Oral evidence: Implementing reforms to civil legal aid, HC 808
Oral evidence, 4 December 2014.
Witnesses
Ursula Brennan, Permanent Secretary, Ministry of Justice, Matthew Coats, Chief Executive, Legal Aid Agency, Catherine Lee, Director General, Law and Access to Justice Group, Ministry of Justice, and Peter Handcock, Chief Executive, HM Courts and Tribunals Service, gave evidence.
Chair
Welcome. Ursula Brennan, can I start with you? “Legal aid is so important to the operation of the judicial system that it is vital to get reform right the first time. If the Government gets it wrong, British justice could be irretrievably damaged.” Do you agree with that?
Ursula Brennan
Yes, if you get reform wrong, you can certainly damage the system. I do not know whether you would damage it irretrievably, but if you get reform wrong in any system, you will damage that system. I acknowledge that.
Chair
I will be absolutely honest with you. I came here and I thought, “Okay, the Government have decided to cut £300 million out of this budget. That is their policy decision. Let us go with it.” However, when I started reading the papers last night, the thing that jumped out at me was that good policy is based on evidence. You would agree with that as well, would you?
Ursula Brennan
Yes.
Chair
And that is necessary if you are going to ensure effectiveness, economy and efficiency, which is what we are interested in here. Do you accept that?
Ursula Brennan
Yes, I do.
Chair
The thing that distressed me was how you embarked on it as a Department with so little knowledge. I do not even know which one to take first. This is right the way through. You have no idea why people go to court. Page 22, paragraph 2.5 states: “The Ministry currently has a limited understanding of what influences people to go to court”. Is that true?
Ursula Brennan
That is true, yes.
Chair
So when you were changing the rules, you had no idea what impact that would have on whether people would go to court?
Ursula Brennan
No, we did not have no idea; we had some idea. The thing that we knew very clearly was that there was an imperative to cut legal aid funding. The Government was absolutely explicit about that from the start, and that it would need to do that—
Chair
Let us take that as a given. But when you have got a given, it should not stop all of you implementing that policy. That is why I read the principle out. It was a David Davis quote, so it did not come from some leftie lawyer. If you accept the principle, the responsibility is on you to ensure you implement it in a way that conserves that principle.
Ursula Brennan
And, indeed, we did everything we could, consonant and consistent with the Government’s very clear stated intention to make these savings swiftly. It was very clear that we would launch research to analyse what happened to people and what happened to the behaviour change after the event. We were absolutely explicit about that.
Chair
Let me just say on this issue, and then I will come to others, that the Ministry has a limited understanding of what influences people to go to court, and you commissioned the research only in 2014 and will not publish it until mid-2015. Remind me when these reforms came in.
Catherine Lee
In April 2013.
Chair
So you commissioned it a year after they came in.
Ursula Brennan
Yes, deliberately and consciously.
Mr Burrowes
It has got a good title, though: “Varying Paths to Justice”.
Stephen Phillips
I am a bit confused, Chair. Ms Brennan, you say that best policy is evidence based. Obviously, we are not here to look at the policy, but the policy of the Government is to reduce the bill by £300 million, and that is what you were told. You essentially went ahead with the reforms in order to save the £300 million, without any evidence at all about what the impact of that might be, other than what is contained in the impact assessment, and we know the defects in that.
Ursula Brennan
I was going to say—and it is really important to be clear—that the Government was absolutely explicit that it needed to make these changes swiftly. Therefore, it was not possible to do research about the current regime before moving to the cuts.
Stephen Phillips
I don’t want to stop you, but you have just identified the implementation of non-evidence-based policy.
Ursula Brennan
No. I would say that the piece of evidence that was overwhelming was the level of spend. The evidence that was required here was that the Government said, “We wish to cut the legal aid bill. We will have a strategy for how we cut that.”
Stephen Phillips
Forgive me, that is not evidence about the impact of the policy. That is simply the Government’s policy: to reduce the bill by £300 million.
Ursula Brennan
Yes, and that was the policy that we implemented.
Stephen Phillips
That’s fine. That’s what you are there to do and I understand that, but don’t try to dress it up as evidence-based policy making. You have in fact simply described the implementation of a desire to remove £300 million from the budget, without any evidence at all of what that might mean.
Ursula Brennan
I can only repeat that it was quite explicit from the start that we would not be able to do research in advance if we were to make the savings to which the Government committed. Therefore, we would conduct the research on the basis of what happened to people, because we were seeking to make a behavioural change, after it happened.
Stephen Phillips
We all understand that, but would you please stop describing that as evidence-based policy making, because it isn’t, is it?
Ursula Brennan
I was simply saying in terms of the evidence, the most critical piece of evidence that was relevant to the decision that was made was the size of the spend.
Meg Hillier
The size of the spend was £300 million out of the MOJ’s budget. We have often in this Committee looked at the shunting of costs. To give one example, at the Hackney Community Law Centre demand has risen 40%, probably growing to 50%. A third of people calling are being turned away, as the staff are no longer able to help. The council has increased its grant by £35,000 a year, even though its budget is incredibly pressed. Other bits of money are also being sought. Our surgeries are busier; we have fewer places to refer people. There are also impacts on the health system. Those are all costs. Your bit might be sacrosanct, but when you took this on, what attention did you give to that cost-shunting on to the overall public purse?
Ursula Brennan
It is important to be clear that we were very explicit about fewer people coming to court. That was never in any doubt and there was nothing hidden about it; it was explicit. The impact assessment sought to identify where impacts would be. Funding for the not-for-profit sector was put in place before the changes happened in order to prepare it for the changes that were made.
Meg Hillier
For a nearly 50% increase?
Chair
Did you look at costs arising out of your cost-cutting?
Ursula Brennan
We did that in the impact assessment.
Mr Burrowes
You say that the impact on the volume and duration of cases going to court is uncertain and that the offer of publicly funded mediation might divert more people away from the courts. Do you still hold to that view?
