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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
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Taken before the Justice Committee
on Tuesday 8 February 2011
Sir Alan Beith (Chair)
Mr Robert Buckland
Mr Elfyn Llwyd
Examination of Witnesses
Witnesses: Christina Blacklaws, Chair, Law Society’s Legal Affairs and Policy Board, Steve Hynes, Director, Legal Action Group (LAG), Laura Janes, Chair, Young Legal Aid Lawyers, and Paul Mendelle QC, Member of the Bar Council, gave evidence.
Q203 Chair: Good morning and welcome. We are a minute ahead of schedule but we like to try and keep on time. I have to ask colleagues to declare any relevant interests.
Mr Buckland: I have been a criminal legal aid barrister for about 20 years prior to the election receiving payments from the LSC. I am not currently conducting any live cases and I am a Recorder of the Crown Court.
Mr Llwyd: I have been a Member of the Law Society and the Family Law Bar Association and have received payments for publicly funded work. Since April of last year I have reverted to a non-practising status.
Q204 Chair: Thank you very much. We are very glad to have you with us to help us with the work that we are doing on legal aid. We have Laura Janes from Young Legal Aid Lawyers; Steve Hynes from the Legal Action Group; Christina Blacklaws from the Law Society’s Legal Affairs and Policy Board; and Paul Mendelle, who was Chairman of the Criminal Bar Association in the year that has just ended. Thank you very much for coming.
The Government’s argument is that legal aid has resulted in unnecessary litigation and the budget just has to be cut. What is your initial response to that?
Christina Blacklaws: Shall I start on behalf of the Law Society? We just don’t accept that there is unnecessary litigation before the courts. If there is any problem in relation to that, then we think that that can be addressed by a proper application of the merits tests which are currently available through the LSC to ensure that the wrong cases are taken out of scope rather than whole areas of law being taken out of scope. Litigation and access to the courts should obviously be the last resort-there is no doubt about that-and the Law Society is very much in favour of all types of alternative dispute resolution. However, it is absolutely vital, particularly in areas of law where it is the individual against the State, that the Government must not deprive citizens of access to effective remedies, particularly if that is going to be contrary to the rule of law.
The legal aid budget is in fact tiny in proportion to the totality of Government spend. That is not to say it should be ignored or it should not be assessed; of course it should. However, we believe there are many other ways to reduce legal aid spending which do not cut away at the basic rights of the most vulnerable and disempowered citizens in our society. We will come on to ways that we can do that later on.
Q205 Chair: It was put to us by a senior judge yesterday that there are a large number of judicial review cases which are, in the legal sense, without merit and that a merits test applied within the judicial review process might significantly reduce costs. Do you have a view about that?
Christina Blacklaws: Yes. Of course there should be merits tests applied to almost every type of law and certainly to any law that is going to be publicly funded. I guess there are a couple of exceptions to that, and that is perhaps when the issue is of such great importance-for example, to parents and children when there is the risk that that child might be removed from their care. We are delighted and relieved that the Government is not intending to remove that from scope because that is of such fundamental importance.
As a broader point, there will be a huge increase in unmeritorious cases coming before all manner of court, not just judicial review, without proper, timely and helpful legal advice. What we are urging upon the Government is to consider that front-loaded, relatively low-cost legal advice will save an awful lot of money downstream.
Q206 Chair: There are four of you there. On any question, if there is something you want to add, please indicate that you do want to, but, on the other hand, don’t feel obliged to say something which has already been said.
Steve Hynes: Thank you, Sir. Just to chip in, the misleading picture that the Government are painting is on a number of levels. First of all, there is the original intention of the legal aid system. Lord Rushcliffe’s report was the antecedent of the legal aid system. It was quite clear from what he said that he envisaged a system where people of small or moderate means could get help and advice in cases where a lawyer would usually be required. That was the original intention of the system. It grew in terms of the coverage from the early 1970s because of an all party recognition, particularly in social welfare law and other areas of civil law, that the population needed access to justice through being given legal aid.
The Government also try to paint a picture of a budget out of control. Indeed, there were increases in expenditure on legal aid in its recent history. But if you look at the budget over the last three years-in fact over the last five years for criminal-there is no growth. I have the figures here. The previous Government were successful in controlling expenditure, particularly on criminal, mainly through the reintroduction of a means test in magistrates’ courts-and now, as you know, the means test is going through in the Crown Courts-and the reductions in criminal fees. There is a 12.5% reduction in Crown Court and High Court fees working through the system at the moment. Over the next two years there are going to be further reductions. On the civil side, there was some growth in last year’s budget, but that was mainly due to the fact of the Baby P case and public law children cases increasing. There were quite a number of factors there, not just Baby P. I don’t think anybody in the political or legal world is saying that that is expenditure out of control.
The other factor was the recession. The previous Government acknowledged this and put more money, as a political decision, into legal help. That is something that certainly Legal Action Group agreed with because one of the effects of the recession is that you do get a greater demand for civil legal advice across a range of the areas in scope at the moment. If you look at where the cuts are going to fall, and this is the final point I would make on the misleading picture that the Government are painting, £164 million of the budgeted £350 million in cuts is on legal help. Legal help, as I am sure you know, is the initial help that people get in the legal aid system. Legal help is very effective in heading off litigation because people can get early advice on their problem before it needs to go to litigation. It is a wholly misleading picture to say that the Government are introducing these cuts to try and prevent unnecessary litigation.
The final point I would make on that is that there are areas that are litigated under legal aid, such as clinical negligence, that are within scope at the moment and which the Government are proposing to take out of scope. This is a well trod path. The previous Government 10 years ago looked at clinical negligence and decided, "No, we won’t put it into CFAs." They listened to the lobby at that time and it was decided that the cases that need a lot of investigation, expert reports, those sorts of cases in clinical negligence, had to stay within scope. It is only around £20 million off the funding, but it is the one area, perhaps, that the Government could have an argument to say that there is litigation paid for; but whether it is unnecessary I wouldn’t agree. I don’t think those cases will transfer into whatever emerges after the civil funding reforms. There will be people who will be denied access to justice in those types of cases. I will add to those comments later in the session.
Laura Janes: Very briefly, just to endorse what Mr Hynes says about not confusing access to justice with litigation, of course as law students what we are learning to do is to avoid litigation. If you restrict legal help or replace it just with telephone advice, there is, of course, going to be even more unnecessary litigation brought by litigants in person because they will have no other choice.
On the judicial review point, I should add that I am a solicitor at the Howard League for Penal Reform where I represent children in custody. We also have a public law contract. Sometimes the importance of judicial review as a remedy of absolute last resort cannot be underestimated. One of the concerns that we have seen from the public law projects, and they have done some excellent research on this, is that the number of fairly hopeless cases that are going through for the permission test tend to be those either where the solicitor is not a specialist in the area-and that is a quality issue-or where they are bringing it themselves. Again, that is another good case for that scenario coming within the realm of public funding where there is a strong merits test.
To endorse what Mr Hynes was saying about the rather false economy of people not having access to justice at an early stage to resolve problems, lots of the children I represent in prison have fallen through all the different hoops when they could have had legal help with not being excluded from school or getting help from social services, which has often landed them in very expensive situations in terms of being detained in custody.
Q207 Chair: Do you want to say anything at this point, Mr Mendelle?
Paul Mendelle: Yes, if I may. The concept of unnecessary litigation in crime, of course, is a slightly odd one, because people tend not to choose to be prosecuted. We would argue that the Government’s own actions are a driver in this increase in litigation and I would make these points. First, Chris Huhne’s own research shows that between 1997 and 2009 the previous Government created 4,289 new criminal offences. Not all of those would have fallen into legal aid but a considerable body of them would have. That causes an increase in litigation.
