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Legal Aid

Volume 710: debated on Tuesday 15 March 2022

Today I am publishing the Government’s response to the independent review of criminal legal aid. Copies are available in the House. Our proposals will put criminal legal aid on a stable and sustainable footing for the future. They will help to deliver this Government’s objectives of delivering swift access to justice, and they will usher in the reform we need at this crossroads moment as we build back a stronger and fairer society after this debilitating pandemic.

Covid-19 has been exceptionally challenging across our justice system. We owe our whole legal profession—the solicitors, the barristers, the judges and the court staff—an enormous debt of gratitude for keeping the wheels of justice turning over the past two years. Thanks to their efforts, we are driving down the court backlog and returning to a more normal way of working—in the interests of victims, witnesses, and of course the wider public. I thank Sir Christopher Bellamy for his comprehensive and invaluable review, along with his panel of experts and everyone else who contributed their views.

As I said, this is a crossroads moment. Our legal aid system needs investment if defendants are to have access to the highest-quality advice and advocacy, and if we are to ensure a sustainable criminal legal profession right into the future. To that end, Sir Christopher made two headline recommendations in his review. First, he proposed an increase of 15% in the various criminal legal aid fee schemes. I have accepted this in almost all respects, except where it risks introducing perverse incentives—for example, if it were to be applied to the rate of pages of prosecution evidence.

Secondly, Sir Christopher recommended an overall increase in investment in criminal legal aid of £135 million. Our package of reforms, announced today, matches that recommendation. As part of that, we will hold £20 million aside each year for longer-term investment, including reform of the litigators graduated fee scheme, the youth court, and the wider sustainability and development of solicitors’ practice, so that the system pays more, and more fairly, for the work actually done. On top of our additional funding to support court recovery, this will take taxpayer funding of criminal legal aid to £1.2 billion—the highest level in a decade.

Let me now unpack some of this for the House. In the short term, our cash injection will give a 15% boost to police station work, magistrates court work, much of the Crown Court work of advocates and litigators, and the work of solicitors in very-high-cost cases, as well as some of the smaller schemes. While getting pay and conditions right is clearly critical, Sir Christopher also made a number of wider systemic recommendations about the future of criminal legal aid that we also intend to take forward. We will reform fee schemes so that they properly and fairly reflect the way our legal professions work in the real world today. We will increase the diversity of our legal professions, promote a more sustainable criminal defence market, and harness the power of new technology.

Supporting a sustainable, diverse and stable criminal defence market depends both on the right fees and on having an adequate supply of legal practitioners, so we propose to review the standard crime contract to reduce barriers to innovative ways of doing business. We will offer grants for training contracts for criminal solicitors, and for solicitor advocates to gain higher rights of audience, expanding the supply of high-quality lawyers in the system. The Chartered Institute of Legal Executives has helped to remove barriers to entry into the profession and, in particular, has helped to promote non-graduate routes into the law. We want to take those reforms further again. So under our proposals, CILEX professionals will be able to become duty solicitors without having to achieve additional qualifications.

Work as a duty solicitor often involves unsocial hours and lengthy travel, making it hard for those with caring responsibilities, who are disproportionately women, to pursue a career in criminal defence. We want to make it easier for everyone to work in this area, so we will explore new ways of delivering remote legal advice in police stations. As Sir Christopher highlighted, the sustainability of the criminal solicitor profession is a particular challenge, so today I am proposing to expand the Public Defender Service, focusing on areas where more capacity is needed. That means that when there is risk of market failure, we will have a more flexible range of options to address it.

Next, Sir Christopher recommended that I propose an advisory board that will help represent all parts of the profession and shape future criminal legal aid policy. We will also gather views on how and where the innovative new technology that is helping us with the backlog can be used to even greater effect.

