Q2 Fiona Bruce: Thank you, witnesses, for coming today. I declare an interest as a partner in a law firm. In the last Parliament, our Committee called for legal access to be protected for matters of fundamental importance. Briefly, how would each of you define matters of fundamental importance?
Steve Hynes: I would say that they are any matters that engage human rights law, but of course there are obstacles, which I suppose we are going to explore this afternoon.
Nimrod Ben-Cnaan: I agree with Steve on that point. As our written evidence put forward, we suggest that primary human rights as protected by the Human Rights Act are not privileged above other human rights, such as social, economic and cultural rights. To us, they are of similar importance.
Rachel Logan: We would agree absolutely with all that. It is a very dangerous route to go down, we would suggest: starting to pick and choosing between the various rights that the UK has signed up to. The UK has an obligation to respect, protect and fulfil all those rights and to make sure that individuals can access them wherever they are properly engaged.
Kamena Dorling: I would echo what has just been said. I work for Coram Children’s Legal Centre and our focus is on children’s rights. Quite often, there is a lack of awareness of the contents of the UNCRC, because it is not incorporated into domestic laws.
Chair: Avoid using initials, if you would.
Kamena Dorling: Sorry, I should have used brackets. There is less awareness of the articles of the UN Convention on the Rights of the Child, because it has not been brought into domestic law in the same way that the European Convention on Human Rights has through the Human Rights Act. A few of the rights in that convention, such as access to justice, are not being respected on a daily basis.
Fiona Bruce: You have all been excellently succinct for witnesses’ initial answers, so I will turn this question on its head.
We are interested in the way in which rights can be enforced. Are there areas where the state need not be involved in ensuring access to legal advice because fundamental rights are not likely to be involved? Are there areas where legal assistance should not be needed?
Steve Hynes: That is an interesting question. I would probably answer it in these terms. If you look at the history of legal aid over the years, the state has made decisions about what it will fund, in effect paying lawyers. Take the example of consumer rights. All but some exceptional cases are excluded from the scope of legal aid in relation to consumer rights. The last Labour Government excluded most personal injury cases, because they thought that the market could come up with solutions for access to justice. Over the years, different Governments of different hues have come up with different levels of scope for legal aid.
There is a strong argument from a constitutional and democratic point of view that everybody is entitled to some initial advice. Then the next level is the state funding a more specialist intervention. So even somebody like me who has spent their career lobbying on legal aid has to accept there is a hierarchy of what the state should be supporting. The pendulum has definitely swung too far, though, when it comes to leaving areas out of scope.
Rachel Logan: I would take a slightly different approach. From the perspective of international human rights law, we know there is no entitlement as such to free legal aid in all situations, but there is an obligation to provide it in situations where the absence of legal aid would mean that you could not secure an effective remedy for a rights violation or where the absence of legal aid would prevent access to a court.
It is very difficult to say in advance what kind of situations that would occur in, because it can arise in a wide variety of situations. Although that does not suggest that we have to go to everything being in play, we have to take a very careful approach when we start excluding areas from scope at the outset, because it is difficult to know what kinds of rights might be engaged at what point. We all know that there were problems with the Access to Justice Act, but taking the cautious approach of saying that most things are generally in scope, other than a few limited areas, is a lot safer than the current approach of everything being out unless it is in.
Q3 Fiona Bruce: I will come back to that in a moment. It was very interesting, because you talked about scope. Ms Dorling may talk about education, so I will specify scope and education in a little more detail in this question. The Legal Aid, Sentencing and Punishment of Offenders Act regime has defined scope. Education is excluded, for example, but there is support for cases to deal with special educational needs. Is the current scope broad enough to include human rights issues? Ms Dorling, you speak with particular reference to education, of course.
Kamena Dorling: The short answer is, no, it is not broad enough. Coram has a number of legal aid contracts, but we are also unique in that we run a number of services, which are free and are either charitably funded or funded by a different part of the Government and which provide legal advice to children, young people and families. Through that we can see the direct effects of the narrowing of legal aid scope.
I am not going to talk about all the areas, but we have seen particular problems with private family law, immigration and education, as you say. Education was already relatively narrow before the Legal Aid, Sentencing and Punishment of Offenders Act, but it has been narrowed further so that pretty much all education cases are now not in scope.
Possibly the biggest impact that we have seen is in immigration cases, which are now completely out of scope. We see on a day-to-day basis the negative human rights impacts that is having on children, young people and families, not just because they cannot regularise their immigration status but because that has other consequences for other parts of their lives where there are human rights implications. In the current legal framework, which we have in part because of the hostile environment, if you do not have papers, in short, you can find yourself destitute, homeless, unable to access healthcare and not allowed to work. A whole range of other human rights implications stem from the immigration side of things.
Steve Hynes: Education law is a very interesting area of law, because it was not specifically ruled out of scope by the LASPO Act. In fact, special provision was made in the form of the mandatory telephone gateway. That illustrates how the statute might state something about scope, but the reality on the ground is that scope cannot be met. Only a couple of weeks ago, the Legal Aid Agency announced that there has been a procurement failure for the telephone gateway and it cannot let the contract.
Chair: Could you tell us what this gateway is, please?
Steve Hynes: When LASPO was going through—
Chair: Please do not use initials. I know that one, though.
Steve Hynes: The mandatory telephone gateway was designed to winnow out education cases, which are mainly special educational needs cases, discrimination cases and debt cases. The Government of the day argued that you could put these into a telephone gateway and deliver a remote service. Members of the House of Lords in particular were vociferous in their arguments against this, and argued that certain people with disabilities and others would not be able to access it unless it was a face‑to‑face service. The Government won the day and created the mandatory gateway service.
In terms of procurement, a couple of firms have tendered for each area of law and then all the other firms have dropped out and cannot compete. A couple of weeks ago, they announced that they could not procure services for discrimination law and special educational needs. It is pretty much all of what is left in scope of education law.
Lord Woolf: I am not sure that we have necessarily got the point, but I think what you are seeking to say is that even this telephone gateway is not functioning now, so it is no longer a gateway for anybody. Unless it is functioning, you cannot use it.
Steve Hynes: It only dealt with 10% of the cases of people who approached it, so it is not the best service in the world, let us say.
Kamena Dorling: We are one of the two providers of education legal advice: Coram Children’s Legal Centre and Simpson Millar. The telephone gateway is still operating, but the Legal Aid Agency’s procurement process has come to an end on that, so we are not quite sure of its future.
