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Civil Legal Aid

Volume 600: debated on Thursday 15 October 2015

I beg to move,

That this House has considered the Eighth Report from the Justice Committee, Session 2014-15, on impact of changes to civil legal aid under part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, HC 311, and the Government Response, Cm 9096.

I am delighted to have secured this debate on the operation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO as it is often called. I welcome the Under-Secretary of State for Justice to his place. We now commence our discussion of the second of the Justice Committee’s important reports that we are considering today.

I was prepared to give these reforms of legal aid a fair wind when they were introduced, but I also have concerns about them, as I think the Committee does. I do not say that because the objective of saving money is not important and, indeed, a significant imperative. I sympathise with the predicament of the Minister and of his predecessors; having been a Minister in an unprotected Department myself, I am very conscious that the financial circumstances that the previous Government inherited were dire, and changes had to be made and economies found. I accept that entirely.

Nevertheless, I and the rest of the Committee are concerned that the reforms may have had some unintended consequences, which perhaps we can now sensibly revisit. I was not a member of the Committee at the time the report was produced, but reading through it, a number of the concerns expressed chimed with my own experience as a constituency MP and, for what it is worth, my experience at the Bar. Although I no longer practise at the Bar, I still keep in touch with those who do.

Perhaps we can deal with some of the main issues that were highlighted in the report, and I look forward to hearing my hon. Friend the Minister’s response. I say that because, once again, I detect in both his comments and those of the Secretary of State a willingness to be open-minded about revisiting situations where it can be shown that there are perhaps better, more nuanced and more effective ways of obtaining the objective that we all want to achieve—having a legal aid system that concentrates resource where it is needed and that helps those who are in genuine need, but that does not encourage unmeritorious litigation. I think that we all share that view.

The Committee raised several issues on which I am interested in hearing my hon. Friend the Minister’s comments. First, there was a concern that the reforms, in a sense, were undoubtedly financially driven. There is nothing wrong with that in itself; it was a necessity at the time. Both the then permanent secretary and my hon. Friend’s predecessor as Minister were frank and fair about that to the Committee; savings needed to be made, and made quickly. However, that meant that no research could be undertaken about the impact of the reforms. Now, we are about a year on and although, frankly, it is unusual to conduct a Select Committee inquiry on reforms after only about a year, we are now able to see some of the impacts and I hope that gives us a chance to revisit some of the issues.

The position, of course, is that the MOJ is unprotected. The Committee was concerned that, although it may not have been intended, in practice the reforms introduced in April 2013 may well have begun to impede access to justice. If that is the case, we need to be prepared to accept it, and we should revisit the issues.

There were four objectives that the Government perfectly reasonably set themselves: to discourage unnecessary and adversarial litigation at public expense; to target legal aid at those who need it most; to make significant savings in the cost of the scheme; and to deliver overall better value for money for the taxpayer. There is nothing wrong with any of those objectives, but the evidence that the Committee received suggested that at least three of them have not been successfully achieved. That is why we need to be prepared to look at them again.

Access to justice is fundamental to a system based on the rule of law, and it is therefore important that any changes we make to the ability of the citizen to access proper legal advice are based upon objective evidence. That is the first and primary concern.

In terms of a saving, the National Audit Office concluded that the Government had exceeded their savings target by £32 million, because they were not funding as many cases as was predicted. Many Members will have people come to their constituency surgeries with debt issues, and in debt cases the shortfall was in the region of 85%. That indicates to me that the projections were pretty much based on back-of-an-envelope calculations and may not have had a great deal of research behind them. I am happy to be corrected if that is not the case. Given the speed at which it was acknowledged that that was happening, I can understand why that might be the case, but perhaps that is all the more reason to look again at the matter, if that is what is happening.

I am happy to see an underspend when it is genuine, but if it is an underspend because people who ought to be entitled to legal advice and support are not getting it, that is a failure in the system, and we need to find out precisely why that is so. One of the Committee’s concerns was that there was a significant lack of public information on accessing legal aid, and I have found that in my surgeries. In a comparatively prosperous part of suburban London, I have a lot of constituents coming to me who are unaware of how best to access legal aid and what their rights are. I suspect that the situation may be very much worse in other, more socially challenged parts of the country. We urgently need to revisit that issue.

The suggestion that people are simply moving to pro bono is not good enough. The pro bono work done by members from both sides of the profession is very important, but at the end of the day that is not a substitute for proper advice. That needs to be addressed, and I look forward to hearing what the Minister says on that.

Secondly, we have the operation of the exceptional cases funding scheme, which is an important part of the legal aid system. It was specifically and properly designed to ensure that any changes did not put us in breach of our obligations under the European convention or the European Union, and that is right and proper. The then Lord Chancellor described the scheme as a “safety net” on Second Reading of the Legal Aid, Sentencing and Punishment of Offenders Bill. I have no problem with a safety net, but we need to see how effective its operation has been. The evidence to the Committee on that raised concerns for us.

