Wide Support for Amendments to the Legal Aid Bill

Today is the last day for peers to submit amendments to the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill. The LASPO Bill is due for its first day in the committee stage in the House of Lords next Tuesday (20th). There is widespread support amongst peers for changes to the Bill.

Perhaps the most surprising supporter of an amendment is Lord Tebbit, the former conservative cabinet minister and right wing political bruiser, famous for his outspoken pronouncements. In 1981, in a curious echo of contemporary events, commenting on the possible link between unemployment and the riots which had taken place that year he said, “I grew up in the '30s with an unemployed father. He didn't riot. He got on his bike and looked for work, and he kept looking 'til he found it.”

Lord Tebbit is supporting an amendment which would bring back legal aid in medical negligence cases concerning children. This is one of the sections of the Bill, which LAG and other pressure groups want to see changed. Many other provisions in the Bill identified as priorities for changing have been covered by the amendments submitted so far. For example an amendment on clause 8 of the Bill, put down by Lord Pannick, Lord Woolf and Lord Faulks, deals with the issue of giving the government powers to put areas of law back into the scope of the legal aid scheme. LAG believes this is important, as without it none of the proposed cuts could be reversed without new legislation. Previous legal aid acts have allowed for changes in what the system covers without primary legislation.

An amendment by Baroness Scotland of Ashal addresses the important issues of the definition of domestic violence and the criteria for qualifying for legal aid in such cases. Lord Bach and Lord Beecham have also put down a number of useful amendments, including one which provides for the establishment of an independent tribunal to review decisions on entitlement to legal aid. LAG believes that both in appearance and practice, decisions on whether cases should be paid for by legal aid must be subject to independent adjudication, otherwise the government will be put in the invidious position of reviewing decisions on whether to grant legal aid for cases against itself.

There is a good spread of support amongst peers from all of the political parties for the amendments. Non-political cross-benchers are particularly prominent in their support of amendments which contradict government policy. Prominent among these are heavyweight legal figures such as Dame Butler-Sloss, former President of the Family Division, who is supporting a number of amendments, one of which would reinstate entitlement to civil legal aid for people with dependent children.

A letter sent to peers this week from the government minister Lord McNally offered no concessions and reiterated arguments made in the House of Commons stage of the Bill in favour of the cuts to legal aid. In essence Lord McNally, who is in charge of trying to steer the Bill through the Lords for the government, was saying- times are hard and we have to make these cuts. LAG believes he is unlikely to be able to continue holding this line, given the breath of support for many of the amendments. Perhaps its time for him to get on his bike and look for some compromises? Otherwise, the government risks some heavy defeats on the LASPO Bill in the Lords.

Pic: Christmas card sent to members of the House of Lords from the Justice for All campaign

The value of justice

District Judge Nicholas Crichton takes exception to the recently announced £41m increase in the cost of the opening and closing ceremonies for the Olympics. It is difficult not to agree with him, however much you might be looking forward to next year’s festivities, especially when vital services such as the Family Drug and Alcohol Court (FDAC), which he leads, have a financial question mark hanging over their future.

Last night DJ Crichton, along with consultant child psychiatrist at FDAC, Dr Mike Shaw, and FDAC's service manager, Sophie Kershaw, gave LAG’s annual lecture. DJ Crichton sees FDAC as a 'problem-solving court' which gets results because of the strength of its interdisciplinary team. He does not tolerate delays and pointed out that the court is geared towards resolving issues over the custody of children quickly. Dr Mike Shaw stressed the importance of doing this as 'relatively short periods of time represent a big portion of a child’s life' and the need to establish attachment bonds between parents and children early in life.

Inspired by a trip to the US, where there are between 15-20 similar courts which try to tackle the problem of drug and alcohol addicted parents, DJ Crichton persuaded the government to establish the FDAC in January 2008. Parents are offered intensive treatment and support to assess if they can have continuing contact with, or custody of, their children. It is not a soft option. They are expected to attend court every two weeks to report on progress and are subject to regular drugs tests.

DJ Crichton spoke of the pride of some parents when they appear before him to report their success in staying off drugs. Some are not successful. At the lecture, he told the heartrending story of a mother who had received two months of treatment from FDAC, but realised that her rehabilitation would take two years. This was too long for the FDAC process, which expects to resolve issues over the care of children after nine months, and the mother agreed to give up her baby for adoption.

Research has shown that the FDAC approach works (see below) - it manages to reunite more mothers with their children; more parents get treatment to deal with their addictions; and more parents stay together after the court’s final order. 'Parents who have learnt on the way [through the FDAC support] are less likely to contest a care plan' and this also saves costs says Sophie Kershaw. She argued that the cost of a case at around £12,000-13,000 is not expensive, but all of this amount will have to be met by local authorities if the government does not renew its grants to FDAC. She fears that cashed strapped local councils might not be prepared to do this.*

Despite the success of FDAC (the service has won four major awards - see below), no renewal of grants has been agreed by the government when the current funding ends in March 2012. This prompted DJ Crichton’s remark to LAG about the increase in the cost of the Olympic ceremonies which he thinks cannot be justified given the austere times the country is facing.

