Ministry of Justice: Legal Aid Spending

Andy Slaughter Excerpts

Thursday 22nd October 2020 Westminster Hall

[Andy Slaughter (Hammersmith) (Lab)]

It is a real pleasure to serve under your chairmanship, Ms McDonagh, and to follow the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill); the chair of the all-party parliamentary group on legal aid, my hon. Friend the Member for Westminster North (Ms Buck); and a fellow member of the Justice Committee, the hon. Member for Henley (John Howell). We have the hon. Member for Newbury (Laura Farris), a shadow Home Office Minister and the shadow Justice Secretary to come. I hope the Minister is taking that on board and realises the quality, if not the quantity, of what he has. I hope he is not thinking, “Oh, it’s Thursday afternoon in Westminster Hall. It must be Members from London and the home counties present.” I know he is a better man than that.

To save time, I would like him to make a series of admissions. I think he probably would admit that the cuts to the Ministry of Justice have been some of the highest, if not the highest, in any Government Department over the past 10 years, that legal aid has been in the frontline of those cuts and, indeed, that those cuts have gone too far. I think that is axiomatic: given that the Government are rowing back from some of the cuts now, there must be some appreciation of that fact.

I do not know whether I can stretch my luck and ask the Minister to admit that the premise of LASPO and the criminal legal aid changes that followed it was the wrong approach. As Members present will know, the main feature of LASPO was that it overturned 70 years of practice in legal aid. Instead of allowing matters to come within scope unless they were specifically excluded, it required matters to be entered into. The consequence was that the majority of welfare law, private family law, social welfare law, and a whole range of other disciplines—housing, immigration, and so on—was wiped out, or almost entirely wiped out. In practice, those disciplines were wiped out, because most firms could not keep going with what little remained in scope. That was a mistake, and I hope the Government will come to admit that. If they do not, I hope that a future Labour Government will reverse that trend, which has been detrimental to access to justice and equality of arms in the courts ever since.

I do not want to dwell on this too much, so I will race through what I think have been the developments over those 10 years. I am afraid that Ken Clarke, now Lord Clarke, who we all appreciate for his stand on Brexit and other matters, was the axeman in these cases, as he so often was in other Governments. He cut a swathe through civil legal aid in particular; that was not his area of practice, so I wonder whether that is a case in point. He was followed by the next Lord Chancellor, the right hon. Member for Epsom and Ewell (Chris Grayling), who caused the chaos and confusion in criminal legal aid that we are still living with to this day, not just through the cuts in funds but through the way in which it has been so shambolically reorganised. Of course, his reverse Midas touch is known across the piece in the MOJ, and is now a matter of legend.

A number of concessions were allegedly made in response to the Government’s many defeats in the House of Lords when LASPO was going through, which turned out to be nugatory. There were a number of significant—but again, small—victories in the court under judicial review in the areas of domestic violence, children’s law and refugee law, which corrected some of the worst features of LASPO. There have been several very moderate and well-reasoned reports over the years, such as the Bar Council report and the Low commission, which have tried to appeal to the Government’s better nature by saying, “At least look at these areas of law in which the most suffering has occurred.” Those reports have mainly fallen on deaf ears.

Finally, we got the review of LASPO, slightly beyond the five-year period in which it had been promised during LASPO’s passage. I distinctly remember that report, because it was a well-written report by civil servants that gave all the justifications for why LASPO was wrong, and then threw a few crumbs on the table at the end of it. Yes, it is welcome to have £3 million to support the now huge number of litigants in person; yes, it is great to have £5 million for innovation in the justice system; but compared with the hundreds of millions of pounds that have been sucked out, those sums of money really do not touch the sides.

I am struck by the fact—I noticed it in one of the briefings we had for today’s debate, from the Bar Council—that there has been a slight change of approach by the professions, perhaps because they have been bashing their head against a brick wall for 10 years. In the Bar Council’s spending review submission, to which it alludes in today’s briefing, it is almost starting from scratch: rather than saying, “Can you put this back into scope? Can you change this back?” it is saying, “This is the basis of what a modern legal aid system should look like.” It talks about access to early legal advice, non-means-tested legal aid for all domestic abuse cases, and early access on social welfare issues. Those are laudable aims, but I would nevertheless urge the Bar Council, the Law Society and other representatives of the profession not to give up yet, because I do not think we can turn our back on LASPO quite yet.

