I beg to move,
This this House has considered the spending of the Ministry of Justice on legal aid.
It is a pleasure to see you in the Chair today, Mr Robertson, and to move this motion on behalf of my colleagues on the Select Committee on Justice, which I have the honour to chair. I am delighted to see a number of colleagues here today.
People might think that spending on legal aid is a technical and rather dry subject, but it is not, and nor should it be, because ultimately it is about access to justice. When preparing for today, I was struck by a comment from the late Lord Diplock, one of our very distinguished jurists, who said:
"Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access.”
The last point is important. It is the realistic ability to access justice that is important, if we are to talk about genuine access to justice, as opposed to the theoretical.
Rightly, after world war two, the legal aid scheme was set up under the Legal Aid and Advice Act 1949. Governments of all parties have sought to provide means of access. To quote another distinguished late jurist, Lord Bingham:
“Denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law”.
In a democracy, we are all committed to the rule of law. We debated it not long ago in Westminster Hall, Mr Robertson. To achieve that, it is important that those who have rights that they seek to enforce have a means of going to the courts to do so. They should not be constrained in exercising those rights by their means. The test ought to be the merits of their claim, rather than the means they have to bring it. In the same way, in criminal matters, those whom the state charges with an offence are entitled to a proper means of putting the state to proof as to whether that offence is made out against them. Their ability to do that should not be constrained by their means either. The test in a criminal case should be whether the state can prove the case against them on the merits and the evidence, to the appropriate standard. Those are basic things we all sign up to.
We have to ask how we can do that effectively in reality, in circumstances where many of the population find affording to pay for litigation, which no one embarks upon lightly, not viable or within their grasp. It is not just about litigation. I remember that when I started as a young barrister—I refer to my declarations in the Register of Members’ Financial Interests—some of the most important things were those done through the green form scheme, such as giving important early advice on whether a contract case, or a case for possession of property, or a matrimonial case, had merits. It is not purely legal criminal matters that we are concerned with. Often, that early advice saves a great deal of trouble for individuals and for their families, either enabling them to resist an unfair claim against them, or warning them off pursuing an unwise course of action that might get them into more expense.
Access to justice and an effectively functioning legal aid system are in everybody’s interests and a societal good. Governments of all complexions have had to balance the need to do that with the need to sustainably fund it at times when there are other pressures on the public purse. It has struck me throughout my time in this place, that governments of all complexions have, from time to time, reduced spending on legal aid. No one is entirely free of that, and it is almost inevitable at a time when the Ministry of Justice also has to deal within its budget with prisons, probation and many other matters. It is very easy for legal aid spending to be seen as one of the more discretionary elements in the system and to be squeezed out.
That is why on a number of occasions over the years the Justice Committee has carried out inquiries and issued reports on spending on legal aid and its sustainability. Indeed, very recently we conducted an inquiry into legal aid in the context of the pressures placed on the legal profession and the court system by the covid-19 pandemic. We have now embarked on a fresh inquiry into the future of legal aid; we started it on 7 September and we are looking for evidence until 2 November. I hope that people will submit evidence to the Committee on the broad sustainability of legal aid.
Of course, the current statutory basis of legal aid is the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO, but the Government have rightly undertaken to review that. There have been delays in that process and it has taken some time, but we need to see how effective that Act is. Some of the changes it made were sensible; others have not necessarily stood the test of time and we need to be honest about that. Perhaps the problem was that the introduction of LASPO was linked with a very significant reduction in legal aid spending. It was not the first time that had happened; the Labour Government before the coalition reduced spending on legal aid quite significantly in a number of areas. Now, however, we have a chance to consider what is a sustainable basis for legal aid. I hope that eventually we reach a degree of consensus so that legal aid ceases to be something of a party political football, which any type of public spending can sometimes become. I hope that the Minister will be able to update us on the progress of the Government reviews.
That does not mean that in the future we have to deliver legal aid in exactly the same way as before. However, it is important that people should have access to early advice, and there is no doubt that, for various reasons, the financial pressures on the system are creating real difficulties in delivering to people the level of service that we would wish to see. I note the briefings that have been provided by both the Law Society and the Bar Council in that regard.
As many will know, I spent most of my life in practice at the criminal Bar. A great deal of my work, either prosecuting or defending, was publicly funded. There is no doubt that there is a real problem now in attracting bright young lawyers, either solicitors or barristers, to undertake that sort of work. The cases that I worked on started with a solicitor attending the police station—in those days, the duty solicitor scheme had been brought in quite recently. We have heard compelling evidence over the last two or three inquiries, and indeed over the last two or three years, from solicitors and other practitioners that there is now a real dearth of people
who are willing to undertake the fairly onerous task of turning out, sometimes in the middle of the night, to sit in a police station when somebody charged with an offence—often a serious criminal offence—is interviewed. It is part of that person’s constitutional right—part of ensuring both that the guilty are properly prosecuted and the innocent are defended—but in many areas now it is very hard to find legal aid solicitors available to undertake that work. The average age of a duty solicitor is pushing 50, whereas the average age of those in the legal profession as a whole is much younger, so disproportionately legal aid work is becoming an older person’s part of the profession. If we do not recruit new people to do the work, the supply of duty solicitors will dry up.
