Justice minister Lord McNally (pictured) has dismissed a wave of criticism of the impact of legal aid cuts by saying the Legal Aid Sentencing and Punishment of Offenders Bill is starting to suffer from ‘report fatigue’.
McNally was responding to an amendment that would require the Lord Chancellor to commission an independent review to assess the expected costs and impacts of the bill’s legal aid provisions. Labour’s former legal aid minister Lord Bach, who tabled the amendment, said that the government had ‘failed to get to grips with the serious consequences of their proposed legislation’.
Bach criticised the government for moving forward with a bill that according its own impact assessment would result in ‘reduced social cohesion’, ‘increased criminality’, ‘reduced business and economic efficiency’ and increased costs for other departments.
‘These are pretty extraordinary statements,’ said Bach. ‘The government cannot be accused of not being honest. They are honest to a fault if this is what they say will be the consequence of their bill. However, they can be criticised for putting forward a bill which, in their opinion, will have those consequences.’
The amendment, debated on Tuesday, asked the government to quantify the bill’s impact on the public purse; other government departments and courts and tribunals; on local authorities; and on the incidence of the most severe negative outcomes, such as homelessness, ill health and criminality; and on the future provision of legal advice services.
Speaking in support of the amendment Plaid Cymru peer Lord Wigley said a proper assessment was especially needed in what he called overloaded bills, ‘covering material which perhaps should have been spread over two or three separate bills’.
Barrister and crossbench peer Lord Pannick said: ‘The case for the bill depends on two factual premises. The first is that the bill will save large sums of public money. The second is that it will not cause the damage to access to justice for vulnerable groups that is feared by critics.’
He observed: ‘I find it very surprising that the government conducted no serious analysis of the facts relating to the impact of the bill on these vital matters before bringing it to parliament.’
While Lord Howarth of Newport, also on the Labour bench, did not accept the government’s assertion that there was not enough evidence to quantity or examine the costs of the bill. ‘Where you have very real risks to the well-being of individuals and families as well as access to justice, every effort should be made to continue to identify the hazards and the potential costs of the policy.’
He reiterated concerns raised by the president of the Social Entitlement Tribunal, Robert Martin, regarding the ‘reliance on thematic categories of law as proxies for determining who is in need’. Howarth said: ‘Disability, discrimination, unemployment, debt, relationship breakdown and ill health chase each other around and tangle with each other. In picking on particular categories of case where legal aid will cease to be in scope, the government are attempting, unrealistically and dangerously, to unbundled the reality of people’s lives’.
Rejecting Lord Chancellor Kenneth Clarke’s view that people ‘resort to lawyers whenever they face a problem’, Howarth said: ‘People in poverty face constant, daily, interlocking problems. They do not want to have to go to tribunals or courts... They want good advice at an early stage; that is, the good advice that the government will no longer play their part in funding.’
Howarth added that savings predicted by government ‘will not happen’ because of factors such as an increase in the number of litigants in person of people in prison.
In addition, he said, other government departments would bear an increased financial burden, particularly the Department for Work and Pensions, the Department of Health and the Communities and Local Government department.
But Howarth said the main arguments against the bill are ‘social and moral’. He asked: ‘For an illusory saving of £25m, is it really worth creating the fear, injustice, poverty, suffering and hopelessness that I believe these policies will produce?’ Labour peer Lady Massey of Darwen also voiced concern about the lack of costing, but she was more concerned by the ‘potential downward spiral of misery’ that the bill would produce and the impact on people’s welfare and health.
Crossbencher Lady Howarth of Breckland, the outgoing chair of the Children and Family Court Advisory Service, said she had understood where the government had been coming from with the bill. However, she failed to understand why evidence about the effects of the cuts had not prompted a rethink. She was particularly concerned with the increase in delays in dealing with family cases that would result from the increase in number of litigants in person.
From the cross benches Lord Elystan-Morgan described it as ‘reckless’ for the government to proceed with the reforms without certitude of their success in making the savings envisaged. While he accepted that the government’s hopes to save £350m through the reforms were ‘genuine’, they were ‘misconceived’.
Barrister and Liberal Democrat Lord Carlile of Berriew accepted there is waste in legal aid and that steps can be taken to reduce it, but he said the summary of the King’s College London report on the knock-on costs of the cuts, published this week, was a ‘cause for alarm’.
He said the report, commissioned by the Law Society, had done the work that the government should have done and revealed that predicted savings may not be there at all in certain areas, particularly clinical negligence. Responding for the government, McNally said: ‘The bill is beginning to suffer from what I might call report fatigue, in that almost weekly a report comes out, usually sponsored by very interested parties, which is then quoted around the house.
‘I would be the last to deny the right of groups to commission reports and to use their findings, but it is not necessary for those to be treated as holy writ. They are studies; we receive them, read them and take notice of them,’ he said.
Labour’s Lady Farrington of Ribbleton, interjected to again ask the government to produce a report with the evidence on which its proposals had been based. She said: ‘It is no good the government dismissing or implying self-interest among those who are producing independent reports.’
McNally told her to read the government’s impact assessment. ‘Our critics cannot have it both ways. At one moment, they are banging the dispatch box and saying that the impact assessment reveals this, that and the other terrible finding, and then they say that we have not done any research.’
He said: ‘In a time of austerity there are no soft options. We have of course had cross-departmental discussions about the measures.’
But he added: ‘It is almost impossible to assess with any accuracy the various impacts on one department or another of various measures, which involve, at maximum £350m in a relatively small department.’
McNally accepted that the reforms were ‘likely to lead to an increase in the number of litigants in person', but said such litigants had always been a feature of the legal system and judges make every effort to assist them.
Responding to points made about the extra court time involved in dealing with litigants in person, he pointed out that a review of the literature suggested a mixed impact on the length of proceedings. He added: ‘It is also important to point out that [as a result of the reforms] there will be significantly increased numbers not going to court at all.’ The amendment was withdrawn without a vote.
The bill will be back before the House of Lords committee on 16 January.