The York study that the Government refers to in its Green Paper in 2009-and its report covers the period 2000 to 2006-07- also points out in Table 7.1 that there is a much higher number of legal aid cases per 100,000 of population in England and Wales than the next highest, which was Netherlands. They trace that back to several factors. The crime rate is higher in England and Wales than in other countries, with the exception of Sweden. A higher proportion of cases in which there is a suspect are brought to court in England and Wales, and the proportion of suspects receiving legal aid was nearly twice as high as in France or the Netherlands. That period exactly coincides with the abolition of means testing in 2000, which was not reintroduced until 2006-07 in the magistrates’ court and 2010 in the Crown Court. We would say that is a factor. That is one point I make.
The other point is this. The Crown Court Efficiency Group under Lord Justice Goldring, and of which I was a member, conducted a small survey of two Crown Courts. What they found was that there was a practice of overcharging in the magistrates’ court. I am not saying this critically, but the CPS were often reluctant to accept a plea until the case got up to the Crown Court. Again, the MoJ’s own statistics show that about a third of cases collapse in the Crown Court because the prosecution offer no evidence or the case is slung by the judge. You could argue that those cases were unnecessary litigation. Our point is that the driver, if there is, of unnecessary litigation in the Crown Court is very often the Government’s own actions.
Q208 Elizabeth Truss: You have talked about the overall cost of legal aid and the proposals by the Government. You mentioned how relatively high it is to other countries. Our understanding is that it is the highest per capita in the world. You mentioned the comparison with some European countries. It is also expensive compared to some other common law systems, for example, Canada. I just wondered, Mr Mendelle, if you could just explain where you see the differential lying. Is it the increased number of criminal charges in Britain? Is it the court process itself or is it social problems in Britain and the crime rate? How would you differentiate the drivers? What is the key driver that is making legal aid so expensive?
Paul Mendelle: First, we do not have the most expensive legal aid system in the world. The only comparison that we have that the Government relied on at the MoJ Commission was a report which compared eight legal aid systems, including our own. The only common law ones were New Zealand, Australia and Canada. Of course, two of them are federal systems and the report itself found there is considerable variation across the federal systems. I have already pointed out what this report says are the drivers of the increase in legal aid. You cannot exclude the fact that for a period of six years there was no means testing at all, so everybody got legal aid. That undoubtedly increased the legal aid bill. During that time the spend on crime was very largely under control or fell. The Green Paper itself says that the spend in real terms fell by 11%. So there were more cases coming to court, more people were arrested, and more cases were given legal aid.
Then you have to compare like with like. For instance, in very many civil law countries the costs of legal aid are low because a lot of the other costs-the court costs and the costs of prosecution-are dealt with in a separate budget. Again, if you don’t have the report in front of you, we can certainly send it in.
Chair: We have the report.
Paul Mendelle: I am grateful. Table 7.2 on page 27 splits the legal aid spend per capita with the spend on courts per capita and the public prosecution costs per capita. When you add those three together, because those, after all, are the costs of prosecution, then this country is not the highest. In fact, Netherlands is the highest, we come second and Sweden comes a close third, and there is not a huge gulf. France is fourth. We are talking about a variation from £50 per person up to £80 per person, and £90 for the Netherlands. It is very, very difficult to make these comparisons, and the authors of the report themselves have said that this report was not intended to be definitive but was intended to provoke argument. It is a tendentious report so far as the authors are concerned.
Christina Blacklaws: Can I make two points on behalf of civil legal aid?
Chair: I think Mr Hynes caught my eye first.
Steve Hynes: The Bowles and Perry research is very interesting. The main point that it is making about the comparison across Europe is the difference between the inquisitorial systems. If you look at the overall expenditure, Mr Mendelle is correct. They found that in Holland they actually spend more on criminal, if you take all the costs of the system into account. It wasn’t the case in civil. If you look at the figures for Germany, they spend more per head of population on its civil system than we do in the UK. That is primarily due to two factors. It has a federal system which means that there are more costs in the court system, but also it is because it is an inquisitorial system so there are more costs in terms of judicial time.
It is very difficult to come up with comparisons across the common law world. I would give the one example of Ontario in Canada. Because it is a federal system, Ontario and their civil spend is at more similar levels to the UK. In other States in Canada it is a lot less. Certainly we would argue that you don’t want a system where you have a very minimum spend on civil because of all the knock-on effects to the rest of the system. I think the evidence this morning will bring that out.
Q209 Elizabeth Truss: I can see why the inquisitorial systems in Europe are not a very good comparison because the cost exists elsewhere, but had the Canadian provinces looked at why it is much more expensive in one province than another?
Steve Hynes: Canada is an interesting country. Ontario is by far the most populous state in Canada. It is more of an urban state with large cities. Their legal aid system, particularly on the civil side, is very much analogous to our legal aid system and so the spending is similar in level. It certainly is not the same; it is about half of what we spend in this country. They have gone, particularly on the civil side, for more salaried services and less procured in the private sector. That could be a factor. I suspect that it is mainly cultural differences and the way in which their court system works that has meant there are not the same costs in the system.
Q210 Elizabeth Truss: It is interesting you mention the court system. I would be interested in Ms Blacklaws’ views as well on this. Given that we do need to reduce spending and £2 billion is a large slug of money-and it is the kind of spending we do need to reduce across Departments to make sure we can prioritise on future economic growth, etcetera, which is very important-how would you propose making those savings in the Ministry of Justice if it is not through legal aid? We have heard previous witnesses talk about more root and branch reform of the system that is needed and the fact that things like the court processes are driving the cost of legal aid. What could the Government do in the relatively short term to try and make those savings? In my view, I think in our report we need to propose where else the savings could be made if we are going to say things about the legal aid budget. I would be very interested in your ideas on that.
Christina Blacklaws: Returning to your previous point, can I just make two points in regard to civil legal aid? The first is that the fact we have perhaps the best civil legal aid system in the world is a mark of our civilisation and something we should be proud of rather than bemoan as a society. Secondly, the need for this, particularly in civil, is largely created by poor decision making and actions of public bodies, so it is a responsive requirement rather than something that is a waste of taxpayers’ money.
To come on to your second question of how we can make the cuts, the Law Society is not saying that legal aid should be immune from this. In fact, we have some ideas as to how to bring about the £350 million saving without doing two things: first, reducing access to justice in this country and, secondly, reducing the supplier base so that effectively it has the same result. I am very happy to talk to you about those and to give you further information.
The headline is that, as far as we have done the costing so far, we think we can come up with about £470 million of savings. We are very keen to discuss these proposals with you. Part of that is on a "polluter pays" system. We think that there are real, almost win-win, savings that can be made. If you look at the alcohol industry, so much of our criminal litigation is due to alcohol abuse. I am sure that those in the alcohol industry would not be keen on this idea but, none the less, if you put a 1% additional levy upon that, that would give you about £85 million. That could come into a pot-
Q211 Elizabeth Truss: I think what we are particularly interested in are ideas within the Ministry of Justice and the justice system that could reduce costs. There seem to be all kinds of bodies that we have discussed, such as the CPS and the Legal Services Commission. I see Ms Janes wants to come in on that point. Where can we find savings, rather than just putting up taxes? I would be interested to see where they can be found in the system.
Laura Janes: I would just draw your attention to the National Audit Office report on this, which did the comparative analysis and said, "Yes, you need £22 per capita." It also noted that, compared to other countries, we brought more than 1 million prosecutions in that time. It is a really significant amount in terms of the amount of prosecutions that we are bringing in this country. It is not just another factor; it is a really significant factor. Maybe that brings with it a lot of additional costs, so there will be a lot of cross-departmental savings from that.
Christina Blacklaws: Could I address a couple of specific points within the proposals that the Law Society accepts will bring about significant savings? Spiralling experts’ fees have always been a bone of contention. We have specific proposals around how to contain those experts’ fees. We believe that will bring about £11 million worth of savings; the supplementary legal aid scheme, about £10 million; litigators’ graduated fees scheme adjustments, £23 million. Those are just a few example, but, in total, we believe that £68 million plus of savings can come appropriately from some of the proposals in the Green Paper.
In addition to that, looking within the Ministry of Justice’s budget for legal aid, the Law Society believes that, if you had a much more robust enforcement of merits tests across the board, but particularly, for example, in family law where I think there has been some real concern about inappropriate cases being fought through the courts-whether the child should be returned at 6 pm or 6.15 pm and that sort of thing-you could stop those cases from coming anywhere near to the courts by having a proper merits test. We think £12 million could be saved by that.