An interesting example of the effects of the reduction of scope under LASPO is that back in the day you had many more education law providers. I do not have the figures to hand, but I can check. Then it was narrowed so much that now there are two that are operating under this scheme. When you come to procure, you do not have the legal aid providers ready to bid.
Lord Trimble: Who narrowed it, and what was done to narrow it?
Steve Hynes: It was a procurement process, so there was a round of tenders for these contracts from a number of firms and other organisations, Coram Children’s Legal Centre being one—in three areas of law, I would stress. In two areas of law, the Legal Aid Agency is saying that in effect there has been a market failure. It has not had firms tendering to the right quality of standards. We do not know what is behind that, but it is clear that the system has failed. When you talk to firms in these areas of law, they say that they cannot compete economically, so they will withdraw.
This is what happens with legal aid: firms withdraw from the legal aid system and go off and specialise in other areas of law, or their client base funds the cases. Of course, that excludes the people who would previously have relied on legal aid. There is no market any more. In fact, there is market failure, and ultimately the people who would be entitled to legal aid will not be able to get it any more. There might be a statute that says that they can, but the reality is that the providers are not out there.
Fiona Bruce: Thank you, Mr Hynes. That was very helpful. Can I give Mr Ben-Cnaan his opportunity to answer this question about scope? In particular, what Human Rights Act rights might not be covered by the scope that the LASPO regime covers?
Nimrod Ben-Cnaan: This was amply covered a year or so ago by the Amnesty UK report, which was not so much on areas of law but on groups of beneficiaries, specifically children, family reunification for refugees and things along those lines. Steve’s point about the delivery itself throttling the scope of legal aid, in effect, is part of the problem.
I will just detour into that to illustrate this point, because it speaks volumes. Over the four full years of the current legal aid regime—we are just about to complete the fifth one—the number of providers of legal aid has dropped by 20% overall.
Fiona Bruce: Is this the number of law firms?
Nimrod Ben-Cnaan: These are firms and not‑for-profits such as law centres. Leading that drop was the fall in the number of not-for-profits providing civil legal aid, which has halved over that period.
Fiona Bruce: You are saying that they could not even cover their overheads.
Nimrod Ben-Cnaan: Yes. We see that all the time. The initial impact of LASPO on law centres in particular has been bruising. Over the first 18 months following the cuts, we lost 11 law centres. That is one in six of our members, so it has been significant. Remaining law centres have had to shrink and let people go whose experience has been invaluable. Communities are worse off because law centres can no longer provide the same kinds of services.
Q4 Chair: Kamena, you have talked about private family law, immigration and education in relation to children and human rights. Could you give us an example of the sort of private family life case that might engage human rights in relation to children, and the same with immigration and education? The second question is for all of you, bearing in mind that we all think that human rights are very important. Freedom of speech, the right not to be detained unreasonably, non-discrimination and family life are fundamental issues. Ought there to be some sort of human rights override in relation to financial support for legal cases? Should they be put into a category that says in effect that if human rights are engaged, this is obviously an important issue, so it should have a fast track to being financed? Would everybody then put human rights into every case?
We have an issue here with cases that engage fundamental human rights, which we have signed up to under the European Convention on Human Rights as a treaty obligation, and everybody agrees with that. You have explained the supply-side problem. Have you thought about what the solution might be? Can we start with Kamena giving examples of cases, so that we can get our heads round that?
Kamena Dorling: Thinking of both family law and immigration law, a lot of this comes down to Article 8 rights to private and family life. Linked to that, under Article 3 of the UN Convention on the Rights of the Child, the best interests of the child should be a primary consideration in all decisions.
Chair: Those are the rights. Give us some examples.
Kamena Dorling: That is the framework. I thought that was quite useful when I was thinking about it myself. That is fundamentally what we are talking about. In private family law, in an acrimonious divorce case for example, you are dealing with what is going to happen to the child and where the future of that child lies. The issues can be where they are going to live, what support they are going to get and what contact they are going to have with other members of their family.
At the moment, there is very limited legal advice and support for families going through that process in order to ensure that the best interests of the child are considered all the way through so that the case does not end up in court where what a judge can do is very limited; they cannot create evidence if it has not been put in front of them. That is a clear example in the family law space of cases that we are seeing regularly where children’s rights are not being sufficiently considered.
In immigration, an example that we see on a daily basis is a family with children who have uncertain immigration status, and they experience destitution and/or homelessness. They will often come to us. We have a twin role, working with local authorities, of trying to make sure that they are no longer destitute and homeless, and then addressing the underlying immigration issue that is the reason behind that destitution. The impact of destitution and homelessness on children is clear and extremely negative. The battle we then have is that there is no funded legal advice for immigration cases.
Immigration cases are extremely complicated, and we can help those families only because we have separate charitable funding that allows us to do that. The Migrant Children’s Project at Coram can deal with hundreds a year, but that is a drop in the ocean in terms of the numbers of undocumented children we have in the UK today. Estimates have been over 120,000, so that is a huge gap. Not addressing immigration issues, and not helping people to regularise their status when they have the right to stay in the UK, has a fundamentally negative impact on children.
Chair: What about education?
Kamena Dorling: Exclusions are one of the clear areas in education that we have a significant problem with. They are a little more complicated because of the process, which I probably do not have time to go into here. Families do not understand the process and their rights when it comes to the exclusion of a child from school. Through our Child Law Advice Service, which again is funded separately—it is currently funded by the Department for Education—we can give free advice on the phone where a child may have been unlawfully excluded. We hear a lot of cases at the moment where the correct process has not been followed, but families do not know what the process should have been or what their rights are at that stage. We have to step in and fill the gap that currently exists to try to guide them through that process.
Lord Woolf: That applies in particular to children who have mental handicaps or autism. Parents of those children are struggling, as the Government are beginning to realise. First, you have to find out what problem the child is suffering from.
Kamena Dorling: That is exactly it. Special educational needs are
covered in scope, albeit to a very limited extent. We see a number of cases of children being excluded because they have special educational needs that have not been identified. They have not even got to the point of being eligible for any kind of legal advice or assistance, but they have been excluded from school because they have undiagnosed autism or similar.
Lord Woolf: I should declare an interest in that I have a grandchild who has autism. The parents had huge difficulty in finding out what had caused the core problem. They were fortunate enough to have the resources to get help, but there are a huge number of children with parents who are not in that fortunate position.
