Thursday 27 June 2013

27th June - The Backbench Legal Aid debate


The Lord Chancellor 'is trying to weaken the golden triangle of Parliament, the judiciary and the Executive that underpins the rule of law and the framework of a good society—our society. These proposals are toxic to society and should be withdrawn.' - Valerie Vaz MP

The House of Commons held a backbench debate today (27th June) on Legal Aid Reforms.  The debate may be read HERE and there is no substitute for reading it in full.  The contributors to the debate generally accepted that the criminal justice system cannot be immune from cost savings but the Price Competitive Tendering model put forward in the consultation was castigated.  Numerous excellent points were made including some alternative and preferable ideas for saving money.  Other major concerns were: the 12 month qualification period for immigrants: the proposals to remove legal aid from most prison law matters and the attack on judicial review.  There was  deep concern that such a major change might be made - (as government currently intends) - by secondary legislation. 

The e-petition remains important ... please consider signing it. 

On Wednesday 26th June, there was also a short Westminster Hall debate about Legal Aid in rural Wales - HERE.  Ar ddydd Mercher 26 Mehefin, cafwyd dadl yn Neuadd San Steffan byr am Gymorth Cyfreithiol yn y Gymru wledig

Jeremy Wright (Parliamentary Under-Secretary Ministry of Justice), defending the government's position, indicated that £320m will have been taken from legal aid by 2014-15 as a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).  Changes under
that Act came into force on 1st April 2013.  The reforms under the government's latest proposals would remove a further £220m by 2018-19.  However, as the debate indicated, serious injustice to many is the likely outcome if that saving is achieved in the ways put forward in the consultation. 

Wright also stated that 16,000 responses had been received to the consultation.

The debate was secured, via the Backbench Business Committee, by Sarah Teather MP (Liberal Democrat - Brent Central) supported by 31 members of all parties.  Over 30 members spoke and only two - (Robert Neill MP and Jeremy Wright MP) - unequivocally favoured the government's position on Price Competitive Tendering (PCT).

Hopefully, the majority views expressed in this debate would also be expressed by a majority of ALL MPs if they are allowed to debate and vote on these proposals.  After the debate, the government should be in no doubt that a serious rethink is required - as the following extracts from the debate clearly demonstrate.

Some Extracts from the debate:

Sarah Teather MP - Children who may be subject to care orders, children with special educational needs, victims of domestic violence, victims of trafficking, asylum cases, those in immigration detention, those facing immediate homelessness, and those with mental health issues are just a few of the very vulnerable groups that are identified. I am afraid that people in all those categories may be denied legal aid if they fail to pass the residence test.

Sarah Teather MP - I want to remind the Minister—as one former Minister to a current Minister—that being judicially reviewed is annoying. I remember that; it is very frustrating when we are taken to court, but we have to be humble enough to accept that Ministers, and others in public authorities, sometimes make the wrong decisions, and we also have to be man enough to accept the risk that some of the things people will JR us about may not seem to be particularly significant. That is what we need in a free society; that is the price we pay for making sure citizens are able to hold the state to account and for preventing overbearing state power from interfering with people’s right to live in the way they choose.

David Lammy MP - Judicial review is so important. Most people in this country feel that public authorities are benign until they have a disabled child, or one with special needs, and seek to challenge the local authority or the school, until they have an elderly relative in a care home and abuse goes on in that care home, or until they live in the path of High Speed 2 or Crossrail. There are people in this country who would seek to use judicial review and it is a travesty that this Government would run a coach and horses through it for £6 million.  The hon. Member for North West Norfolk (Mr Bellingham) mentioned savings and savings can be made in other ways. Tagging a defendant costs £13.41 in Britain, but £1.22 in America. Let us find the savings through cheaper procurement. Let us find the savings in the court system. Let us not rip up a democratic, constitutional system that we have had for so many years and that has served us well.

Karen Buck MP - As is often the case with this Government, we are finding that cuts—the £350 million taken off the legal services budget—do not always mean savings. As we were warned, we are already seeing an increase in the number of litigants in person appearing in court. The Bar and judges warned that it would lead to additional costs.

Karen Buck MP - On the “Transforming Legal Aid” agenda, while it is true that a Labour Government would have faced difficult and not necessarily popular choices about the justice system and legal aid, one of the elements that we regard as critical is maintenance of the ability for the accused to have a choice of lawyers. There is a risk that the proposed changes will lead to a loss of specialist services and quality services driven by choice, and potentially to miscarriages of justice.

