Future of Legal Aid

Stuart C McDonald Excerpts

Thursday 1st November 2018 Westminster Hall

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is good to see you in the Chair, Mr Bailey.

I, too, congratulate the hon. Member for Hammersmith (Andy Slaughter), not only on securing the debate but on his thoroughly comprehensive and powerful introduction to the topic. In fact, I also thank all hon. Members for their incredibly insightful contributions.

Since I was elected, barely more than three years ago, I think this is the fourth, fifth or even sixth time that we have been in Westminster Hall to debate legal aid or wider access-to-justice issues, and yet so little seems to have changed. We are still waiting for the review of LASPO to be completed—never mind implemented—although an end appears to be just about in sight, which would be welcome indeed. Persistence in pushing for reform is therefore essential. As other hon. Members have said, the issues are fundamental ones. Legal aid is crucial to access to justice and the rule of law. As many hon. Members have expressed today, LASPO represents a misguided and dangerous undermining of those fundamental principles, putting access to justice beyond the reach of many through changes to the scope and eligibility criteria for legal aid.

As the Chair of the Justice Committee has said, that is not an academic matter. Numerous hon. Members have provided all sorts of practical examples of the impact of those changes on their constituents, whether those cases concern clinical negligence, miscarriages of justice, family matters, domestic abuse, social security, housing, debt or immigration. Hon. Members have referred repeatedly to the creation of advice deserts. That has all been at a time when, as the hon. Member for Westminster North (Ms Buck) rightly pointed out, demand for some of those services could not be higher. Demand is soaring in cases of social security law and immigration law, at a time when the ability to access good legal advice is plummeting.

At the outset, the hon. Member for Hammersmith referred to what seems to have become the Government catchphrase in debates such as this, and it goes to the heart of what LASPO represents. The phrase jars with me, I have to say. Over and over again, the Government say that legal aid is available to “those who need it most”. That jars with me because the goal of any legal aid system should be that legal aid is available to all those who need it, full stop. By acknowledging that legal aid is available only to those who need it most, the Government in essence seem to be saying that LASPO was a legitimate exercise in the rationing of legal aid, accepting that many who need it will nevertheless not get it. As the hon. Member for Strangford (Jim Shannon) has said, if people do not get legal aid, that means that many of them simply do not get justice.

All Members have highlighted that LASPO’s flaws have been exposed repeatedly, including by the National Audit Office, the Public Accounts Committee, the Law Society, the Law Commission and many others. The Justice Committee concluded that the Act had failed to achieve three of its four stated goals. The one successful goal was that of cutting the budget, but that was at the cost of harming access to justice for some litigants.

On that note, it would be interesting to know what LASPO represented for other budgets, including its impact on service provision for homelessness, social work and health. Those services pick up the pieces when people struggle to vindicate their rights under housing law, employment law or social security law. What we do know is the impact that LASPO has had on the courts, as party litigants struggle to make their way through complex litigation. The hon. Members for Hammersmith and for Bromley and Chislehurst (Robert Neill) set that out extremely starkly.

My party supports a comprehensive legal aid system—one that is open-ended, uncapped and demand-led; in other words, one that is much closer to what was in existence in England and Wales before LASPO, and to what still exists in Scotland and, as I understand it, in the Netherlands. The main point that I want to make is that such a system, or a move in the direction of it, as Members have called for today, does not have to be prohibitively expensive. In fact, despite its significantly broader scope and financial eligibility rules—about 70% of people in Scotland would qualify for civil legal aid—the system north of the border still costs slightly less per head of population than that in operation down here, at £25.02, as opposed to £25.54. Why is that?

This week the Library provided me with an interesting set of figures that suggest that although legal aid is provided in many more cases in Scotland, it is done at far less cost. In 2016-17, for example, there were 4,000 grants of assistance per 100,000 inhabitants in Scotland, which is some 75% more than the 2,300 grants per 100,000 inhabitants in England and Wales, but spending in each of those legal aid cases was two thirds higher in England and Wales, at about £1,000, compared with £600 in Scotland.

Those figures seem to be consistent with what far more knowledgeable Members have said today about the value of intervention, even on a small scale at an early stage. One Justice Committee report pointed out:

“The Ministry’s efforts to target legal aid at those who most need it have suffered from the weakness that they have often been aimed at the point after a crisis has already developed, such as in housing repossession cases, rather than being preventive.”

The more comprehensive system in Scotland has meant spending small amounts of money at a better time, so the overall spend in each individual case has been kept lower. Several hon. Members made a similar point about early advice.

Those Library figures are also consistent with the argument that there are other ways to keep the legal aid bill under control. Most of our previous debates about legal aid have highlighted the work of Professor Alan Paterson OBE, an international expert in legal aid. He pointed out as long ago as 2010, when spending per capita in England and Wales was £38, compared with £29 in Scotland, that much of that difference was down to the success of reform of court procedures in Scotland, both civil and criminal, leading to reduced legal aid spending.

The recent independent review of legal aid in Scotland highlighted other ways in which the legal aid budget could be reduced. Indeed, it has been reduced there since 2011. Falling recorded crime means fewer court cases and less criminal legal aid, as does greater use of diversion from the courts through fines. More sensible use of civil courts and jurisdictions has contributed to a drop in civil legal aid spending.