Kamena Dorling: Yes, exactly. That is what we come down to when we are thinking about the legal aid system. It is a safety net for those without the resource or ability to go out and find that information or take action themselves.
Q5 Baroness Lawrence of Clarendon: We are talking about access to justice and the enforcement of human rights. Are legal aid costs too high for people who cannot afford it, which I presume includes asylum seekers? You have talked about immigration and children. In fact, most of what you were saying covers the cost of legal aid now. Do you have anything else to add to that?
Chair: Doreen’s point is whether there are people who do not have enough money to pay for lawyers but who are regarded as too well off to qualify for legal aid.
Steve Hynes: There are a number of problems here. The first is the means test. The means test is not aligned with the benefits system, which is a striking anomaly, when it comes to income and the capital in housing. People might qualify for a means‑tested benefit, but they would have to make a contribution to legal aid. That excludes lots of people from the legal aid system.
There are also rules on means testing. If you look at the overall figures, 10 years ago something like only 29% of the population qualified. That has probably dropped to below 25% of the population. When legal aid was first instituted back in 1949, it applied to 80% of the population, so there has been a gradual nibbling away at legal aid that means that only the very poorest can afford it, and even the very poorest are often excluded now because they cannot make the contributions to legal aid.
There is also the question of the statutory charge on the person’s house that is paid when the house is sold. Quite often, people are excluded because of it. The Government seek the statutory charge on a person’s property, and there have been human rights cases where they really should not have done so.
Nimrod Ben-Cnaan: This engages the issue which the Supreme Court raised recently in the UNISON judgment. I do not know if I am pre‑empting a question that might come up.
Chair: You are spot on.
Nimrod Ben-Cnaan: It reasserted not just the principle but the practice of assessing affordability of access to justice as a practical test of whether people, on legal aid or not, can assert their rights. Of course, UNISON’s line of argument relied on the work done by the Joseph Rowntree Foundation on minimum income standards. That kind of work is dynamic; it will change according to inflation and the cost of living. It is precisely what we are not seeing with legal aid, because, as Steve was saying, it is not keeping up the benefits system. It is not being uprated with inflation either.
Steve Hynes: It is four years since it has been uprated.
Nimrod Ben-Cnaan: It is constantly at a lag, and that is in effect cut.
Chair: Steve, you have estimated that the number of people who are eligible for legal aid has gone down from quite a high proportion of the population to below 25%. Of those who were in the 75%, what percentage, either by virtue of not being able to afford the contribution or by virtue of being denied the ability at all, cannot realistically access legal aid and cannot afford a lawyer? Give us that percentage of people who are not so well off that they can afford a lawyer, but who are not below the means test and who therefore cannot get financial support.
Steve Hynes: It depends on the type of case. If you are accused of a high-cost fraud case, for example, and there are very high costs in those sorts of cases, a lot of the population, even highly paid people, might fall into that percentage, albeit that they would have to make a contribution.
Ordinary run-of-the-mill cases, such as housing, are still in scope and would involve a high percentage of the population, because such a high percentage of the population are what you would describe as working poor; they would not qualify for legal aid, but they are only just above the means test, which has not been updated in four years. You want a figure.
Chair: Take out of your mind, if you can, the issue of defendants; we are talking about people trying to assert their rights.
Steve Hynes: Civil legal aid.
Chair: Leave aside the categorisation. They are people who feel that a right has been breached.
Steve Hynes: You have put me on the spot, Chair.
Chair: Give us a back-of-the-envelope sense of what you feel, or I will put a figure to you and you can tell me whether you think it is right.
Steve Hynes: My back-of-the-envelope sense is it must be at least 50% of the population.
Chair: For at least half of the population, the idea of enforcing in a breach of human rights, were they unfortunate enough to experience it, is for the birds, basically.
Steve Hynes: It is anecdotal, but my advice to anybody is to get legal expenses insurance on your house insurance, because anybody can face a problem like this, although most people do not.
Chair: Presumably in some areas a house is not worth enough anyway to do that.
Steve Hynes: You can pay for an insurance policy.
Baroness Lawrence of Clarendon: We were talking about how a lot of firms just cannot afford to do it any more. Even people who can insure their house must find a firm that can help to support them in challenging whatever they want to challenge in the courts.
Steve Hynes: That is right. We are down in the civil sphere to under 2,000 firms. Consider that 20 years ago there would be 10,000 to 12,000 firms on the high street that you could go to for help in cases involving housing law and other areas of law. Special educational needs are a very good example; the number is down to perhaps a couple of dozen firms in the country, most of whom would want paying. You hear anecdotal evidence all the time from clients who have children with special educational needs. Sorry, Lord Woolf, but grandparents and others are paying for the specialist reports.
Rachel Logan: We saw lots of stories like that when we were out doing research. Countless providers told us that they are the only provider for a particular area. In one case, a lawyer us that she had a family matter come before her of a woman who was really worried about her child’s contact arrangements with her ex, but the firm was conflicted so she could not represent her. The lawyer had nowhere to send her. There was absolutely nowhere within a practical radius of transport she could go for help, because there is just nothing left. That is what we are looking at in large areas of the country.
Lord Woolf: If you have a system, as we have now, that is adversarial at heart, and where there is a human right to have access to justice, unless you can get the legal assistance, your ability to get justice, even if you have a good just case, will be very uncertain.
Nimrod Ben-Cnaan: Absolutely. Our largest law centres in London are the South West London Law Centres, which have four offices covering the six south-west London boroughs. Last year alone, they had 80,000 telephone inquiries alone; I am not talking about email or in-person inquiries. They were taking on referrals from other agencies that could not take them on, so the law centre was the last stop. Out of 1,100 referrals, they could take up only one in four, around 300, because it was beyond their capacity, covered either through legal aid or more likely through other charitable resources, to pick up those cases. It is not working.
Q6 Baroness Hamwee: Can I go back to something that Steve mentioned? I think you referred to legal costs insurance, which I have rather skimmed over when I have renewed my insurance policies. Do insurers generally cover human rights applications? It would be good news if they did, but I can imagine the constraints that there might be in pursuing certain cases.