I want to share with the House a letter I received from one of my constituents in the run-up to today’s debate. It is from Anne Maguire, one of the Maguire Seven convicted in 1975 of possession of explosives together with her husband, two teenage sons, brother and brother-in-law and a family friend. She received a sentence of 14 years. She and all her relatives and friend were innocent and their convictions were quashed by the Court of Appeal in 1992.

She says:

“Over many years, our solicitor Alastair Logan worked tirelessly without payment to overturn our wrongful convictions. Without his diligence and painstaking work, it’s no exaggeration that the miscarriage of justice we suffered would never have been put right. Under the government’s terrible proposals, solicitors’ firms such as Alastair’s would disappear to be replaced by a reduced number of large commercial operations with no interest in helping innocent prisoners.

Many more miscarriages of justice will occur if plans to award legal aid contracts to the cheapest commercial bidders such as the haulage company Eddie Stobart and to remove the ancient right of accused persons to choose their own lawyer are implemented.

Karl Turner MP -  a solicitor who attends at a police station in the middle of the night is often dealing with extremely serious allegations—sometimes allegations of murder. I have been in that position on a number of occasions, representing clients who are alleged to have committed murder. The solicitor is there on his or her own, whereas the police have advice from the CPS and many officers to assist them. The solicitor is facing all that pressure and is not being paid properly, even under the current arrangements, for his or her expertise.Of course we accept that in these straitened economic times, cuts have to be made to Departments across the board, but these plans are massively ill conceived. They will, in my respectful submission, irretrievably damage the criminal justice system.

Karl Turner MP - There seems to be a suggestion that the Labour Government were particularly generous to criminal lawyers. We were not. Criminal lawyers have sustained cuts to fees from successive Governments. The current proposals are far reaching and, if they go through, they will be horrifically damaging to the criminal justice system. PCT will inevitably lead to the market being dominated by the big multinationals—the usual suspects—G4S, Serco, Capita, and probably the new entrants to the market who have absolutely no experience, Stobart.

The plans are also unconstitutional. They dismiss the notion that an accused might have the right to choose a solicitor. The cavalier ignorance of the Lord Chancellor was exposed when he remarked:

“I don’t believe that most people who find themselves in our criminal justice system are great connoisseurs of legal skills.”

Not only does he dismiss everyone requiring legal advice as a criminal before they have even been charged or had a trial, but he apparently has the naiveté to think that those who come face to face with the criminal justice system are not capable of judging the competence of their own lawyers. This is the “too thick to pick” point. The notion is completely contrary to attitudes applied to, say, health services in this country or education, where choice is deemed essential.

Rosie Cooper MP - There is of course scope to tackle inefficiency within the justice system and to make the necessary changes while ensuring that the core elements of a sound justice system remain in place. Instead, what we see is a slash-and-burn approach to legal aid—I, other hon. Members, legal professionals and constituents have problems with it—that will absolutely rewrite the fundamental principles and values of the modern British justice system. The reforms attack the principles of fairness, justice and, fundamentally, hope.
Local justice has been a foundation stone of this country’s criminal justice system for years. Many small and medium-sized legal firms are the cogs in that local justice machine, alongside the police, magistrates, law courts and the Crown Prosecution Service. They often provide the link between each of those organisations that makes our justice system a strong and comparatively fair one.

Under the proposals, in Lancashire we would see a 70% reduction in legal aid services, which would leave just 14 firms covering a population of over 1 million. It would lead to advice deserts spreading across the country, especially in more rural areas such as West Lancashire. Local firms will be forced to close as they will be unable to compete with the large entities that are entirely commercially driven, which will be the only ones able successfully to bid for contracts. The only incentive for obtaining a contract will be to spend as little as possible on each case and to get them over and done with as quickly as possible, not to see that justice is done. There will undoubtedly be an increase in the number of miscarriages of justice, and righting those wrongs will be very costly.