Ursula Brennan
When we did the impact assessment there were lots of things that you could not quantify.
Chair
Ursula, it would be really helpful—you have not answered questions directly.
Mr Burrowes
Do you still hold to the same view that came before Parliament?
Ursula Brennan
That it would be difficult to predict?
Mr Burrowes
No. That the offer of publicly funded mediation might divert more people away from the courts.
Ursula Brennan
There was an intention to divert people away from the courts.
Mr Burrowes
The impact assessment anticipated that 10,000 cases would be diverted through mediation.
Ursula Brennan
Sorry, are we talking about the mediation part? Yes, that was one of the changes that we expected to happen. That is correct.
Chair
With no evidence.
Ursula Brennan
No, we didn’t have evidence.
Chair
I thought your job was—I was going to ask you about your job. Maybe I could do that quickly before you reply.
Catherine Lee
Yes, sorry.
Chair
Your job is about access to justice. Is it about inhibiting access to justice? Is it inhibiting or facilitating?
Catherine Lee
It is facilitating.
Ursula Brennan
It is inappropriate to ask Catherine Lee about whether her job is to inhibit access to justice.
Chair
It is her job description.
Ursula Brennan
Her job description is to implement the policies of the Government, including in relation to legal aid.
Chair
She comes to us as the person with the job description of “access to justice”.
Ursula Brennan
It is completely inappropriate to ask her whether she is the person who is responsible for inhibiting access to legal aid.
John Pugh
Would it help if you just gave us a brief account of why you think mediation was not picked up in the way it should have been, and what went wrong? That was your expectation. The policy expectation was clearly defeated. The stats are even worse on mediation than they were before. What is your explanation of it and how early did you note that this was happening?
Catherine Lee
Our expectation was that there would be greater take-up, as we said in the impact assessment.
Chair
Based on what?
Catherine Lee
Based on the fact that when we first introduced compulsory mediation for legal aided people back in ’97, there had been just 400 mediations at the time. That went rocketing up, by the time we were writing the legal aid review consultation, to the thousands; I think it was 13,000. There was evidence.
Chair
What in the legislation or in your evidence gave you the confidence that it would go up 9,000 or 10,000 or whatever it was?
Catherine Lee
Partly, the evidence that I have just mentioned, and partly the assumption that if you are taking away legal aid for people going to court but providing it for people to go to mediation, they would take up that option.
Chair
Did you know that people were referred to a mediator by a solicitor?
Catherine Lee
We did know that they were referred by a solicitor. That was not the only route.
Austin Mitchell
If they couldn’t get a solicitor, they wouldn’t be referred. Didn’t you anticipate that?
Catherine Lee
Going to the solicitor was obviously one of the main routes of referral but not the only route. We also anticipated that—
Austin Mitchell
But it was a major route.
Catherine Lee
It was a major route.
Austin Mitchell
And they wouldn’t be referred if didn’t get a solicitor.
Catherine Lee
If they didn’t go to the solicitor, they didn’t get referred.
Austin Mitchell
So you did not anticipate that?
Catherine Lee
We anticipated that they would not be going to a solicitor. We anticipated that all the publicity that we put out around mediation would mean that they would, anyway, go not via the solicitor.
Ursula Brennan
We said when we did the impact assessment that what was going on was that in the past, a whole raft of cases that people had taken to court, gone to a solicitor with and taken to law were being removed from the legal aid scheme. We knew that people’s behaviour would change; we said in the impact assessment that it is very difficult to predict how people’s behaviour might change. That is why we have been tracking what has happened and why, when we saw that the numbers going to mediation were lower than we thought, we took a number of steps to ensure that people were aware of mediation. We set up a—
Chair
We have read the Report.
Ursula Brennan
We did a variety of things to address a problem that was very difficult to predict when we started.
Austin Mitchell
You had a consultation on the proposals. How many replies did you get to that consultation and how many said, “Don’t do it; it won’t work.”? How many were against it? What proportion?
Catherine Lee
On that issue, I am afraid I don’t have the numbers.
Austin Mitchell
But how many replies did you have to the consultation?
Catherine Lee
About 12,000.
Austin Mitchell
How many of those were against it?
Catherine Lee
The whole package or specifically mediation?
Austin Mitchell
Against it or any part of it.
Catherine Lee
The majority, as we set out in our response.
Chair
Let us ask the question another way: how many supported it?
Catherine Lee
A small proportion.
Chair
What? This is a fact you can give me. Perhaps we can allow Catherine to answer that question.
Catherine Lee
I have not got the exact number of people who supported them.
Chair
Maybe somebody behind you can get you the fact so that we can put it into the record of this Committee.
Catherine Lee
Certainly.
Chair
While we are sitting.
Catherine Lee
When we responded to the consultation, we explicitly said that most people were against it.
Austin Mitchell
The Bar Council—to give you some figures—says that more than 5,000 responses were submitted to the consultation, the majority of which rejected the Government’s proposals. Perhaps you could provide us with the detailed figures.
John Pugh
You put out publicity at the start, which didn’t work, didn’t you? Then you changed something you did so you would get a better effect. What was wrong, in your view, with your publicity at the start that made it so singularly ineffective?
Catherine Lee
Several things. We expected the mediation sector to do more to promote itself. We realised that that was not happening after we looked at six months’ worth of data, and we knew that we had to provide some support for them, so we did. We helped them beef up their website. It was very internally looking before—it was like a website for themselves as a professional. It now has, thanks to the funding we put into it, a “Locate your local mediator”. I went into it myself, and you find a list of about 10 within half a mile of where you live. So we really helped them beef up their promotional material.
Mr Burrowes
May I bring in Peter Handcock on the impact? Given that we see from the NAO Report a 30% increase in litigants in person, do you consider that the reforms have delivered value for money?