Another example is funding from seized assets of defendants, so again, within the system, those could be captured and used. We have a number of very specific proposals that would be: outside system, polluter pays; inside system, appropriate savings could be made. The Law Society thinks we do need to look at whole system change. This is an opportunity for us to review it. Nobody would start where we have ended up in terms of how legal aid is procured, funded or delivered.
Laura Janes: With regard to another saving within the criminal justice system itself, we spend around £300 million on child custody per annum. That is something that has not, to my knowledge, been looked at. We have a very low age of criminal responsibility and the highest number of children in penal custody in western Europe. There are 2,400 at any single time.
Paul Mendelle: Could I add that I echo what Christina said about the use of restrained funds? One understands the political argument "Why not?", but it is not at all uncommon in a fraud case for a defendant to be sitting on £1 million or £2 million of restrained funds, to which he does have access for other items of expenditure but not for his own defence, which seems, in our view, misguided. That would certainly relieve the pressure on the legal aid fund. There is insurance of officers-i.e. insurance against their own fraud-so that they have private representation for fraud. It is a small body of potential defendants and they could get that insurance. It is not especially expensive. These are some of the most expensive cases in the system. So VHCC cases are sucking up somewhere around £100 million per annum for a small number of cases. Those are two very specific areas within the system where you could relieve the pressure on legal aid.
Q212 Ben Gummer: I have just a quick supplementary to that, if it is possible to supplement such a comprehensive question from my colleague Ms Truss. Mr Mendelle, will yesterday’s announcement about ASBOs being moved effectively into criminal law-CRIMBOs, I think they are called now-make a difference to this burgeoning body of criminal law which you have talked about? I think you have much sympathy from many parts of this Committee about it. Do you think that will create an even greater pressure on the criminal courts?
Paul Mendelle: I think it is almost inevitably bound to, isn’t it?
Q213 Ben Gummer: So this is a trend that is going to continue?
Paul Mendelle: Yes. I know this is not a very popular message to say to politicians, but it would be very useful, certainly so far as the criminal law is concerned, if there were an extended period of benign neglect.
Q214 Ben Gummer: It is very popular amongst some of us.
Paul Mendelle: I am old enough to remember Harold Wilson. I won’t tell you what I thought of him, but a lot of people used to say to Harold Wilson, "Don’t just do something; stand there." We sometimes feel like saying the same thing to the Government.
Q215 Claire Perry: I think it is absolutely fantastic to hear, if I might say so, such very well thought-out and creative ideas for saving money. I think many of us are concerned about the restriction of legal aid, particularly to the people who need it most. I suppose I have a frustration, which is that the Legal Services Commission has been basically a bonfire of taxpayers’ cash. There are million-pound pension pots all over the place and there is just the sense that the whole system has been completely out of control. My frustration is, why were these very good ideas not put forward five or 10 years ago? It has taken a budget crisis to force out some of the creativity in the system. I would urge you, please, to keep bringing forward these very good proposals. We are very receptive to well-thought through and structured and well-argued ideas as to how to save taxpayers’ money. I wish we didn’t have to do it in such a crisis situation, but, if we could please work together on this rather than setting ourselves up as adversaries, I think that would be extremely helpful.
Paul Mendelle: I absolutely endorse that but I can say, for instance, that two of the ideas I have mentioned-there are others-were put forward by the Bar last year.
Q216 Claire Perry: And ignored?
Paul Mendelle: Yes, exactly, six months before the Green Paper came out. So we have been advancing these views before.
Christina Blacklaws: I must say the same on behalf of the Law Society. We had a full access to justice review which has been running for two years. Lots of the creative ideas that we have have come out of that. We have been trying to fly these kites for a very long time, but now we have the opportunity to be heard, which is the silver lining, I hope, to this rather difficult situation.
Q217 Mr Llwyd: This is a question to Mr Mendelle, I think, and probably to Ms Blacklaws as well. Has any work been done on sifting through some of the legislation which has been created in the last 10 years and areas where we think we could cut away the dross so that we don’t waste money on it? I would go back to what Mr Mendelle said about Harold Wilson. The world-famous jurist, Woody Allen, said that 80% of success is turning up.
Paul Mendelle: My clients don’t say that.
Q218 Mr Llwyd: On a serious point, has any work been done on that?
Paul Mendelle: Yes. The Criminal Bar Association, shortly after this coalition Government came into power and announced it was going to have a Reform Bill, compiled a list of those statutes which we said ought to be reviewed and modified. It was overseen by James Richardson, who is the Editor of Criminal Law Week. I can’t tell you offhand what was in it, but it was a fairly comprehensive list. Professor David Ormerod, who is the Editor of Criminal Law Review, compiled a very long list as well. I know that was sent by the Criminal Bar Association to the Bar Council. I am sure it has gone on from there to Government.
There is no doubt that the last 10 years have seen an explosion of technical law in crime. Some of that, one could argue justifiably, could be repealed. There is no doubt, for instance, that sections 34 and 35 have introduced a great deal of technicality in the law. I think there is a strong argument that section 34 could be repealed, because with defence statements now you do have to have your case before the jury and this whole argument about what took place at the police station is a little academic.
There are arguments that say we have gone too far with hearsay and bad character. A lot of time in court is taken up with these. This is what delays trials and this is what extends them. There is a huge amount of technical law being argued in the criminal courts today that was not there 10 years ago.
Christina Blacklaws: Can I add to that? If you remove the hearsay and bad character provisions which the last Government put in place, we think you could save £6 million. We have costed that. The Law Society again has a growing list of statutes which should be appropriately repealed and some proposals. For example, in our paper we say housing law should be simplified along the lines proposed by the Law Commission in their report Renting Homes. We think that that would reduce the expenditure by about 20%. That is another £10 million saving.
In family law, if you remove fault from divorce you make it an administrative rather than a legal process. I know there are lots of issues around that, but it is a difficult process for people to do by themselves because it is a legal one. If you make it administrative, then there is no need to fund that and people will be able to support themselves in accessing their own divorces. There are political issues in this as well obviously, but there are considerable savings that can be made by looking to reform the statute.
We would say that this is really the cart before the horse. Look at what you can do with reforming the statutes; then look at practice; then look at funding, scope and eligibility. Don’t do it the other way round.
Q219 Ben Gummer: Mr Mendelle, I was speaking to a judge at the weekend. He is trying a murder trial at the moment with two defendants. One defendant has the benefit of a silk and a junior; the other one a senior junior and a junior. The Crown is being represented by a junior and a paralegal-a solicitor of some description. He said that this is now par for the course and, as a result, the public is not being represented as well as defendants are. Is that the same in your experience, and what is the effect if it is true?
Paul Mendelle: Yes, I think it is a trend in my experience. It is common to see two things. First, you are getting junior prosecutors being assisted by more junior prosecutors or sometimes High Court advocates. The same is true on the defence side as well. I don’t want to enter into this old war between the two sides of the profession, but the fact is that an advocate who has been 20 or 25 years in the profession and is skilled in advocacy is bound to have a better skill set than somebody who has not been doing it for as long. That means that the quality of the justice that is being administered is not as high as it should be. There have been a number of factors that have caused this. Undoubtedly, cutbacks in legal aid have been one of them. There have been cutbacks in CPS funding as well.
I don’t think there is an imbalance, if that is suggested. I don’t think that routinely the defence are better represented than the prosecution. That is certainly not my experience. What is happening is that there is a general lowering of the standard. I have anecdotal evidence of cases being badly prosecuted because they have been briefed out at too low a level. I have anecdotal evidence of cases being badly defended because they have not been adequately represented.
Q220 Ben Gummer: But were these complaints that you heard when you were fresh-faced at the Bar from your elders? Is this a perpetual complaint of any profession?
Paul Mendelle: No.