Our proposals respond to the full range of Sir Christopher’s review. They will increase efficiency across our system and deliver swifter justice for victims and defendants by incentivising early advice and resolution where that is right and proper. They will reinforce a more sustainable market, with publicly funded criminal defence practice seen as a viable, long-term career choice, attracting the brightest and best from all backgrounds and providing a further pipeline for the judges of tomorrow. It is only right that, as we reinforce the supply and sustainability of legal practice, we look closely at those who our legal system and our legal aid system are there to support, namely those who need legal representation and cannot afford to pay for it themselves.

The thresholds for eligibility for legal aid, which have not been raised for more than a decade, need to be reviewed, and it is timely to review them as we consider our wider reforms. Today, we have launched a separate consultation on legal aid means-testing. Our proposals will ensure a fairer justice system that targets legal aid towards the people who need it most—those least able to pay and the most vulnerable in our society. No one’s income or financial situation should stop them enforcing their legal rights or defending themselves when they have been accused of a crime. That is why this Government propose to significantly increase income and capital thresholds for civil and criminal legal aid, so that even more people in England and Wales will qualify for that support.

A funding boost of £20 million means that more than 2 million more people in England and Wales will be eligible for civil legal aid each year, and 3.5 million more will be eligible for legal aid to fund their defence at the magistrates court. We will exclude disputed assets from the civil legal aid means test. That move will particularly benefit victims of domestic abuse where the abuser is controlling assets. We will also remove the financial cap on legal aid eligibility in the Crown court for all defendants, so that everyone can access the right support at the right time.

At the same time, we will remove means-testing entirely for legal proceedings brought by parents whose children are facing the withdrawal of life-sustaining treatment. At the worst time in any parent’s life, those parents must and should have access to proper advice and representation, and they should not be expected to shoulder the burden themselves.

The proposals I have set out today represent a major investment in our legal aid system. They will ensure our justice system is fair, fit for the future and supported by a thriving and diverse legal profession, and that it delivers swifter and fairer justice across our society. I commend this statement to the House.

I thank the Justice Secretary for advance sight of his statement. I could not agree more that we owe our whole legal profession—solicitors, barristers, court staff and judiciary—a debt of gratitude for keeping the wheels of justice turning over the last two years. I pay tribute to their hard work in helping deliver justice for victims. I also put on record my thanks to Sir Christopher Bellamy and the rest of the team for their work.

Today’s announcement and response to the Bellamy review is welcome, particularly the Government’s commitment to increase legal aid rates by the 15% that Sir Christopher Bellamy recommended. The proposed restructure of the fee schemes will benefit members of the public and the profession alike. Similarly, we welcome having an independent advisory board to keep policy matters pertaining to criminal defence under review. Can the Justice Secretary outline the membership of the advisory board? Will he ensure that it is both representative and diverse, to help deliver meaningful change?

We will study many of the other measures that the Justice Secretary has mentioned, including the reforms of the duty solicitor scheme, in more detail. However, if the Government accept that criminal legal aid is in a perilous state, the same is surely true of civil legal aid, where decades of cuts and underfunding have crippled practitioners, and we are seeing the same recruitment and retention crisis. Urgent investment is necessary, and the Ministry of Justice has yet to publish any details on the civil sustainability review. We are suffering from serial underfunding of the entire legal aid sector, paired with a strict means test and a huge backlog in the criminal courts.

We know that justice delayed is justice denied, and victims are paying the price. Between 2012 and 2020, annual legal aid spending fell by 27% in real terms, largely as the result of changes under the Legal Aid, Sentencing and Punishment of Offenders Act 2012. That is £4.2 billion over a seven-year period—an average of £600 million a year. Essentially, we have a position where it is simply not financially viable to be a legal aid provider in many areas of law. The Government have accepted that to be the case in criminal law, but the maths is no different in civil law. There is no doubt in my mind that the legal aid sector has survived purely on good will, and I know that at first hand as a former lawyer. Chronic underfunding has brought the criminal justice system to its knees and created advice deserts across the UK. The steps outlined today are too little, too late.