Peter Handcock
Just in terms of the impact on the courts, it is right to say that the number of litigants in person has gone up. Litigants in person are more difficult to deal with than those who are represented, at least anecdotally—I will say something more about that in a moment. At the same time, the volume of work coming into the courts has gone down, which was an explicit intention of the policy. The balance between those two things has left the resource position in the courts pretty much unchanged. It hasn’t been hugely problematic, in terms of the number of cases running through the system and the speed at which they are running through the system. In fact, the evidence is that cases involving litigants in person are taking rather less time to progress through the system than those in which both parties are represented.
Mr Burrowes
Are you dealing with the same litigants in person as you were pre-LASPO?
Peter Handcock
It is very difficult to say.
Mr Burrowes
Exactly, but you made a proposition—
Peter Handcock
No, you are entirely right. Litigants in person have always been a feature of the system. It may be that getting the balance between the work load and the nature of the work has helped us manage what otherwise would have been a resource strain, but the fact is that there has not been a resource strain.
Mr Burrowes
So you are not finding any increase in the numbers of adjournments thorough litigants in person who may previously have been represented.
Peter Handcock
To be absolutely clear about it, the length of time that it takes a litigant in person case to clear the system, from the beginning of the case to the making of the final order, is significantly shorter than the length of time it takes for cases in which both parties are represented.
Chair
Do you want to say something about that, Oliver?
Oliver Lodge
I just want to point out that that is not the length of the hearing itself and the interventions. It is a much broader period of time.
Chair
Of course. Can we deal with the hearing length?
Peter Handcock
Some experimental data was published on hearing length, but we have to acknowledge that it is based on estimated hearing length, not actual hearing length. Actual hearing length data is neither collected nor published, because it has never been required to be collected or published. That data correlates reasonably well with the other data set about the length of time that elapses between the making of an application and the delivery of an order. There is no evidence to show that average hearing length has increased across the life of a case, nor is there evidence to show that cases are in the system for longer.
Stephen Phillips
You have read the Report. The practical experience of those on the ground who are actually engaged in the system, rather than those who are trying to spin the statistics, appears to be that cases take 50% longer when they involve litigants in person.
Peter Handcock
I absolutely resent the suggestion that I am trying to spin the statistics. The 50% longer statistic is anecdotal.
Stephen Phillips
A moment ago you said you do not know, because the data is not collected, how long cases take when there are litigants in person involved, as opposed to parties who are represented. Is that right—yes or no?
Peter Handcock
No, that is not right.
Stephen Phillips
So how do you know that cases don’t take any longer when they involve litigants in person?
Peter Handcock
The average time that elapses between the commencement of proceedings and the making of an order has not increased.
Stephen Phillips
That is the disposal time for the entirety of the case—from the time that the case commences to the time that a final order is made in it. At some point during that case, there needs to be an oral hearing. Correct?
Peter Handcock
Yes
Stephen Phillips
Right. What data do you have as to how long that oral hearing takes when there are litigants in person involved as opposed to parties who are represented?
Peter Handcock
As I have just said, the data that is available relates to the estimated time for those hearings. The experimental data that was published on, I think, 27 November shows that, on the basis of those estimates, there is no increase in the average hearing length.
Stephen Phillips
What are those estimates? Are they set at the outset?
Peter Handcock
Those are judicial estimates of the time required to dispose of the case.
Stephen Phillips
Right, and the judiciary no doubt gives those estimates on the basis of the normal time that an application or a case of this nature would take to dispose of. It does not take into account actual experience in the real world of litigants in person arguing those cases, as opposed to those cases being argued by represented parties, does it?
Ursula Brennan
It is data that we have collected and entered on our system, so it is not estimates in advance. It is experimental. It has many caveats, as the judges—
Chair
Can you answer the question again, please?
Ursula Brennan
It is data that we have collected. It is not an estimate in advance[1].
Peter Handcock
Those estimates—the anticipated length of a hearing is determined by a judge at a first hearing. What many judges have said to me is that, as a consequence of having more litigants in person, they are having to invest significantly more time in those first hearings—anecdotally, about 50%. What judges have said to me is not that the entire time devoted to hearings goes up by 50%, but that the first hearing is longer. That enables the substantive hearing of the case to be shorter.
Sir Amyas Morse
As we are talking about the information, I just want to ask for your reaction to testimony we had from the previous witnesses. In terms of the experimental data that you have—thank you for being careful to describe it as experimental; I appreciate that—they were saying that there was, in fact, a risk of not comparing like with like. That is because the cases that are now being legal aid-funded and are still qualified to have professional representation are, by definition, quite a small subset of the most difficult and complex cases. Comparing how they run with litigants in person is therefore not comparing apples with apples. Is that a fair point?
Peter Handcock
It is entirely fair. This is just a judgment; it is speculative. I do not have any more evidence than anyone else.
Mr Burrowes
Is the point not that, at this stage, we are dealing with experimental data? At the beginning, the impact assessment was clearly saying that, in terms of the outcomes for litigants in person, the extent to which the finding about the impact on the outcome of the case applies to particular reforms is less than clear. We then have this latest research, “Litigants in Person in Private Family Law Cases”, which says that “Follow up independent research is needed to examine the impact of the legal aid reforms on the types and experiences of LIPs, their impact on the court system” and the effectiveness of it all. You still do not know: on an evidential basis, you clearly cannot say what the situation is in relation to litigants in person and the impact on the court system. You have acknowledged that you need to do further independent research to work it out. So whatever you are saying now, you do not have clear independent research to be able to say to us what the impact of these reforms is on litigants in person.
Peter Handcock
Indeed. The point that was being made, which is an entirely valid one, is that it is quite clear that one impact of the change has been a change in the case mix. We are seeing longer disposal time for those cases where both parties are represented, because those are the most complex cases coming into the system. The less complex cases are LIP cases.
Chair
Can I ask a naive question? If the evidence coming from the judges is that they are having to spend 50% more time, which you accept—a judge costs more than a legal aid lawyer per hour.