LAG believes the doubt over FDAC’s continued existence is a symptom of the government’s obsession with budget cuts without regard to their wider impact. Helping parents resolve addiction problems while protecting children saves other costs to the government. Above all the work of FDAC should be valued as providing a beacon of hope for tackling social problems that no-one in the family justice system believes the law and the current courts system can adequately deal with.

*This is a change from the original blog as Sophie Kershaw contacted LAG to clarify her comment about local council support.

Visit: http://www.lag.org.uk/Templates/Internal.asp?NodeID=93969 to read the evaluation report on the work of FDAC and find out about the awards the FDAC team has received.

An abridged version of the speech will appear in the February 2012 edition of Legal Action journal.

Picture: Robert Aberman

Legal aid cuts delayed

Lord Chancellor Kenneth Clarke today put back the implementation of the legal aid cuts from October 2012 to April 2013. LAG welcomes this news. It at least delays the end of legal advice for thousands of people with common civil law problems by six months. However, we believe the pressure needs to be kept on the government to amend the Legal Aid Bill, which is currently before the House of Lords, so that the planned cuts to employment, benefits, debt, housing, immigration and other civil legal aid cases do not go ahead.

The six month delay will also apply to the abolition of the Legal Services Commission (LSC), the introduction of the mandatory telephone gateway and the revised eligibility criteria for civil legal aid. LAG believes that the deadline to implement the government’s planned changes to legal aid was always going to be hard to meet on a practical level- notice to providers of legal aid services would have had to been given immediately after the Bill had received Royal assent. Most experts including LAG had said that the time-table was too tight to implement the changes by October next year. Rumours had been circulating in recent months that the LSC was telling the Ministry of Justice this. It would seem that the government eventually decided to listen to this advice.

In another humiliating move for the government, they have also announced that they are putting plans on ice to implement competitive tendering for criminal legal aid. In November last year ministers had announced their intention to produce a consultation paper on competitive tendering for criminal work. This has now been put back to the autumn of next year. The first contracts are scheduled to begin in the summer 2015. We have a feeling of deja vu about this decision. The previous government announced plans to introduce competitive tendering for criminal legal aid only to abandon them as the last general election approached.

In LAG’s opinion this is very much a case of pain delayed for civil legal aid clients, as well as for the firms and not for profit agencies which serve them. While it is to be welcomed that the government has paused on the brink of destroying access to justice for 650,000 people; the challenge remains to make them turn back.

Pic: Ministry of Justice

Advice fund opens today

The Cabinet Office has advised LAG that the advice fund will be open for applications from 12 noon today. Applications can be made on the Big Lottery Fund website at: http://www.biglotteryfund.org.uk/prog_advice_services_fund

LAG understands that the application process should take no longer than one hour to complete. Detailed notes on how to apply and the eligibility criteria will be available on the website later today. Grants of between £40,000-70,000 will be made to frontline advice providers in England.

The previously announced criteria for the fund are that those applying:

• are from the not-for-profit sector;
• provide advice in at least one of the following areas: debt, welfare benefits, housing and employment;
• are able to evidence funding cuts of at least ten per cent for the eligible advice service areas from central and local government sources in 2011/12.

And that:

• priority will be given to organisations with high levels of cuts and those that have not received grants from the Transition Fund;
• account will also be taken of how applicants plan to use their grants, their plans for the future (including ways to improve efficiency) and how the quality of their advice services help meet local needs.

Legal Aid Bill concession?

The Daily Mirror ran a story yesterday (24 November) saying that Secretary of State for Justice Kenneth Clarke had decided to allow legal aid in clinical negligence cases. LAG checked with the Ministry of Justice (MoJ) and it confirmed that no statement on this has been made by the department and that the 'measures in the bill still stand'. LAG understands that the Mirror story is based on a source at the MoJ. Maybe a minister or an official has spoken out of turn?

It does seem likely to LAG that a concession on clinical negligence and legal aid will be made at some point. Even before the bill was finalised there had been talk of an exception being made for clinical negligence cases. When Labour introduced the Access to Justice Act (AJA) 1999, the then Lord Chancellor, Derry Irvine, looked at doing away with legal aid for clinical negligence cases, but decided that this would lead to the more difficult cases not being pursued, as lawyers would not want to act for claimants in such cases on conditional fee agreements. LAG believes that Derry Irvine was right.

Since the AJA came into force over ten years ago, it has been the more difficult cases that have stayed in the legal aid scheme. This has worked in the interests of justice and the public. Legal aid funding is the only way in which many victims of medical accidents or negligence can obtain justice. At the very least the government ought to look at legal aid funding for investigation and gathering of medical evidence in clinical negligence cases. Much of the cost of such work could be recouped by the legal aid fund in successful cases. It would also ensure that large drug corporations and medical professionals who have been negligent are held to account. It is in the public interest that this happens, so mistakes are not repeated.