There can be no surprise then that the profession has voted with its feet. Just a few days ago, 94% of the membership of the Criminal Bar Association voted to take industrial action. That will have a disastrous impact on the backlog in the criminal courts that existed well before the beginning of the pandemic. The Government may find the profession does not accept their response, their appreciation of the urgency or the time it will take to implement. Can the Lord Chancellor set out when the recommendations will take effect? Victims have waited long enough.

While the means test review for both criminal and civil legal aid is welcome, it is of little use to the public if they are eligible for legal aid but cannot access the provider base. Advice deserts are a direct result of the negative impact caused by reductions in legal aid funding. There is no justice if there is no access to justice.

The Justice Secretary claims this is a major investment in the criminal justice system, but make no mistake: it is the absolute bare minimum, and it does not fix a decade of Tory austerity. It fails victims at every turn. The erosion of access to legal aid represents a threat to the rule of law. It does not matter what legal rights an individual has on paper if they do not have the means to uphold them. The Government pay lip service to levelling up the country. When will they level up access to justice?

I thank the hon. Gentleman for what he said about the criminal legal aid proposals and the means test review. The announcement today is principally about criminal legal aid, and if I have understood him correctly, he backs us on all the criminal legal aid proposals.

Can I be clear in relation to the CBA ballot? If the hon. Gentleman welcomes our proposals, presumably he would agree, as I hope would others across the House, that it is totally unwarranted for the CBA now to proceed with strike action.

The hon. Gentleman asked about timing. On criminal legal aid, we will consult for 12 weeks. I would expect him to agree that we should follow the normal public law principles to have that consultation, otherwise we are exposed to a greater risk of judicial review. The hon. Gentleman is nodding, and I am pleased that he does support that, even if some of his colleagues do not. We will then introduce a statutory instrument so that the proposals enter into force in October.

The hon. Gentleman talked about cuts to legal aid. I remind him that a previous Justice Secretary, Jack Straw, had plans to cut almost £200 million a year from the legal aid budget in 2009, as was made clear by the noble lord Lord Carter, who said,

“we had to break the hold of the criminal practitioners and force them to restructure so we could get more control over the costs of provision”.

In relation to our criminal legal aid proposals, we are ensuring that we have a sustainable system that supports practitioners but, above all, supports victims, witnesses and the society that we want to build after the pandemic.

I gently remind the hon. Gentleman that there will be 2 million more people with access to civil legal aid, which he mentioned, and 3.5 million more people with access to criminal legal aid in the magistrates courts. I thank him for his pretty fulsome support for the criminal legal aid proposals. I urge him to reflect on and recall the Labour party’s proposition before the 2010 election. I hope that he will be clear that it is totally unwarranted for the CBA to now proceed with strike action.

This is a very welcome announcement and I congratulate the Secretary of State on taking on board Sir Christopher Bellamy’s recommendations. I join him in thanking Sir Christopher for his report and all those in the legal profession who have kept the system going under real difficulty. In appreciating the real difficulty that the profession has been undergoing in these times, does he agree that it is important, in order to get this right, to have the earliest possible increase and to take on board the words of the chair of the Bar Council, who says:

“We will work with the Ministry of Justice to make sure the funds are delivered swiftly, effectively, and fairly.”?

Can we meet the Bar Council and the profession in that spirit of co-operation and get this implemented at the earliest lawful opportunity?

My hon. Friend the Chair of the Select Committee is absolutely right and I welcome the constructive responses from the Bar Council and the Law Society. He is right that we must do it as swiftly as possible, but he makes an important point that we must do it lawfully. We are following the normal public law principles in having a 12-week consultation. As I have indicated, we intend to bring the proposals into force through an SI by October. I hope that that strikes the right balance. As he and, in fairness, the hon. Member for Manchester, Gorton (Afzal Khan) said, we extend our gratitude to all the lawyers—solicitors and barristers—judges and court staff who have done an incredible job through a very difficult couple of years.

Does the Secretary of State now accept that the swingeing cuts in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have hobbled access to justice for a decade? Does he accept what the chair of the Criminal Bar Association, Jo Sidhu, said about the announcement today, which was that it

“will not be sufficient to retain enough criminal barristers to keep the wheels of justice turning and that means victims will be failed”?