Simon Reevell MP - as a Conservative, I do not like the removal of choice from the market. It does not really matter that the individual concerned happens to be a defendant in criminal proceedings; after all, at that stage he or she is presumed innocent until proven guilty—we do still have that. The removal of choice in the selection of representation concerns me. The idea that the state will prosecute, that it will contract those who defend, and that those contractors are likely, under these proposals, to employ the defence advocate, is worrying. I have dealt with cases that have involved issues of security and of taking on the Government, for example in relation to what the previous Government did in Iraq. I wonder whether someone working for an organisation that had a contract with the Government would feel as able as I did to take on those issues and seek to expose them in the course of a trial, regardless of consequences, as a member of the independent Bar.

Valerie Vaz MP - It is not clear what the Lord Chancellor is trying to achieve, other than to undermine the legal system. The Lord Chancellor does not appear to understand that if people are given access to legal services, they do not need to go to court—if that is where he wants to make the savings. Perhaps he wants to make the savings in court time. However, as a result of these proposals, court time will be filled by people who can afford going to court. In certain circumstances, companies can offset their legal costs against tax and even get the VAT back. An ordinary citizen cannot do that.

Judicial review is an important branch of law. Of course, the Executive do not like it because it holds the Executive to account—it looks at how public bodies come to a decision. Given the legislation enacted since 2010, it is no wonder that the Government want a neutered judicial review. No one can predict the outcome of a case, so having to make a judgment that there is a 50% chance of winning to receive legal aid, is absurd. Evidence has to be heard from both sides and a decision is made based on arguments that are made before an impartial judiciary. Lawyers are obliged to advise a client whether a case has merits before they proceed.

Valerie Vaz MP - The Lord Chancellor has no mandate from the people, and no moral, legal or financial argument to continue with this course of action. He is tampering with one of the important checks and balances of the state. He is trying to weaken the golden triangle of Parliament, the judiciary and the Executive that underpins the rule of law and the framework of a good society—our society. These proposals are toxic to society and should be withdrawn.

David Davis MP - I cannot believe that a Conservative Government are going to mandate how many companies and providers there should be. I know of no example in the world where a Government mandated the number of companies and then improved the efficiency of provision—not one. This is a Soviet proposal that I do not want to see. I do not mind if there are better ways of finding efficiency—as has been said, that is what we must find—but please do not lay down laws like that.

Seema Malhotra MP - Access to justice must not be determined by the ability to pay. That is one of the most important safeguards we have in a state that believes in liberty and fairness.

Steve Brine MP - During the consultation, a practising barrister in my constituency sent me what I thought was a useful case study—and one that I hope will show the human side of this point. Under the current system, he explained, a young man with profound mental health problems was again arrested for having a knife in a public place. My constituent, an experienced solicitor, whom the young man knew and trusted, was called. He had the defendant’s previous psychiatric reports on file and even his psychiatrist’s number in his phone. The defendant was questioned by the police and advice was tendered. A number of appearances in the magistrates court led to the case being committed to Crown court, at which point my constituent was instructed, as he had been before, and updated psychiatric reports were obtained.

Following various pre-trial hearings to sort out reports, a two-day trial was held, at the end of which the young man was acquitted and further psychiatric treatment was ordered by the judge. Happily, according to my constituent, the young man is now on the right medication, and has a diagnosis of Asperger’s. He even has a job for a couple of hours a week. My and my constituent’s concern is that under price competitive tendering, the duty solicitor, who almost certainly would not know the defendant, might well advise a guilty plea, with an alien barrister, either in the magistrates court or at first appearance in the Crown court. My constituent tells me that the fee is the same for a guilty plea as it is for a short trial, so what is the incentive to have a trial?

Elfyn Llywd MP - The consultation process in general so far has been nothing short of a sham allowing professionals only six weeks to get up to speed with proposals that will fragment the professional world they inhabit. To add insult to injury, the Government intend to introduce these reforms by secondary legislation without proper scrutiny by Parliament. This is scandalous. Unless these plans are stopped now and quickly, there will be no turning back.

Sir Edward Garnier MP - If the good barristers leave because they cannot afford to remain within the criminal legal aid system, we will not get the silks and we will not get the circuit judges and Crown court judges. In that way, we will see a diminution in the quality of justice that we all expect to receive.

 ........... and exchange between Caroline Lucas MP and Elfyn Llywd .................

Caroline Lucas: The right hon. Gentleman will know that the clause in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 that guaranteed the right of the individual to choose was deemed to be incredibly important and now is being completely ignored. Does he agree that there is a very real risk that the public simply will not have confidence in a system where the defendant’s lawyer is chosen by the very state seeking to convict them?