In short, legal aid is a vital part of ensuring access to justice and the rule of law. It should never have been made a victim of austerity, and it was a totally false economy to make it one. LASPO should be ripped up—it was a bad piece of legislation and has proved a total failure. Tinkering around the edges is no longer enough. A comprehensive system is required for England and Wales, and it is required urgently.

--- Later in debate ---

[Lucy Frazer]

It was actually the hon. Member for Stockton North (Alex Cunningham) who said that legal aid for housing was not available, and I was trying to highlight that the hon. Member for Westminster North recognised that it is. She makes an important point about legal aid providers. When civil legal aid contracts were recently put out to tender, 1,700 bidders took part, but we need to ensure that people who want to do this work are available to do it across the country, not just in high-density areas, and we need to ensure that there is provision in more sparsely populated areas where those contracts are less lucrative.

[Stuart C. McDonald]

What does the Minister say to the Justice Committee’s suggestion that, although housing may be within scope when people get to the stage of impending homelessness, we should invest smaller sums earlier to avoid catastrophe in the first place?

[Lucy Frazer]

The point that it is useful to nip problems in the bud and address them at the outset, so that they do not escalate, has been made and heard. Changes were made to LASPO to ensure that legal aid was available where people were at their most vulnerable. On clinical negligence, we should make clear that legal aid is available for compensation claims in respect of neurological trauma caused to children early in life due to negligence by medical professionals. As the hon. Member for Hammersmith recognised, by putting such things in the scope of legal aid, we are protecting the most vulnerable.

The hon. Member for Oldham East and Saddleworth (Debbie Abrahams) mentioned social security claims. We are introducing significant technological changes—things such as digitisation and better communication with judges using technology—to make the tribunal system much more accessible.

Many Members, including the hon. Member for Erith and Thamesmead (Teresa Pearce), mentioned family law. LASPO rightly removed most private family matters from the scope of legal aid, but legal aid remains available for mediation in certain family disputes where parties meet the eligibility criteria. Since November 2014, legal aid has covered the costs of the mediation information and assessment meeting and the first mediation session for both parties, even if just one is eligible for legal aid.

The hon. Member for Hammersmith mentioned exceptional case funding. Let me update the figures he gave. The number of people making applications and the number of applications granted have both increased. Some 746 applications for ECF were received in the first quarter of 2018, of which 59%—390—were granted. That is the highest proportion and number of grants since the scheme began.

The hon. Gentleman and the hon. Member for Ashfield (Gloria De Piero) both mentioned domestic violence. Legal aid is available to those seeking protection from an abuser in domestic abuse cases, and it was granted in more than 13,000 cases last year.

The hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) raised important points about Wales. She has asked parliamentary questions on a number of matters, and I am happy to meet her to discuss the issues she has raised.

I was interested to hear the points by the hon. Member for Enfield, Southgate (Bambos Charalambous) about children. I was pleased to meet him earlier this week to discuss some of those issues.

It is important to set out where legal aid is available, but we recognise the impact of the changes made by the coalition Government in 2012, which many Members rightly highlighted. As all hon. Members know, my Department is looking at the impacts of LASPO. The hon. Member for Hammersmith said he is looking for positive news, but as a former shadow Justice Minister, he knows as well as I do that it would be wrong to pre-empt the outcome of the review. We will respond at the end of the year.

I am happy to set out the process, which I outlined at the APPG on legal aid earlier this week. The evidence-gathering process has been comprehensive. My officials met more than 80 individuals and organisations from across the justice system to gather evidence, and they held two rounds of consultative group meetings with organisations, representatives and academics from across the justice system. At a third round of meetings, we will examine opportunities to consider further legal support. Officials will meet the Family Justice Council to discuss its concerns and recommendations in further detail, and are due to have a second meeting with the Civil Justice Council to explore its recommendations further.

I have held a number of instructive roundtables with those who have used our justice system, both with and without legal aid. I have met a number of Members of the House of Lords—last week I sat down with Lord Bach and other members of his commission on access to justice, and I have met Lord Low. Last week, I met the Equality and Human Rights Commission. I have also met many parliamentarians, and individuals from the advice and third sector who work with the most vulnerable in our society.

Alongside those meetings, much material has been submitted throughout the review, and we are considering that. It is clear that there are many issues to consider, from the stage at which advice is sought to types of provider and methods of provision. Many experts highlighted the value that technology can bring to individuals to navigate their rights in the court process.

We now use technology in every part of our lives, and justice should not be immune from that advancement. That is why, through the courts reform programme, the Government are investing £1 billion in updating our justice system for the 21st century. That programme is helping people to access court better, at the same time as changing outdated back-office systems. People can now apply for divorce online, we are trialling online applications for probate, and people can be updated about their social security claim through their mobile phone. Our reforms help vulnerable witnesses to give pre-recorded evidence so they do not need to see their attacker in court, and they enable those who find it difficult to travel due to disability or age to take part in proceedings by video link. That investment will transform how people experience the justice system with digital services, making justice more accessible and straightforward as well as using taxpayers’ money wisely.