It is in no doubt that the government took a pasting in the House of Lords' debate on Monday this week. Lord McNally, the MoJ minister, looked rather hapless as he took a barrage of criticism from all sides over the government’s legal aid proposals. To get the Legal Aid Bill through, the government is up against a tight deadline. The parliamentary session ends in April 2012 so the House of Lords does have the option of trying to talk the bill out if it wishes to. This makes it more likely that concessions will be made in the committee stage in the House of Lords which is due to start sometime next month.

The government will not be pleased that news of the concession on clinical negligence has leaked out. LAG suspects that it would have wanted to time the announcement for later in the process, in order to maximise its impact to shore up support for the rest of the bill among its own backbenchers. It is now stuck with a difficult dilemma - of either sticking to the line that the bill is not going to be changed, and looking foolish when it does so, or admitting there was a leak and announcing the concession. The problem then is that attention shifts to who leaked the information?

Image: LAG

Details of advice fund announced

LAG has been advised by the Cabinet Office that the £20m fund to assist not for profit (NFP) agencies hit by spending cuts will be officially launched today (Monday 21 November).

The fund will be aimed at frontline NFP advice providers in England, which give advice on one or more of the following areas of law - debt, welfare benefits, housing and employment. To qualify for a grant of between £40,000-70,000, organisations must have suffered a ten per cent cut in funding for advice services from either central or local government in the current year (2011/12). According to the Cabinet Office, priority will be given to those organisations with a high level of cuts which have not received cash from the Transition Fund. A review of NFP advice services has also been announced.

'This is a serious commitment to help free advice services carry on delivering much needed help to people struggling with debt, welfare benefits, employment and housing problems in these difficult economic times. The Cabinet Office will also be carrying out a review of free advice services to ensure that we do all we can to help the sector,' said Nick Hurd, Minister for Civil Society.

England will receive £16.8m of the £20m fund, with the balance being split between the devolved administrations in Scotland, Wales and Northern Ireland. The fund will be administered by the Big Lottery Fund and details of how to apply to the fund will be posted on its website by the end of November.

LAG welcomes this announcement. NFP organisations have been hard hit by cuts in legal aid and other funding. We have also argued that the government needs to consider developing a strategy to better fund and co-ordinate the provision of NFP services. LAG hopes this review will be the starting point for this. However, we would warn that if no cash is made available on an ongoing basis, the fund announced today will be seen as providing nothing more than a transition from the frying pan into the fire for advice services facing big cuts in legal aid funding next year.

Both NFP and private practice legal aid providers were hit by a ten per cent reduction in fees last month (October). Next year the government plans to remove employment, debt and welfare benefits law completely from the legal aid scheme, as well as large parts of housing and immigration law. In total, £80.5m funding for this work will be lost if the Legal Aid, Sentencing and Punishment of Offenders Bill, which is receiving its second reading in the House of Lords today, is approved without amendment. LAG estimates that around £50m of this money is currently paid to NFP organisations and the government plans to cut this from October next year.

Particularly in these difficult economic times, LAG believes the government is wrong to abandon members of the public who need advice with what are everyday legal problems. We are urging the House of Lords to amend the bill and the government to rethink its plans.

Constitution Committee critical of Legal Aid Bill

An influential committee in the House of Lords has highlighted three sections of the Legal Aid, Sentencing and Punishment of Offenders Bill ('the Legal Aid Bill') which it believes should be redrafted.

The House of Lords Constitution Committee reviews bills being considered by the Lords 'to examine the constitutional implications' of public bills. As the UK does not have a written constitution this is an important role as otherwise changes to the law could be made in breach of constitutional principles which have evolved over time through the common law, statute or convention.

The committee states: 'There is no doubt that access to justice is a constitutional principle' and suggests the bill should be amended to give the Lord Chancellor a duty to 'secure that legal aid is made available in order to ensure effective access to justice'. LAG believes that this would have important implications as much would hinge on the courts' interpretation of the word 'effective' if the bill was amended in this way.

LAG is also pleased that the Constitution Committee has addressed our concern over the independence of decision-making and the Director of Legal Aid Casework role which is proposed in the bill. It suggests that the House of Lords will need to consider if the post is sufficiently independent from government and if an appeals system 'must' be established for decisions on entitlement to legal aid.

The committee questions if clause 12 of the bill conflicts with the right, contained in the Police and Criminal Evidence Act 1984, to advice for a person held in custody at a police station. The committee suggests that clause 12 should be amended so that the right to advice in the police station cannot be undermined in practice.