Ben Gummer: I am not trying to be-
Paul Mendelle: I absolutely understand that point. You tend not to hear that too much in the magistrates’ court, which is where I spend quite a lot of time. I am conscious of the fact that my perception changes as I get older, obviously. It is not a panoply being laid out in front, with me, the static observer. From the best that I can judge, these were not complaints that were being made. For instance, I am at the Bailey a lot and I can tell you that when I first started appearing at the Bailey you were only ever prosecuted by a TC. TCs at that stage were not silks. They would always be assisted by a leading top-quality junior, and you only had silks and juniors defending. Over the years that has changed. With that change comes some diminution in the quality of justice that is being administered.
Q221 Ben Gummer: Keir Starmer, when he was giving evidence a few weeks ago, was quite frank about the variability of quality across the courts. He was spending a lot of time seeing it and was honest about it, but he seemed to be struggling with how to address that. Do you have any suggestions?
Paul Mendelle: This is going to be unpopular. You have to pay people a proper rate for the job so that they will do it. In every walk of life, generally speaking, you get what you pay for. If you pay more money, you get better quality.
Q222 Ben Gummer: Can I turn to you, Ms Janes, to extend on that? Many people are concerned about the problems facing those entering the Bar. Could you give your impression of the effect on quality and also on the choices that young lawyers are making apropos whether to go in the Criminal Bar or Commercial Bar as a result of differential pay rates?
Laura Janes: Absolutely. Young Legal Aid Lawyers represents both solicitors and barristers. A huge number of our members are students as well who are at that formative stage. What they all share in common is the commitment to legal aid. We have done quite a lot of research to find out what motivates people to become legal aid lawyers. Almost 99% do it out of a desire to participate in ensuring social justice.
One of the big problems with the current state of affairs, and as they have been now for some years, is that young lawyers find it increasingly hard to qualify in either side of the profession. The Bar is becoming virtually impossible, but training contracts are extremely hard to come by as well. One of the things that the Legal Services Commission did do that was very good was to have between 100 and 150 sponsored training contracts a year for some years. That scheme was axed last year. It is almost impossible for new entrants to have any hope of qualifying. They have found that it has become absolutely essential to do a stint of unpaid work, which means that that has a big impact on the diversity and social mobility within the profession.
Q223 Ben Gummer: Have you been able to measure that specifically?
Laura Janes: We have not been able to measure it, but the research shows that typically about 50% of solicitors and barristers attended independent schools compared to 7% of the general population. I know that the Legal Services Board have done some research on gender and ethnic minorities going through the profession. It is still clear that at entry point, as you are about to come in, there is a level of parity between genders, but as you get to about 10 years’ qualification it is virtually impossible. So there is a lot of work still to be done, and that is with the situation as it is, let alone the proposed changes. We have done a report on social mobility and legal aid last year in response to the Government’s diversity papers, which found that, while lots of people were really keen to become legal aid lawyers, they just simply couldn’t afford it. Over 35% of students who would like to do legal aid have over £20,000 worth of debt. The starting salary for pupillage at the Bar is about £10,000.
Q224 Ben Gummer: What is the actual effect of that? Does that mean that the only people doing it are those with private incomes or that people are living in penury, or both?
Laura Janes: This is anecdotal rather than the basis of research. The impact seems to be that either people have to be supported by their parents and are not able to develop their own financial stability, so they are not able to buy their own homes or anything like that for years and years and years, or they are working all hours God sends and doing part-time jobs to complement. We have some members that are working weekends in the supermarket and working all hours in the week as paralegals.
Steve Hynes: Just a few points to emphasise. The bulk of what the Government are proposing, around £280 million, is coming from the scope cuts in civil. They are not particularly looking at Crown and higher court work. There are a few things to say on that. I emphasised in my opening statement that the previous Government reduced fees and they are working through the system. There are something like, I would say, 1,000 or so QCs and other barristers earning six figures from the legal aid system. These people tend to specialise in criminal and high-end civil work. It is a market that is at work here. I don’t buy into the argument that somebody is paid £20,000 a year and they do a bad job. I know plenty of paralegals and even lawyers working for that sort of money in the legal aid system. Similarly, you could have somebody on six figures that does a bad job. Quality goes beyond just what is paid for the job, but it has to be recognised that at the high end of the Bar there are 1,000 or so who are earning similar figures to consultant surgeons. It is what you place as a worth on those skills. There are about 14,000 barristers practising in the country. There is an argument to say that perhaps there is not enough work to go around, but I believe you need to have that intake to ensure that the cream, or the fortunate, rise to the top and do the Crown Court and other cases.
As I say, it is not part of the Government’s proposals but you could look again at very high cost cases. You could look again at Crown Court costs and unifying the fees, which I know is one of the Law Society’s suggestions, and it would take some money out of the system. I don’t think you would take anything near the order of 23%, which is what the Government wants, and also you would risk quality. It is a balancing act you have to play, and certainly it is not a balancing act that the Government are addressing in these proposals at the moment.
Q225 Mr Llwyd: I turn to family law. As you are probably aware, the Green Paper says that "the provision of legal aid"-in private family law cases-"is creating unnecessary litigation and encouraging long, drawn-out and acrimonious cases". It goes on to say that "people should take responsibility for resolving such issues themselves". Do you think this is fair? If you can, what proportion of the cases which reach the courts should, or could, have been resolved earlier?
Christina Blacklaws: Can I start this? Just to explain, I run a large family and housing law legal aid practice in London. I am the childcare representative on the Law Society Council. I am the chief assessor of the Children Panel, so this is squarely my practice area. I have already made the point, but it does require emphasis, because we think considerable savings could be made, and also legal aid could be going to the people that the Government and the public want it to go to, if legal aid merits tests are properly applied. They are there and able to be applied. We think that they are fairly loosely applied at the moment, so cases are getting into public funding that perhaps shouldn’t do.
What was the first part of your question?
Q226 Mr Llwyd: Yes. The Government believe that the provision of legal aid is creating unnecessary litigation and long drawn-out cases, and acrimonious cases as well. Do you think that is the case?
Christina Blacklaws: If you have a look at family legal aid at the moment in the private law sphere, over 80% of those cases-of those acts of assistance, as they are called by the Government-do not go on to litigation. You have to think about why only 20% of cases that have been given legal aid go to the court. That is because the vast majority of those clients are helped by solicitors to understand whether or not they have got a good case and to start to think, in relation to children, what is in their children’s best interests, to focus on the future rather than what has happened in the past and to be assisted to negotiate properly so that they need never go near a court but come out with outcomes that are important for them as individuals, for their children, and also for society.
I would say that a lot of the work that is done at the low level, as Mr Hynes has said, is very supportive to ensure that there is no unnecessary litigation. But you will always have, as Lady Butler-Sloss said in the House of Lords recently, that hard core of cases where you have people who have mental health problems; where you have people who have all sorts of drug and alcohol dependency; who have cognitive difficulties; who basically will not be able to be reasonable. In family law, I am afraid, to be reasonable and to come up with good solutions it does take two to tango. You can be the most reasonable person in the world, but if your ex-spouse has a mental health problem then it is most likely that you are going to end up in court. There are cases which will always need to go to court. Those tend to be the most vulnerable people. They are people who don’t have English as a first language. They are the people who have these sorts of difficulties and who are the most deprived section of our community. What we say is, do we really want those people unsupported at the early stages and ultimately unrepresented in court? That is not the mark of a civilised society. So, no, is the answer to that question.
Can more cases be resolved through mediation and through support in alternative dispute resolution? Of course, we have collaborative family law as well as a different and another type of resolving cases in family. Yes, absolutely, and the Law Society is very supportive of as many cases as possible going through mediation. We fear, rather ironically, that fewer cases may get to mediation because solicitors refer to mediation. How would individuals find mediation otherwise? It is a part of the process. Of necessity, to get legal aid, you have to go and see a mediator, first and foremost. That mediator assesses whether your case is suitable for mediation. If you don’t go through that process, you may never find out about mediation or the benefits of it.
Q227 Mr Llwyd: But, of course, it is a truism that unless both parties submit to mediation it is not going to work, is it?
