Time to compromise on Legal Aid Bill?

Another week goes by and the government suffers another significant defeat in the debate on the Legal Aid, Sentencing and Punishment of Offenders Bill, known as the Legal Aid Bill. The question is will they accept the Lords' amendments or seek to circumvent them by the use of parliamentary procedure?

On Wednesday (14 March), peers backed an amendment by Baroness Grey-Thompson, a crossbench peer, against the mandatory telephone gateway. In proposing the amendment, she said: 'A telephone-only service may work for a large number of people. However, it may adversely impact the most vulnerable clients, who may struggle to explain complex problems over the phone.' She also expressed concerns that the telephone operators would not be legally trained: 'As a result, operators may not be able effectively to interpret the nuances of complex cases put to them, let alone cases put to them by clients who may be confused or have some difficulty in communicating.'

Baroness Grey-Thompson is a former Paralympic athlete who campaigns on sport, women's issues and disability. Her amendment was supported by Lord Newton, the former Conservative cabinet minister, who made the point that: ' ... it is only face to face that you can disentangle the points on which they might have a case. This is important to a lot of people who cannot really fend for themselves.' Peers supported the amendment by 234 votes to 206, a majority of 28.

LAG believes that telephone advice can play an important part in ensuring legal advice services reach the general public. What we disagree with is offering it as the only method of accessing services, which is what the government is proposing. Our opinion poll research shows that the poorest social groups, those which are most likely to qualify for legal aid, are the least likely to use telephone and internet-based services.

Earlier in the week, two important amendments were lost in votes. On Monday night, amendments to bring immigration law and debt back into scope were defeated. In LAG's view, the loss of the amendment on immigration law is especially bitter as these clients will have nowhere else to turn for advice unless they can find the money to pay, as providing advice on immigration law is tightly regulated. After losing the votes on these amendments, no other amendments against the bill were pushed to a vote that night. These included amendments on bringing housing-related benefits and unfair dismissal back into scope.

Over the last two weeks, the government has suffered seven defeats on the legal aid section of the Legal Aid Bill. The government has also made seven concessions, including allowing areas of law to be added to the legal aid scheme in future, adopting a wider definition of domestic violence and withdrawing the threat of means-testing police station advice. The Lords have now moved on to the two other sections of the bill concerning litigation funding and sentencing.

At the start of the debate on the Legal Aid Bill, it was asked whether the government would make use of the financial privilege procedure to rule out any amendments by the Lords with cost implications. Lord Strathclyde, the leader of the government in the Lords, argued that designating an amendment as being subject to financial privilege is not a decision which the government takes. While this is correct (it is a decision for the Clerks of Parliament), he failed to acknowledge that the government decides whether or not privilege is to be waived so that an amendment to a bill made in the Lords can be considered by the House of Commons.

According to the parliamentary clerks, the waiving of financial privilege by governments is a normal part of procedure: 'The Commons waives its privilege far more often than not': Financial privilege: a note by the Clerk of the House and the Clerk of Legislation. There is also a strong argument that the amendments to the Legal Aid Bill are not covered by financial privilege. According to Jeff King, senior lecturer in law at University College London, financial privilege was wrongly used in the Welfare Reform Bill and should also not apply to the Legal Aid Bill: Welfare reform and the financial privilege.

Procedural wrangling may well antagonise peers who feel that by amending the bill they have properly exercised their duties as the reviewing chamber. The Lords have the option of delaying the bill, which would effectively kill it off, as it has to be passed before the Queen's Speech due in May, unless the government is willing to reintroduce it in the next parliamentary session and use the Parliament Act to force it through. All a bit over the top, considering the government's main policy changes remain intact as the bill now stands. Peers have managed to blunt some of the sharp edges of the bill most damaging to justice without making much of a dent in the savings the Ministry of Justice needs to find. LAG would suggest this is a sensible compromise in the circumstances and the government should be pragmatic and accept it.