Mr Llwyd: That is a very important point, because it was considered vital in the civil context and yet curiously not even regarded as being of passing interest in the criminal context, where people risk their livelihood, liberty and everything else.

Comments made recently by the Justice Secretary in the Law Society Gazette make one rather suspicious that there is something ideological in the calculated removal of choice. He said that he does not believe

“that most people who find themselves in our criminal justice system are great connoisseurs of legal skills”
or to paraphrase—as we have heard—they are “too thick to pick”. These condescending comments display a sinister lack of compassion for the vulnerable in society and a cavalier disregard for these individuals’ best interests.

Debbie Abrahams MP - On the proposals being an attack on access to justice for all regardless of means, we must ensure that such access is protected. Even the Government’s Treasury Counsel has roundly condemned the proposals. What concerns me particularly is the fact that they will not require primary legislation, but will be pushed through in secondary legislation. That is an insult to Parliament.

 Opportunities for rehabilitation should be offered, and prisoners should have access to the law when that does not happen.   [Comment:  Good point here in  that the cuts to legal aid for prisoners run contrary to the rehabilitation ideas being put forward by the government in the Bill].

Sadiq Khan MP -  If it helps, may I say that as the Justice Secretary is running scared and is not here today, and as the Government are failing to allow a vote on this issue, the Opposition will use some of the limited parliamentary time available to us to hold an Opposition day debate on it?  [Comment: a significant commitment here by Labour's Shadow Justice Minister].

Jane Ellison MP - Price competitive tendering has been discussed, and I was particularly struck by the point made by the hon. Member for Redcar (Ian Swales) about the potential for end-to-end vested interests. That is particularly concerning and gave us all pause for thought. I also fundamentally agree with the points made by Conservative colleagues about price competitive tendering, and in particular the comments of my hon. Friend the Member for Dewsbury (Simon Reevell). It just does not feel like a naturally Conservative solution to a problem potentially to drive choice and competition out of the market. That just does not feel like what we should be doing.

Meg Hillier MP - The system is often painted as dealing with criminals but, as my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams) said, people are innocent until proven guilty. A local solicitor in my area has pointed out that more than 50% of the people who rely on legal aid with whom he deals are innocent and are neither charged nor cautioned. This is an attack on the innocent, as well as on those who appear in the picture painted by the Government.

David Burrowes MP - When we look at those that I and others have represented over the years, we can characterise them as the good, the bad and the ugly. Choice ensures that the most heinous, wretched criminal is represented and has a choice of lawyer. The most worthy of saints also gets the choice of lawyer, without judgment or conditions. That is an important principle of which we can be proud. It means that, when dealing with the regular clients that I have represented over the years, we can enter a timely guilty plea, which is efficient; we can achieve a sentence that takes account of their mental health needs or drug needs and go the extra mile to make sure that they get drug rehabilitation.

We must have choice, yes to protect the vulnerable but also to ensure quality, to ensure that there is a client base that is protected and maintained but also to ensure mutual trust and good will in the system.

Lyn Brown MP - A 12-year-old boy was excluded from school and his local authority placed him in the pupil referral unit. After a couple of days he stopped going, because the PRU was in an area where a different gang was based and he was scared. For two years, the boy received no education: the local authority occasionally organised meetings with the family and occasionally threatened to take his mother to court. Understandably, she wanted her son to be educated, but she understood his fears.

A local charity recommended a solicitor, who made repeated attempts to resolve the problem with the local authority. They were ignored. Eventually, the mother issued judicial review proceedings. They were ignored. An order was made for the matter to be expedited, with a date for the authority to set out what it steps it was taking to provide the boy with an education. That order finally galvanised the authority into action to avoid judicial review. A package was worked out, with good will, between the council, the PRU and the local college—a right and welcome outcome. Under the Government’s proposals, the case would not have received legal aid, as it was settled before the permission stage.

Greg Mulholland MP - As the mood of the House has made clear, there is an acceptance across the Chamber that reform is necessary and cost savings must be found in the legal aid budget, but there is an overwhelming view that although change may be necessary, the ones proposed are very clearly the wrong changes. Coalition colleagues have been keen to point out from the Conservative Benches that in their opinion this is not a Conservative reform and not one that they can support from their own philosophy. I understand and sympathise with that.