Christina Blacklaws: Yes, and sometimes it fails. Even if parties are very willing to try mediation, sometimes it doesn’t work so we come back to that hard core of clients. We have to think about this in context of the number of people who are separating and divorcing every year. 90% of them never go near a solicitor, let alone go to a court. It is a tiny proportion of people who end up going to the family courts at the moment. If you take away legal aid, that proportion is going to increase hugely because they are not going to have that checking mechanism, that good, helpful supportive advice at the outset.
Q228 Mr Llwyd: The Government have said that they intend to retain legal aid in private law cases where physical violence is involved. Do you share the widespread concern about the Green Paper’s reference to physical violence, as there is no clear definition of what that amounts to?
Christina Blacklaws: Absolutely. I think all representative bodies are very clear that the appropriate definition is probably that of the Government, ACPO-the Association of Chief Police Officers-and the Crown Prosecution Service. I can tell you what that definition is, but it goes way beyond just physical violence.
In fact, there was a judgment of the Supreme Court two weeks ago-Yemshaw v. LB Hounslow  UKSC 3-which us lawyers think drives a coach and horses through the proposed definition of domestic violence. Even taking away the legalistic arguments, very vulnerable women and children, and sometimes men, will not be protected by this. What we know is that a lot of people do not seek protection because they are so frightened of the consequences of doing that. If they have not had an order or a criminal prosecution, then they are not going to get help. I can give you many examples of current cases where, not to over-dramatise, we would be very concerned that there could be serious injury and even death in relation to current clients. Had they not had this support from their lawyers and been able to access the courts, the consequences for them and their children would have been dramatic.
Q229 Chair: If you had a broader definition, would you create a perverse incentive which you, as a lawyer, might feel obliged to draw to the attention of your client and say, "If there has been any implied threat of domestic violence, it would be a good idea to make that clear because that would make you eligible for legal aid"?
Christina Blacklaws: Of course. It would be our duty to assess, as it is at the moment, whether any client is eligible for legal aid and we would have to be clear about the eligibility criteria. Possibly you are right. There may be a perverse incentive either to allege or pursue domestic violence claims. That is why we go back to saying don’t take the type of work out of scope but narrow it to what the Government, the public and professions feel is an appropriate limitation. We can give you hundreds of cases where all of us would say, "These people need help at this point in time." We want to make sure that those people get the help rather than creating a skewed system which allows certain people into the whole treasure chest and others are excluded for no particularly good reason.
Q230 Mr Buckland: As a supplementary on that, what you are saying is that the domestic violence test is just too arbitrary and, fundamentally, there needs to be a more stringent merits test when it comes to private family law?
Christina Blacklaws: Yes, because that would be fairer, more appropriate and enable access to justice for this tiny minority-remember it is a tiny minority who are eligible at the moment for legal aid-to ensure that they do have proper access to the courts, and they would be prevented from that. I want to emphasise that I am not undermining the import of domestic violence, and that must be a criteria.
Q231 Mr Buckland: Do you think the term "domestic abuse" is a better term than "domestic violence"?
Christina Blacklaws: Yes, absolutely. That is the one that is generally used.
Q232 Mr Buckland: I want to move the arguments on scope to the other areas because it is not just family law, though I accept that that does seem to be the lion’s share of the proposed savings to be made. We are talking about other areas as well which we have touched upon, such as housing, debt, benefits and employment. This Committee is well aware of the potential detriments that can occur with a reduction in legal aid for the provision of those services. I am interested in any proposals you may have that could make savings in those areas but in your view would be a more effective way of making savings rather than just a whole-scale removal from scope. I would be interested in the views of all the panel as to that approach.
Steve Hynes: We are proposing that the Government initiate a commission to look at the funding, quality and provision of the other areas of civil law. We are particularly focused on civil and social welfare law. Our fear is that, if the scope cuts go ahead, and I will give one example, it would reduce the number of contract holders in housing down to 226. That is less than one per three parliamentary constituencies. We do not think there will be a viable national legal aid service if the scope cuts go ahead. We recognise that there are other funding streams and other providers of these services in these areas of law. There needs to be a cross-Government review of these services looking to create the best that we can from the existing providers and funding streams that we have.
The other illustration I would give is on page 4 of our submission. The legal aid scheme, particularly when you look at non-family cases, has never really been a comprehensive national service. There is the example of Surrey. The Legal Services Commission has a formula that is called "indicative spend". It means if legal aid was spread fairly across the country there is an amount that would be spent in each area. In Surrey, it would be £2,264,806. In reality, and this is three years ago, £529,271 was spent, which is about 23% of the indicative spend. That illustrates the fact that legal aid has never been evenly spread across the country.
The other example I would give here is Camden, Hackney and Tower Hamlets. They are all in London and all spending a lot more than what would be calculated as fair. That is not to say that these areas are creating demand. What is happening is that practitioners are responding to the demand in those areas and the pattern of supply has been determined by that demand. But you do not have a service now which is fairly evenly spread and providing a service in every largeish town.
Q233 Chair: But wealth is not fairly evenly spread as between Surrey and Tower Hamlets.
Steve Hynes: No, it is not.
Q234 Claire Perry: Isn’t that exactly what we want? I would far rather see legal aid, which is designed for the people who can least access justice and least afford it, being massively overspent in our most deprived areas and not spent at all in leafy Surrey.
Steve Hynes: I would agree, but-
Q235 Claire Perry: That is an extraordinary interpretation, if I might say, Mr Hynes, of what legal aid is meant to be. We are not trying to provide a system where everybody can access their fair part of legal aid. It should and ought to be designed for the most disadvantaged. If I might say, that is the sort of thinking that has got us into this mess. We are not focused on how to get it to the people that need it most.
Steve Hynes: No. The point that I am making is that the indicative spend formula allows for the fact that legal aid is a means-tested benefit, in effect, but we do not have the spread of services for the people that qualify for legal aid fairly spread across the country. Surrey is an extreme example, but yes, Surrey has pockets of deprivation and people that qualify for legal aid.
I would give another example of Alnwick, in the Chairman’s constituency. If you know Alnwick, you know there is public housing there. You know that there is a need for legal aid. It is not at the same level, I would readily concede, as Camden or perhaps inner-city Manchester. There is a need there but it is not catered for, because legal aid has never been particularly good at catering for need outside the larger urban conurbations where there are pockets of need. I appreciate the MP’s argument, but I am saying that legal aid should be a system, a safety net across the country, that is equally going to serve somebody on benefits or who qualifies for legal aid in Surrey as they would in Camden, inner-city Manchester, or in fact Alnwick, for that matter.
Q236 Mr Buckland: I accept your point. The point you are making is about legal aid deserts, fundamentally, isn’t it?
Steve Hynes: Yes.
Q237 Mr Buckland: I understand that, but the problem is that resources are limited. Is it not desirable to have practitioners of expertise and excellence who may be serving a wide geographical area but who may be based remotely from the town or village from which the particular need arises?
Steve Hynes: Yes, I can agree with that. I believe with existing resources we can put together a system, for example, where Citizens Advice Bureaux and other not-for-profit agencies link in with solicitors in private practice and the Bar to provide a service. I think that is exactly right. You could have a regional provider, for example, for public law family-that would work well-and they would be taking referrals from their local Citizens Advice Bureau. The problem is that they have been hit on all sides.
There are two examples I would give. The Financial Inclusion Fund is going. We are losing something like 1,000 people employed under that to give debt advice. An example from only two weeks ago is that Birmingham City Council are cutting back £600,000 on their Citizens Advice Bureaux. Five Bureaux will close. That type of service where you can have an open-door service that you can refer on when needs be to expert practitioners is going. I believe strongly that the Government needs to look at this whole problem in the round. It is not enough just to cut one part of the system in the Ministry of Justice. You need to look at the entire system.