Steve Hynes: It is not a panacea. I always give the example of continental Europe, Sweden and Germany in particular. It is very common to have legal expenses insurance there. Of course, a third of the population are often excluded and, yes, these policies might not necessarily cover human rights. The thing with human rights law is that people very rarely go to a lawyer and say, “I have a human rights case”. They will say, “I have a housing case”, or “I have an environmental case”, for example. That could engage human rights law, and I have certainly heard of insurers that cover those types of cases. Yes, you could get problems in some cases when insurers would not cover them, but they will in others. I am not assuming that everybody can afford legal expenses insurance.
Baroness Hamwee: That is another issue. I wonder whether we could ask the Association of British Insurers if there are policies, standards or whatever that it applies.
Lord Woolf: Forgive me, Chair. I am interrupting too much.
You may want help not because of a human rights issue but because you have a proper legal issue. The human right is to be able to get the help that you need to have access to justice. There are two limbs. You may be facing a human rights issue and the insurance might not help you because of the way it is worded, but it may help you to fulfil your human right to be able to take a case to court.
Lord Trimble: Reference was made to special educational needs and the difficulties that people may have in seeing that they are met. I am a bit rusty in all this now—I came out of the Commons in 2005—but my impression, going back to before then, was that a lot of people who thought that their children should have special educational needs provision would go straight to their MP’s office.
Joanna Cherry: It is still common.
Chair: They still do, but then there is the question of whom we, as MPs, can refer them to for help, because MPs do not turn up in disciplinary proceedings.
Ms Karen Buck: It is a very interesting point, because one of the difficulties in cases such as education—this is true in a number of other areas of law, and I would be interested to know what the panel thinks—is that the ability of MPs, councillors and others involved in non-legal routes is quite constrained now by the way in which services are delivered. Your ability to intervene with a school in the state system or traditional local government schools is no longer applicable to academies, for example. Your ability to deal with your local authority on a housing case is often compromised if it is a housing association, because a number of those organisations do not consider themselves public bodies in the same way. That seems to me to be a problem for resolving cases that might otherwise not have had to go to law.
Steve Hynes: I do not want to sound rude, but your letter heading gets you so far as an MP.
Ms Karen Buck: That is true, and it gets you less far than it used to. That is my point.
Steve Hynes: Special educational needs are a great example. First, they need a specialist report. They need somebody who is not a lawyer to go through the psychological or mental problems that the child might have and put them into a report. That is expensive. It is a few hours’ work that needs to be paid for, and if you are on a low income you will not be able to pay for it.
The other problem is what is happening in local government, with 50% to 60% cuts across the board. I really do not see local government being able to meet its statutory responsibilities, and this is one of those areas, because of the level of cuts it is experiencing. It has had a knock‑on effect on the legal and advice sector. We are not funding citizens advice bureaux, law centres and others. Increasingly, there will be a tension between statutory rights, MPs and other people trying to do their best to enforce them, and the providers of public services.
If you indulge me, I will give one example. The only area of civil legal aid that is growing is public law family, which is growing, the practitioners tell me, because of the problems relating to poverty and the austerity policies of local and national government. Families are getting desperate and poorer, and they are winding up in the care system.
Chair: You are making the point that the demand side is growing at the same time that the supply side is diminishing.
Steve Hynes: Yes.
Nimrod Ben-Cnaan: It has also had some of its tools taken away from its toolbox. This is perhaps worth mentioning. As local authorities find it more difficult to provide and are therefore gatekeeping more, the tools that law centres and other legal aid agencies have for standing up for their clients and asserting their rights, such as access to the use of judicial review and the ability to threaten an authority with judicial review, are weakening.
Chair: Hold on, Nimrod. We are getting to judicial review. You are anticipating us again.
Baroness O'Cathain: Could I ask you a very simple question? For people who are in such a destitute situation, is there any help for them or any indication in a simple brochure of what they should do before they get involved with asking for legal aid? How many people are completely falling off the log, so to speak? Is it not in the Government’s interest to do such a thing? It seems to me that there must be training implications or something like that when it comes to helping these people.
Nimrod Ben-Cnaan: It is fairly embryonic. In the sector, we would cover this with the umbrella heading of PLEI—public legal education and information—which is precisely about that kind of awareness raising and understanding a problem in order to engage a certain area of law or a certain path of action and therefore a point of access to assistance, professional or legal.
Only last year, the Solicitor-General convened a forum to see how this might become more robust. There are certainly good efforts on the charitable side from organisations such as Law for Life, which specialises in that, and the Citizenship Foundation, which works a lot with schools, but it is a drop in the ocean. In general, people are not sufficiently aware of their rights.
Steve Hynes: Hazel Genn, the academic, has research on this, and she talks about people facing clusters of problems. Very often, public legal education is useful for somebody to realise, “Oh, I have a housing problem”, and to go along to an adviser or lawyer and present with a problem. Genn’s research, and this is the brilliance of it, showed that those people would often have a number of problems that engage human rights, such as welfare, benefits, housing and discrimination, clustered together.
There is a strong argument for saying that, yes, you can educate people and they can frame their problem, but if you put good lawyers or other advisers at the front of the system who can analyse and unpick the various problems that somebody might face and then send them down paralegal and other paths, it is a better use of public money.
Rachel Logan: Human rights education is another critical part of this. Amnesty UK delivers quite a lot of human rights education work. We have a whole team that does it. We send speakers into schools. We have school packs. We have to do that work because there is this huge gap in what is being taught in schools at the moment. The citizenship curriculum simply does not include the human rights question properly, so that kind of education is not being done. It is not the kind of thing that you see in the US, where people are very aware of the Bill of Rights. You are taught from day one how important it is to you, but we just do not see that here.
Kamena Dorling: I fundamentally agree that you need the whole spectrum. You need public legal education at one end through to legal advice and representation for those who need it at the other. In the immigration context, we are already doing workshops with young people about the immigration and the asylum system. We are trying to let families know their rights and options. Those workshops work only if you have a legal rep behind them for all the questions that you are going to get afterwards and all the follow-up work that you are going to need. Otherwise, we are saying, “Here are your options”, then leaving people to do it by themselves, but they simply cannot. That is an important aspect to remember.
Nimrod Ben-Cnaan: That is where the current gap in the system is. LASPO, the current legal aid regime, cut precisely that scope for early intervention—picking up a problem before it is escalated. There was a presumption that an agency on the ground would be able to take it on, perhaps not even providing the full casework service but taking it a step or two further and leading to a resolution that does not even engage formal justice; it does not come to a tribunal or a court. It is a big loss that is costing the system a lot of money.