Let me say from the Liberal Democrat Benches that these changes are not liberal. They undermine the principles of liberal democracy and the justice system that is a key part of it. They threaten the liberal values of justice and fairness that our justice system should be based on. I am therefore saying clearly that as Liberal Democrats we should oppose them.

Jeremy Corbyn MP - What we are approaching, if we are not already there, is a system in which if someone is poor, destitute, marginalised and up against it, they will get no help and no justice and will continue to suffer. Legal aid is fundamentally important in a democratic, civilized society in which a person can have their day in court to get a verdict in their favour or otherwise.

Nia Griffith MP - The real threat that these proposals pose to justice is that people may be tempted to plead guilty rather than innocent. That is extremely worrying; it really is a recipe for miscarriages of justice. As for people trying to represent themselves, we should think about how that will clog up our courts, which will be completely overwhelmed. With the current staffing levels in courts, people already have difficulties in trying to get information, and they will not be able to cope.

Caroline Lucas MP - When the Bill that became the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was being debated, I genuinely thought that things could not get much worse—that the Government would not go any further in what appears to be a crusade to dismantle universal access to justice—but I was wrong. Since then we have had the deeply worrying Justice and Security Act 2013, and now we have these proposals for secondary legislation that will deny access to legal aid to some of the most vulnerable and disadvantaged in our communities. Like many other hon. Members, I have been lobbied extensively by my constituents who share my passion about the importance of a justice system that supports the right to a fair trial. Yet that right is being fundamentally undermined, with precious few opportunities for MPs to scrutinise the details or to object.

I want to end with a few words about the judicial review process. Like many other hon. Members, I am deeply concerned about these proposals utterly undermining the JR process, which is one of the most important ways of achieving public body accountability. Environmental cases, social welfare cases, and cases about library closures, schools and so on were all done by way of judicial review. A consortium of non-governmental organisations working with refugees and migrants has commented:  “In our opinion the proposed change would result in an increase in unlawful decisions relating to access to services with disastrous effects on the individual and/or an increase in the number of individuals who seek to ask the court to intervene without the assistance of a properly qualified representative. This is not in the interests of justice.”

Sadiq Khan MP - Many miscarriages of justice have happened because of an absence of proper representation for defendants: the Birmingham Six, the Guildford Four, the Maguire Seven and others. Because of legal aid, victims have confidence that genuine perpetrators of crime are prosecuted and punished. Victims of crime want certainty that the true perpetrator has been found guilty. They do not want the wrong person pleading guilty or being found guilty, and they certainly do not want the guilty walking the streets. Legal representation for defendants is crucial in minimising miscarriages of justice. These proposals introduce perverse incentives that could unbalance the criminal justice system, with representatives being paid the same whether someone pleads guilty or stands trial.

The Justice Secretary may not have turned up this afternoon, but he has sought to portray legal aid solicitors  and junior barristers as fat cats. He knows that the profession has a public relations problem, and he has sought to exploit that in the media to further his own political aims. That is all a tough veneer that masks the real impact of his proposals. Local providers, often high street firms that know their local authorities, courts, police and probation, will be replaced by big corporations, maybe even the same ones that run prisons, probation and tagging—conflicts of interest at every turn. Strangely for a party that claims to be pro-enterprise and pro the high street, this will sweep away hundreds of small and medium-sized enterprises. High street firms will go under, an unintended consequence that will have an impact on the diversity of the judiciary.

Financial background:

The Chancellor of the Exchequer announced budgets for 2015-16 for all Government Departments. The Ministry of Justice's agreed budget requires a reduction of around £700 million to be delivered by the Department in 2015/16 in addition to existing savings.  This will affect all of the Ministry of Justice areas of responsibility.

Gemma's blog - UK Justice: 100,000 - On 28th June 2013, Rachel Bentley’s Save UK Justice e-petition hit 100,000 signatures.  If you haven’t signed the petition yet, do it now!

1 comment:

  1. These proposals contain probably the worst ideas for reform of a legal system this side of the magna carta. To 'save' a relative pittance. What this government wants, it seems, is a system like Russia's where 98% of 'trials' produce a guilty verdict - neat, predictable, cheap, and gets rid of pesky people, innocent or guilty, it matters not. Where are the Lib_Dem's on this? Asleep on the job as usual.