Peter Handcock
I am not sure that that is true. I do not know. That is an interesting point, but I am not sure it is true.
Stephen Phillips
You have to have a court room available; you have to have somewhere where the judge can sit.
Ursula Brennan
That is true, but it also relates to the distinction between the initial hearing and subsequent hearings. On the judge time and legal aid time, we are looking at not only the initial hearing, but what happens to subsequent hearings. You can understand why this might be the case. With litigants in person, your first hearing will take longer to get to the bottom of what is going on. Subsequent hearings appear to be going faster.
Chair
We do not know. You are not really looking at that.
Stephen Phillips
You do not know that to be the case.
Ursula Brennan
No, but to be really clear, we absolutely are dealing with a big change that has happened, and we need to track what has happened to it. There is lots of anecdotal evidence. All we are saying is that the limited experimental evidence that we have got does not back up the anecdotal evidence.
Mr Burrowes
But this is your problem. You are giving us a narrative of the lack of evidence, but fundamentally, from the start, we still do not know how and why people access legal aid. There was a trend away from accessing legal aid before these reforms, and we still do not know exactly why it bottomed out. Your impact assessment acknowledges that, “Legal aid recipients are amongst the most disadvantaged in society”—perhaps even more so, given the now limited scope. We do not know why they are not accessing legal aid, which is why it is a fair question to the director responsible for access to justice and her view on whether the spend on those most disadvantaged people is delivering value for money for them to access justice.
Catherine Lee
So we did not, as Ursula Brennan mentioned, have the time, in view of the urgency to make the cuts, to do the research in time. We are now embarking on—and in the middle of—a very extensive programme of research to look at exactly those issues.
Chair
It is a bit late.
Mr Burrowes
It is late. This research is examining those litigants in person prior to the reforms as well.
Catherine Lee
It is a much broader piece of research. We have got one piece looking at the not-for-profit sector, to try and understand that environment. We have got another qualitative series of interviews with 120 people just to ask them about their justice issues.
Mr Burrowes
You are seeking to deliver access to justice to these most disadvantaged people. Can you say that you are delivering value for money for them without that evidence?
Catherine Lee
We are gathering the evidence now, but on the basis of a year’s worth of operations.
Mr Burrowes
You must be making a judgement. Given the responsibility for the spend, can you say that you are delivering value for money for those people?
Ursula Brennan
When you say—
Chair
Let Catherine answer.
Mr Burrowes
Your day-to-day responsibility is access to justice for those people.
Catherine Lee
As was made clear in the impact assessment, we were not, and nor was the NAO, able to monetise the possible knock-on impacts to health and other services, so you need to take all of that into account. The NAO was not able to do it, and nor did we. It would be spurious to attach figures when you absolutely do not know what your baseline is.
Mr Burrowes
When these reforms were decided upon, it was not just a decision about cutting the spend. We had objectives A to D. A was “to discourage unnecessary and adversarial litigation at public expense”. That objective had to be achieved. Has that been achieved?
Ursula Brennan
We certainly have fewer cases coming to court.
Chair
You have no idea.
Mr Burrowes
We have realised that we need to have more evidence on that. The next one is “to target legal aid to those who need it most”. Has that been achieved? Do we know that?
Ursula Brennan
That was a policy change, which we delivered.
Mr Burrowes
Has that been achieved?
Catherine Lee
We would say so, in the sense that—
Mr Burrowes
How can you say that? You are commissioning a wonderful, very important wide-scale review as to how and why people are accessing legal aid and access to justice. We acknowledge that we have not got that evidence base, so can we say—
Catherine Lee
The rationale underpinning the choices that Ministers made about how to reduce the scope was to focus the smaller amount of money available on the most important issues: those that involve life, liberty and a roof over your head.
Mr Burrowes
I appreciate the policy, but have we achieved that objective and provided value for money for those people who need legal aid the most? Can we say that we have accessed justice for them?
Catherine Lee
We have achieved the objective of narrowing the scope to target.
Mr Burrowes
You say yes, but you have acknowledged that we have to do this wide-ranging review to understand the varying paths to justice. By implication, that means there is variation for those people. Let’s take people who are, on the face of it, eligible for legal aid: not of all them are accessing legal aid. We have to acknowledge that. Matthew Coats would acknowledge that.
Matthew Coats
Acknowledge what?
Mr Burrowes
That all those who could, on the face of it, be within scope for legal aid are not necessarily accessing legal aid.
Ursula Brennan
One of the things that’s very difficult—
Chair
I don’t want a waffley answer. It would be lovely to have a few yeses and noes. Is that right?
Matthew Coats
I am not sure whether, from our point of view, it is knowable. We know only about the people who apply for legal aid.
Mr Burrowes
Exactly. From your point of view, that’s all you know, so we are doing a review to understand how and why people access legal aid.
Ursula Brennan
Can I try to tackle this? Entitlement to legal aid is not like an entitlement to a benefit, where you say, “What’s your income? This is the benefit and these things match across.”
Mr Burrowes
I appreciate that.
Ursula Brennan
Legal aid is something to do with whether people choose to resolve their problem by bringing it to court or in some other way. When we ask whether legal aid is getting to everyone who needs it, part of that judgment is how people choose to resolve their problems—
Chair
You don’t know that either, do you?
Ursula Brennan
There was a conscious policy decision to say, “We will severely restrict access to the court and expect people to solve their problems in different ways.” That was a policy choice.
Mr Burrowes
I appreciate that, but I was going back to the point, Catherine Lee, that because you have undertaken this review to discover how and why people access legal aid—because we have not known previously—surely you cannot say, clearly and with hand on heart, that you are delivering value for money for those who need legal aid.
Chair
Can you just say yes or no?
Catherine Lee
Hand on heart, I haven’t got numbers around this, so I cannot say yes or no.