Kamena Dorling: This is a final point that links to a cluster of problems, because it is really important to realise that it is not a clear-cut case of, “You need this for this”, for different areas of law. In immigration, we have worked with a number of individuals and subsequently discovered that there has been trafficking, and they have suddenly become eligible for legal aid. We would never have recognised that had we not been able to give them that initial advice. The individuals themselves are not able to pull apart and recognise all the different issues.
Baroness O'Cathain: What could be done to ensure that there is legal aid and advice provision across the country? Do you have a wish list and, if so, what is the first wish on your wish list?
Nimrod Ben-Cnaan: It is something that we and a few other organisations recently outlined in a letter to Chair of the Justice Select Committee, pre-empting the upcoming review of legal aid. There are some principles that must be taken into consideration. One of them, perhaps the top one, is that the system should be designed for its target beneficiaries.
At the moment, it is not. You are dealing with people who are at a severe disadvantage and a point of crisis in their lives. They do not have the mental bandwidth to take in the legalese that comes with legal aid. Currently, the system half pushes them away and does them a disservice as a consequence. This would definitely come on top. The restoration of early legal advice, the ability to act early, will save us all a lot of money. It is a stitch in time.
Q7 Joanna Cherry: Before asking my question, I should declare my interest. Before I was elected in May 2015, I was a Silk at the Scottish Bar with a mainly legal aid practice. I am now a non‑practising member of the Faculty of Advocates.
You have been describing the legal aid system in England and Wales this afternoon. I wonder if it might be helpful for us to look at the legal aid system of Scotland, which has a similar spend per capita but where legal aid is widely available in family, immigration, housing, welfare, debt, employment and personal injury cases. The Independent Strategic Legal Aid Review in Scotland has just been published today, and it has said that 70% of Scotland’s population is eligible for legal aid. So 2,388 cases are funded for every 100,000 people in Scotland, which is the highest in Europe, and Scotland ranks third for legal aid spend per capita in Europe.
In fact, Scotland spends less per capita on legal aid than England but manages to provide legal aid for most civil cases and for nearly all criminal cases. One reason for that is the system called advice and assistance, where people can get early advice. They can go into a solicitor’s office. In the days when I was a solicitor, it was a pink form, and 25 to 30 years ago you got £50 of advice, which was a couple of hours.
Chair: It was a green form here in England.
Joanna Cherry: The colour might have changed in Scotland, but my point is that the Scottish Government are obviously working to a restricted budget, because they are subject to austerity, as well as the English legal aid budget. It is possible to work with the same budget and have a wider availability of legal aid; Scotland shows that.
Nimrod Ben-Cnaan: Absolutely, and I would add another thing. The Law Centres Network does not cover Scottish law centres, but we have a very good relationship with them and always have done. Last November, we took our national conference to Glasgow. We try to learn a lot from the Scottish example.
One thing the Government in Westminster have chosen not to engage with is the idea in Scotland of a mixed economy of providers. You have the legal aid firms working on contracts, similarly to here: a separate, bundled, grant-like provision for law centres and other not-for-profits, and salaried solicitors covering areas that are sparsely populated where it would be very hard to sustain a commercial practice. There is that willingness to engage and that variety. Nothing is perfect, but there is a lot to learn from that system, especially one that is working as well as that.
Rachel Logan: One thing to learn is that the review was independent. When the review into the impact of the regime here in England and Wales was announced last year—the review that keeps being announced and re-announced—we were very disappointed to learn that it was to be conducted in-house. We attempted to get more information about its scope, what it was going to look at and its processes, but not much has been forthcoming so far.
In answer to the question about solutions and what we are hoping for, I have to say that we have not even got to what the problem is. None of the work that Amnesty did over the months, or the work that has been done here and there by lots of different organisations looking at the impact, has yet got to a comprehensive picture of where the problems are that would lead us to a proper solution. That work needs to be done properly and thoroughly and as independently as possible. We have not yet got to that point, which has been quite concerning for us all.
Joanna Cherry: That is interesting, because it is an independent review but it has been welcomed by both the Government in Scotland and the Law Society of Scotland. The two things do not always cohere, so it shows that you can have an independent review that is welcomed by both the profession and the Government. It will be very interesting to see what consumer groups and law centres say about it. I am not sure if they have commented yet, because it has just been published today.
Lord Woolf: Am I right in gathering from your evidence that it is not necessarily a question of the total amount of money that is available? There is also a substantial issue as to whether the total money that is available is being used in the best way. I think you have been saying that Scotland seems to be doing better with the same amount of money. Could I ask you in what ways you would like to see the budget being used differently from the way it is being used now?
Steve Hynes: There have been a number of cuts to fees in the system. We are different from Scotland in some respects, because there are different cost drivers within the system, such as the high-cost criminal cases. We now have, certainly in civil legal aid, jetties of provision, particularly for public law children, where you still get quite a good public service. Then there are other areas of law where there is no service at all, due to lack of scope or the structural problems we have been discussing.
Lord Woolf: You are saying that the need is put into compartments in England. Some of the compartments are a no-go area. Others are accessible.
Steve Hynes: I really do not think you could get into a discussion about trying to reduce costs on the criminal side of legal aid and trying to redistribute that on the civil side. For the last four years, we have not been spending what was originally allocated in the legal aid budget. The MoJ has fundamental problems with its budgeting. Prisons are its biggest expenditure and it has other cost drivers. It has gone back to the legal aid budget over a number of years now and taken savings, so you have a squeezing of demand under the scope and eligibility rules, and a structural squeezing in the number of firms reducing or simply not taking on cases when people are eligible. Out of that, you have a reducing spend, which the Legal Aid Agency and its masters, the Ministry of Justice, keep taking savings from. So, in effect, there is a rump service in some areas of law.
My number-one ask would be to go back to where you were with the legal aid Act as was, LASPO, and take off £350 million of savings. I think that, at this stage, most legal aid lawyers would say, “Thank you very much, we will accept that”, and arguably not take the £600 million or up to £900 million that was actually taken.
Q8 Baroness Hamwee: I want to ask about exceptional case funding. I recall, when the Bill was going through, a number of parliamentarians saying, “But in any given situation the problem is a norm. It is not exceptional”. I might have talked to Kamena about the effect on children of the spousal visa rules, for example, if the parents are separated and the children by definition are not with one of their parents. That exceptional case funding was supposed to be a safety net. In fact, it has been used in less than 20% of cases, by the Government’s own estimate. It has been relaxed a little. Have the improvements done anything to help? What should be done to make exceptional case funding, which is there in the statute, more accessible?