I appreciate things may have moved on—I am sure the Minister can update us if they have—but at the time of the Committee’s report, 7.2% of applications for ECF were granted. When the usual risk assessments and impact assessments were carried out for the legislation, the estimate was for that figure to be between 53% and 74%. I know from when I was a Minister that impact assessments are sometimes not entirely borne out in practice, but we are talking about a massive difference. When the figure is about one tenth of the top end of the impact assessment estimate, that indicates to me that something is going seriously awry. Either the impact assessment was very badly off indeed or the operation of the scheme has borne down much more heavily on deserving cases than Ministers ever intended. Some 60% of the grants that were made were for family representation at inquests, and that is good. I had a meeting recently with Inquest, which is an important and valuable body that does hard work in that field. Representation in that area is critical, but what about the rest of the significant shortfall? We need to examine that a little more.

We found—this is worth reciting—some exceptional cases where applications under the ECF were refused. They are exceptional cases; that is the whole point. An illiterate woman with learning, hearing and speech difficulties was facing an application that would affect her contact with her children. That was not regarded as suitable for exceptional cases funding, and that is difficult for many of us to appreciate. The judge in one case told us of a woman with modest learning difficulties who was unable to deal with representations from the lawyer on the other side. She is now facing possibly not seeing her child again. That troubled me in particular, because that coincides with my conversations with district and circuit judges and practitioners who operate in this field.

Anyone who goes to their county court will be aware of such issues, which raise a fundamental equality of arms argument. The other side is very often the local authority, which is represented by solicitor or counsel. Against that is someone who may not be able on their own to deal adequately with the process. To say that that is not an exceptional circumstance would be an unfair consequence of the scheme, and that sort of thing should not happen again in future.

I will give one further example. A destitute blind man with profound learning difficulties lacked the litigation capacity, so the official solicitor made an application on his behalf. Initially, that was rejected, and it had to go to judicial review. We should not be having to do that. That is clearly where the operation of the system, rather than the intention of Ministers, was at fault, but it means that we need to bear down carefully on how these cases are processed in the first place. I do not want a legitimate objective of efficiency and saving to get a bad name because of how it is carried out in practice.

Against that background, the Committee concluded that the low number of grants and some of those details meant that the scheme was not acting as the robust safety net that was intended. The risk of miscarriage of justice is real in some of those cases, and we should not allow such things to happen as a consequence of the reforms. We are concerned that so far we have heard no evidence of the Ministry investigating the significant disparity between the predicted number of grants—the 53% to 74% estimate—and the actuality of less than 8%. Will the Minister say what steps have been taken to investigate that enormous disparity? What steps are being taken to ensure that the scheme operates in a more equitable and just fashion? That is hugely important for the scheme’s credibility.

There has, in fairness, been an improvement in recent months, and I am sure the Minister will update me further. The statistics for April to June 2015 show an increase, with grants made to just over one third of all applicants. That is partly because Ministers reviewed the guidelines, and that was right and proper, but it required a review and decision by the Court of Appeal to make that happen. Ministers acted promptly on the basis of that decision, and I give them credit for that, but one third is still way short of the bottom end of the benchmark of 50%. We need more detail on what is being done to ensure that the percentage becomes more realistically near the estimate.

The number of applications remains low, and I would like to know what more can be done on that. The Committee’s inquiry involved some 35 oral witnesses over a period of months and some 70 pieces of written evidence. It is a not insubstantial piece of work that was undertaken by my colleagues who were on the Committee at the time. One reason that the Committee found for the low number of applications was the length of time that it takes to complete the form. That is not insignificant. I can remember sitting in the cells as a practitioner, completing the legal aid form before we went up on the first remand hearing. The form has gone well beyond that now, and the truth is that lawyers cannot claim the time for completing the form.

[Mr Graham Brady in the Chair]

I welcome you to the Chair, Mr Brady, as always. I am not here to make the case on behalf of lawyers, but completing the form is generally beyond the capacity of many lay people, particularly those with any difficulties. They need help to do it and the solicitor will not be remunerated for doing it. Many do it out of their professional sense of duty and obligation, and they are right to do so, but the form is an impediment. In many areas of Government, we are successfully making forms simpler and putting things into plain English. If we are able to make forms simpler in a raft of areas, including planning applications, local government matters and court forms, we ought to be able to do it for the application forms for these matters. What are the Government going to do on that?

A separate issue that causes concern relates to legal aid in family law cases, particularly in what is sometimes termed the domestic violence gateway. Happily, I never practised in that field, but I know that it is one of the most stressful that a lawyer, judge or litigant can encounter. The intention was—I do not doubt its goodness—that legal aid would be available where a litigant can show evidence of abuse within the past two years, with an exception where there is clear evidence of a conviction arising from domestic violence. That is the easy bit. We were concerned by the evidence to our inquiry on the operation of that need, in the absence of a conviction, to show evidence of domestic abuse from within the past two years. We found that some 39% of women who contacted a domestic violence charity about abuse did not have one of the prescribed forms of evidence. That leads us to conclude that the prescribed forms of evidence are too rigid and that there ought to be greater nuance and discretion around that.