Government loses crucial votes in Lords on legal aid

Peers in the House of Lords inflicted a number of significant defeats on the government this week over its proposals for legal aid. They were debating the Legal Aid, Sentencing and Punishment of Offenders Bill which has reached the report stage in the Lords. Not only did the government lose the votes, but it lost the argument, as the justice minister, Lord McNally, was often the lone voice defending the bill in some very one-sided debates.

The first defeat came on Monday evening. An amendment from the crossbench peer, Lord Pannick, which gives the Justice Secretary the responsibility of ensuring access to justice within the available resources was approved by a majority of 45. An amendment from Labour’s Baroness Scotland, setting out the criteria for victims of domestic violence to qualify for legal aid, was approved by a majority of 37. A third amendment on the independence of decision-making on entitlement to legal aid was also lost by the government.

Late on Monday night Lord McNally confirmed that the government would amend the bill to allow areas of law to be brought back into scope. Lord Thomas had already told Justice for All supporters that the government was going to agree to this (see news blog for 23 February) and so this announcement had rather lost its impact. The concession does give some hope that any cuts in legal aid could be made good in the future, but it did little to placate opposition to the bill from peers as a bad week for the government got worse on Wednesday night.

For much of the debate on Wednesday, Lord McNally was again alone in defending government policy against an onslaught of criticism from peers on all sides of the House. At one point he rather lost his cool, criticising the non-political crossbench peers by implying that they were being irresponsible by voting for amendments which were against government policy. By the sedate standards of the House of Lords this is about as abusive as it gets and moved Lord Cormack, a Conservative peer, to accuse Lord McNally of 'histrionics'.

The amendment proposed by Liberal Democrat Lady Doocey, with support from Labour, Conservative and crossbench peers, was the most significant defeat for the government of the night. The amendment puts advice on welfare benefits back into scope and was passed with a majority of 39. A second amendment from Lord Newton, a Conservative and former Social Security Secretary, was also passed. Lord Newton’s amendment restores legal aid for appeals. An amendment from Lord Thomas, on complex appeals cases was withdrawn after an assurance that the government would consider this further. The government also lost by a small majority an amendment which would allow medical reports to be paid for by legal aid in medical negligence cases.

Lord McNally argued that the amendments which the Lords voted for would drive 'a coach and horses' through the bill as its main aim is to cut legal aid as a contribution to the government’s deficit reduction programme. He also hinted that the amendments would not be accepted by the House of Commons as they would jeopardise the Ministry of Justice’s budget plans.

LAG believes Lord McNally is guilty of exaggeration. In the context of the £350m saving the government is seeking from the legal aid budget, the amendments passed yesterday would cost less than five per cent of this. LAG argues the government should look at other ways of saving the cash, such as Lord Carlile’s suggestion to use the assets of people accused of a crime to fund defence costs.

The government has two problems it needs to face in the light of these and further amendments likely to be approved next week. First, it is up against a deadline as the parliamentary session is due to end in early May. Also, particularly on the domestic violence and welfare benefits provisions in the bill, there is disquiet among its own backbenchers both in the Lords and the Commons. Ten Liberal Democrat MPs voted for a Labour amendment on welfare benefits in the Commons and more would have rebelled if the government had not successfully talked out a Liberal Democrat amendment. These factors might well force the government’s hand to make further concessions on the bill to ensure it is approved.

Government ignoring public opinion on civil legal aid

A report published today (5 March) by Legal Action Group (LAG) finds that public opinion strongly supports the provision of legal services paid for by the state.

LAG’s report, Social welfare law: what the public wants from civil legal aid, details the findings of an opinion poll of 1,000 members of the public which was conducted for LAG by GfK NOP, the market research company, in January this year.

The report’s findings include:

- 82% of respondents believed that free advice on common civil legal problems should be available to everyone, or at least to those with income on or below the national average wage.

- Support for legal services paid for by the state was consistent across social classes.

- People in social class DE were the least likely to be willing to use the internet or telephone to obtain advice.

- There was rising support across all social classes for employment law advice to be paid for by the state, which we conclude is caused by people’s anxiety over their employment rights due to the economic slowdown.

