybe even the same ones that run prisons, probation and tagging—conflicts of interest at every turn. Strangely for a party that claims to be pro-enterprise and pro the high street, this will sweep away hundreds of small and medium-sized enterprises. High street firms will go under, an unintended consequence that will have an impact on the diversity of the judiciary.
The driver of the new contracts is how many cases can be done at the lowest cost per unit, not the quality of the legal representation provided. Why else propose to pay the same fee regardless of whether there is a guilty or not guilty plea? It is as if Ministers do not know the substantial difference in work load between the two pleas. In an era when so much in the public sector is about choice, the opposite will happen in legal aid. People will get what they are given, whether it is rubbish or good. The state will prosecute people and decide who defends them. The Justice Secretary would not accept a special adviser—also paid for by the taxpayer —or the external legal advice relied on by his Department, to be imposed on him. Nor would he accept where his children go to school being decided by someone else. Why then should someone who is facing serious allegations, but is presumed innocent, have no choice in their solicitor?
Lawyers who have the confidence of defendants are more able to give robust advice, for example for a defendant to plead guilty when the evidence determines that that is the best course of action. A lawyer who has acted in previous cases will know about a client’s learning difficulties, language and other problems that may be relevant to their current case, leading to a more efficient legal system that saves money.
Let me be clear and save the Minister’s time. He talked about Labour wanting to spend more, but we would make savings to the legal aid budget. We did so in government, as many legal aid lawyers keep reminding me. Despite what the Government claim, our legal aid budget was not increasing:
“The Government’s legal aid bill increased very substantially in real terms between around 1965 and 2000, but it has been cut since then”.
Those are not my words, but those of the President of the Supreme Court, Lord Neuberger, last week. The hon. Member for Enfield, Southgate (Mr Burrowes) also talked about cost pressures on solicitors as a result of Labour proposals. However, they did not lead to defendants being denied choice. In government, we did look at a version of price competitive tendering. We looked and we considered, but we recognised that it was fraught with danger and thought better of it. Back in 2009, the current Attorney-General, the then shadow Justice Secretary, supported that decision. He actually committed the Conservatives to suspending the scheme, claiming:
“We really should be concerned about the lasting damage that could be done if we’ve got this wrong”.
“It could permanently damage the provision of criminal legal aid.”
He knew that the proposals could mean a generation of lawyers leaving the profession and that once they are gone, they are gone. I see from recent press reports that he is unhappy at current plans, which are even worse than the ones he opposed when in opposition.
I note from the look on your face, Mr Deputy Speaker, that—
It is 4 o’clock and we need to hear from the Minister.
Notwithstanding your generosity in allowing the debate to carry on, Mr Deputy Speaker, time means that you have cut my comments short. I understand that, but may I say that it is unacceptable for the Government to be railroading these plans through, with no pilots, no proper consultation and no working with key stakeholders to see whether savings could be made in a less oppressive way? We oppose the current plans, but we are happy to work with the Government, with or without the Justice Secretary, to see whether we can make savings that are less unjust.
May I start, as others have, by declaring an interest, as a non-practising barrister? I practised in the field of criminal law and a great deal of what I did was legal aid work.
I congratulate the hon. Member for Brent Central (Sarah Teather) and the right hon. Member for Tottenham (Mr Lammy) on securing this debate, which has been a very good, and understandably passionate, one. Having listened to a good deal of mock outrage from Opposition Members about the absence of the Secretary of State and their being stuck with me—I am trying not to take it personally—it is worth my reminding them of two previous occasions when we have discussed matters of great importance in the context of justice policy. The last statement in this House on a justice matter was about the rehabilitation reforms. It was a statement that Opposition Members had called for repeatedly, but the shadow Secretary of State was not here for it. Neither was he here the last time we had questions on justice matters, when we covered a range of important issues, including legal aid. I am sure we would not want to read too much into that, just as I am sure Opposition Members would not want to read too much into the Secretary of State’s absence today. As hon. Members have said, he will be appearing before the Justice Committee next week to discuss this very matter.
Why does the Minister not just share with us where the Secretary of State is?
I note that the right hon. Gentleman did not take the opportunity to share where he was the last two times, but I suggest that we might want to move on.
This is an important debate, as hon. Members from all parts of the House have said. Before I try to respond to a number of the specific points made—the House will understand that the time constraints we face mean that I will not be able to respond to everything, and I apologise for that in advance—let me say something about the context of these reforms.
It is right to say that the previous round of legal aid reforms, culminating in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, will have already removed about £320 million from the legal aid budget by 2014-15, but those proposals were primarily focused on civil legal aid scope and eligibility. Alongside those changes, we have made sweeping reforms to the central administration of the legal aid system. We have strengthened accountability and introduced a more rigorous approach to financial management by creating the Legal Aid Agency. But the successful delivery of that programme has not eliminated the need for reform. In order to meet the ongoing financial challenges facing the justice system, which many who have spoken have recognised, the Government have had to look again at the cost of civil legal aid, as well as turning their attention to arguably the most difficult part of the legal aid reform agenda: the reform of criminal legal aid.
The saving the Government would make by looking at civil legal aid is £6 million in relation to judicial review. Does that really make it necessary to run a coach and horses through judicial review?
The position is, as I have just said, that the bulk of the work done under the 2012 Act dealt with civil legal aid and the bulk of the work being done under these proposals will deal with criminal legal aid. The total value of the savings that these reforms would make if fully implemented as currently proposed would be £220 million by 2018-19. That is a significant figure, given our financial circumstances.