Also, as anyone who has dealt with such matters would know, many people struggle with the two-year time limit, because family law cases have often dragged on for years. Relationships that can be abusive, often with as much emotional and psychological pressure as physical pressure, are all part of a picture that builds up over time. In such a relationship, where there may be children and it is difficult for the person to walk away, the strict adherence to a two-year limit can be artificial, and perhaps the guidelines do not coincide with the reality of life as many of us know it from our surgeries, and certainly as many experienced practitioners know it. I hope we can look at that issue again.

The Committee recommended that the Legal Aid Agency be allowed discretion to grant funding where, although the facts might not immediately fit the criteria, the victim of abuse would be materially disadvantaged by having to face the alleged perpetrator of the violence in court. We would not allow that in criminal proceedings, and we should not get into such situations in family proceedings, either. I hope the Minister will give us more details on that. I doubt it would increase the spend. The numbers are not great, but the potential injustice is very great, so I hope we can revisit that issue.

I am sorry that the Government rejected our recommendation. I ask the Minister, on behalf of the Committee, to think again. It is not good enough to say it is a catch-all clause and will lead to large amounts of litigation. I am sure it is possible to draft a sensible form of discretion that is not a blank cheque, but goes further to reflect reality than the current arrangements. We are a year on now. On the basis of the open-minded approach that the Secretary of State and his team are taking, now is a good time to revisit it in the light of experience and perhaps seek evidence from the practitioners and judges who hear such cases as to what might sensibly be put into the form. I hope the Government will think again about that.

The third issue that we raised, which again coincides with my own experience independently of the report, is sometimes called “sustainability and advice deserts”. There are parts of this country where it is very difficult now to find a lawyer to take on a civil legal aid case. Again, if in comparatively prosperous Bromley it is hard to find a solicitor to take on legally aided family work, it is a lot worse in many other parts of the country, never mind in rural areas where the question of simple physical access to a suitable solicitor can be significant. This is classically the area where pieces of research were to be published in 2015, but we have not yet seen the fruits of that research. Perhaps the Minister can tell us when it will be made public, because I have no doubt that the Committee will wish to revisit some of the considerations in the light of that.

The fourth area of concern stems from the increase in litigants in person. The contention at the time—I was prepared to give it a fair wind—was that there would be behavioural change through the removal of legal aid so that fewer people would choose to go to court to resolve their problems. I am not sure the evidence bears that out. I do not want to be an amateur psychologist, but perhaps the motives that lead people to go to court are not of a purely transactional nature. Sometimes, particularly in the most difficult cases, there are pressures that go beyond the ordinary straightforward business decision that we might make as to whether we litigated over a contractual matter, for example. This is not that sort of case. Very often there are other deep pressures that play upon people, which we may not have taken fully on board.

Also, I do not think we have done enough to promote the alternative of mediation, which I shall come to in a moment. On re-reading, I felt there was a finger in the wind approach to the assessment about behavioural change. The wind does not seem to be demonstrating that that is happening in the way that we would wish. Certainly the anecdotal evidence that we heard from people before the Committee, and others, was that there had been a significant increase in litigants in person. There is not a systematic means of collating that information; perhaps there should be. Even in the family courts where some figures are available, the accuracy and their significance was debatable. If we are to have such policy change we ought to know, and it should not be too difficult to work out. If litigants in person and those who are represented are logged, it should not be too difficult to pull the figures together so that we know better where we stand.

The National Audit Office was concerned that the increase in litigants in person in the family courts had cost the family court system an additional £3.4 million. I was disturbed at our evidence hearing on Tuesday to hear a senior official of the Department suggesting that there was no impact. Anyone who talks to anyone who sits in the county courts would say otherwise. There is an impact. We all know that litigants in person often take longer to present their case, which consumes court time and also affects soliciting as the costs run up on the other side, so it is in nobody’s interest in the long term to save money under one head of the justice system, but increase it on the courts budget, which is itself hard-pressed, on the other. Perhaps we need more evidence and a willingness to revisit that, too.

Moreover, often the increase in litigants in person is of people with real difficulties in coping with the system. We have moved on from a situation where the litigant in person was a fairly articulate person who chose not to employ a solicitor or a barrister—not something I would ever encourage, of course—because that was a sensible decision and they were able to deal with a straightforward case on its own merits. We now often deal with people coming before the courts with significant educational and communication difficulties and dealing with complex cases.

I want to make a serious point about what the hon. Gentleman has just said. The advice to litigants who propose to represent themselves is based on the fact that it is difficult for them to be objective. They are not in a position to sit back and look at the entire thing, and that often causes great delays going down the wrong road.

The hon. Gentleman is absolutely right. That coincides with my own experience. Early and prompt access to legal advice can give an overall saving in costs to the system as well as producing a better outcome in terms of justice. I could not agree with him more. It is potentially a false saving and we should be wary of going down that route. I hope that we can have an update on the Government’s research and findings.