Chair
I want to say something to Ursula Brennan, and then I am going to move on to Meg. We all understand that people wanted to save £300 million. This is the second or third thing that we have looked at in the MOJ, and the MOJ does not have a good record on it. In implementing things, we expect you to move forward on the basis of evidence and some certainty of the outcome. Our criticism—we are only starting; you wait till we get to the end—is not of the policy objective, which was set by Government; our criticism is that the way you have set about this with so little evidence has had unintended consequences that mean that you do not meet the objectives of the policy. You should not be moving without evidence. If I may say so to the permanent secretary, that is where you should be exercising your proper powers to ensure that we do not go ahead and implement decisions without knowing either what the impact will be or the proper evidence for it. We see too much of it in this Committee and it is really bad. Sorry, that is my rant over.
Meg Hillier
I am going to add to it. There has been all this discussion about evidence, and there was evidence out there. My own experience is that back in 2010, or the end of 2009, I initiated an investigation into support for people with immigration issues. Among other things, we concluded that there needed to be much better early legal advice. Only on Monday, Lord Dyson and Sir James Munby told the Justice Committee that the priority must be to provide early legal advice that might divert people from court if their case was hopeless. These reforms targeted that early legal advice—the cuts did that, even though you had little evidence. Why? Surely there is evidence out there to show that.
Ursula Brennan
I can only say that it was a conscious policy decision to remove access to legal aid from a whole set of areas and to be very explicit at the start that we would collect the evidence of what happened to the behaviour change after the event.
Meg Hillier
But you won’t be able to collect some of it for some time.
Chair
Can I repeat something that you agreed with? David Davis said: “Legal aid is so important to the operation of the judicial system that it is vital to get reform right first time. If the Government gets it wrong, British justice could be irretrievably damaged.” In implementing this £300 million cut, it is vital that you get the operation right so that British justice isn’t irretrievably damaged. That is the point. Don’t blame the politicians on this one.
Ursula Brennan
I don’t think that the Report comments on how the legal aid system has been operated. All the discussion that we have had so far has been about groups and their access to legal aid. Our responsibility was to implement a policy that was heavily debated through Parliament and that went through primary legislation. Nobody was in any doubt about what would happen when we made these changes. We have sought to implement these changes—
Chair
So you think now that we have got it wrong and British justice has been damaged, do you?
Ursula Brennan
No, I don’t think British justice has been damaged.
Meg Hillier
On another issue, I have talked about the impact on Hackney law centre. Work on LASPO shows that no new legal aid work was undertaken in 14 local authorities and among 12% of providers—the Report covers that on pages 34 and 35—and that civil legal aid is massively underspent. I have constituents in desperate need of help, but they cannot access the legal aid providers because so many of them have had problems and gone under, or providers have a licence, as the Report says, but are not providing advice in certain areas. We had a problem with immigration, and it is probably still there—I haven’t followed it in massive detail. There are not-spots across the country. You could hardly get an immigration lawyer in Wales six years ago, and these cuts have had a bigger impact and mean that many providers are not providing advice because it is not cost-effective. There are deserts of advice. Do you have any comments about that? What is happening with the underspend in the legal aid budget? The money is there, but it is not being spent because people cannot reach it.
Matthew Coats
There are points about coverage, providers with no starts and the underspend, and I will tackle them in that order. The helpful map in the Report shows 14 local authorities without an office in their area, but that does not mean that people in those areas do not access legal aid.
Mr Burrowes
There are another 39 areas with fewer than 49 pieces of legal work per 100,000 people.
Matthew Coats
We contract slightly differently for different areas of law, but if we take family law as the most straightforward with the most local coverage, we contract on the basis of local authority tempered by population. There isn’t a provider in Christchurch, for example, but there are providers in neighbouring Bournemouth. The 14 areas tend to be areas—
Chair
It is a wider problem than just the areas with no provision.
Matthew Coats
The same principle applies. We contract on the basis of local authority tempered by population, so the areas with lower provision tend to be areas of lower population density, and they tend to be adjacent—
Chair
A third of areas.
Matthew Coats
That would reflect the population spread of the country. The areas that have the lowest level of representation tend to have the lowest population density.
Chair
Are you content that it is a third of areas?
Mr Burrowes
The NAO says that there is a variation. It refers to Camden, where the providers based in the area started 4,283 pieces of legal work for every 100,000 people, whereas there are other areas that do not have any at all. You cannot just base it on population. Something deeper is going on here. Again, we just do not know the answer because we do not have the evidence.
Matthew Coats
I think population density is the major factor.
Oliver Lodge
We have adjusted for population density by expressing figures per 100,000 of population.
Chair
Sorry, what does that remark mean?
Oliver Lodge
We have expressed the number of cases started per 100,000 people. Those figures adjust for population.
Chair
So your assertion that a third of areas do not have enough is based on population density?
Oliver Lodge
We have factored population density into the figures.
Chair
So population density isn’t an answer because they have factored that in. What is the answer, or do you not know?
Matthew Coats
There is variation between the areas. Our job is to ensure that there is local coverage and that people can access a relatively local provider.
Chair
A third of areas don’t have enough.
Matthew Coats
A third of areas have access to the service but take it up in a differential way.
Chair
No, a third of areas do not have enough.
Oliver Lodge
We can’t be definitive about that. As Matthew says, people can get advice by crossing a local authority boundary.
Chair
If they are poor, they can travel down to London on the really inexpensive trains, can’t they?
Oliver Lodge
What is really important to note is that the agency had not done this analysis—we did
Mr Burrowes
The civil and social justice survey was last done in 2010. Has there been any similar survey since then?
Matthew Coats
There hasn’t. Our remit does not include research on the basis—
Mr Burrowes
Would the Department agree with the NAO that the agency does not know whether all those eligible for legal aid are able to access it?
Matthew Coats
I think I said earlier that, from our point of view, it is not a knowable fact.