If he does not accept that, what effect will it have on the backlog? He currently has a pathetic target to reduce the backlog to 53,000 cases over the next three years. If this is a groundbreaking change, what effect will it have on that backlog?

We will take no lectures from the hon. Gentleman given that he was there at the time that Labour was planning those swingeing cuts and, indeed, he backed them. Only now, when we have had to deal with the financial consequences of the economic mess that the last Labour Government left behind and put ourselves on a sustainable footing with the biggest investment in legal aid for a decade, he is complaining.

The Crown court backlog and the magistrates court backlog are coming down. Again, I did not hear from him a clear statement that strike action would be not only unwarranted but the last thing we need as we build back and recover in our Crown courts and magistrates courts.

I welcome my right hon. Friend’s statement. I am glad that he has followed the excellent recommendations of Sir Christopher Bellamy and I am glad to see the work that I started coming to fruition. He is right to draw a contrast between the approach and language in the Bellamy report and some of the hostile environment, frankly, that the criminal Bar had to put up with under the last Labour Government, which I remember very well. I also commend the raising of the threshold on civil legal aid, which will be one of the single biggest extensions of eligibility that we have seen in many a year. May I press him on the consultation period? I agree that he is absolutely right to follow public law principles, but I suggest that a slightly shorter period of eight weeks followed by an SI could deliver the necessary changes in an even shorter time.

I pay tribute to the huge amount of work that my right hon. and learned Friend did, which I was fortunate to inherit, before we came forward with our proposals. I agree with much of what he has said and done in this area. He is right to talk about the environment and the climate within which we talk about lawyers, because it was of course under the last Labour Government that they named and shamed lawyers for earning too much in fees. [Interruption.] The hon. Member for Hammersmith (Andy Slaughter) is chuntering from a sedentary position, but he is guilty of doing exactly that under the last Labour Government. We have not done that; we have engaged in a sober and sensible way because we understand the value of the legal profession, both barristers and solicitors.

I understand my right hon. and learned Friend’s call for a slightly shorter consultation period but, given the legal risk that I have been advised on, shortening it from 12 weeks to eight weeks does not seem the right thing to do. The consultation period is there not just as a legal matter but to ensure that we can tease out all the detail of the reforms, such as the implications of the fees and of the wider systemic reforms that we are introducing. It is right to take that time and I cannot see how a difference of four weeks can justify strike action in this case.

The Government cannot swerve responsibility for having made the largest cuts that have ever been made to the legal aid budget, which have brought civil and criminal providers to their knees. The whole service is held together by good will. As chair of the all-party parliamentary group on legal aid, I welcome every single penny that comes back into the service, but the fact remains that there is a crisis of capacity. Our inquiry report a few months ago showed just how many providers are closing and have been closing every month over recent years. I ask the Secretary of State exactly what steps he will now take to deal with the crisis in the provision of civil legal aid—he did not answer that in response to my hon. Friend the Member for Manchester, Gorton (Afzal Khan)—not least to accommodate the additional demand for service that will now flow into it as an admittedly welcome consequence of adjustments to the means test.

I think the hon. Lady was also around at the time when the Labour Government were planning their cuts. [Interruption.] She does not like it, but I remind her that it was Tony Blair who said that the Labour Government would

“derail the gravy train of legal aid”,

so I am afraid that she cannot come to the House with those crocodile tears. On her substantive point, however, the consultation on expanding the Public Defender Service and the 15% raise in legal fees will deal with the scarcity of legal aid practitioners in certain areas. As I have already said in relation to the means test review, millions of extra people will become eligible for civil legal aid, which she should welcome.

I, too, welcome what my right hon. Friend has announced. He is right to focus on attracting bright young lawyers into criminal defence work. Does he also recognise that it is important to retain more experienced criminal defence lawyers who can take on the complex cases that, as he will appreciate, form a larger and larger proportion of the criminal courts caseload?