It is perfectly fair to say that the Government relied on the additional grant to fund personal support units in the courts. That is useful, but patchy. In some of the county courts that I have visited, there was limited personal support available. I had an instance of someone who was simply trying to fill out the form being told that they could not be helped at the local county court, but had to go to the royal courts of justice. They went to the royal courts of justice and got an out-of-date form, so they had to make two trips. That is not achieving the objective that the Government want, so we need to have an update on how the work is coming on.

Some reliance was also placed on the use of McKenzie friends and the unbundling of legal services. Unbundling can have its role, but my limited experience as a civil practitioner caused me deep concern about the use of McKenzie friends. The lack of objectivity that the hon. Member for Kingston upon Hull East (Karl Turner) referred to applies to McKenzie friends, too. I can certainly think of one case that was needlessly dragged out and the client sent in an entirely wrong direction, ultimately to their own considerable cost, as a result of an unregulated and ill-informed McKenzie friend, so I do not think they are a proper substitute. Such cases ought to be the exception rather than the rule. It is unfortunate that the Government rejected without any explanation the Committee’s recommendation on consulting on regulating McKenzie friends, or at least reviewing the whole operation of that type of quasi-advocate.

One of my two final points link to the question of a lack of alternative. The Government rightly have a commitment to mediation. We have the mediation pledge that successive Governments have signed up to. Increasing the use of mediation was an objective of the Government’s reforms. The estimate was that the number of mediation assessments in family law alone would increase by 9,000, and that was budgeted for. That was all well and good, but the evidence that the Committee received showed that the number of mediations fell by 17,000, or about 56%—it more than halved. The National Audit Office concluded that the Ministry of Justice had a “limited understanding” of why people go to court. The assumption that people would take up mediation was not adequately evidenced. In somewhat the same way as with legal aid, there is a lack of understanding of what mediation is available, how it is best accessed and how it is resourced.

My hon. Friend the Member for Henley (John Howell), who was present for the earlier debate, is a member of the Justice Committee, and he has recently set up an all-party group on alternative dispute resolution. That is a worthy cause, and I hope that several hon. Members will take an interest in it, because there is a lot more we can do to resolve a raft of issues in a non-adversarial fashion. Not enough is being done on that, and the Government need to be much more proactive. I would be interested to know what they intend to do to work out why there was such a disparity between the assessments and the actual uptake. I would also be interested to know what work is being done as part of the initiative they rightly introduced with Sir David Norgrove’s work on the family mediation taskforce. The taskforce is a step in the right direction, and we welcome it, but there are other areas where much more work can be done to increase the take-up of mediation. Although there has been an improvement, take-up is still about half the 2012-13 figure, and it is important to have some explanation of that.

The Government’s fourth objective was value for money in the system. The difficulty is that we cannot really quantify that at the moment, because there is no evidence regarding knock-on costs elsewhere in the system. The Committee thought—again, this coincides with my experience—that early intervention is often a cost saver. One witness described it as a fence at the top of the cliff, rather than an ambulance at the bottom, and there is a lot of common sense in that. Sensible early intervention saves time, saves money and saves injustice being done to parties. I hope the Ministry will look again at that.

The Committee recommended establishing a review of the reforms’ knock-on costs, but the Ministry rejected that on the basis that the Act would be reviewed between three and five years after implementation and that there had been no complaints. That rather misses the point, because there is already evidence of knock-on costs and of the reforms not working as planned. If we want them to bite and to be genuinely sustainable, waiting three years is quite a long time. That is why the Committee revisited them after one year. I hope the Minister will be able to say that the Government will move more swiftly to review the knock-on costs.

The Committee raised a number of issues. I wish the reforms a fair wind. However, I, as a loyal supporter of the Government, have concerns, as does the Committee, on a cross-party basis. It is right to take those concerns on board, because we need to look at them seriously. Having dealt with some of the immediate economic pressures that existed previously, it may be possible for us to revisit this issue and to adopt a more nuanced approach to making savings. Indeed, we may recognise other areas in the legal aid and criminal justice system where savings can sensibly be made. However, the ability to access justice in a fair way is critical to the equality of arms and to the system’s integrity. None of us would want that to be undermined—I know the Minister would not—and that is why the Committee raised the issues it did in its report. I look forward to the Minister’s response.

It is a privilege to serve under your chairmanship, Mr Brady. The hon. Member for Bromley and Chislehurst (Robert Neill), the Chair of the Select Committee, remarked in the last debate that his pupil master advised him that the most effective form of cross-examination is polite cross-examination. Well, his examination of the report was polite and fair, but it was also honest—it was a proper critique of the issues the Committee covered. I am afraid, however, that I will be rather more impolite than the hon. Gentleman.

The report is a damning indictment of the Government’s haphazard, ham-fisted approach to reforming legal aid. The Committee has set out in clear terms what an unmitigated disaster the reform of civil legal aid has become under this Government. Their ill-advised attack on legal aid, in the guise of reform, has undermined a long tradition of access to justice. The legal system in England and Wales was once the envy of the world, but I hope hon. Members do not think I am being over-dramatic when I say that other countries are now starting to rather disregard it, and it is being quite heavily criticised. We should be proud of a history in which the poorest and most vulnerable have had access to the law.