Ursula Brennan
We seek to make sure that legal aid is available across the country. It is the case that there are population areas with a higher net wealth where there is less legal aid demand. Some of those are alongside places where there are a number providers nearby.
Mr Burrowes
Mr Coats says it is not knowable, so would you agree with the NAO that the Ministry does not know whether or not all those eligible for legal aid are able to access it?
Ursula Brennan
I agree that that is not knowable.
Mr Burrowes
Do you agree with that conclusion? I am not asking whether you agree with Mr Coats.
Stephen Phillips
In that case you agree that the Ministry of Justice does not know. Come on, Ursula, give a straight answer.
Mr Burrowes
Would you agree that the situation, from the demand and the map that you so helpfully produced, shows a market shortfall?
Matthew Coats
It shows the distribution of the contracts that we have got. It shows a differential take-up in some areas, but I don’t think, from my point of view, that you could infer a shortfall.
Mr Burrowes
So you don’t think there is a developing market shortfall in family legal aid?
Matthew Coats
No.
Sir Amyas Morse
I agree with you that it is not knowable in precision terms. Our Report is absolutely not focused on whether the policy is right or not. That is really not a germane—
Chair
Amyas, I have to ask you to speak up.
Sir Amyas Morse
It is really not a germane point. The Report does not set out to discuss the rightness of the policy at all, and nor should it. We are trying to say that there are a lot of things that might or might not be knowable, but many of them are knowable and you should know more about them by now. We will rely an awful lot on the results of this research. I have two points I want to make. First, would it be fair to say that it would be rather disappointing if we waited for the much heralded research and it did not answer some of the fundamental questions about what might be happening within the system in terms of cost, accessibility, length of hearings and so on? We have waited this long for it, so it needs to answer those questions, doesn’t it? If we have another hearing on this in the next Parliament and we find that we still don’t know the answers to those questions, that would be rather regrettable, would it not? Is that a fair comment?
Catherine Lee
Yes, and the fact that it is such a broad programme, which is a mixture both of quantitative telephone surveys and in-depth qualitative interviews, should provide some really useful, rich information on how the system is operating now.
Sir Amyas Morse
That is great. The other thing I want to say as regards knowable and unknowable, is that that is true in terms of point information. That is a fair point and is, if you don’t mind me describing it as such, a lawyer’s point, and a very good one too, of course. The fact is—
Chair
An accountant to a lawyer.
Sir Amyas Morse
The fact is that it should put you on inquiry, shouldn’t it? In other words, if you see that there are gaps in the statistics, it might be because everybody is rich in that area and they don’t need legal advice, which is possible—I don’t say it is impossible and therefore we can argue about unknowable and all those interesting arguments—but it should make you scratch your heads and say, “We need to know the answer. Is it because of that or is it because our offering is somehow not accessible in that area?” That is the sort of question that I would have thought, when you see these meaningful gaps in distribution, you needed to develop an answer to. That is really the only proposition that I wanted to put to you. I am not trying to say that you should interpret information purely as something that either gives you an answer, specific or not, but I would have thought that you should be looking at information and saying “We really need to dig into this.” Is that a fair proposition?
Mr Burrowes
Can you not look in the 53 local authorities that have no, or less than 49, pieces of legal aid work? Could you not drill down into those areas and see if there is a market shortfall? If there is, you would then follow your impact assessment that says you will respond promptly, effectively and appropriately.
Matthew Coats
Yes.
Mr Burrowes
Yes? You can do that? Can we do that then? Can you give us a time scale for when you can do that?
Matthew Coats
If it is okay, we will respond—
Chair
In writing before we publish the Report, which means in a week or so.
Mr Bacon
Mr Coats, you said earlier that you did not think you could infer particular conclusions from this gap in distribution. What do you think you can infer from the gap in distribution?
Ursula Brennan
Are you talking about the 14?
Mr Bacon
Ms Brennan, you keep on answering questions that have not been addressed to you. I have not come in, because I arrived late, so I have been sitting patiently, but I have noticed about 10 times people asking questions of other witnesses and you answering them. If you could wait until a question is addressed to you, it would save us all a lot of time and be really helpful. I addressed the question to Mr Coats, because he was the one who started talking about what he could not infer. My question, which is to Mr Coats, is: what can you infer?
Matthew Coats
The best approach to that, as we are going to respond quickly, is to come back with some considered opinions on it.
Mr Bacon
You mean that, at the moment, you do not know what you can infer?
Matthew Coats
We would just like to consider that more and come back with a full answer.
Mr Bacon
Hang on. Even if it is an inadequate answer—plainly it will be, judging by what you have said so far—I would like to know what, if anything, you think you can infer. I do not want to put words into your mouth, but if the answer is, “I don’t think I can infer anything,” please say so. What is it that you think you can infer?
Matthew Coats
I do not think you can infer a shortfall.
Mr Bacon
You have said that already. I am asking you what you think you can infer.
Matthew Coats
I do think that you can infer that there are differential take-up rates according to different areas and that there is proper local coverage.
Mr Bacon
Actually, it is not a question of inferring. You said that you think you can infer that there are differential take-up rates, but it is not a case of inferring. This is merely a fact. It is not something that you have to deduce. The word “infer” means “deduce”. I am asking you what you can infer; what you can deduce.
Matthew Coats
I can deduce that different populations have a different take-up rate for reasons that I am not certain about.
Mr Bacon
Good, that is an excellent answer—a clear answer. Let’s put it that way. Are there things that you feel you need to know but that you do not know at the moment, so that you can infer more than you currently can?
Matthew Coats
Yes.
Mr Bacon
Could you tell us what those things are?
Matthew Coats
It would be a good question to look at, to provide the answers that I have already suggested that we would.
