Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, my noble friend Lord Bach is quite right to table an amendment requiring that the Government make an impact assessment before the commencement of this legislation. The Lord Chancellor wrote an article in the Guardian on 20 December in which he said: "““Access to justice is a fundamental part of a properly functioning democracy … Those most in need must be helped where they face serious injustice””." Those are fine professions of principle, but I do not think that Guardian readers should assume that all will therefore necessarily be well. It is true that it is difficult to assess the impact of removing welfare cases from the scope of legal aid. The Government’s own impact assessment stated: "““Any significant change in case outcomes may be associated with social and economic costs if this leads to wider economic and social issues arising (for example, relating to health, housing, employment or offending). There may then be associated costs to the Ministry of Justice, other government departments or public bodies or to society as a whole””." That somewhat tortuous prose perhaps betrays the embarrassment of the authors of that document. It acknowledges that there are indeed risks of the kind that we fear. However, it goes on to claim that there is not enough evidence to quantify or further examine those costs for any area of legal aid and therefore the implication is that the attempt should be abandoned. I cannot accept that. It seems to me that where you have very real risks to the well-being of individuals and families as well as to access to justice, every effort should be made to continue to identify the hazards and the potential costs of the policy of taking welfare out of scope. If, indeed, it proves impossible to measure with any reasonable exactitude, and at the same time common sense tells us that the dangers of the policy are great, then surely the proper conclusion is to abandon the policy. Since I do not think that the Minister is going to tell the Committee at the end of this debate that he is going to abandon the policy, I think we must support this amendment. My noble friend’s amendment prescribes the approach that should be taken by those who are making the impact assessment. He itemises categories of vulnerable people. He is right to focus our concern on particular groups of people so that it should be possible for the Government and the wider public to understand what the impact of this policy would be on particularly vulnerable groups at moments in their lives of exceptional vulnerability. I have two concerns about my noble friend’s amendment. The categories that he has selected are not sufficiently comprehensive. Women, for example, are specified, very rightly, but what about men who find themselves dealing with bad employers, bad landlords or bad benefits decision-makers? Indeed, is there not a risk that my noble friend’s amendment might be discriminatory in this regard? Who does my noble friend mean by ““young people””? We know that 22 per cent of 18 to 25 year-olds are facing terrible difficulties as they cannot find jobs in this economy. In contrast to the much more fortunate situation of the baby boomers—most of us—this generation has to seek work that, for many, is simply not there. If they flag in their search for work, they are liable to fall foul of the JSA regulations. If they do that, they may come to the view that there is not justice in this society. There are no jobs for them, no benefits for them, and no legal aid to ensure that they have redress where they may have a legitimate legal case. If that happens, they may lose respect for our society and its institutions. My noble friend is right to anticipate that the policy may indeed increase the risks of crime and anti-social behaviour. My other concern about my noble friend’s amendment is that these categories overlap. I think we are all familiar with the remarks of the tribunal judge Robert Martin, the president of the Social Entitlement Chamber, who said in response to the Government’s consultation: "““The principal flaw in the Government’s approach is the reliance on thematic categories of law as proxies for determining who is in need. These categories only have a loose association with real lives and real problems””." Disability, discrimination, unemployment, debt, relationship breakdown and ill health chase each other around and tangle with each other. In picking on particular categories of case where legal aid will cease to be in scope, the Government are attempting—unrealistically and dangerously—to unbundle the reality of people’s lives. My noble friend, constrained by the structure of the Government’s own legislation and policy, is driven in his amendment to do the same. I think it was the noble Lord, Lord Newton, who said in an earlier debate that actually what is needed is a combined impact assessment. It is estimated that not less than 135,000 people will be affected by the withdrawal of welfare cases from the scope of legal aid, more than half of them disabled people. We need a really searching analysis to try to discover what the impact of the totality of these policies will be on the totality of their lives. However, the Government do not want to do that. The Green Paper stated: "““We consider that these issues””—" these are financial issues for people in poverty— "““are of lower objective importance … than, for example, fundamental issues concerning safety or liberty””." Ministers are at risk of finding themselves in a philosophical quagmire if they attempt to specify what is of ““lower objective importance””, but I do not really mind about that. Common sense and common sympathy tell us that extreme poverty means inability to provide basic needs, malnutrition and prejudice to physical and mental health. Is that not fundamental? Whatever the objective justification, I believe that the policies are reckless, especially given the huge incidence of erroneous benefits assessments and of