Many hon. Members have questioned the need for further reform, while others have said we should go much further. My hon. Friend the Member for Huntingdon (Mr Djanogly) made an interesting speech about more radical options we could pursue. The answer is simple: criminal legal aid accounts for £1 billion of the overall legal aid budget, and in the current financial climate, the Government, being committed to eradicating the deficit and the national debt, cannot overlook such a sizeable portion of Government spending. We have had to make extremely tough choices in other areas, and it would not be right to exclude this one.
Many hon. Members have said that we should look for savings in other areas of the criminal justice system. My hon. Friend the Member for Meon Valley (George Hollingbery) made that point, as did my hon. Friend the Member for Dewsbury (Simon Reevell), my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), my hon. Friend the Member for Waveney (Peter Aldous) and the hon. Members for Hackney South and Shoreditch (Meg Hillier) and for Leeds North West (Greg Mulholland). All of them were right about the importance of looking at other areas. I think we heard some good suggestions today, and of course the Government will look in all those areas for savings, too, but that does not get us away from the need to keep the legal aid budget under proper scrutiny.
The package of proposals on which we have consulted is intended to ensure that our legal aid system commands the confidence of the public—that is important—and remains financially viable both now and in the years ahead. We are looking carefully at the 16,000 responses to the consultation, and, with reference to what my hon. Friend the Member for Brent Central said, I can reassure the House that I and my ministerial colleagues will treat everything said in this debate as important contributions to that process. We will listen carefully to what has been said today as well as to what was said in the consultation.
We are duty bound to ensure, however, that taxpayers’ money is spent only where it is justified and only on those who genuinely need the state’s assistance. The taxpayers, who fund the legal aid scheme, have every right to demand that their money be well spent and to ask important questions. They have a right to ask why the taxpayer should be paying the legal costs of the very wealthiest Crown court defendants up front; why the taxpayer should be paying for criminal legal aid for claims made by prisoners that can be better resolved by other means—I will return in a moment to prisoner law— and why the taxpayer should pay the legal costs of those with no strong connection to the UK.
As others have said, our legal aid budget is disproportionately high. My hon. Friend the Member for Bromley and Chislehurst (Robert Neill) made that point very effectively. We have an extremely good legal system—it is greatly admired and, as others have said, it contributes significantly to our society—but that does not mean that it should be immune to the realities that the Government face. Efficiencies have to be made, and reform is the mechanism for achieving them.
No one is suggesting that there should not be reform. Has the Minister considered the fact that 45% of criminal legal aid goes on high-cost cases, many involving bank fraud? Why does he not ask the banking industry to come up with an insurance scheme and take that out, rather than dismantling the whole system?
The right hon. Gentleman is right that very high-cost criminal cases are an important area for us to focus on, and we propose to take about 30% of the cost of those cases out of the system, but he would be wrong to assume that those cases, on their own, could achieve the savings we need to make. We need to look more broadly.
I want to turn to the particular proposals and concerns that hon. Members have concentrated on. Many Members have focused on the effect of the proposals on smaller firms and on the issue of price competitive tendering. In 2011, we said that competitive tendering would likely be the best way to ensure long-term sustainability and value for money in the legal aid market. Some Members were concerned that this was a new idea suddenly springing into the political landscape, but of course that is not the case. Indeed, the right hon. Member for Tooting (Sadiq Khan)was gracious enough to point out that the idea was first considered under his Government. In March 2010, the last Government produced a Green Paper entitled, “Restructuring the Delivery of Criminal Defence Services”. Among other things, it said:
“Currently the criminal defence service is highly fragmented, with a large number of small suppliers and relatively few large suppliers….We believe that these market trends are not sustainable. Therefore we believe a future tendering process would ensure a more consolidated market, with a smaller number of more efficient suppliers, required to undertake the full range of the services we need.”
That is what the Labour party thought in 2010, and lest we should run away with the thought that it has changed its view since then, let me quote from what I am sure is a very well-read blog written in October 2011 by the right hon. Member for Tooting. He said—as, to be fair, he also said today—that:
“I recognise that cuts need to be made…I would have carried through a new scheme for contracting of solicitors for criminal legal aid and lowered criminal defence advocate fees in the Crown Court…This more efficient contracting of legal services from solicitors has bizarrely not been implemented by the coalition government”.
So he criticises us for not doing it, then he comes here and criticises us for proposing to do it.
Another point that has been made repeatedly today is the effect that the proposals could have on smaller firms. I need to make it clear that the proposed competition model would see the number of contracts, not the number of firms, reduced from 1,600 to 400. Our proposals do not prescribe how many lawyers should be available or how those that have the contracts should divide up the work allocated to them.
The matter of client choice has also been raised by many hon. Members today. We have listened carefully to the concerns that have been raised not only in the debate but by those who responded to the consultation. Let me reassure the House that quality-assured duty solicitors and lawyers will still be available, just as they are now. The Legal Aid Agency will need to ensure, as part of the tendering process, that all providers are capable of delivering the full range of criminal legal aid services across their procurement areas. That is also true in relation to the points raised about rural sparsity and about the Welsh language.
We have a number of things to consider, and we will consider them carefully. We will come back with our conclusions in the autumn. I am grateful that the debate has taken place today and for all the contributions that have been made. We will consider them properly and respond accordingly in the autumn.
This has been an excellent and well-informed debate. If there is one thing I hope the Minister will take away and consider, it is that of the more than 30 contributions we have heard today, only one—in addition to his own—was unequivocally in favour of the proposals. I hope that he will reflect on that. Liberal democracies cannot afford to get themselves into a position in which they wield power over a citizen without giving them a right to challenge. It would undermine the rule of law if we afford citizens rights without giving them the means to secure them. I hope that the Government will consider these points carefully and come back with some very different proposals, which they will put to a vote in the House.
Question put and agreed to.
That this House has considered legal aid reform.