In the House of Commons, LAG, the Law Society and other organisations suggested amendments which dealt with these issues, but they were rejected by the bill committee with its inbuilt government majority. LAG believes that the Constitution Committee’s report will add considerable credibility to the argument that the Legal Aid Bill needs to be amended by the Lords to deal with the role of the Lord Chancellor in ensuring effective access to justice; independence in decision-making on entitlement to legal aid; and the right to free legal advice for suspects detained in a police station.

A copy of the Constitution Committee’s report is available at:

http://www.publications.parliament.uk/pa/ld201012/ldselect/ldconst/222/22202.htm.

Legal Aid Bill second reading

To coincide with the second reading of the Legal Aid, Sentencing and Punishment of Offenders Bill ('the Legal Aid Bill') in the House of Lords on Monday 21 November LAG is publishing revised figures on the impact of the cuts.

The government has updated the impact assessments which had accompanied the original consultation paper published in November 2010: Proposals for the reform of legal aid in England and Wales (Ministry of Justice (MoJ)). LAG had criticised the impact assessments as they were based on figures for cases which were a year out of date and also counted completed cases when estimating the number of cases which would be cut, rather than taking the figure for cases opened (see: The real impact of legal aid advice cuts).

Using up to date figures the government now estimates that around 600,000 people will lose out on help with everyday civil legal problems (its original estimate was just over 500,000): Proposals for the reform of legal aid in England and Wales - consultation response. Impact assessment Annex A: scope (MoJ, June 2011). LAG still argues that the correct amount should be 650,000 as the count should be based on the cases opened in the year as opposed to those closed, but at least the government has corrected its error in the original research.

A total of £280m in funding will be cut from civil legal aid: £130m from Legal Help (advice only) and £150m from legal representation. In the government’s original impact assessment around £64m was to be cut from social welfare law (SWL) legal advice. The total estimate of the cuts for SWL advice has now increased to £80.5m (see Revised figures for cuts in social welfare law for the full breakdown).

An extra £16m is now going to be cut from non-family Legal Help than was originally estimated. This is money spent on advice only in cases. £15m more is being spent on legal representation (£8m on family and £7m on other categories of civil law).

LAG has also updated its figures on the costs to other arms of government of the cuts in legal aid for SWL cases. In total, £60m in expenditure on legal aid advice in SWL saves the state £338.65m in expenditure on other services. Put another way, £1 expenditure on civil legal aid saves the state around £6 in other spending.

Currently, there are around 2,000 firms undertaking civil legal aid work mainly in family law and just under 300 not for profit organisations with legal aid contracts almost entirely in SWL (Annual report and accounts 2010-11, Legal Services Commission, p7). About half of the civil legal aid firms will cease to undertake legal aid work if the Legal Aid Bill becomes law with no major amendments. Much of the work which the not for profit organisations undertake, apart from housing cases in which repossession is threatened, is to be cut. LAG believes that over 80 per cent of the not for profit providers might be forced to leave the legal aid system.

It is the public which will be the biggest loser if these cuts go ahead. We hope the House of Lords uses its power to make the government think again about the worse aspects of this bill.


Image: LAG

New report on impact of legal aid cuts on disabled people

LAG commissioned the disability charity Scope to research the impact of the proposed cuts in legal aid on benefits advice for disabled people. The report, Legal aid in welfare: the tool we can’t afford to lose, which is published today, demonstrates the serious consequences of the government’s proposals on disabled people and argues that taking benefits advice out of scope will undermine the government’s welfare reform programme.

In the report, Scope followed five typical claimants with disabilities as they negotiated red tape and bureaucracy to claim benefits, with and without legal aid. The final report, which is to be launched at an event in the House of Lords this afternoon, makes the following key points:

• Various reports in recent years show that the government has to make a quantum leap in order to improve the quality of decision-making in benefits cases.



• The government inaccurately portrays the benefits appeals system as easy to navigate.
  


• Removing benefits advice from the scope of legal aid at a time when major reforms are being implemented will have a 'knock-on impact on a tribunal system already stretched beyond breaking point'.



• The removal of legal aid 'will delay or even deny justice for many disabled people, and undermine the government’s ambitions to have a fairer benefit system that incentivises work'.

In his introduction to the report Richard Hawkes, chief executive of Scope, says that for the government’s welfare reforms to succeed and to make sure disabled people get the right support, legal aid for welfare benefits appeals is vital. The report highlights the government’s inconsistency in seemingly making the judgment that benefits are not sufficiently complex to merit legal aid while Iain Duncan Smith MP, the Secretary of State for Work and Pensions, is justifying his planned reforms by arguing for the need to 'cut a swath through the massive complexity of the existing benefit system'.

According to the Department for Work and Pensions (DWP), the introduction of universal credit is intended to lift 250,000 households with a disabled person out of poverty, but the report argues that many of these people will miss out due to a lack of awareness over what they are entitled to. Also, the move to transfer more people on to employment and support allowance (ESA) from the fit to work group is undermined by the DWP's tendency to get these decisions wrong: out of 122,500 appeals heard between October 2008 and February 2010 from people turned down for ESA, 48,000 were successful.