Specifically in relation to pages of prosecution evidence, I understand that my right hon. Friend is following one of Sir Christopher’s recommendations in that respect, but he will understand that that has been a proxy for the complexity and difficulty of criminal cases for some time. If we are not to increase fees in that regard, how does he intend to reflect those complex and difficult cases?

I agree with many of my right hon. and learned Friend’s points. He makes the right point that we must ensure that we still have the expertise we need at the high end of the profession. In relation to the rate of pages of prosecution evidence, he will know that we want to ensure that we do not encourage perverse incentives. I am not suggesting that that is done deliberately, but systemically it is something that we need to look at, and it is right to do so. Instead, as set out in the Government’s response, we will invite views on the longer term reform of the litigators’ graduated fee scheme to include the optimal basic structure of litigator remuneration, the role of pages of prosecution evidence in determining fees and what data should be collected to enable a thorough examination of litigator preparatory work. I hope that will address the points made.

For years, the south-west has been called a legal aid desert. There is currently a huge backlog in the courts; legal aid is one part of the problem and workforce another. Justice delayed is justice denied. Can the Secretary of State tell me what immediate difference this statement will make to the thousands of victims in the south-west who are waiting for justice or who cannot even get justice now?

The proposals on the Public Defender Service and the means test review, and the increase in the fees, will all look across the board at areas where there is a scarcity of supply of practitioners willing to take on that work, in order to fill the gaps. I look forward to that and I hope that the hon. Lady will contribute to the consultation.

The Government are to be congratulated on accepting Sir Christopher’s headline recommendations in full. I saw how much care and consideration went into that piece of work, but I would like to ask my right hon. Friend about chapter 13 of the report, which deals with fee income at the criminal Bar. Sir Christopher found that at every level of seniority female barristers earned less than their male counterparts, on average by 34%. He also found that non-white criminal practitioners earned less than white criminal practitioners by an average of 10%. What reassurances can he provide that this significant injection of public money will not be used to sustain potentially unlawful pay disparities?

I thank my hon. Friend for raising this very important point. In 2020, the gender balance at the point of entry among specialist criminal barristers was roughly 50:50, but at the senior level there is a much higher imbalance, with a ratio of 70:30 men to women. What are we doing about that? Our fees changes, for example in relation to duty solicitors, will particularly support younger lawyers. They will disproportionately help women with caring responsibilities.

We are also looking at further diversification through the roles and the rights that CILEX members can acquire. CILEX has allowed non-graduate routes into the profession, and I think 76% of its members are women. More generally, breaking down glass ceilings and barriers to entry into the profession is important. Beyond fees, the consultation will allow us to consult and to understand what more we can do systemically to attract a broader diversity of practitioners into the profession and then, critically, allow them to flourish.

The Secretary of State is right to say that we need to deliver swifter justice for victims, but if you will allow me a slight detour, Madam Deputy Speaker, do we not also need to deliver swifter justice to victims of war crimes in Ukraine? What is the Government’s attitude now towards the International Criminal Court? I think he would agree that attacking a nuclear power station or civilians is a war crime, but will he ensure that it is a war crime to initiate a war of aggression?

I share the hon. Gentleman’s interest in this subject and it is a timely, if circuitous, question, because I was in The Hague yesterday, where I met the ICC chief prosecutor and the president of the court; as he Gentleman knows, the ICC is independent and it is for it to determine those issues. I think I was the first Justice Minister to go there, and I was clear that we will provide a package of support, including financial and technical assistance, to enable the office of the prosecutor to do its job. We will be co-ordinating with our allies and our key partners so that is a concerted effort. The message needs to go out to Putin and to every commander on the ground in Ukraine that if they follow illegal orders they will end up in the dock of a court in The Hague and potentially in prison.

I will resist the temptation to broaden questions about the statement still further.

I congratulate my right hon. Friend on his statement. Will he confirm that the intention is to increase the thresholds each year in line with inflation, so that we do not get to the same position we are in now? If so, what factor of inflation will he include on an annual basis? Finally, what impact does he expect this measure to have on the youth courts?