successful appeals against those assessments. For example, in the case of appeals against a refusal to award DLA, I understand that the success rate for people who are accompanied and supported at their hearing is 60 per cent. The error rate in benefits assessments is well nigh certain to rise with the transition to universal credit, employment and support allowance and personal independence payments. Especially the policies are reckless at a time of economic blizzard,when the Government’s response to the economic blizzard is draconian cuts, some four-fifths of which fall on the poor. I cannot but feel that Ministry of Justice policymakers live in another world. The Green Paper told us, with an apparently straight face, that, "““the accessible, inquisitorial, and user-friendly nature of the tribunal means that appellants can generally present their case without assistance””." We are reminded by Justice for All, a campaigning consortium of a large number of immensely respected voluntary organisations in our country, that the DWP issued 8,690 pages of advice to its decision-makers in 2009. It is not only the regulations that have to be understood but the case law. In the House of Commons, the Lord Chancellor expressed the view that people were, "““resorting to lawyers whenever they face a problem””.—[Official Report, Commons, 15/11/10; col. 660.]" People in poverty face constant, daily, interlocking problems. They do not want to have to go to tribunals or courts, which would be one more problem and ordeal for them in their lives. They want good advice at an early stage; that is, the good advice that the Government will no longer play their part in funding so that such people can be helped to solve their problems before they ever get to tribunal or to court. In her lecture last summer, the noble and learned Baroness, Lady Hale, said: "““Courts are, and should be, a last resort, but they should be a last resort which is accessible to all, rich and poor alike””." The Government are taking away that accessibility to all—the poor as well as the rich. The Green Paper states: "““We note that help and advice are available from a number of other sources””." That is their justification for removing legal aid from law centres, CABs and other sources of advice. But, in reality, will that help and advice be available? Charities, such as the CABs, and statutory agencies, such as Jobcentre Plus, disagree with the Government. They say that they will not be able to continue to provide that advice or that it is not their proper function to provide it. In tabling this amendment, my noble friend is absolutely right that it is essential to assess the reality of this availability of advice before commencement. Indeed, my noble friend might want an assessment to be made of the impact more widely on the economy as a whole. To take one instance, disabled people placed on the wrong benefit without tailored assistance to help them find work are less likely to find work. The Government complain about the soaring cost of the incapacity benefit bill, but this policy will increase that cost. The savings will not happen. The Government tell us that they expect to make savings of £25 million by taking welfare benefits out of scope. The amendment rightly calls for an assessment of the impact on government departments; the impact on costs for the Ministry of Justice with the absence of the screening out of unrealistic cases that the present legally aided system makes possible; the increase in self-representation, which will cause access to justice to be blocked for others who will be waiting in the queue for their hearings; and possibly an increase in the numbers of people in prison. Other government departments will also suffer, particularly the Department for Work and Pensions in its transition through the welfare reform programme. The Department of Health will see the costs of supporting people with mental health problems increase—I fear because of increased poverty, people’s struggle to cope and perhaps, particularly, because of their sense of injustice. CLG has to recognise that there will be an increased incidence of homelessness and of housing crises for individuals. The Public Accounts Committee has drawn attention powerfully to the failures by governments—governments of all parties—properly to assess the costs of their policies. Here is yet another instance. In not many years’ time, it may well be that, if this policy comes to pass and is implemented, the Public Accounts Committee will be doing an examination of something that was improvident, the costs of which were not properly assessed but which have proved to be burdensome—not only grievously burdensome on individuals in need but also on the economy as a whole. However, the main arguments are social and moral. For an illusory saving of £25 million, is it really worth creating the fear, injustice, poverty, suffering and hopelessness that I believe these policies will produce? It is a measure of the quality of a Government and of a society how they treat their minorities, particularly those most disadvantaged and those who may not be particularly popular. I notice that over the past week or two there has been a series of articles in the Daily Mail which have all the fingerprints of an MoJ briefing on them. They caricature the lives of the sorts of people who are ““making free”” with taxpayers’ money on legal aid. These people may not be popular—those who make a mess of their lives often are not—but, as I have said, it is a test of the quality of a Government and of a society that decent care is taken even of those who are widely disregarded. It is important that this assessment should be made, and indeed my noble friend might have wanted to go further by requiring an annual assessment. At any rate, the Government should continue to examine the evidence before introducing policies that exclude the poor from access to justice. Parliament and indeed the Government themselves should have the opportunity to think again.