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Legal Aid Debate

11th May 2011

Jonathan Djanogly responds to Dr Julian Huppert MP's debate on proposals to reform the legal aid system.

The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): I congratulate my hon. Friend the Member for Cambridge (Dr Huppert) on securing the debate. I am always pleased to debate with him. Many important points have been covered by the hon. Member for Makerfield (Yvonne Fovargue), the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), my hon. Friend the Member for Carshalton and Wallington (Tom Brake), the hon. Members for Islington North (Jeremy Corbyn) and for Hammersmith (Mr Slaughter) and my hon. Friend the Member for South Swindon (Mr Buckland).

I of course recognise the strength of feeling about our legal aid system and the importance that Members here attach to that system, and to access to justice. I share that feeling, and can assure Members that the Government do not look to reforming legal aid lightly. As Members know, the context of the Government’s overall reforms is to recognise the need to tackle the deficit that we inherited on entering office. It is hard to overstate how serious the situation we found was. Robust action was essential to maintain market confidence and to create conditions for recovery, which is why the Lord Chancellor agreed with the Home Secretary to significantly reduce real-terms spending in the broad area of justice and law and order, and why the Department is playing its part in taking the necessary steps to get our economy back to growth and stability.

Last month’s spending review set out the considerable scale of the challenge for the Ministry of Justice: it has to reduce its budget by £2 billion in 2014-15. We are looking for savings in various ways. Legal aid, one of the three big areas of spending in the Ministry of Justice, will need to contribute substantially to that reduction, as I believe the coalition parties—and indeed the Opposition—accept.

However, as I have mentioned in previous debates, our policy cannot and will not be determined simply by the need to deal with the deficit. One need not be well acquainted with our justice system, legal structures or legal aid system to see considerable potential for reform. Financial considerations and the need for reform come together, which presents us with an opportunity to develop new policies that secure access to justice and a legal aid system for the future. The coalition Government’s aim is a more efficient and effective justice and legal aid system, not just a more affordable one.

In that context, we make our proposals to reform a legal aid system that has grown considerably over the years. Since the modern legal aid system was established in 1949, its scope has been widened far beyond what was originally intended. Without indulging in caricatures, as my hon. Friend the Member for Cambridge put it, the facts of the matter show that by 1999, legal aid funding was available for virtually every type of potential issue, including some that should not require any legal expertise to resolve. Legal aid forms a vital part of a justice system of which we can all be rightly proud, and the Government are committed to maintaining and safeguarding that system, not least by ensuring that legal aid is appropriately targeted and set at levels that are sustainable in the long term.

The scheme now costs more than £2 billion a year, making it one of the most expensive in the world, even—I say to my hon. Friend the Member for South Swindon—taking jurisdictional difference into account. We must understand that, even after reform, we will still have one of the most expensive schemes in the world, if not the most expensive. In developing our legal aid reform proposals, we went back to basic principles in order to choose which issues are of sufficient priority to justify the use of public funds, subject to people’s means and the merits of the case.

The proposals in the consultation paper aimed to take into account the importance of the issues at stake, litigants’ ability to present their own case, the availability of alternative sources of funding and routes to resolution and our domestic and international legal obligations. I can confirm to my hon. Friend the Member for Cambridge that help for the most vulnerable will be prioritised under our proposals. As hon. Members will be aware, the consultation closed on 14 February. Since then, we have been considering all the responses received, around 4,800 in total. I also received during the consultation many letters from hon. Members representing their own views and informing me of their constituents’.

This is our third debate in the House on legal aid. I welcomed the helpful input in the recent report of the Justice Committee, and I can confirm to hon. Members that we in the MOJ are listening hard. We expect to announce our way forward in the next few weeks. I hope that hon. Members will see then how the coalition Government’s response shows that we are committed to working with them and stakeholders to ensure access to justice and a legal aid system fit for the future.

I am, of course, unable to give details about the Government’s response today, but it might be helpful for me to recap some of our proposals. In order to focus financial support where it is most appropriate and necessary, the proposed reforms involve significant change to the scope of legal aid funding, about which many hon. Members have raised concerns. We did not propose any changes to the scope of criminal legal aid. It was also proposed that legal aid should remain routinely available in civil and family cases where people’s liberty is at stake or where they are at risk of serious physical harm or immediate loss of their home.

For example, we proposed to retain legal aid for asylum cases, for debt and housing matters where someone’s home is at immediate risk and for mental health cases. It will still be provided where people face state intervention in their family affairs that might result in their children being taken into care, in cases involving domestic violence or forced marriage and in immigration detention cases, where the appellant’s liberty is at stake. We also proposed that legal aid should remain available for cases in which people seek to hold the state to account by judicial review and cases involving discrimination that are currently in scope. Legal help to bereaved families in inquests, including for deaths of active service personnel, would also remain in scope.