In LAG’s view a major goal of all government departments should be to try and get the vast majority of their decisions right first time. Withdrawing legal aid at a time of massive change in the benefits system will exclude many disabled people from claiming what they are entitled to. This report makes the case eloquently, through the experience of disabled people, as to why the government needs to think again. LAG and the other organisations supporting the Justice for All campaign will be working to persuade the House of Lords to amend the Legal Aid, Sentencing and Punishment of Offenders Bill to bring advice in welfare benefits appeals back into scope.

A copy of the report is available on LAG's website at: http://www.lag.org.uk/Templates/Internal.asp?NodeID=88856

Legal Aid Bill mini rebellion

Stephen Lloyd, one of the Liberal Democrat MPs who voted against the government this week on the Legal Aid Bill

It was very much a case of one cheer only this week for the mini rebellion which was staged by Liberal Democrat backbenchers against the Legal Aid, Sentencing and Punishment of Offenders Bill (the 'Legal Aid Bill'). However, the fact that amendments hostile to provisions in the bill were tabled by government backbenchers is to be applauded and gives some hope that the bill will be amended in the House of Lords.

Helen Grant, the Conservative MP for Maidstone and The Weald, was most critical of the government’s proposals on domestic violence, arguing that the definition of domestic abuse needed to be more precise and expressing concern about the proposed 12-month time limit on the qualifying criteria to claim legal aid linked to domestic abuse. She also raised concerns about the exclusion of undertakings as a criterion to qualify for legal aid: 'An undertaking is a legally binding document … it is specific and clear, and eminently acceptable in my opinion to be part of the criteria.'

Unfortunately, it must be assumed that Grant was got at by her party whips as she did not vote for the amendments which would have improved the provisions in the bill on domestic violence cases. She was absent from the chamber when the votes were taken, so at least this could be taken as a sign that she could not bring herself to go through the government lobby. LAG believes her comments and those of others in the debate on the controversial domestic violence provisions are sure to be highlighted to peers when they come to consider the bill.

A few Liberal Democrat MPs can be added to the, albeit small at the moment, honours board which LAG is establishing for members of the governing parties who wrestle with their consciences over the Legal Aid Bill and end up losing. Ten made the board for rebelling against the government over an amendment on complex benefits cases: Tom Brake, Mike Crockart, Andrew George, Mike Hancock, Martin Horwood, Simon Hughes, Stephen Lloyd, Greg Mulholland, Ian Swales, and David Ward. Three also voted against the government on domestic violence amendments.

The amendment on complex benefit cases was proposed by Yvonne Fovargue, the Labour MP for Makerfield. In her speech she said: 'It is well known that many problems in social welfare law are interconnected and that clients invariably approach agencies with clusters of problems, which is why the social welfare law cluster of housing, benefits, debt and employment was introduced in the first place.' In her constituency she argued that the number of specialists dealing with social welfare law cases would drop from ten to only two if the changes to legal aid were approved by parliament.

In the debate on the amendment, Tom Brake argued that the proposal on complex cases was suggested by Citizens Advice which 'has calculated the cost impact of its proposal. It says that the current welfare benefits advice spend is £25 million on just under 140,000 cases, and that restricting it to complex welfare benefit cases covering only reviews and appeals, which applies to two-thirds of the current welfare benefit cases, would cost £16.5 million and help around 100,000 people'.

As with the amendments on domestic violence, LAG anticipates that amendments on social welfare law are likely to be hotly debated when the Legal Aid Bill reaches the House of Lords. LAG’s director, Steve Hynes, spoke at a cross-party seminar on social welfare law in the House of Lords on Monday this week. The event was well attended by peers concerned about the Legal Aid Bill. December’s edition of Legal Action magazine will carry a full report on the event along with a feature article on the research which LAG is publishing to coincide with the Legal Aid Bill.

Picture: LAG

Legal aid and domestic violence

LAG has been working with the Women’s Institute (WI), Rights of Women (ROW) and other organisations to try and influence the government into rethinking its proposals on restricting legal aid to women and other victims of domestic violence. We are urging MPs to support an amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill (the Legal Aid Bill) which has been drafted by LAG and other campaign groups (the full text of the amendment is reproduced on LAG’s website: www.lag.org.uk/policy).

The WI will be publishing a report next week, which was commissioned by LAG, on the impact of the government’s proposals on legal aid in domestic violence cases. The report draws on academic research and the experience of women who have suffered domestic violence. In a key passage it states that the proposed criteria to qualify for legal aid '… fail to reflect the reality of women’s lives; and in practice will leave vulnerable women without access to legal aid'.