The Government had four objectives in the Legal Aid, Sentencing and Punishment of Offenders Act. Those were to discourage unnecessary and adversarial litigation at public expense; to target legal aid at those who need it most; to make significant savings in the cost of the scheme; and to deliver better overall value for money for the taxpayer. Of those four objectives, they have achieved only one. Significant cuts have been made to the cost of the scheme, but at what cost to justice? Indeed, one wonders whether there is any saving in reality.

Criticism of LASPO is wide-ranging, coming from the Bar Council, the Legal Aid Practitioners Group, Citizens Advice and many others. The Law Society has argued that many people are being denied access to justice as a result of the huge changes to civil legal aid.

It is obvious from the report that the knock-on effects of such large cuts were not thought through. The driving force behind them was purely ideological. There was no evidence-based approach to legal aid—there was just a “slash now and see what happens next” approach. As a Back-Bench Member, I served on the Committee that considered the LASPO Bill. We heard evidence from various groups and speeches by Members from both sides of the House warning the Government of the risks. However, all of that was categorically ignored by a Government whose aim was to make the cuts and to ask questions later.

The report is clear that

“the urgency attached by the Government to the programme of savings militated against having a research-based and well-structured programme of change to the provision of civil legal aid.”

The evidence given by Dame Ursula Brennan gave the game away. Her concession that the primary motivation for the decisions was the size of the spend shows the intellectual deficit behind the changes. Access to justice should have been at the top of the Government’s list when it came to reforming legal aid, but, as we have seen in the last few years, it appears to have been an afterthought.

The Government claim to have targeted legal aid at those who need it the most, but I am afraid that is laughable. The Select Committee Chair gave anecdotal evidence from practitioners in the relevant area, and it is true that members of the Bar and solicitors who practise on a daily basis in civil legal aid areas encounter major difficulties as a result of the changes to the law. I could continue, but the critique by the hon. Member for Bromley and Chislehurst included all that I wanted to say. He was fair and is clearly objective about what he has read. I know that he was not involved in the work on the report, which was done by members of the Committee under its former Chairman in the previous Parliament.

Attacks on access to justice have led to massive shortfalls in advice. We should all be concerned about it. The impact of the cuts is devastating in both civil and, indeed, criminal legal aid. I do not want to digress too much, but today criminal solicitors throughout the land are being told whether they have managed to get a contract for criminal legal aid in duty cases. I very much fear that the Government are going to make the same mistakes that they made with criminal legal aid under LASPO. Will the Government make a commitment to bring forward their review, so that the changes to civil legal aid can be rigorously and thoroughly examined? The Labour party recently announced a full review of legal aid, to include criminal as well as civil legal aid, led by Lord Willy Bach. I wonder whether that may prompt the Government to bring forward their own review of the Act.

It is a pleasure to serve under your chairmanship today, Mr Brady, for what I believe is the first time—certainly as a Minister. I am grateful for the opportunity to respond to the debate. I am sure many colleagues will have noticed that I am not the Minister responsible for legal aid, and I want to convey apologies on behalf of my hon. Friend the Under-Secretary, the Member for North West Cambridgeshire (Mr Vara), who is caught in the joys of the Committee on the Welfare Reform and Work Bill. I shall address issues of substance—technical and detailed as they are—and principle as best I can. If I cannot deal with them I shall follow them up; or I am sure my hon. Friend will be able to.

I welcome the report and scrutiny, and particularly the tenor of the approach to the issue taken by the Chairman of the Select Committee on Justice. He began by pointing out that all the reforms are happening in the context of trying to deal with the deficit, and noted that the Ministry of Justice is not a protected area. There are no easy choices in this area and I welcome his emphasis on that. At the same time, I think it is agreed across the House that legal aid is a vital element in any fair justice system and I am proud to say that our system remains very generous. Last year we spent £1.6 billion on legal aid. That is about a quarter of the Department’s expenditure. All sorts of issues arise in connection with methods and modalities of legal aid reform—I thought that the Select Committee Chairman handled this aspect of the matter well—but it is incumbent on those whose bottom-line position is that we need to spend more to explain responsibly where the money will come from. They should explain whether it would be from prisons, within the Ministry of Justice budget. We have just had a debate on prison reform and we all understand how difficult the pressures are there. If more spending on legal aid is not to come from the Ministry of Justice budget will it be from the schools or health budgets?

The point, which the Committee made very well, is that there is not necessarily a real saving. There may be a top line saving. Legal aid spending may be reduced, but that is going down the road to another Department. Some other area has to pick up the bill in the end.

That is not correct or accurate and I will address the point in detail shortly. The hon. Gentleman must face up to the fact that the shadow Justice Secretary in 2011, the right hon. Member for Tooting (Sadiq Khan), made it clear that the Labour party’s position then was that cuts would have to be made. I have heard little of substance from the hon. Gentleman other than that the Labour party, even under its current leader, is punting the whole issue into review. It sounds a little to me as if there is a lot of critique but not many positive ideas about what to do.