Mr Bacon
Okay. I am not sure that I understood any of that, but let me just explain it in simple Donald Rumsfeldian terms: there are four kinds of thing you can know. There are known knowns. Those are things you know, and you know that you know them. There are known unknowns. Those are things that you know you don’t know. There are unknown knowns. Those are things that you don’t know that you know; you have the information, but you don’t know that you have it. And there are unknown unknowns. Those are things that you don’t know that you don’t know. Could you write to us with a clearer and fuller answer to the question that I asked about the things that you currently don’t know but think you need to know? In line with other questions asked earlier, we can then look at this later, once you have finished your research, and discover to what extent your research helps you answer these questions to which you think you need to know the answers but don’t yet know. Is that fair?
Matthew Coats
Yes, I certainly will.
Mr Burrowes
This research is helpful now, but the impact assessment says that to mitigate any potential risk that clients may not be able to access legal aid services, the Government are working with the Legal Services Commission “to ensure that they have robust mechanisms in place to identify any developing market shortfall” and so that “they are able to respond promptly, effectively and appropriately, should this materialise in any form.” The NAO Report is helpful, but what have you been doing to ensure that this happens properly—that there are those robust mechanisms and that you are actively not just dealing with knowns and unknowns but ensuring that you respond promptly, effectively and appropriately?
Matthew Coats
Probably two things. We carefully consider how we should let contracts for any given area of law. The way you would let contracts to get coverage in an appropriate way for, say, family is different from what you might do in other areas. For example, in specialist areas, you might have a smaller number of providers that cover the whole country, given the depth of knowledge required. For specific areas, there might be a geographic element to that—near an immigration centre or a secure hospital. The way that we allocate the contracts must be targeted and correct for the type of work. We give a great deal of thought to how that works, and I hope that I illuminated in my earlier answer about weighting for population around local authority areas. We go on to closely monitor those contracts, which also have built in quality assurance. We audit against those contracts for compliance. We also have peer review against contracts—
Mr Burrowes
What mechanisms are in place to identify the market shortfall?
Matthew Coats
We also watch for where providers are not—
Mr Burrowes
These are the people doing the job, but we are talking about where it was not taken up. Where are the robust mechanisms that we were assured of?
Matthew Coats
The robust mechanism is regular and ongoing review by us.
Mr Burrowes
Of contracts?
Matthew Coats
Yes.
Mr Burrowes
Anything else?
Matthew Coats
And of quality and decision making.
Mr Burrowes
You talked about the unknown. How do you identify the shortfall?
Matthew Coats
There are a couple of different things. In terms of coverage, which is the local availability of a provider, despite different challenges across the country of different areas of law, we do not believe that there are any areas where you cannot access legal aid. Geographically, there are not.
Mr Burrowes
I do not know how you can say that, when you have acknowledged that you are just basing the review on the contracts. Where is this robust mechanism? You have a positive obligation, and you have said in your assessment that you are going to identify, with robust mechanisms, any developing market shortfall.
Matthew Coats
The robust mechanism is the regular re-contracting for the contracts and our ongoing monitoring of the situation.
Mr Burrowes
Perhaps others can judge how robust that is.
Meg Hillier
I find it a bit odd that when I make a quick inquiry to my local law centre, they can tell me that demand has risen by 40% so far and is going up, and that around a third of people who call are being turned away because the law centre is no longer able to help. That is just a quick response. What conversations are you having with the remaining law centres, given that 90% of voluntary providers have gone, to find out the impact on those providers?
Matthew Coats
Others may want to comment, but it is a different point. Our responsibility is to ensure the availability locally, not the scope of that. That is a choice for Ministers and for Parliament. What you refer to—people not being able to get those services—is not about the availability of the service locally.
Chair
I think we accept that, actually.
Stephen Phillips
Mr Coats, very briefly, you do not know one way or the other where there is a developing market shortfall in any area of the country. Is that right? Because you do not have the evidence.
Matthew Coats
I am sure that there is coverage of contracts and there is access to services. I have already said that we will investigate further the differential take-up rates in different geographical areas.
Stephen Phillips
In the absence of having already investigated those differential take-up rates, and therefore being unable to infer anything from them, as you made clear in answer to Mr Bacon’s question, you do not know that there is not a developing market shortfall in any area of the country, do you? You just do not know, one way or the other.
Matthew Coats
Put in those terms, no. We need to do more work.
Stephen Phillips
Right. And therefore the assurance that was given to Parliament in the impact assessment when these difficult reforms, which I supported, went through the House that a careful eye would be kept on that and there would be robust responses where market shortfalls did develop and were identified—that assurance has been a thing writ in water, has it not, because you have not done the work?
Matthew Coats
I do not agree with that. Our responsibility is to ensure the coverage of the contracts, and I believe that we have done that.
Stephen Phillips
We can read the answers and form our own views.
Sir Amyas Morse
Just on this point, I refer you to 3.22 in our Report, where we point out that 12% of the offices that have legal aid licences are actually not doing any legal aid work at all. That may be for perfectly good reasons, but you used to have a requirement, which you have rescinded, that legal aid licence holders would be doing a certain amount of legal aid work. Now there is no minimum, so the concern is that there may be some offices that hold licences and do not find doing legal aid work attractive any more. We do not know that. That, unfortunately, is another unknown, but one that I think that we need to understand. If it is that there is not demand, that is one thing. If it is that the offices do not find it an attractive proposition, notwithstanding the fact that they have got licences, that is something else. Is that another thing I can add, if I may, that we need to understand a bit more, going forward?
Matthew Coats
Yes, I think it is.
Austin Mitchell
I have been holding myself back in deference to the lawyers, but the impression I get is that we have got a bit of a mess here, created by the fact that it was cut in haste, repent and research at leisure, and you are now making some amends. However, I just want to tackle, first, Ursula Brennan’s point that there has been no damage to justice, because I was reading—as I do, of course—a judgment by the president of the family division, Sir James Munby, in a case about child D. I can give you the reference at length, although you probably have it, but in the case he says, “Stripping all this down to essentials, what do the circumstances reveal?...The parents are facing, and facing because of a decision taken by an agent of the State, the local authority, the permanent loss of their child…The parents, because of their own problems, are quite unable to represent themselves…The parents lack the financial resources to pay for legal representation…In these circumstances it is unthinkable that the parents should have to face the local authority’s application without proper representation…If his parents are not properly represented, D will also be prejudiced.” Sir James Munby goes on to say in his conclusion, “Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created—for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought—to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the State’s—the United Kingdom’s—obligations under the Convention?...‘It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.’” That is damage to justice.