In the government’s response to the consultation on legal aid reform, it outlines criteria intended to act as a gateway to qualifying for legal aid in domestic violence cases. The criteria include obtaining a conviction against the perpetrator but, as the WI report points out, very few women who are victims of violence are able to do this. A woman who left an abusive partner to live in a refuge told the WI: 'I was with him for eight years, the police had been called so many times, I’d been in and out of hospital because of him, I always dropped charges, I was petrified to take it further.'

Many women who spoke to the WI researchers were concerned that they would not be able to gather the necessary evidence to prove domestic violence in order to qualify for legal aid: 'He was a psychopath and I was in intensive care for three weeks and he threatens you doesn’t he, that the children will be taken away, so you stay because you’re frightened to lose the children, so you stay for that purpose, you get brainwashed. The thing about this is they also rape you, they drag you about, they tie you up, but you may not have the scars, but it’s there.'

One of the proposed criteria is that the conditions to qualify for legal aid in cases of domestic violence have to have been met in the last 12 months. Many women told the WI they were not able to pursue legal proceedings within this time limit: 'My husband raped me two years ago and I fled two days later with my children and I immediately went into refuge, survival mode. I needed a home; I needed to sort out money. I couldn’t have been producing evidence in 12 months, I mean it’s taken me two years effectively to leave my home and then be in a situation where I am now, where I have a new house, you know, furniture, sorted out my garden, the children’s schools and everything. It’s been two years, not 12 months.'

In LAG’s view, the WI report provides compelling evidence of the government's need to rethink the criteria to qualify for legal aid. The government has got its priorities wrong. Protection of all victims of domestic violence is what it should be focused on and the amendment drafted by LAG, the WI, ROW and other campaign groups will create fair criteria in the Legal Aid Bill to ensure that this happens.

Read the WI report at: www.lag.org.uk/policy.

House of Lords motion to stop legal aid cuts

Lord Bach, the former legal aid minister, is taking advantage of a rarely used parliamentary procedure to get a debate on the statutory instrument which will introduce the ten per cent pay cut for all legal aid practitioners this month. The motion will be debated in the House of Lords on 26 October.

'Community legal aid lawyers do a fantastic job for little reward. This crude ten per cent cut will threaten the future of many charities and firms which provide services to their local communities. We have evidence this is already happening,' said Lord Bach.

In July this year the large west London-based legal advice charity, Law For All, shut down. The charity had branches in the London boroughs of Hounslow, Kingston and Ealing, as well as in East Anglia and the Midlands, but got into financial problems after the succession of changes to legal aid in recent years. The charity’s board of trustees cited the ten per cent cut as one of the reasons why they decided to put the organisation into liquidation.

The Law Centres Federation (LCF), the national voice of the network of 56 specialist legal advice centres, has warned that 18 of its members are at risk of closing due to the legal aid cuts. According to LCF, 60 per cent of Law Centres' income comes from legal aid and much of this will be lost if the government’s plans for civil legal aid, including the ten per cent cut, are implemented.

Lord Bach will be leading Labour’s opposition to the bill in the House of Lords: 'Many people, including vulnerable groups, rely on these charities and legal aid firms for advice to do with housing, employment, benefits, debt and other civil legal problems. Without them people facing everyday legal problems will be denied access to justice.'

The ten per cent cut on all legal aid fees was first announced by the government in November last year as part of its consultation into proposals which will lead to a £350m cut in the £2.1bn legal aid budget. Nearly £300m of the expected cuts are being made from civil legal aid. Members of the public will lose the right to get help with divorce, employment, benefits, debt and other common legal problems. According to the government’s own estimates, over half a million people will lose out on help with civil legal problems.

The full text of Lord Bach's motion is:

'Lord Bach to move that a Humble Address be presented to Her Majesty praying that the Community Legal Service (Funding) (Amendment No 2) Order 2011 (SI 2011/2066), laid before the House on 24 August, be annulled, on the grounds that the reduction in civil standard and graduated fees for Legal Help and Help at Court will seriously undermine access to justice because it threatens the financial viability of already hard-pressed community legal practitioners who carry out an essential service to those least able to afford it, including the most vulnerable in our society.'

Image: LAG

Legal aid boss fears political bias in decisions

Chairman of the Legal Services Commission (LSC), Sir Bill Callaghan, has warned of the potential for political interference from ministers in decisions on whether to grant legal aid in controversial cases.

Speaking at the Legal Aid Practitioners Group conference in Birmingham on Friday (7 October) he said that one of the disadvantages of the plan for the Ministry of Justice to take direct control of the administration of legal aid would be the lack of independence in the decisions on whether or not to grant legal aid to groups such as 'Travellers and terrorists' who can be politically controversial: 'It is very important there is some protection from political interference in decisions on granting legal aid.'