LAG believes the message to the government from the results of this opinion poll is very clear. People believe it is fair for the state to pay for advice on the everyday legal problems which life can throw at them and by proposing to cut much of civil legal aid, the government is in danger of completely ignoring the views of the public.

In October 2010, GfK NOP carried out the same poll for LAG. The results in the current poll practically mirror those of the first poll. This indicates that despite the government’s arguments around the need to reduce the deficit, support from the public for legal advice services paid for by the state has remained consistent.

The Legal Aid, Sentencing and Punishment of Offenders Bill, known as the Legal Aid Bill, reaches the report stage in the House of Lords today. If it is not amended, people will lose access to advice on most civil legal problems to do with housing, employment, benefits and debt, and other areas of civil law, often referred to as social welfare law. We are calling on parliament to persuade the government to reverse its decision to withdraw civil legal aid for advice on the sorts of problems which many people are now facing due to the economic slowdown.

Copies of the report are being sent to parliamentarians and policy-makers. It makes the following recommendations:

- The proposed cuts to legal aid for housing, employment and benefits cases should be reversed (at a cost of £40m).

- Custody cases and other legal issues that directly impact on children should continue to be covered by the legal aid system, reflecting the public’s main priority of protecting children.

- Provision should be made in the bill to allow for the extension of legal aid to other areas of law. This would be in keeping with previous legislation and would give future governments the flexibility to respond to demand for services caused by developments in the law, shifts in demand and public opinion, as well as other factors.

- The government should adopt a 'polluter pays' policy, which should include other arms of the state paying for the knock-on costs to the legal aid system.

- Plans to filter cases through a telephone gateway should be dropped, as the people who qualify for legal aid are the least likely to use such services.

After the report stage, the Legal Aid Bill will move on to its third reading in the Lords. Unlike in the House of Commons, amendments to a bill at this stage are often taken in the Lords before it is sent to the Commons for final approval. LAG, Justice for All and the other campaign organisations opposed to the bill have pledged to continue fighting to persuade the government to amend it until the last possible opportunity. This opinion poll shows that the public instinctively believes that civil legal aid is essential to ensure access to justice. It's time for the government to show that it understands this as well.

Steve Hynes,
Director of LAG

Legal Aid Bill concessions

On Wednesday, the government announced two further concessions on the Legal Aid, Sentencing and Punishment of Offenders Bill, known as the Legal Aid Bill. The bill reaches the crucial report stage in the House of Lords on Monday (5 March) and LAG believes the government’s move is calculated to try and quell opposition.

Legal aid will now be granted in cases of babies damaged at birth, but LAG points out that this will still leave thousands of other victims of medical accidents without access to justice. The government’s concession is unlikely to head off peers voting for amendments which will widen the number of people qualifying to claim legal aid in medical negligence cases. Former Conservative cabinet minister, Lord Newton, for example, is supporting an amendment which would mean that all children are eligible for legal aid in medical negligence cases (amendment 31).

The government has also signalled that it will adopt the Association of Chief Police Officer’s definition of domestic violence, which LAG has been pressing for (see Legal Aid Bill domestic violence concession?). In October last year a report from the Women’s Institute, which had been commissioned by LAG, argued for this amendment. Reacting to the news, the chairperson of the National Federation of Women’s Institutes told LAG,

'Whilst this amendment is welcomed, the government is still refusing to see sense over the real needs of domestic violence victims. The fact that the government has finally decided to adhere to its own already-widely accepted definition that domestic violence encompasses physical, psychological, emotional and financial abuse is a relief, but continuing to ask victims of domestic abuse to jump through varying hoops in an attempt to secure desperately needed legal aid is hugely disappointing.'

LAG and other campaign organisations, including the Women’s Institute, are pressing the government to widen the criteria to qualify for legal aid in domestic violence cases. We are urging peers to support an amendment to the bill (amendment 43) which has been proposed by Baroness Scotland, Baroness Butler-Sloss, Lord Blair and the Lord Bishop of Leicester. This is likely to be debated on Monday in the Lords.