In the civil field, there is a geographic difficulty regarding the availability of housing advice; that was a particular example that we were given. I suspect that post covid more people will be in financial difficulty, facing problems of debt, and housing possession actions will loom even larger in the courts. However, in many places, including quite large local authority areas, it is physically very hard to find more than one legal aid practitioner who will provide advice on housing law for people. That is not a sustainable position.
The position is similar at the Bar. Even large specialist sets of criminal chambers—such as mine, and I suspect the Minister’s—will probably say anecdotally that far less of their work is publicly funded than was the case in the past. That bears particularly hard on young barristers just starting out, who very often cut their teeth on this sort of work. We need a sustainable means of making sure that people can make a living. I am not talking about a grand living—one of the most unpleasant and annoying things for those of us who understand this area is these ridiculous headlines about fat cat lawyers doing criminal work; that is simply not the case. The facts clearly demonstrated to our Select Committee in reports over the years show that that is not the case, but of course the easy headlines make the most noise, as far as public debate is concerned.
We have recommended that a particular focus should be given to ensuring that we can uplift the funding for criminal legal aid. I recognise that the Government have put more money into this and revised some of the payment schemes. I welcome that, but I say to the Minister that there is more still to be done. Particular issues have been raised with us about interim payments to ensure that at the present time, during the covid-19 pandemic, cash flow for solicitors firms and sets of chambers undertaking publicly funded work continues to be available.
I know the Minister had an important role in securing the valuable money that has been expended in support for legal advice centres. That is important and welcome, but we need to ensure that they are put on a sustainable footing, too. There is a concern about the very high level of administrative costs in the Legal Aid Agency. An administrative budget of £88.8 million seems an awful lot for the organisation, which is supposed to be a light-touch operator.
That comes against the background—as the Minister himself rightly said when he was a distinguished member of the Select Committee—that spending on legal aid is a fraction of a fraction of total public spending in the United Kingdom,; it has been said to be about 0.1% of total spend. We are not talking about large sums of
money in the overall scheme of things, but those sums of money make a profound difference to the citizen’s ability to enforce their rights or to defend themselves against unjust accusations.
I have not had time to talk about family or civil work, but I know that some of my hon. Friends will show their expertise in those areas. I will, however, make two points. Since certain changes were made, there has been a real collapse in the number of people able to access the employment tribunals. I suspect that, given the pressures of an economy damaged by the pandemic, demand will grow in that area.
It was always thought that changes to family legal aid would lead to more mediation. In fact, we found that mediation fell through the floor, because early access to the lawyer was the gateway for pointing people to go into mediation as a cheaper and less confrontational means of resolving their family disputes. Actually, the risk is that some of the savings that were taken out have not been cost-effective; they have been false savings, because there has been a growth of litigants in person, making the cases longer to deal with, resulting in greater burden on the judges and court time, and less good outcomes for the individuals and society as a whole.
I know the Minister understands these matters much better than most. I hope that the Government will commit to continue the review of LASPO in a timely fashion, and that we will not be afraid to come to certain interim conclusions and put some interim money in, where it is appropriate and justified by the evidence, to keep the legal aid market sustainable under the current pressures. I hope we will take a broader view about the sustainability of legal aid going forward.
Finally, perhaps all of us could use this as an opportunity to improve public awareness of the importance of the law. The law is not a purely transactional matter. I think Lord Kerr put it well in the Unison case. This is not purely a matter of private concern between the individuals; there is a public good in access to the courts. It is important constitutionally that people should be aware of their rights and how they enforce them.
We should not be afraid, therefore, of saying that any civilised society should resource its justice system just as much as it would resource any other social service—as much as we would expect to resource education, care for the elderly, healthcare or housing. Those are all matters that we would regard as part of the fundamental social fabric. Access to a workable court system is an equal part of that, requiring proper funding of the courts and judiciary, as well as, where appropriate, ensuring that those who have meritorious claims—a test to ensure that is fair—are not deterred purely by want of means from bringing them.
I hope that serves as an introduction to this debate. I have tried to explain why we think this is important, and why we regard the inquiry that the Select Committee is currently undertaking as important. I hope the Government will be able to respond positively.
3.25 pm