Christina Blacklaws: Obviously I would like to support Mr Hynes and what he is saying about community-based services. It is really important that they are available, although, as you rightly say, they are not available across the country at the moment. It is an opportunity for us to think much more creatively about how we can deliver the services. The Law Society is not against internet delivery or greater telephone delivery. It may well be an answer to remote rural areas. In Wales, for example, there is a tiny handful of legal aid providers already so there is not that access. We need to look creatively at how else we can provide the service, but remote service provision is not the answer for everybody. What we know about our legal aid demographic is that a lot of these people will not, for many and varied reasons, be able to access services in anything but a face-to-face way. There are those with mental health problems. I can recite the list again of the people who have the problems.
Chair: Mr Llwyd is probably anxious to come in on Wales.
Q238 Mr Llwyd: Yes. You mentioned Wales. It seems to me that one of the problems is that the Legal Services Commission presumes that if there is a large throughput of cases then the expertise is there. That is simply not true. There is a mental health practice in North Wales which almost lost its contract because it was a few cases short. These are specialists who do nothing else. By dint of the fact that they are situated in a semi-rural area they had not got the throughput. It seems to me that there has to be some discretion involved here, otherwise we are going to lose good practitioners and thereby deny people good advice.
Steve Hynes: The point I would make on the legal aid system, if you look at how it is spread throughout the country, is that it is highly dependent-those high street practitioners-on the 2,000 or so family law providers. This will probably cut down around 60% of those providers, so you are going to be looking at a system of less than 900 providers. I don’t think that will mean you will have in many market towns and other population centres a legal aid service. Unfortunately, the nature of the client base of legal aid is that they will travel to open-door services within a five-mile radius, but they are not likely to travel long distances. It becomes a self-fulfilling prophecy.
Housing law is another example. You would look at under 200 or so providers in housing law. If there is no provider on somebody’s doorstep, then the problem goes unsolved and all the social problems that come with that. It costs something like £50,000 to rehouse a family in public costs.
Q239 Chair: That is not a new situation, is it?
Steve Hynes: It is not a new situation.
Q240 Chair: You said earlier how many parliamentary constituencies are involved. If I take the Shelter contract in the north-east, that must cover 15 or more parliamentary constituencies and an area which is 70 miles long.
Steve Hynes: Yes, it does.
Chair: Partly because of numbers, seeking more specialised advice in a particular area-in this case housing-has depended on going to somewhere more distant but usually via the open door either of the CAB or of the MP’s surgery.
Q241 Mr Buckland: I think Ms Janes wants to come in on the question I was asking about suggestions to save money in these areas other than taking it out of scope.
Laura Janes: I am afraid it is more of a general point about scope and the importance of a holistic approach to people’s needs. At the Howard League we provide an access to justice service where people can just ring in and say, "This is my problem. This is my child’s problem," and we do a full legal diagnosis. What is striking is how many different areas of law and how many different specialists are required. I recently represented a young person, who had been sentenced as a child to a life sentence, on his parole. About two weeks before the hearing, the UK Borders Agency said that if he got parole they would deport him. It became absolutely essential then to make representations before the hearing, to make sure that he would not be deported if he got parole, because it would completely undermine all the work we had put into the parole, and having legal aid for one would have meant he would suddenly be deported to a country he had never heard of, and you could not even have an effective hearing, because you would have to look at risk in the new country. That would be out of scope, so it would totally undermine all the legal aid spent on the parole hearing. We were able to make sure he had help and that decision was made. He was given a decision to be released, and that was an effective use of public funds. It didn’t undermine the work that we had done. It would have been meaningless for him to go through the motions of having a parole hearing if all it meant was that he was going to be deported and had no access to justice to fight that.
For the clients, it is about providing that kind of holistic service. What we find with the access to justice service we have is that we have a member of staff who spends practically all her time at the Howard League ringing up other solicitors and seeing if they can help. It is a terrible waste of time and energy. Being able to provide holistic, good-quality services would make much more economic sense.
Q242 Mr Buckland: You are making a case for legal help at the threshold, which can cover a variety of issues, because the client doesn’t come in saying, "I’m a debt problem." It is, "I’m a whole range of different problems which need an answer."
Laura Janes: Absolutely.
Q243 Mr Buckland: Representation obviously comes further down the line if necessary, but you are talking about the first stage, aren’t you?
Laura Janes: Hopefully, you wouldn’t need representation in those kinds of cases. At our commission of inquiry that we held jointly with the Haldane Society last week, we heard from clients giving live testimony about legal aid. There was a woman who had had care proceedings. Yes, that would still be able to be funded under the current arrangements, but what she said that was compelling was that it was the help she got with her divorce that was important because until she managed to make that separation with her husband, which she found a very difficult process to navigate, nothing was fixed in her life. She wasn’t able to take the children back and look after them carefully because it was the partner that was the problem. Without that little bit of extra help with navigating through the divorce, the money on the care proceedings was virtually wasted because things didn’t come together. That is the kind of holistic approach.
The Green Paper is very clear about not wanting to have lots of unnecessary bureaucracy and over-legalism. Trying to pare that away rather than saying, "We are only going to help this bit of you or that bit of you" would make much more sense, in our submission.
Steve Hynes: In response specifically to Mr Buckland’s question, one of the suggestions that is floated in the Green Paper, and certainly one that LAG supports, though we qualify that support, is the client account interest. There are various estimates floating around of how much could be obtained from it: between £6 million and £100 million. That is what we have heard. In the common law world, it is very common for client account interest to be used in this way. Certainly LAG would argue that the money should not go to the Treasury. There is potential, though, for creating a jointly administered fund that could pick up quite a large portion of the funding that has been lost from various areas of law, but it would meet with great hostility from the legal profession, and I think they would be particularly hostile if they thought that the money was just going to disappear into the coffers of the Treasury. Certainly, if the Government were willing to look at this problem in the round, that is something they should seriously be looking at.
Chair: There are two more topics I want to move on to.
Q244 Mr Buckland: Can I deal with one final point? It certainly won’t be relevant to crime, because as we know, matters under indictment are not traditionally reviewable. Judicial review will remain in scope and there seems to be a general exclusion of JR. Do you think there is a danger, particularly in immigration cases, that there will be a flight to JR as a means of getting legal aid when other areas have been removed from scope?
Laura Janes: There are two dangers. I think there is that danger, and we have seen that already with the huge increase in litigants in person for immigration in judicial review. I think there is also another issue, which is that the effective removal of legal help from a huge range of areas will mean that problems which could be solved by judicial review, which are judicially reviewable, go undetected. That will be a detriment to justice, because if education cases are not in scope but there is a gaping injustice in an education matter, it is never going to come anywhere near a lawyer, who is able to say, "Hang on a minute. Actually you are entitled to this and there is a remedy."
As a solicitor working with children in custody, I often have to threaten judicial review and rarely have to bring it. There is a great benefit in that remedy of last resort, which costs virtually nothing. It is done on legal help. We frequently threaten judicial review on legal help, at which point, once the authorities are reminded of their duties they are generally happy to back down.
Q245 Mr Buckland: I will come back to you in a moment. I just want to make this point. The scenario I was looking at was, in effect, that lawyers would not be involved for example in an SEN tribunal. The tribunal would take place and then the lawyer would come in, get legal aid and say, "The procedure was wrong and we are challenging it."
Laura Janes: Yes. That would be the only way to challenge it. Those are the two risks: increased judicial reviews or things not being spotted.
Christina Blacklaws: Can I make two points in relation to that? The first is that it is not just immigration. Obviously immigration cases can end up in the High Court as well. If we are going to look more broadly across the whole of civil and family legal aid, the number of cases that will end up in the High Court and the Court of Appeal, as opposed to being resolved, with immigration, at the Home Office decision stage or a tribunal, is going to be hugely increased. It is this front-loading that we are trying to suggest to you, where £1 spent on early intervention legal aid will save £8.80 later on. The CAB have done work on this on employment law.
Q246 Chair: Yes; we have seen the CAB figures.