Advice Fund only covers half of charities in need

LAG has learnt that applications to the Advice Services Fund, which was established by the Cabinet Office to offset the impact of the cuts on advice centres in the current year, have outweighed the cash available by more than double.

A total of £16.8m was allocated for England but, according to letters sent to unsuccessful bidders which have been seen by LAG, 622 applications were received worth £35m. In a letter to those rejected, the Big Fund - which is administering the cash on behalf of the government - made it clear that charities which needed money would have to do without: 'Given the competitive nature of this programme and with a budget of £16.8million, we were unable to offer grants to all of the worthwhile applications we have received.'


The balance of the £20m fund was divided between Scotland, Wales and Northern Ireland. Applicants had to demonstrate they would receive a cut of ten per cent or more in the current financial year and applied for grants worth between £40,000-70,000. Advice agencies which had been awarded money from the Transition Fund last year were told they would not get priority for Advice Services Fund cash.

Many not for profit (NFP) advice services are being hit with cuts from local government and other funders. Any help is welcome, but the Advice Services Fund is clearly inadequate, as over £80m is due to be cut from legal aid for housing, employment, debt, benefits and other areas of civil law, usually referred to as social welfare law (SWL), from April 2013. Around 300 advice centres, such as Citizens Advice Bureaux and Law Centres, rely on legal aid income to provide specialist legal advice services in SWL. LAG is calling for the Legal Aid, Sentencing and Punishment of Offenders Bill, which is due to reach the report stage in the House of Lords next week, to be amended to bring back into scope employment, benefits, housing and other areas of civil law that the government plans to cut.


The Transition Fund distributed £105m in grants to charities and other NFP organisations between March and May 2011. Its aim was to assist them to 'adjust to the new spending environment'. The fund was open to all charitable and NFP organisations. LAG has spoken to a number of advice organisations which have lost out on Advice Services Fund grants because they had previously received Transition Fund money. They have been placed on a reserve list for a grant from the fund, but they point out that unlike the Advice Services Fund, the Transition Fund was not intended to replace cash lost from legal aid or other funding intended for providing services to the public.


A review of advice services is also being undertaken by the Cabinet Office. Advice centres across the UK are facing a crisis of shrinking grants and contracts at a time when the demand for their services is rising. The review, which was announced by Nick Hurd, Minister for Civil Society, in November last year, shows that the government at least recognises this. However, it will have to be backed up with a long term financial commitment to the advice sector if it is to have any credibility. The one-off £20m Advice Services Fund in the current financial year does not achieve this and risks appearing to be little more than a bribe to buy off opposition to the legal aid cuts and to secure a government majority for the Legal Aid Bill.

Further concession on Legal Aid Bill

It looks like a Liberal Democrat peer has inadvertently admitted to members of the Justice for All campaign that the government is going to amend the Legal Aid, Sentencing and Punishment of Offenders Bill (known as the Legal Aid Bill) to allow areas of law to be potentially brought back into scope at a later date.

LAG has been aware for some weeks now that Liberal Democrat parliamentarians have been meeting government ministers behind the scenes to try and persuade them to offer some concessions on the Legal Aid Bill. One of the points they have been pushing is for an amendment to clause 8(2) of the bill, which in its current form only allows for areas of law to be omitted from the legal aid scheme. Campaigners, including LAG and Justice for All, have been asking for this clause to be amended to include a provision to allow work to be brought back into the scope of the legal aid scheme. Non-political crossbench peers, many of which are distinguished lawyers such as Lord Pannick, have also argued for the change.

Justice for All, which is supported by LAG, urged its members to write to peers and MPs to ask the government to think again about the cuts to legal aid. It has been stressing to them how the loss of advice on welfare benefits and other areas of civil law will impact on vulnerable groups. In reply to this correspondence the prominent Liberal Democrat peer, Lord Thomas, revealed:

'You may know that Liberal Democrat pressure has already achieved a concession from the coalition government that the Lord Chancellor should have the power to place areas of legal assistance back into scope, as well as simply remove areas, as the bill stated originally. Hopefully, that power will be exercised if some of the fears expressed of denial of access to justice come to pass.'