Questioned by LAG on what he believed would be the right way to do this, he replied that the LSC has advised ministers that an 'independent tribunal to appeal decisions on granting legal aid would be the best system'. He expressed concern that the Legal Aid, Sentencing and Punishment of Offenders Bill, currently before parliament, did not have any provisions to protect the civil servants who would be making decisions on entitlement to legal aid from political interference from ministers. Implying there had been problems in the past he told the meeting of around 200 legal aid lawyers that as chairman of the LSC, 'I've seen ministers with arms of very different lengths when it comes to decision-making on entitlement to legal aid.'

Sir Bill argued that the special review system which currently looks at decisions in complex cases using independent experts could be examined as a possible alternative to the tribunal system which he suggests. He said that he would be looking carefully at the legislation to ensure that there was an element of independence in the decision-making process to stop interference from ministers.

LAG has spoken to other senior sources at the LSC who share Sir Bill's fears about ministers exercising improper influence in cases. Interestingly they have no concerns about their current political master, Kenneth Clarke, doing so, but say that there were incidents under the previous Labour administration in which ministers might have done so. Sir Bill is the first official from the LSC to go on the record to voice his fears. His comments will be embarrassing to the government which has so far rejected calls to amend the bill to include an independent tribunal system to hear appeals against a refusal to grant legal aid.

In the case of Evans, which was widely reported earlier this year, evidence emerged of Lord Bach, the then legal aid minister, being lobbied in secret by the Defence Secretary Bob Ainsworth to prevent legal aid being granted in such cases. The rules were subsequently changed to prevent third parties from claiming legal aid to bring human rights challenges in similar cases.

In LAG's view, whether officials believe an individual secretary of state might or might not decide to try and prevent legal aid in a politically sensitive or otherwise controversial case is not the point. LAG believes Sir Bill is right - an independent tribunal system to appeal decisions on entitlement to legal aid will be essential if the government goes ahead with its plan to take direct control of the administration of legal aid. What matters is that both in practice and appearance there is no suggestion of political interference in granting legal aid as the credibility of the justice system is at stake.

Image: Legal Services Commission

Legal aid and the missing minister

Justice for All (JfA) was at the Conservative party conference this week, bringing to an end its tour of the three main party political conferences. As with the other two conferences, JfA talked to MPs and delegates attending the conference in Manchester and held a joint fringe meeting with the Law Society. This took place yesterday afternoon. Unlike the Liberal Democrat conference at which Lord McNally defended the government, no minister attended the fringe meeting at the Conservative conference. Perhaps the minister with responsibility for legal aid, Jonathan Djanogly, did not fancy venturing out from behind the security barriers to face campaigners? Instead the Conservative backbench MP, Ben Gummer, was present to give his thoughts on government policy. He gave a nuanced performance which offered some hope to the not for profit sector especially, but reiterated the government's case for the cuts due to the overall budget constraints.

Jonathan Djanogly did appear at a fringe meeting in the secure zone on Monday (the night before the JfA meeting) to defend the government's proposals on civil damages claims which are included in the Legal Aid, Sentencing and Punishment of Offenders Bill. He argued that these would return the law to the position it was in prior to Labour's Access to Justice Act 1999. In a question, LAG pointed out to the minister that the Lord Justice Jackson report, which the proposals are based on, stated that legal aid should not be reduced further if the report's recommendations were to be implemented and that clinical negligence especially should not be removed from scope. In response Jonathan Djanogly said that such cases could be picked up by no win, no fee agreements which he stressed would continue under the new legislation and that plaintiffs would 'have to look harder at their chances of success before bringing a claim'. He said he believed that a third of such cases would fall under the new exceptional cases rule which would be introduced by the bill.

It was disappointing that Jonathan Djanogly refused the invitation to attend the JfA and Law Society fringe meeting. He appears to be more engaged with the parts of the bill which deal with reforming damages claims or 'ending the compensation culture' as he sees it than the reductions in legal aid which will lead to over 500,000 people losing entitlement to help with their civil legal cases. His boss, Kenneth Clarke, made only one reference to legal aid in his speech to the conference, referring to the need to cut out 'excessive spending on legal aid'.

In his speech to the fringe meeting, Ben Gummer continued with the theme of the necessity of cutting spending and to 'make savings in this parliament'. He said that even with the proposed reductions the legal aid system would remain 'more generous than most European countries'. Ben Gummer, who is a member of the House of Commons committee scrutinising the bill, offered some hints that amendments might be considered on the detail of the bill. He was pressed by Lucy Scott- Moncrieff from the Law Society and LAG on the clauses in the bill dealing with victims of domestic violence. He said he was aware of the argument to adopt the Association of Chief Police Officers' definition of domestic violence and added that 'the debate on this would have to be held in the House'. On the criteria for claiming legal aid in domestic violence cases he said this was 'an evolving area and I hope we will see a more settled position on this in the next few months'. When pressed by Paul Waugh, who was chairing the meeting, about what amendments the government was bringing forward, he said 'he was not in a position to be indiscreet about these' as he was not party to the government's thinking on this, but said that he hoped that 'especially the advice sector would be pleased by some of these changes'.