Steve Hynes: It is just not working as a human rights safety net in the way Parliament intended. You are right that it has been used in less than 20%. There has been a 33% increase in the last quarter, but that is only 638 cases. The Government estimated originally that there would be 7,000 cases a year.
Solicitors have to take these cases on at risk, so they have to be specialists in the area of law that the client potentially wants the case in, and they have to fill in a complex form, which takes an hour or two to do properly, and risk not being paid for it. The margins of solicitors and legal aid firms in general are so squeezed that it is rare to find a firm that will take these cases on. So the one ask would be to pay solicitors and firms for filling out these forms. If it is going to work as a human rights safety net as intended, that is what has to happen.
Baroness Hamwee: Just to unpack that, it is because the form requires an assessment of merits.
Steve Hynes: Yes, it requires an assessment of means and merits. It has to be filled out correctly or it will be rejected. It has to be said that it has got better, but it is certainly nowhere near the levels that were expected, primarily, I think, because solicitors just will not take this work on at risk.
I do not know if you are hearing evidence from the Public Law Project, but it has had a project on exceptional case funding and it has an excellent take on this. It has dealt with a number of applications that have been successful, and it could give you, verbatim, the complex process that this is.
Fiona Bruce: Do you think one reason why lawyers are now ceasing to do legal aid is simply because of the level of administration they have to undertake just to get paid? What is your view on the procedures that they have to go through—often numerous rejections of forms, resubmission of forms, back to the front of the queue, delays of weeks and months or even in some cases years? Is this a major issue in your experience?
Steve Hynes: CCMS—the client and cost management system—is an absolute disaster from the lawyer’s point of view; the bureaucrats in the Legal Aid Agency seem to think it is wonderful. This is the system that is used to administer legal aid. It is designed from the Legal Aid Agency’s point of view. In no way is it an effective system, and unfortunately a lot of lawyers are just walking away from legal aid because they do not want to be bothered with the bureaucracy; they will go off and do private work. That is a good example of the increased bureaucracy.
Look at the Legal Aid Agency’s annual report. It does not mention clients. It talks about administrative efficiency. Administrative efficiency, it seems to me, means fewer legal aid applications.
Q9 Chair: You did work in Amnesty on the legal aid deserts. Give us a very rough description of the places where it is more likely that you would not be able to find a lawyer. What sort of places are we talking about?
Rachel Logan: There are quite a few of them. It is quite a complicated question and probably one that Nimrod would be able to help with. Take Devon and Cornwall. There is one small legal aid provider in Plymouth, as far as I understand it, for immigration law. It therefore deals with anyone in the entire region who has problems arising within that sphere, and it is an area of dispersal; it is an area where people are sent specifically who are trying to regularise their status or who have immigration questions. Similarly, in Oxford, as far as I understand it, there is only one firm, providing private family law. I can come back to you with more specifics on that, because that is off the top of my head. The north of England is another area where you have one provider and simply nowhere else to send people to.
Nimrod probably has a better sense of the statistics than I do.
Nimrod Ben‑Cnaan: In fact, the Law Society, not us, has done a lot of work on that. If you call on it, I am sure it will be happy to share this with you. Another example is the county of Suffolk, which mostly has rural areas. Suffolk has a single provider of housing law that is not based in the county. In practical terms, it does not have the local knowledge in its procurement area that a local agency would have, so it does not have the same ability to take on referrals. You just do not get the same service for your money.
Chair: It sounds as though you are saying that there is a growing inequality in the accessibility of legal services. Big cities such as London, Manchester and Birmingham still have some plurality of supply. Outside them, accessibility is getting very thin on the ground.
Steve Hynes: There have always been gaps in supply with legal aid, because you tend to get a concentration of firms in urban areas for the same reason you get a concentration of clients. There were always gaps, but it is getting worse. One example is housing law. There has been something like a 40% decline in housing law providers. It is still in scope, but there is a 40% decline. The last statistics from the Legal Aid Agency showed a 4% decline in housing cases, so that tells the story. People are just not doing the work, even though it is in scope.
Nimrod Ben‑Cnaan: One of the problems in assessing the efficacy of legal aid, as we have it now, for upholding rights is that the Government no longer commission it according to need. The Government used to commission legal needs research every other year, and commissioned legal aid on that basis in order to meet need.
At the moment, we do not know that, but we do have other proxy measures. In housing, for example, the stats for homelessness acceptances or possession proceedings are soaring, whereas in legal aid both the provider base and the uptake of new cases are in decline. If this is not market failure, what is?
Q10 Ms Karen Buck: Can we go back to the issue of judicial review? We know that the number of legally aided judicial review cases has more or less halved. One argument that was put forward for restricting the availability of legal aid was to discourage cases that were not meritorious. Could you start by giving us an indication of the extent to which you feel there were grounds for that? What is the explanation for the fall in legally aided judicial review cases, and what impact has it had?
Nimrod Ben‑Cnaan: From the law centres’ experience, the fall is due to the higher risk for any legal aid provider in applying for legal aid for judicial review. This is because the regulations on judicial review for legal aid have changed. This was legally challenged, and the regulations were then redrawn pretty much along the same lines, with a few notable exceptions. Essentially, you are looking at a system in which, if you do not get permission for judicial review, you will not get paid.
There are ample examples of cases where you do not even get to the point of getting permission for judicial review. If your case has merit and the defendant concedes that it has merit and withdraws, your client has benefited from that. If you apply to judicially review a housing decision by a local authority and the local authority then sees the light at some point, following the application for judicial review, and it never gets to permission, either on the papers or an oral permission, the legal aid provider has just done a lot of work, which pays them absolutely nothing, whereas the client has the outcome that they deserve. For the client, this is fantastic, except that it creates a real problem for providers, which think twice about undertaking this work. It is a big risk, especially if you are smaller. As a not for profit, the usual risks apply. It has a chilling effect.
Ms Karen Buck: This exposes people to costs that cannot be recovered and that are not foreseeable by the legal aid provider.
Nimrod Ben‑Cnaan: The costs are foreseeable. In some cases—I have them here, and I can regale you with them in writing—the court has sometimes already made a remark about costs, and both sides have stated that there would be cost implications, but it does not get to permission at all, which is where it stops.