I thank my hon. Friend for what he has said. We do not plan to index the thresholds, but he makes a reasonable point. We will obviously need to keep them under regular review, but this is a big step change in the threshold and we will keep a close eye on the impact that inflation has on them. More broadly, he asks about the youth courts, which are a crucial part of the system. We are proposing a general uplift of 15% to magistrates courts fees, and the youth courts will be included in that uplift.

Will the review of legal aid specifically look at how disabled people can enforce their rights under the Equality Act 2010?

The review does not specifically deal with that, but if the hon. Lady and other groups would like to make submissions to the review, I will ensure they are properly taken into account.

I welcome the Secretary of State’s statement about the increased funding of £135 million a year. Can he confirm that that extra funding will mean that more of my constituents in Newcastle-under-Lyme will be covered by legal aid, so that they will be able to exercise their legal rights and defend themselves if they are accused?

My hon. Friend is absolutely right. We should never forget that as important as the legal profession is—we have all paid tribute to its members—the legal and justice system is there for my hon. Friend’s constituents and those of hon. Members across the House; for victims, witnesses and the public at large.

Criminal legal aid issues have become particularly acute in Barnsley in the last few days because the roof of Sheffield magistrates court has fallen in, meaning that defendants are queueing up in Barnsley. Does the Deputy Prime Minister agree that this a damning indictment of the legal system under his Government?

Of course we will look at all courts with maintenance issues, but in reality record investment in magistrates courts has been secured in this spending review. We have increased the sentencing powers of the magistrates courts from six to 12 months, and we are further supporting the practitioners who serve those courts with the measures we have announced today.

Sir Christopher Bellamy’s review of criminal legal aid was based on two overriding principles: that remuneration of criminal lawyers should be such as to attract the right legal talent that the system requires, and that there should be equality of arms so that the resources available to defence are broadly similar to those available to prosecution. Does my right hon. Friend agree that those are the right principles for civil legal aid as well as criminal legal aid?

The criminal legal aid system is different from the civil legal aid system, but the overarching principles and the need to ensure access to justice are common to both. That is why under the means test review we have ensured not only that 3.5 million more people will have access to criminal legal aid in the magistrates courts, but that 2 million more will have access to civil legal aid, which I hope addresses my hon. Friend’s concern.

I welcome the Secretary of State’s statement. Although it relates to England and Wales, I would like to see this being part of the work that the Northern Ireland Assembly is doing on policing and justice. While decent pay for lawyers, and thereby increased ability of the working poor to gain access to civil legal aid, is welcome, and while there seems to be the necessary movement towards that in what we have heard today, can the Secretary of State assure us that those who need help will now get it? Historically, that has not been the case.

The proposals that we set out today apply to England and Wales—we respect the devolved competences—and we believe they will effectively address systemic issues across the justice system. I was in Belfast recently, and I have had engagement with all parties in relation to justice issues. We have a lot to learn from all jurisdictions across the UK and we will continue that two-way dialogue.

I declare an interest as a former practitioner both as a criminal solicitor and, indeed, at the criminal Bar. I compliment and commend the former Justice Secretary for appointing Sir Christopher, who did an incredibly difficult job and did it incredibly well. However, barristers are about to do something that they do not want to do, which is to take action—industrial action—because this Government have brought the criminal justice system to its knees over a decade. The problem is that they do not have confidence in the Justice Secretary, and for good reason. The Government have already significantly underestimated their expenditure on the accelerated items of the criminal legal aid review by 80%, so how can they believe that the money will in any event come to them? The real problem is that the money is needed now—not in three months, but immediately—and that is how he will prevent industrial action by the criminal Bar.

The hon. Gentleman seems to be the shop steward for what I think is totally unwarranted industrial action, which was balloted for before we had announced our proposals. I hope the Criminal Bar Association will take the more constructive tone we have heard from the other practitioner groups, because if he commended my right hon. and learned Friend my predecessor for appointing Sir Christopher, he surely must welcome the Government’s acceptance of the proposals he has made virtually in full.