Christina Blacklaws: We don’t need to go into that, but it makes logical sense as well. If you can resolve things early, then you are going to save the public purse. Secondly, in relation to tribunals, obviously there is not legal aid for representation in most tribunals at the moment but there is legal aid for the early stages. That means that bad cases are headed off so they don’t get into tribunals, and appellants are aided and assisted to properly prepare their cases, which can be very complex in terms of the documentation required, etcetera, so that their cases can be properly determined by the tribunal judges. I don’t think that we can count as a measure of success less cases going to court. That is probably representative of unmet legal need and people not having their problems resolved rather than resolving them if there is no early intervention.
There will be a much higher use of all levels of court and an inappropriate use of their time. If you talk to any judges about this, they are extremely clear that they would be very worried that their already limited resources-and we are talking about the same budget of course-will be stretched to breaking point if there are more litigants in person before them.
Chair: On that very topic, Mr Llwyd is going to ask a question.
Q247 Mr Llwyd: The question has been answered before I have put it. Professor Richard Moorhead did some research in 2005. He said that, if there is to be an increase in litigants in person, he is concerned that they sometimes damage their own interests and they probably will create more work for their opponents and the courts themselves. The question I would put is: how will this affect the efficiency of court proceedings, the likelihood of reaching agreed settlements and is there any danger to the fairness of those proceedings?
Christina Blacklaws: Of course, the increase of litigants in person will inevitably have a hugely negative impact on the efficiency and the fairness of the court process. The Moorhead research, which I think was misused in the Green Paper, is very clear that unrepresented litigants are more likely to make errors, and serious errors at that. They are more likely to file very flawed documents that don’t assist the court. They are less likely to even attempt to settle their cases. All of these things will impede the good workings of the court system and, importantly for those individuals, will mean that they don’t have a proper and fair hearing.
I was talking to some of the senior family judiciary who say that, even if cases were dealt with more quickly, their experience is that they have a litigant who sits there and does not say a word because they are so petrified. No matter how they try to make the process inclusive and non-intimidating, just by being in a court, especially if there is a representative litigant on the other side, it is hugely intimidating. Just because it goes through quickly does not mean that justice is served in that sense.
Q248 Mr Llwyd: You say "goes through quickly". I remember doing a family case a couple of years ago which was listed for three days. To my horror, the other side were not represented, and it took seven.
Christina Blacklaws: That is my anecdotal experience. I represent a lot of children in private law proceedings. When the court is so concerned that neither of the parents are able to act in the child’s best interests, they appoint a lawyer to represent that child. Often I am the only lawyer in the court and it takes a very long time. That is because if people have not had the advice at the early stages they just don’t understand what the relevant issues are. That leads to a lot of frustration and, going back to domestic violence, may lead to people taking the law into their own hands with, I am afraid, quite concerning consequences.
Q249 Ben Gummer: Might I ask a follow-up question to that? Yesterday Sir Anthony May was the first person to broadly agree with the Ministry of Justice’s view that somehow the increase of time posed by litigants in person would be offset by a decrease in cases being brought, but he is the only person so far to have agreed with the MoJ. Can I very briefly have your opinion about whether you thought the MoJ was right in its assessment or incorrect?
Christina Blacklaws: Can I give you some figures from the impact assessment in the Green Paper, which is in my area of family law? The impact assessment says that there are going to be 3,300 more publicly-funded mediations. There are currently 53,000 family cases that go to the court. If there are only 3,500 or thereabouts of those that are going to go through mediation, you have a huge number of people who will be in the courts litigating in person or likely to be litigating in person.
Q250 Ben Gummer: Do you think that that number will reduce by a similar amount to the increase in time caused by litigants in person?
Christina Blacklaws: No, because litigants in person do not have advice that steers them away from the court process. That is what good family lawyers do. Court is the measure of absolute last resort. Nobody wants to see parents and children having to go through the court process. Every other way of resolving cases is tried before that. Something that is really lost in this debate is the benign effect of involving lawyers at an early stage rather than thinking that each lawyer is trying to push their clients into litigation. The reverse is true. My worry is that if you remove that layer of support and timely and appropriate advice you will have a flood of people who have no choice but to turn up at the court.
Q251 Claire Perry: I would like to press a little further on the alternative provision of help and advice that we have touched on during the debate so far. One of the arguments the Government has made for restricting legal aid application is that there are other sources of help and advice available, and perhaps there are some new creative ways to offer help and advice. The analogy I would like to use is that, as an MP, you clearly get very complicated problems brought to you that require in-depth face-to-face analysis, but you also have lots and lots of things that come in that you can deal with in a telephone surgery or relatively quickly. Do you think that there is, or could be, appropriate support provided from the existing universe or potentially from some new models of provision?
Steve Hynes: The main problem, as I think I have said before, is that other arms of government-Birmingham City Council being an example-are cutting back on the alternative providers. If you look at the Financial Inclusion Fund in particular, as I said before, that will mean something like 1,000 debt counsellors across the country will no longer be providing a service. The other problem that I see is that there is an over-confidence in the pro bono community to take up the slack of the legal aid cuts. I sit on the London Legal Support Trust, which is a trust that has City firms sitting on it. It raises money from a sponsored walk and other activities to distribute money to law centres and other not-for-profit organisations. It is a relatively small amount of money that we raise but it is successful. Many of the firms we have links with have pro bono rotas and undertake pro bono cases in law centres, particularly in London. What they tell me is that if you don’t have the provision on the ground of law centres and Citizens Advice Bureaux, then we don’t have anybody to partner with for pro bono services.
Chair: We have taken evidence from them on that point.
Steve Hynes: I will not reiterate what has probably already been said. As I said before, though, if the Government want to look at this in the round then they should, and look at the other areas of funding and look at the outside potential funding arrears. I have given the example of the client account interest. It is not something that is going to be done overnight, but it is certainly something that could be done within the spending review period. My fear is that the MoJ are rushing to cut this money, around £50 million, with the non-family legal aid, at a time when the rest of the alternative provision has been decimated.
Q252 Claire Perry: Ms Janes, you have mentioned the Howard League’s phone line advice provision. Would you be able to expand on this broader theme as to whether there are alternative sources that could deal with cases that perhaps do not need to be dealt with by qualified solicitors receiving legal aid, or different ways of doing it?
Laura Janes: Yes. At the Howard League we will take all the information from the person calling and talk to them about what their problems are. Quite often, as you say, there will be certain things that can be dealt with easily by non-legal entities. We will try and refer them on to those organisations.
What is also very interesting is that we often get people in quite desperate situations who have been working with very well-meaning other third-sector organisations for a very long time without great effect. That is because that organisation just may not know that there is a very simple legal solution to this and, if you were to know it, and point that out to the local authority or the relevant body, things would become a lot easier. It is about the appropriate use of resources. We are in danger of trying to push so much away from lawyers, which will eventually ping back and even come back into court, that it can become a diversion. It is about the appropriate targeting.
Certainly for young legal aid lawyers, it has become almost a given that you will be doing some sort of voluntary-type advice work if you are going to be able to make your way. The provision of additional pro bono help is a wonderful asset as an extra add-on. Whatever way we are looking at it, we are not going to be getting more money. Any help we can get is great, but, in terms of having services as of right and to make sure that justice does not suffer. it can’t be a replacement. It is really about making the most appropriate use of resources.
Christina Blacklaws: Just a couple of points. The CABs offer excellent generalist advice, but they would say that they refer a lot of cases out to solicitors. In fact we work hand-in-glove with a number of CABs and deliver the advice from the CAB centres themselves because they don’t do family work and the higher level of housing work. There is a limit to what Citizens Advice can do.
Law Centre Federations do much more specialist work. We were told yesterday at the Westminster Policy Forum that their funding will be cut from £21 million to £7 million because of this. They are not going to be able to do what they are doing at the moment, so you are looking at a huge and devastating cut across all of the sectors that deliver this sort of advice and assistance.
The third point I want to make is about other ways of resolving problems, such as mediation. I am a family mediator and I have been for 17 years. I am still very shiny-eyed about family mediation and what it can do for individuals and for their children. It is a marvellous resource and way of resolving problems for appropriate clients. But it is not the right thing for everybody, so you do need other provisions around it. I make that general point that, yes, there are other services out there. They tend to be more at a cottage industry level, which means that they are serving a small and specific community. Those that are broader are having all of their funding attacked every which way.