Ms Karen Buck: Liberty has indicated that, due to the risks, borderline cases are less likely to be pursued, which means that cases that challenge the law will not be taken forward, and potentially those are some of the most important. What is your assessment of that? To what extent is it having a dampening effect on human rights cases?
Kamena Dorling: It definitely is. This is not just about judicial review. Across the board, there is an element of extra cost and risk that has to be borne by the organisation, because legal aid, in all its forms, does not cover the work that we are trying to do. That could be the risk of taking on a judicial review when you might not recoup the costs. For us, it does not cover the cost of doing the work well, which you want to be doing with children. Well, you want to that with everyone, of course, but it takes more time than legal aid will ever cover. Under Coram’s model, we have to rely on charitable funding to underpin a lot of the work, which is not ideal and is difficult to sustain. Our responses might be different from, say, law centres’ responses, but I would definitely agree that it is a deterrent.
Q11 Alex Burghart: We have touched on the government review of LASPO, which is forthcoming. What would be on your wish list for the review to cover? Perhaps you could each give us your top three priority areas.
Chair: This is in relation to human rights.
Kamena Dorling: Mine will be quite obvious, given where I work, but we are calling for the review to include a detailed assessment of the impact of changes to civil legal aid on children, young people and families. That is the top call. In terms of how it is undertaken, we are also very keen for far more transparency than we have had so far and to ensure that the review engages with as wide a sphere as it can.
Chair: What do you mean about transparency, about what, and to whom?
Kamena Dorling: I mean from our perspective, in that we do not know how the review will be undertaken, apart from the fact that we have had the reference to groups. I cannot remember the exact wording, sorry. We do not know what it will look like or who it will engage with, from that perspective. Maybe no one knows yet, but certainly the voluntary sector has had no information about that, even those that have been very active in this area to date. Transparency would be good in that regard.
I would like it to take into account, as much as possible, the cost implications further down stream of not providing early legal advice. There are so many areas, but I will give you the example of school exclusions. We have had an estimate from the Institute for Public Policy Research that the cost of a permanent exclusion in ongoing benefits or cost to the criminal justice system is £370,000 per child. That is the kind of thing that we need to be taking into account. I am not saying that school exclusions should be dealt with solely by legal advice, but it is one of the factors in how we think about it.
Equally, we have highlighted the cost shift to local government of there being no legal aid for children in care with immigration issues, and we have estimated that there would be a saving of £4 million per annum if that cost shift was not made. Things like that should also be taken into account so that we can get a realistic view of the impact.
Rachel Logan: The first two both relate to areas where we have found discriminatory impact, which we would like to be looked at in more detail. The first is the discriminatory impact on people who already have what we are calling additional vulnerabilities: obstacles to effective engagement with the legal system. That might be mental health problems, physical health problems, disability or alcohol and drug dependency; there is a whole raft of problems for people that make them, as human beings, less well equipped to engage with the justice system. We saw those individuals as being more likely to have problems in the areas that have been taken out of scope. We would like to see that looked at, as well as, similarly, the impact on people living in poverty. Again, you are more likely to have problems in the areas that have been taken out of scope, such welfare benefits, debt and housing, and you will not be able to afford to access the system without a lawyer. We would like to see those two areas looked at properly. The other area is early advice. If you do not have legal aid for early advice, you get escalation to very serious human rights problems, so stopping it before things escalate is critical.
Nimrod Ben‑Cnaan: I have already spoken on two issues that we would like to see. One is a focus on the intended beneficiaries in general and the way they access the system. To be fair, that is more of a “how” than a “what”. The other is early legal advice, which I have also already mentioned, together with the presumption of provision: that something is “in scope unless” rather than “out of scope unless”.
I would echo Kamena’s point not about the cost implication but about the life implication, as I would call it, of not being able to receive advice. Part of the problem with the current system is that we are really brewing up I know not what with people who may be deterred from seeking help at the moment, but their problems have not gone away. What damage have we already created by default over the nearly five years of LASPO? That is one thing.
Another issue, which relates more directly to human rights, is the safety net scheme, the exceptional case funding. Part of the problem is that we are pretending that exceptional case funding is something that anyone can access. As Steve was saying, that is simply not the case, and we need to stop pretending that it is in order to treat it properly. In order to be more accessible, which is the test for the entire legal aid system, exceptional case funding needs to be less exceptional. It needs to specify its threshold criteria a little more clearly.
Right now, for example, there is a disparity between the various areas of law that get granted exceptional case funding. Inquests generally get it, and immigration cases are increasingly likely to get it, but complex welfare benefits cases, for example, which affect people’s basic human rights, especially when you are talking about severe disability and things like that, are very hard to fund through ECF. Part of the reason for that is because the system presumes exclusion first, and we need to turn that around. It needs to be less exceptional in order to be a more functional safety net.
Steve Hynes: There is a lot of opinion coalescing around early advice, from everybody from the Law Society to the Bach report, so that is a given. The human rights safety net also needs to be repaired. The statute that was intended to be a human rights safety net, exceptional case funding, is not working. We need to look at that in the round, and it is good that this Committee is undertaking this investigation.
LAG is independent. We are not paid for by solicitors and other lawyers. We are an independent voice. That said, the supplier base is in crisis, and that has to be the third priority: looking at the disjunct between the statute and law and people getting access to justice.
The fourth point, if you will indulge me, is this. Unfortunately, with the MoJ and Ministers, it has been looking like a case of revolving doors over the last few years. It seems to me that the Government are not recognising the crisis in the justice system in an access to justice policy. I was very concerned that a much delayed review is delayed again until the summer. Then there will be another delay, and then we are into the party conference season. It should be looked at now, and it should be recognised that there is a crisis in the system now, because this review is five years after the LASPO Act. We should have taken a leaf out of Scotland’s book and had an independent review, and we should have set it up two years ago at least.
Baroness Hamwee: Can I just pursue the point that Nimrod made about exceptional case funding? Is it your experience that discretion is being exercised inconsistently?
Nimrod Ben‑Cnaan: Yes, absolutely. In certain cases, a law centre specialist applying for exceptional case funding was initially declined, but then had to remind the ECF team of the Legal Aid Agency’s own regulations and push back at it in a way that only a specialist would know they could and would have the nous to do. Eventually, they got the grant funding, but must it come to that? It really is a reflection of the system as a whole that it is not a simple chain of provision but rather various bits fighting each other, especially the commissioners and the providers.