I can confirm, particularly to the hon. Member for Makerfield and to my hon. Friend the Member for Carshalton and Wallington, that we are looking closely at telephone advice proposals. I maintain that to a great extent, our proposals will help rather than hinder access to justice, particularly for the disabled and those in rural areas. That will be covered in our response. We openly accept that there will remain times when face-to-face meetings are required.

The Government further proposed to remove claims of clinical negligence from the scope of the civil legal aid scheme. In many cases, alternative sources of funding are available, such as no win, no fee arrangements. We also proposed to remove from scope the categories of employment, education, immigration, some debt and housing issues and welfare benefits, except for cases involving risk to anyone’s safety or liberty, risk of homelessness or discrimination. In many such cases, the issues are not necessarily of a legal nature, but resolving them requires information, practical advice or other forms of expertise.

We recognise that international or domestic law require some cases within the areas of law that we proposed to remove from scope to be funded by the taxpayer. We therefore proposed a new exceptional funding scheme for excluded cases. In those cases where it is appropriate to keep supporting with legal aid funding, it is important that the Government secure the best possible value for money in procuring legal services. The consultation paper therefore announced the Government’s intention to introduce price competition for legal aid in criminal proceedings and, in the longer term, for civil and family cases, too. Further, more detailed consultation on criminal competition will follow later in the year.

In the meantime, the paper proposed more immediate changes to criminal fee schemes that should encourage cases to be brought to justice more quickly and efficiently. They include harmonising the guilty plea fee paid for certain either-way cases regardless of venue and for other Crown court guilty pleas regardless of the stage in the proceedings. We also proposed to reduce all fees paid in civil and family matters by 10% and to exert greater control over the rising costs of expert fees. We proposed to increase the proportion of advice delivered by telephone through the existing community legal advice helpline, as I have discussed.

We recognise that the proposals would affect funding for not-for-profit legal aid providers such as Citizens Advice. I have had numerous helpful meetings in recent months with representatives of not-for-profit organisations to discuss the impact of the legal aid proposals and listen to their concerns during the consultation, although I must say that in the past, I have queried the Citizens Advice figures mentioned.

However, legal aid is only part of the picture. Local government, not the MOJ, is the largest single funder of the not-for-profit advice sector, and several other Departments provide significant funding. Indeed, legal aid accounts for only about 15% of the total income of citizens advice bureaux. Around half of bureaux do not receive any funding from legal aid. That is why a cross-governmental approach is needed.

I can confirm that the Ministry of Justice is working actively with colleagues in the Cabinet Office, the Department for Business, Innovation and Skills and other Departments that fund advice providers or deal with the impact if people do not receive the advice that they need to identify how best to work across Government to examine the issue. I have had several meetings with ministerial colleagues to consider how that can be achieved.

In the very little time remaining, I will try to cover some of the specific points raised. My hon. Friend the Member for Cambridge mentioned immigration. We proposed to keep legal aid for asylum cases. In the consultation paper, we proposed to remove immigration cases from the scope of legal aid, except in detention cases where a person’s liberty is at stake and cases before the Special Immigration Appeals Commission in which a person may be removed or excluded from the UK on the grounds of national security or other public interest. The tribunal process in immigration cases is designed to be straightforward, and interpreters are provided. I can confirm that, separately from the legal aid consultation, we are piloting the provision of legal advice earlier in the asylum process to help to improve the quality of asylum decision making. We are currently considering the responses to the consultation on that issue and will publish our own response in due course.

On the relationship between immigration and domestic violence, the consultation paper did not propose to make an exception for immigration cases under the domestic violence rule. Although we recognise that domestic violence victims may need more help with forms and procedures than other immigration applicants, what is needed is not necessarily specialist legal help. We are currently reconsidering responses on that issue, and we will come back to the House. However, I confirm that we proposed that legal aid should remain available to those seeking an injunction to prevent domestic violence, regardless of their nationality or immigration status.

My hon. Friend the Member for Cambridge mentioned domestic violence in the context of private family law and asked whether the definition of domestic violence was too narrow. That was also mentioned by my hon. Friend the Member for South Swindon, the right hon. Member for Dwyfor Meirionnydd and others. In the consultation, we proposed that private law family legal aid should continue to be available where there is objective evidence of domestic violence. We have asked for views on what might provide objective evidence and therefore trigger private family law legal aid. We have been giving careful consideration to the points raised in response—

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