In the context of the need for cuts, should we not bear it in mind that one of the issues of concern to the Committee was the underspend on legal aid? There were concerns about lack of information about its continued availability. Is not it important to ensure that where there is legal aid those who may be entitled to it are notified of that, to ensure that they get access to justice?

My hon. Friend is right and that is a more legitimate question to raise.

For all the bean-counting, and the importance of the deficit, the Government have a responsibility to ensure that those in the greatest hardship, at times of real need, are provided with the resources to secure access to justice. As well as being grateful to the Select Committee Chair, I am grateful to all hon. Members in this and the previous Parliament for their diligent and careful scrutiny of our legal aid reforms. Some fair points have been made in the reports, and by the Chairman today.

When the programme to reform legal aid commenced in 2010, the scale of the financial challenge faced by the Government was unprecedented, so we had to confront those difficult decisions. It was our clear intention to remove legal aid for some types of cases while protecting access to justice in key areas. That is why we have sought to make sure that legal aid remains available for critically important cases: where someone’s life or liberty is at stake; where they may, for example, lose their home; in cases of domestic violence; or where children may be taken into care. We were clear about wanting more cases to be diverted from court where suitable alternatives are available. Let us face it; the justice system is there not for lawyers but for society, citizens and victims. There is no doubt that in many cases the court should be the last, not the first, resort.

The changes we had to make to legal aid have been contentious. They were debated extensively, with amendments made throughout their passage, before they were approved by Parliament. Those changes need to be judged fairly, given the passage of time. Yes, the reforms in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have made a considerable contribution to my Department’s programme to reduce its spending, and we are on course to achieve our planned savings; but legal aid continues to remain available where it is most needed. For example, last year we began funding legal representation on more than 46,000 new proceedings under the Children Act 1989 and almost 14,000 proceedings related to domestic violence protective injunctions. Those are the kinds of cases where it is really important that there is still a safety net.

We have also made sure that funding will be provided, where it is needed, through the exceptional funding scheme. That scheme has been criticised and it remains the subject of continuing litigation. I am sure that hon. Members will appreciate that I cannot comment on that litigation. The exceptional funding scheme has never been intended to provide a general power to fund cases that fall outside the wider generic scope of legal aid. That is not its purpose. The scheme is expressly aimed at making sure legal aid is provided when it is required strictly under the European convention on human rights or otherwise under EU law. In the two years following the implementation of LASPO we have granted exceptional funding in almost 300 cases, and the number of grants is rising with each quarter. In the most recent quarter, April to June 2015—I think that the same figures were cited by the Select Committee Chairman—there were 121 grants, the highest number since the scheme began and a three-fold increase on the same quarter of the previous year.

That the scheme has been subject to litigation is not surprising: it is a new regime, so litigants will seek to test its limits, particularly given the professional sector we are talking about. Having said that, we will listen to the concerns of the courts and address them where necessary—for example, by updating guidance or amending regulations to reflect the detail of the latest case law. My hon. Friend the Chair of the Select Committee made a point about the complexity of the forms; we are looking at that and will see whether we can simplify how they are presented.

Litigants in person are not a new feature of our justice system. People involved in litigation are engaged in a range of disputes and have a range of different needs and capabilities. For many people, representing themselves might be the right choice, whether because they literally want their day in court, physically; because of financial considerations; or because of the nature of the case. Litigants in person have always been a feature of the family justice system. Family court judges are well practised and rather good at stretching and striving to find the right kind of support and to allow flexibility so that litigants in person can give the best evidence possible.

I am not saying that we should disregard the impact of the reforms on litigants in person. In anticipation of an increase in numbers, right at the outset we put in place £370,000 of extra support for organisations, including new guidance. We have kept that under review and, where there have been concerns, we have taken further action, which is why we announced £2 million of further support for litigants in person in October last year.

Is the Minister suggesting that the significant increase in litigants in person is based purely on the choice of the litigant, rather than the fact that they are just not in the position to access a lawyer, whether because of an advice desert in the area where they need advice or for other reasons?

No. As the Chair of the Select Committee pointed out, we are talking about behavioural conduct—human beings in very difficult situations. Sometimes their lives might be chaotic or difficult, or they might be under pressing conditions. I am not sure that we can say precisely why it has happened, because there could be a variety of reasons. The fact is that there is now a new litigants in person support strategy in place, led by the advice, voluntary and pro bono sector, which builds on domestic and international advice and evidence. Progress has been made, with increased provision of face-to-face, phone and online support.

It is not right to claim that increasing numbers of litigants in person have created knock-on costs that undermine savings from legal aid reform. The National Audit Office looked at the matter very closely and reported that the additional costs of the changes are relatively small compared with the gross figures—we are looking at around £3.4 million a year, compared with the scale of the civil and family legal aid savings achieved, which the NAO estimated at around £300 million a year. The suggestion about knock-on costs is therefore just not right.