Baroness Lawrence of Clarendon: Listening to you all, it sounds very depressing for those who are trying to access the service. With all this happening, what is the effect on the individuals’ mental health and all the stuff that comes with it? Are there any cases of individuals falling off and serious things happening, such as them ending up committing suicide and stuff like that? What is your stance on that? Listening to that, you can imagine that, for a lot of people, their depression and everything would mount up with the lack of support that they need at a particular time.
Nimrod Ben‑Cnaan: It is certainly something that we see a lot in law centres. Only recently, at our Harrow Law Centre in north‑west London, we had a case where a severely disabled man with mental health problems was helped by the law centre to appeal a benefits decision in the First-tier Tribunal. That is not in the scope of legal aid, so the law centre was doing it through charitable funding. In the process of waiting for his appeal, he has died. It is all too common.
Rachel Logan: We spoke to so many people who described themselves as utterly broken by what they were going through. One woman told us that when she was trying to regularise her immigration status, which she did successfully, it took two years from when she first found out about the telephone gateway service to getting leave. She had four young children, two of whom had autistic spectrum disorder. One was non‑verbal, and they required round the clock care. Instead, they slept on buses at night for nearly two years, because without their regularised status they simply could not access the support they needed. That is the kind of timeframe that people are living in horrific situations for because of this system.
Fiona Bruce: What is your impression of the impact on members of the profession, who perhaps enter it with the ideal of helping the neediest in society?
Steve Hynes: This has been concerning me a lot over recent months and years. I watch what the law schools are doing. They are withdrawing from electives around housing law and other areas of law that are covered by legal aid. To give one example, the University of Law used to have a very good legal aid course, a voluntary course that potential lawyers would do. That course was withdrawn two or three years ago, so there are not the lawyers coming through.
The University of Law is one of the biggest suppliers of legal education. The universities are withdrawing from the areas of work that legal aid lawyers cover. I hear anecdotal evidence that careers advisers in university law departments are saying, “You do not want to go into legal aid. You will never pay back your £30,000 or £50,000 of debt”. It is choking off the supply of young lawyers. I do not wish to sound derogatory, but police-station lawyers, for example, in criminal law, are getting rather old. They are all getting into their 50s and 60s and there are not the young lawyers coming through to replace them, because there is student debt and there is the very good economic reason that you are not going to earn a fortune in legal aid. What is happening in the system is very depressing.
Rachel Logan: I was one of those junior barristers. I was in private practice at Matrix, with a largely legal aid practice for many years. I left to go to Amnesty in 2014, and I cannot attribute that solely to LASPO, but I certainly look at my peers who are still at the legal aid Bar, whom I talk to regularly, and there is a terrible atmosphere at the moment across the board. People are really feeling the effect of these cuts on the people they are trying to work with.
Kamena Dorling: The sustainability of the sector is an issue. I made the point about education law earlier. We are trying to recruit into immigration roles in which you give advice and go out to work with very vulnerable groups. We do outreach in Greater London. It is harrowing work. It is a very tough job and it plays to the mental health point. These are people in desperate situations, and trying to deal with that day in, day out, when you know there is a limit to how much you can help, is a difficult role to fill. There is no one going into immigration other than in the private immigration sphere, so the pool to recruit from—I am keenly aware of this when I do recruitment—is narrowing year on year, and I do not see how we address that.
Nimrod Ben‑Cnaan: We are also exercised about in law centres, especially because, as a movement, law centres have been around since 1970, when the first law centre was set up. The generations who have built this movement are getting older, and the opportunities for even training contracts in law centres are diminishing. There are a number of good opportunities to get into such careers, but they are competitive and challenging, and the kind of people you get are the people who really have it in their blood; they are committed to it. Conversely, in the fallout from the legal aid cuts in 2013, many of my former colleagues who were in law centres that have shut, or who were let go because their law centre could not keep up their line of work, have left the law entirely.
Q12 Lord Trimble: Finally, organisations giving written evidence to us have highlighted the lack of legal information or education for ordinary people in this sphere. In your view, what are the most significant barriers to public understanding of human rights and their enforcement?
Rachel Logan: We are one of the organisations that have submitted on that issue. Where there is the hole in human rights education that I was talking about—the lack of information and the lack of teaching in schools—where do people go to get their understanding of what human rights mean? Effectively, they go to the media and to what they hear in the public sphere.
At the moment, we have this twin attack from the press in some areas and frankly from politicians on the other side. Professor David Mead, who has given written evidence to this Committee, has done some excellent research on done on this and on the kind of reporting in the press on human rights and the Human Rights Act in particular. He has shown quite how skewed and distorted that narrative is.
If you looked at the press coverage of foreign nationals trying to resist deportation using Article 8, for example, you would get the impression that something like 80% of cases challenging deportation were successful, which is almost exactly the reverse of the reality. That is because of the kind of cases that are reported and the way they are reported. That kind of daily diet and the negative headlines, such as “Your rights or ours”, which was the infamous Sun front page, cannot but affect people’s understanding when they have not had the human rights education to know what rights are and who they are for.
That is reinforced on the other side by persistent attacks on the Human Rights Act from certain sectors of our political establishment. When you see the same narrative from that side of “rights gone mad” and the constant refrain that we need to rein in the Human Rights Act, curb it and bring it back to common sense, that is the message that is being brought across time and time again. If politicians spent as much time as they currently spend on proposing tinkering with the Human Rights Act and on saying that there are all these terrible problems with it as they did on providing education and telling real stories about how this Act works and the people it tries to protect and does protect, we would have a much better situation.
We have found that 77% of people did not know that the Hillsborough families had secured access to justice and a second inquest because of the Human Rights Act, so we ended up putting up billboards all around the country and newspaper advertisements telling people. When you spoke to ordinary people and said, “Did you know this?”, they would say, “Oh my God, that is amazing. I thought it was for terrorists and criminals”. That is the situation that we are in, and it is not sustainable, because people do not know that these are their rights and that they have to be out there enforcing them.
Chair: That very neatly brings the session to a conclusion. I am full of admiration for what Coram, Amnesty, the Law Centres Network and the Legal Action Group do, so thank you very much for the work that you have been doing over the years and thank you for your evidence to us today.
Oral evidence: Human Rights: attitudes to enforcement