LAG believes that the government is considering bringing forward a number of amendments for the report stage of the bill, which is due to commence on 5 March in the House of Lords. Ministers are unlikely to have wanted a planned concession like this to have been revealed before the report stage, as it would risk losing any impact in placating opposition to the bill, which so far from peers has been overwhelmingly hostile.

While the concession to allow areas of law back into scope is significant, because it gives some hope that the planned cuts can be reversed, in terms of its impact on the public it represents a hollow victory. It does not alter the fact that from April next year 650,000 people will lose out on help with common civil legal problems unless the Legal Aid Bill is amended to reverse these planned cuts.

Katie Brown, co-chairperson of Young Legal Aid Lawyers told LAG: 'We have no doubt that once the consequences of these ill thought out reforms come to light, the government will have to use this provision to bring areas of law back into scope. In the meantime there will be many people who will end up as victims of the government’s short-sighted proposals, as they are left in the lurch in the time between the bill being passed and areas being brought back into scope. As such this concession is not enough, and we will therefore continue to put pressure on peers to vote for amendments designed to secure access to justice for the most vulnerable.'

See:
the Justice for All website for a briefing on clause 8.

Foreign National Prisoners

Last night LAG launched its latest book, Foreign National Prisoners: law and practice. The law permits prisoners from foreign countries to continue being detained on completion of their sentences pending deportation. The book discusses the legal procedures which permit this, and prisoners’ rights to appeal against their detention and removal. In some circumstances the Home Secretary is permitted to detain foreign nationals pending their deportation even if they are not accused of committing a crime in this country. Abu Qatada, whose application for bail was decided on Monday, is one such case. This is a controversial area of law, as the detention of people for long periods who have either completed their sentences, or have not even been charged with an offence, is contrary to previously accepted principles of UK law.

Abu Qatada promulgates repugnant views in support of al-Qaida, but has never been charged with a crime in the UK. He has been detained for over six years, as the application for his extradition to Jordon was considered. The Jordanian authorities want him to stand trial on terrorism-related offences. Edward Fitzgerald QC, head of Doughty Street Chambers, said at the book launch last night: 'Like all great books it has come at the right moment.' Referring to the Abu Qatada case, in which he represented Qatada in his bail application this week, he added: 'It is a book being launched into stormy waters.'

Defending the rights of foreign national prisoners is not a popular cause - much of public and political opinion is hostile towards convicted criminals and people accused of crimes in foreign countries, such as Abu Qatada, being allowed to remain in this country. However, often in these cases the law has to work impartially for the sake of both justice and the greater moral good. The Qatada case hinges on whether a trial can be considered fair if it relies on evidence obtained by torture. The European Court of Human Rights has ruled that it would be illegal to deport Qatada in these circumstances. Torture is wrong and cannot be condoned by a civilised country. LAG believes this is a moral and legal principle which supersedes the deportation of a criminal suspect no matter how hateful their political opinions may be.

Speaking to LAG, the book’s main author Laura Dubinsky said: 'Foreign national former prisoners, including non-violent offenders, are often administratively detained for prolonged periods after sentence completion, sometimes notwithstanding very remote chances of deportation actually occurring.' She explained that the UK is now alone in the European Union in having no time limits on the administrative detention of immigrants; and that there are no automatically scheduled bail hearings for those held under Immigration Act powers in the UK: 'Effectively, the onus is on a detained immigrant to seek bail. All this poses grave obstacles for those unfamiliar with the justice system and who may not speak English; these difficulties are now being compounded by a lack of legal representation, as legal aid cuts are forcing the closure of many services which provided publicly funded legal assistance for migrants.'

Laura Dubinsky is a barrister at Doughty Street Chambers and practises in public law, specialising in immigration law, prison law and challenges to administrative detention. Hamish Arnott, a solicitor at the firm Bhatt Murphy and Alasdair Mackenzie, another barrister at Doughty Street Chambers specialising in this field, also contributed chapters to the book.

Link to the decision in the Abu Qatada bail application case

Foreign National Prisoners: law and practice