Encouraging greater use of mediation has been a key plank of our wider reforms to the justice system, and it is germane here. Mediation can a be quicker, cheaper and less stressful means of dispute settlement than protracted litigation. It is right that we try to keep a whole range of disputes outside of the courts. As I said earlier, the justice system is there for citizens, not just lawyers. Mediation also plays a role in reducing conflict and helping the parties to communicate better with each other.

Admittedly, the volume of individuals diverted from court into family mediation was not as expected following the reforms, but family relations are difficult to predict, particularly on a societal scale. Nevertheless, we acted quickly to address matters when it became clear that the behavioural shift was not being achieved to the degree that had been hoped for and estimated, although it was only an estimate. The Family Mediation Task Force was established in January 2014 to respond to the situation, and we accepted many of its recommendations.

I understand the point the Minister is making, but, perhaps precisely because it is difficult to predict these things, would he accept that it is not realistic to wait three to five years for a review? Would he be prepared to review the situation in this coming year, in light of that very unpredictability?

I say to my hon. Friend that, in fairness, it can be argued both ways. One could argue that we ought to have a look now because of some fluidity in the figures, or one could say, “Hold on, shall we see if it settles down and we get a slightly bigger picture? Otherwise we’ll only end up having a second review or implementing reforms based on an initial review without having the big picture.”

Again, I understand what the Minister says, but will he also bear in mind that there is not only the issue of the unpredictability that is acknowledged on all sides, but the fact that there is a significant underspend? If there is a significant underspend, which is quantifiable, that tends to indicate fairly strongly that some cases that should be getting legal aid are not, even on the estimates that were made.

That is a fair point, but I am not sure whether that alone would justify bringing forward the review. We want to gauge the long-term direction of the reforms, but I take on board my hon. Friend’s point, which he made perfectly reasonably.

The actions taken as a result of the Family Mediation Task Force’s recommendations include the mediation information and assessment meeting and the first session of mediation for both participants, where one participant is eligible for legal aid. The number of publicly funded mediation starts have now increased for five consecutive quarters and are at their highest volume since the quarter April to June 2013. We acknowledge that the volumes are not where we would like them to be, but we are working on it. While the figures bed down and we tweak the system, we acknowledge that it has not been perfect or particularly easy to estimate with any great precision, but we are seeing significant and substantial improvements. Given the trajectory we are now seeing, it is not right to rubbish this aspect of the reforms.

We have also worked to increase awareness of legal aid and the Civil Legal Advice service on the Government web pages. There is a new, enhanced “Check if you can get legal aid” digital tool available, which provides interactive information to help individuals to assess their eligibility for legal aid. The service has been designed and tailored around the needs of applicants following extensive user testing—it has not just been put up there on a whim. A new communications strategy will be launched this autumn to increase the awareness of our partners, stakeholders and their front-line advice providers, on the availability of legal aid and the Civil Legal Advice service through the new digital tool.

Domestic violence is undoubtedly one of the most important dimensions of the reforms and their impact. I assume it goes without saying that domestic violence and abuse appals everyone present, as well as everyone across the House and across society. That is why it is a priority for the Government, and why we retained legal aid for protective injunctions, such as non-molestation orders. On top of that, in private family law matters—cases concerning child arrangements and financial matters—funding might be available for those who would be disadvantaged by facing their abuser in court. That is an important innovation.

Of course, evidence is required to ensure that the correct cases attract funding, but we have listened to and responded to specific concerns. Following an early review of the system, we made changes to make evidence easier to obtain. Since we intervened, the number of grants in such cases has risen quarter on quarter and by 25% over the past year. We will keep that under review and we will keep responding to the evidence, because that is the responsible thing to do.

I would like to touch briefly on the proposed residence test, which is also important. It is also the subject of litigation that is before the Court of Appeal today, I think, so I cannot comment on the detail. Nevertheless, I want to make it clear that the Government believe, as a matter of principle, that individuals should have a strong connection to this country in order to benefit from our civil legal aid scheme. We believe that the test we have proposed—with important exceptions for vulnerable groups—amounts to an approach that is fair and appropriate.

I want to pick up on some of the points that were made in the previous speeches. The Chair of the Select Committee referred to the estimates of the spend; we need to be honest that they were estimates. The scheme is demand-led, so it is difficult to make estimations with great precision, but, when needed, legal advice will be available. We will be conducting a post-implementation review. He may argue that it should take place sooner rather than later, but there are arguments both ways. We should not have a review too quickly before the reforms bed down; otherwise, we risk not seeing what the full impact and implications are, and we will get only a partial view.

Does the Minister agree, however, that the other relevant consideration is that the longer we leave it, the more scope there is for some people who should have access to legal aid to be denied it? That can have significant implications for those individuals. That is one of the competing considerations to bear in mind.

My hon. Friend is absolutely right, and he makes the point fairly. As policy makers we always face that issue, but I am not entirely convinced—the Minister responsible for legal aid will have to think about this and come to a conclusion—that the balance of argument is in favour of risking a rushed review. We should wait and see how the reforms bed down. The Minister responsible for legal aid may take a different view, but I am sure he will give the matter careful consideration, as I have today.