I heard what the hon. Member for Henley said, but my understanding of the briefings I have read is that there has been a cut of about 38% in legal aid funding over the past 10 years, from about £2.6 billion to about £1.7 billion. At its lowest point, it was £1.6 billion. In any case, there have been such large cuts that they have threatened the whole sustainability of the field.

The changes to the means test have excluded many people on low and moderate incomes from having any access to legal aid. We have the abhorrent the innocence tax. I am sure that if the Minister were speaking freely, he would say it is wrongly conceived and executed. It is a sin crying out for justice, if not vengeance.

The Chair of the Justice Committee said quite a lot about criminal legal aid, so I will not say a great deal about it. The most striking figure is the 8.75% cut in fees—until very recently there had been no increase in fees for about 20 years. There was a cut in 2014 and the net effect of that—the median net profit for practitioners after that—was minus 3%. In other words, businesses were on average running at a loss. Where else would the Government, even in their most intolerant mode, expect people to work for nothing or less than nothing and not complain about it?

It is equally true on the civil side. The number of providers of civil legal aid has been cut by half over the last seven years, but the number of cases starting has gone down by more than 80% over the period 2010, when austerity first came in, to 2017. A particular point of sorrow for me is the way that law centres and other advice agencies have been treated. I declare an interest as a non-practising barrister, but also as somebody who sat on the management committee of Hammersmith and Fulham law centre for nearly 30 years, and have seen it struggle for survival. Organisations whose very existence is to help other people in need were themselves living hand to mouth from month to month, just to keep going. Frankly, sometimes they were not able to provide anything like a comprehensive service. I am pleased to say that, thanks to the generosity of the local authority and others, but in no sense thanks to the Government, our law centre is now growing and thriving again. It is now almost entirely reliant on grant aid and charitable funding rather than legal aid starts.

The reviews that are under way have already been mentioned and we welcome them. I am pleased to be taking part in the Justice Committee and the all-party parliamentary group reviews. I hope they will throw up some arguable points to bring to the Government. I am also aware that the Government are themselves undertaking a series of reviews. Will the Minister tell us a little more about the scope and timetable of those reviews and their ambition? Part 2 of the criminal legal aid review was announced in August—part 1 did not do very much—but there is no timetable. Two years after we were first promised a review, there is still no timetable for the principle of sustainability and the majority part of that review.

We have a review of the means test—again, long overdue—but that was paused in June. What is happening on that? Although we do not have a formal review of civil legal aid, I will here quote from the Select Committee’s brief, which, as always, is extremely useful. The Lord Chancellor’s cover letter, which is attached to the Government’s response to the legal professions report, states that, alongside the legal aid means test review, the Government are

“looking into the sustainability of the civil legal aid system and will consider the delivery and contractual model for civil legal aid within this work.”

Again, that is long overdue. Can the Minister say a bit more about what is promised from those reviews?

In a way, it is dispiriting that we are still looking at reviews 10 years on. We all know about the level of need, but it is in the Government’s hands. Can we at least have a sense of urgency and a promise that if it is a fair review and serious problems are found, as I think will be the case—underfunding, or the way that the Ministry acts with the profession—they will be seriously corrected?

I repeat what the chair of the all-party parliamentary group, my hon. Friend the Member for Westminster North, said: it is not an auspicious time when we have the Home Secretary, and indeed the Prime Minister, making frankly childish and incendiary remarks about lefty lawyers, legal activists and things of that kind. It is trivial and it is what we have come to expect, particularly from this Prime Minister, but it has serious consequences, as we saw with the attack on lawyers’ offices. The specific aim of the attack—a man has been charged with serious criminal offences as a consequence—was to punish people for simply doing their job. Given the Minister’s distinguished career in the profession, I know he will share those views. I hope he is able to say them publicly.

We are told that the Lord Chancellor and the Attorney General have expressed their reservations privately to the Home Secretary. I know the Minister is a trusting and ambitious man in Government, and perhaps he will want to put on the record that he also deprecates those attitudes. It is a serious matter. We cannot expect the Government to deal fairly with the profession and, more importantly, with its clients—particularly their poorest clients, who go without representation now—if at the same time they are denigrating those who are trying to carry out this essential work.