It is not necessarily that solicitors are very well paid. If you look at the National Audit Office statistics, which I am sure you have had quoted to you, legal aid solicitors get paid on average less than sewage workers. The average legal aid solicitor’s salary is under £25,000. We are not talking about this enormously expensive resource. The Law Society doesn’t think that people should make an enormous amount of money out of the public fund. We are suggesting a cap of £250,000 for any individual to earn out of legal aid. We can see that it is important that people are not making huge sums of money out of this, but, believe me, legal aid solicitors aren’t.
Q253 Ben Gummer: Does the Bar Council agree with that cap?
Paul Mendelle: Can I make a slightly separate point which I hope is related?
Chair: Wouldn’t you like to answer Mr Gummer’s question before you make your separate point?
Paul Mendelle: The short answer is yes.
Ben Gummer: You do agree.
Paul Mendelle: Yes. Can I make a slightly separate point, which is this? So far as telephone advice is concerned, I think the last figure from the Legal Services Commission said somewhere around £175 million is spent on telephone and police station attendance advice. I am not quite sure what the split is between the two.
Q254 Claire Perry: Sorry. Telephone and what was the police station advice?
Paul Mendelle: Police station attendance advice.
Claire Perry: The use of the police station’s phone to the duty solicitor.
Paul Mendelle: Attending the police station and telephone. Working from memory, I think it is about £175 million. Policy Exchange, which is a think tank, published a report last year which suggested that, of that, about £125 million was face-to-face advice. There is an argument one could mount to say that we could cut a lot of that. We could stop people going down to the police station in certain circumstances, and it is not difficult to construct those circumstances in which you would cut back on police station attendance. You might save £40 million or £50 million that way.
Q255 Claire Perry: Who is attending? Is this solicitors attending when somebody is in the police station exercising their right to phone a solicitor?
Paul Mendelle: Yes. As matters stand at the moment, generally speaking, the solicitor has a discretion as to whether he or she goes down to the police station. It would depend on whether the defendant is going to be interviewed, but if the defendant is going to be interviewed they have to be there. You can construct circumstances in which you could cut the costs of that by limiting the circumstances in which the solicitor attended.
It varies enormously around the country, but the MoJ’s data shows that not every case where a solicitor attends results in a charge or in a representation. It is sometimes a third or a half of those cases that don’t result in a charge. Is that because the solicitor has attended? Is that because the solicitor has attended, advised the defendant to answer questions, in answering questions an explanation has been put forward and that causes the police and CPS not to charge? I don’t know the answer to that question.
Q256 Claire Perry: Forgive me, Mr Mendelle, but I think the issue is about telephone advice. It is not the existing model, but to say, look, in a world where more and more of our transactions are conducted over the phone or indeed on the internet, rather than the rigid adherence to the face-to-face model for delivering what I am calling low-quality legal advice-I don’t mean that in a derogatory sense but around some of these tricky areas of benefit advice and employment questions-could you not envisage a model where that could be delivered in a far more cost-effective way by having legal aid practitioners essentially using technology to offer advice to far more people at this sort of low level of complaint?
Paul Mendelle: I am obviously looking at it from the criminal practitioner’s point of view. A lot of defendants who are arrested do not have a lot of documents. It is a much easier ask to give telephone advice. But what I am saying to you is this. We don’t know, because there is no proper research about this, the consequences of only giving telephone advice. It may be that the saving you make at the start of the system is lost because at the end of the system you have more cases coming into court.
Q257 Claire Perry: Yes, but you could make that case about poor legal representation. That is impossible to prove, is it not, because we just don’t have those sorts of benchmarks in the legal system currently?
Paul Mendelle: That is a very good point.
Q258 Claire Perry: You had a very helpful table in the submissions about the number of telephone help lines. It was a bit like the Howard League one that we talked about where this is provided. Again, as we are facing this crippling budget deficit, can we not have some thinking about how to deliver this high-quality advice in a lower-cost method, perhaps even using the internet? What is to stop having web-chats with legal aid lawyers, which would essentially cost nothing because it is already in your infrastructure?
Steve Hynes: I don’t think any of the expert submissions are disagreeing with the concept of delivering legal services through the telephone and internet. Certainly LAG’s position has always been that these are useful services that can act as a very good gateway and often provide diagnostic services. However, you have to think of the clients. With regard to civil legal aid clients, we did a recent opinion poll a couple of months ago and we found that only 24% of people in the D and E social group were prepared to use telephone and internet advice. They are, as a group, very much excluded from telephone-type services because of pay-as-you-go mobile phones and communication and other problems that mean they tend to prefer, as a client group, face-to-face advice. We would emphasise that you have to deliver a service that is effective and that people will use.
Q259 Ben Gummer: That is not an insuperable problem, is it?
Steve Hynes: It is not, no. Certainly we would say that there is a potential here to look at a national telephone advice service. You could perhaps reconfigure what Citizens Advice do nationally to provide such a service. I am sure the Government are looking at that, but it can’t be the only option. Certainly, our feedback from clients-and the Legal Action Group is not representing lawyers-is that they want face-to-face services. Certainly, when there are complex problems, language difficulties and difficulties of comprehension, then you can’t just rely on telephone advice to provide the service. You can have the telephone doing the diagnostic work, referring appropriately and making appointments at a local level for a client.
Q260 Ben Gummer: Mr Hynes, can I make quite a simple point about this? In my previous life running a business, I knew every time I rang up my lawyer for advice that it cost far less to pick up the phone and speak to him. Of course it would be nicer to have a nice long chat in front of them, and it might have been slightly more value-added, but when people are paying their own bill they make decisions about that every day. Why should that be any different for people where the taxpayer is paying the bill?
Steve Hynes: I don’t have a problem with that. Certainly, a service that was front-loaded with well qualified and experienced people could provide that type of diagnostic service. It is quite appropriate and analogous to what somebody would do in business. However, you do have clients with specific needs. To use the analogy of business, when the stakes are big and you can’t just explain the matter over the phone, you go and see your lawyer, whether you can afford to or not. Certainly in business that is what you do.
Why shouldn’t people at the lowest end of the social scale have a similar sort of service? Yes, they will be able to access through telephone and also, where appropriate, get face-to-face advice. As I say, these people will often have needs around comprehension and language that means sometimes the telephone just doesn’t work for them. The classic example is the debt clients with a plastic bag full of letters from creditors, with no idea what to do. They are under stress and probably depressed. They are not going to be able to go through that sort of information over the phone. You could have a client ringing you up, getting an appropriate referral, going in with a plastic bag of letters and putting it to the Citizens Advice Bureau adviser or whoever.
Q261 Chair: Don’t worry. They come to see us with that sort of pile of letters. We are running out of time.
Christina Blacklaws: Can I make a couple of quick points about the actual proposal, which is that the telephone helpline is the only gateway into accessing civil legal aid services? Supporting everything that Mr Hynes has said, the Law Society can see that telephone, internet delivery and all sorts of new media delivery of legal services-one to many delivery-is a very robust and appropriate way forward for a lot of information giving in terms of legal advice. We are supportive of that, but we are not supportive of it being the only gateway into legal aid for the reasons about the clients, which Mr Hynes has set out, but also because of the reliance upon the current system being of such excellent outcomes.
We would say that there are excellent outcomes for those people who are contacting the current telephone provision because they are a self-selecting group with alternatives. There is no evidence or research in relation to whether there is any, what I would call, double-dipping. That is people phoning up, getting a bit of advice and then going to see a solicitor. It may be that a lot of the cases that go through telephone help lines at the moment are that sort of toe-in-the-water type, "Well, I’m just going to phone up and get a bit of advice and then when I want to access or do something about my legal issue I’ll go and see a lawyer." We treat the evidence about 90% plus satisfaction with some caution, because it may be that if everybody had to go through it the satisfaction rates would bottom out.
Chair: Thank you very much indeed for giving us your time, advice and help this morning. We much appreciate it. Thank you.
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