The Lord Chancellor has said he is considering “cost shifting or fees” as a means of ensuring that private law family cases are settled by mediation and not in court.
In wide-ranging comments, Dominic Raab also responded to strong criticism of the court reform programme, defended what he has done on criminal legal aid, and indicated plans to open up the profession.
In his annual appearance before the House of Lords constitution committee, the justice secretary said the Ministry of Justice (MoJ) would continue to invest in mediation schemes for private law family cases, but, along with the “carrot” of mediation, there needed to be a “stick” – or, he said, to use a better word, a “check” – to keep people away from court.
This would prevent “people going into mediation who double dip or have another crack, just to see if they can get something better in court”.
Mr Raab said that whether it was “cost shifting or fees”, the government needed to get right the incentive right for people to go into mediation, and the disincentive for going to court.
He said the government would “prepare legislation in due course” and he was “closely engaged” on the matter with the president of the Family Division, Sir Andrew McFarlane.
He described it as “quite a good example of the pretty substantial structural reforms” the government wanted to make.
Nobody at the session referred to the judicial review launched yesterday by the Law Society, challenging the MoJ’s decision to award criminal legal aid solicitors an 11% increase in fees following the Bellamy review, compared to 15% for barristers.
However, Mr Raab said there would be 15% increases in “most” criminal legal aid fees and the MoJ would increase spending by £138m, more than the £135m recommended by Lord Bellamy, bringing total criminal legal aid spending up to £1.2bn.
The justice secretary said this would “set the foundations of a sustainable criminal legal aid system” and it would need to settle down before any further spending.
Alongside the “massive amount” being invested in the system, “structural reforms”, such as extending advocacy rights for solicitors, would be considered in the longer term.
“Whenever we talk about anything other than money, there is always huge opposition from the profession.”
On the court reform programme, which was strongly criticised last week by the National Audit Office (NAO), the Lord Chancellor said the government “will not succumb to the Luddite view that we abandon it”.
The NAO’s fiercest criticisms were of the criminal justice system’s Common Platform, which triggered a strike at the end of last year and where the NAO found that IT problems had led to 35 criminals not being fitted with electronic tags when they should have been.
Mr Raab said there were “lots of issues” with the platform and, echoing the NAO, said it was important to “get the pace right” of the court reform programme “to bring people with us”.
The situation was “not as black and white as some people portray it”. On whether to continue the programme, he said: “I don’t think we have a choice.”
On judicial diversity, which was not fully discussed by peers due to lack of time, Mr Raab promised to continue his “love-in” with the Chartered Institute of Legal Executives and consider with it the creation of “more non-graduate routes into the profession”.