Ursula Brennan
Could I make two points in response to that? The first is that I do not think it’s fair to say that these cuts were made in a precipitate hurry. They were legislated—
Austin Mitchell
Well, they were made without knowledge of the consequences.
Ursula Brennan
They were legislated for and were fully debated in Parliament. In relation to the specific case of child D that you mentioned, the exclusion in the initial judgment, about whether the person could get legal aid, was on the basis of the means test. Government decided to set a means test for legal aid. That was not changed as a result of the LASPO Act, and it was under that ruling that initially the individual here was excluded from legal aid. The case was actually reviewed and legal aid was granted. A number of the cases that have been a cause of concern have concerned the means test, and it is the case that there is a means test for legal aid. It has always been Government policy that access to legal aid should be means-tested.
Austin Mitchell
So Sir James Munby was talking rubbish when he said that justice is damaged in this case, was he? He’s wrong?
Ursula Brennan
Of course Sir James Munby isn’t talking rubbish, but he’s entitled to his opinion about the impact of Government policy, including the impact of the means test.
Chair
Let me go to Catherine Lee, because I think the interesting issue here is where the state brings a case against somebody. Isn’t it absolutely imperative—again, I ask you with your access to justice hat on—that the resources should be available to ensure that those being challenged by the state have the ability to respond to those challenges? So it is a very specific set of circumstances.
Catherine Lee
It is. I fully accept that, and that is why public children law was left very firmly within scope. It was fully acknowledged and recognised that these are very significant issues, where the state is threatening potentially to take away your child. There was never any question that such cases should come outside scope. In this particular case, “D”, as I understand it, there was an existing anomaly that was not a result of LASPO, which is that, although you get legal aid without any means or merit-testing for such cases—that has always been the case—at the outset, for this particular part of the proceedings, a means test was brought in. The Lord Chancellor has recently written to the president of the family division on this particular case to say that he would be happy to look at whether the situation is in relation to some follow-up proceedings that should also not be subject to the means test. That change was not made as a result of LASPO.
Austin Mitchell
But it is still unfair to argue that these people should only get justice if the charity of the legal profession can be invoked to give it to them.
Catherine Lee
They were subject to the means test.
Chair
So are you looking at amending the law so that this sort of situation does not arise?
Catherine Lee
Potentially. The Lord Chancellor has said to the president of the family division that we will specifically look at this issue, which existed pre-LASPO; it is not something that was brought in as a result of LASPO reforms.
Chair
So you are looking to amend?
Catherine Lee
We are looking at the situation.
John Pugh
There is a danger in all this of you being arraigned for Government policy. It must be very tempting for you to turn around and say, “There are four people on the other side of the room who probably voted for it”, but that is not quite where we are going. What we are looking at and trying to probe is how well you have managed the process of mitigation. That is where publicity and monitoring and all that sort of thing come in. I was struck by paragraph 15 of the Report, which mentions “exceptional case funding”, which is one form of mitigation. It says that you expected 5,000 to 7,000 applications, received 1,520, and only granted 69. I know that it is an arm’s length agency but it falls within your remit. That seems to indicate, maybe misleadingly, that you have been rather severe in applying the regime that Parliament has given you to administer. Is that a fair assumption?
Catherine Lee
In the impact assessment, where we were talking about the potential impact of the exceptional cases funding scheme, it was acknowledged, explicitly, that we could not put numbers around this because it was a completely new scheme and there was absolutely no baseline.
John Pugh
So you planned for 5,000 to 7,000?
Catherine Lee
So what we planned for and what we said in the impact assessment was that we thought that the impact might be that up to 5% of cases might blow back into the scope of legal aid under exceptional case funding; translated into numbers, that might be about 5,000.
John Pugh
But you received 1,520, which is less than you expected. You only granted 69. That smacks of severity, doesn’t it?
Catherine Lee
The Lord Chancellor’s guidance, which informs Matthew Coats’s and the Legal Aid Agency’s decision in these cases, sets out very clearly the relevant ECHR case law and provides a test that is applied in every case.
Chair
You knew that. You set that guidance.
Catherine Lee
It is the Lord Chancellor’s guidance, yes.
Chair
Yes. So it is your guidance that set it.
Catherine Lee
Yes.
Chair
So did you get it terribly wrong?
Catherine Lee
I don’t think we got it terribly wrong. We made prudent provision in the impact assessment to ensure that funding would be available for up to 5% of cases, should they come back in. The fact is that they are far fewer, but there was never a target for the number of cases. This is demand led. Every case is different and you have to apply the criteria to each case individually on its merits.
Stephen Phillips
It is just another example of the fact that this policy was implemented, as we all understand, to save £300 million and that, because it was implemented quickly, guesses or guesstimates could be made about its impacts, for example, in relation to how many cases would need funding to comply with our obligations under the ECHR. It was all done on the hoof, as it were, because it had to be done so quickly to save the £300 million.
Catherine Lee
It did have to be done quickly for the reasons that Ursula Brennan has given but, in relation to the exceptional case funding, I am not sure that any amount of research would have helped us to come up with a specific figure.
John Pugh
I will take you away from research and back to the question of monitoring. An objective of the policy that you are obliged to implement is to target cases that most need targeting—one thinks immediately of things such as domestic violence. Are you able to tell us what percentage of court load they were pre-LAPSO, what percentage they are now, and what the absolute numbers look like? I would assume that the percentage has gone up. Are you able to give us that information? Obviously this area that must be safeguarded, as child protection is.