I want to raise two or three other issues in the time available. First, McKenzie friends were rightly raised; they are an important issue. We will consider the report and the updated guidance from the judiciary once we have got it. The right thing to do is to wait until we have got the expert advice from the judiciary before we come to a conclusion.

Other questions were asked about domestic violence and why the rules are not subject to greater discretion. That is a perfectly legitimate issue to raise, but we need objective evidence to apply the rules in a way that maintains the basic integrity of the system. We can have a debate about some of the detail of it, but that is an important point to note. I want to emphasise that the two-year time limit relates to the evidence of the abuse, not the abuse itself. I think there has been some misunderstanding about that important distinction.

I hoped that the Labour party would take a slightly more consensual approach, because in 2011 the then shadow Justice Secretary, the right hon. Member for Tooting (Sadiq Khan), told MPs that the legal aid budget is unsustainable. He said:

“We’ve got to be honest with the British public. When Labour left office, the legal aid budget was £2.1bn out of an overall MoJ budget of £8.5bn. That’s a lot of money. If you want to make savings you can’t cut courts, you can’t close prisons, you can’t cut probation, so the point that I make and I still make is: there are savings to be made.”

He was absolutely right, and if the shadow Minister disagrees he needs to explain where the extra money is going to come from. Punting it into review and saying they are going to pay for this thing by getting the Bank of England to print extra money—an idea that has been panned by the Governor as not only economically irresponsible but likely to hurt the most vulnerable in society, including the elderly and the poorest—will not do in a serious debate. We need credible contributions like the one today.

Listen, the point is this. My right hon. Friend the Member for Tooting (Sadiq Khan) made those comments in 2011. The reality is that the Opposition criticised the changes in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 throughout all stages of its passage through the Commons. Indeed, many changes were made in the Lords. The point is that the Select Committee is criticising the Act now. It is an objective criticism, and in truth the Chair criticised it more than I did.

The reality is that before the previous election the Labour party’s clear position was that cuts need to be made. Unlike the Chair of the Select Committee, who made a number of detailed points about the substance—

Exactly. It said very little on the substance; the hon. Gentleman is quite right. We have not had, amid the carping and criticism, any serious alternative approach on the “how”, rather than the “whether”.

Well, we will wait for that, just as we are waiting for proposals on a range of social policy areas. In fact, there seems to be very little policy that is not up for grabs and up for review.

We have made significant reforms to the legal aid scheme, and we believe they are sustainable. We do not say that they have been easy choices. The Legal Aid Agency undertakes regular capacity reviews of supply, which continue to show sufficient capacity in all categories of civil law in the majority of procurement areas. Where that is not the case—for example, where a provider has withdrawn from a contract—the agency has taken action to find alternative provision.

I recognise the strength of feeling on this subject and the importance that hon. Members from both sides of the House attach to it. The Ministry of Justice and the Legal Aid Agency routinely and closely monitor the operation of the legal aid scheme, taking action when issues or problems are identified. I have tried to set out as best I can the areas where we have already responded. We do not say that we got it right first time without glitches or problems in the implementation.

We have also committed to conduct a post-implementation review of our legal aid reforms within three to five years of implementation—in other words, by 2016 to 2018 at the latest. The precise timing and the form of the review will be guided by our assessment of the extent to which the reforms have reached a steady state, as I have already indicated, and by Government and wider stakeholder research and evidence on the impact of the reform. I appreciate that there is a perfectly proper debate to be had on the timing, but we want to wait for that evidence and research to come through.

I am grateful for the Select Committee’s report and its approach. I am grateful to hon. Members who have spoken in this debate. I appreciate the points made by the shadow Justice Minister, and I hope I have been able to address as many of the questions as possible. I am happy to follow up further afterwards if that is not the case.

I am very grateful to the Minister for the careful and considered way in which he dealt with this debate, having picked up what under different circumstances we would call a late return. I understand the constraints, and, as I hope I made clear, I am certainly not against making savings within the system. I will take the Minister at his word when he says that there is a need for objective evidence. We will continue to press the Government, because that objective evidence needs to be quantified sooner rather than later. We need to look at the knock-on costs, which I do not think have been adequately taken into account.

I welcome the expert advice that has been taken on McKenzie friends. The Committee will want to press the Government for a timetable on that, but we need not do so today because it is a small, simple and relatively cost-neutral change to the system, which will be of benefit. I hope that, given that the Minister accepts the need for objective evidence, he recognises that that must also apply to a quantification of the impacts, which we have not seen. We must deal with why the underspend arises at the level it does. That is the fundamental issue we raised, and it has still not been fully addressed.

I am grateful for the Minister’s response, but the Select Committee will inevitably need to return to this issue. It is important to understand why there is an underspend so that we can ensure that the proper advice and support gets to the people who need it, which is an objective that I know Members on both sides of the House share.

Question put and agreed to.


That this House has considered the Eighth Report from the Justice Committee, Session 2014-15, on impact of changes to civil legal aid under part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, HC 311, and the Government Response, CM 9096.

Sitting adjourned.