LAG believes that now the conference season is over, attention will shift once again to parliament and pressing for the bill to be amended either at the report stage in the House of Commons or in the House of Lords. Ben Gummer's comments at the fringe meeting yesterday also seem to indicate that MPs on the government benches want ministers to make good on their promises to assist the not for profit sector to deal with the planned cuts in legal aid. Gummer made several references to the £21m fund which has been promised to the sector, but as LAG pointed out to him in the meeting this will be of little use if it is only a one-off grant in the current year as the cuts in legal aid will hit the sector next year.

Image by LAG shows Ben Gummer at the JfA and Law Society fringe meeting yesterday

Justice for All at the Labour party conference

Supporters of Justice for All (JfA) have been meeting MPs, lords and delegates at the Labour party conference this week, to build support for the campaign against the legal aid cuts. At a crowded fringe meeting yesterday, organised by the Law Society and JfA, shadow ministers Andy Slaughter and Lord Bach condemned the government's plans for legal aid and promised to continue the support for amendments to the Legal Aid, Sentencing and Punishment of Offenders Bill.

LAG's director Steve Hynes spoke on behalf of JfA at the meeting. He stressed the need to 'pick our battles', singling out clinical negligence, the definition of domestic violence, social welfare law and the independence of the decision-making process as areas which should be fought hard at the report stage of the bill in the House of Commons and House of Lords. 'The network of firms and not for profit organisations across the country will be devastated if the bill is passed without amendment, leaving the public with nowhere to go to get advice locally.'

Lucy Scott-Moncrieff, vice president of the Law Society, began by emphasising the principle of the rule of law, which she said these reforms put at risk, undermining the central tenet that no-one is above or outside the law, and that rights must be enforceable to be valid. She defended the role of lawyers in the system, saying litigation should always be a last resort but that consulting a lawyer can be a very good first step. And she picked up particularly on the effect these reforms would have on children and on women who are victims of domestic violence, on those bringing cases under conditional fee arrangements (who would have to pay their legal costs out of the winnings under the reforms), and the dangers of making areas of advice such as community care only accessible via the telephone.

Lord Bach, the former legal aid minister who will lead Labour's opposition to the bill in the House of Lords, pledged: 'We will try to at least mitigate the worst effects of the bill' by supporting amendments in the Lords. Lord Bach condemned the proposals as 'practical and financial madness', which will cost more and leave people queuing at their MP's surgery with nowhere else to turn. He defended Labour's record on maintaining legal aid for social welfare law, and expressed his disappointment with the Liberal Democrats who he said 'have a proud record of supporting legal aid, sometimes holding us - correctly - to account as we changed the system in government' but who are now voting through the bill.

Andy Slaughter MP, the shadow legal aid minister, said the proposals were 'the most sustained attack on access to justice since legal aid began', and suggested the government's motivation was ideological as well as financial. He promised Labour's continued opposition to the measures, particularly around the cuts to social welfare law, and in answer to a question he promised that Labour would not be cutting social welfare law were they in power. He also drew particular attention to the proposed definition of domestic violence, citing a Liverpool law firm which estimates that only five of their current 278 clients who are victims of domestic violence would be eligible for legal aid under the new definition.

The feedback which JfA has had this week from members of the House of Lords has been positive over the chances of amending the bill. They believe that support from cross-benchers, who are politically independent, as well as Conservative and Liberal Democrat members of the House of Lords who are concerned about provisions in the bill, will be crucial in winning concessions from the government.

JfA will be attending the Conservative party conference next to meet politicians and delegates to build support for the campaign. A fringe meeting will be held next Tuesday afternoon (4 October) at 12.30 pm at the Radisson Edwardian Hotel, 38-40 Peter Street, Manchester.

Picture: LAG

Liberal Democrat 'disquiet' over legal aid cuts

Justice for All (JfA), the campaign against legal aid and other cuts in legal advice services, held a fringe meeting this morning at the Liberal Democrat party conference.

In a strong speech, James Sandbach, from JfA, told the meeting that the areas of law the government is preparing to take out of the scope of the legal aid system affected the 'most vulnerable in society' and that the proposals amounted to a '66 per cent cut to civil legal aid'. Sandbach said, 'It is disappointing that the government has targeted social welfare law cases as this is the gritty law that affects ordinary people’s lives'.

The government intends to cut all help with benefits, employment and debt cases, as well as severely limiting advice on housing and other civil law cases. On Saturday morning the conference approved a resolution critical of the government’s plans for the reform of welfare benefits. The resolution, which was drafted by Sandbach, argued that claimants going to appeal should be 'given access to adequate support and legal representation'. At the fringe meeting this morning the justice minister Lord McNally dismissed this saying it was a 'Saturday morning resolution, which cannot mean that parliamentarians have to follow it', although he conceded he had to take account of his party’s views on the issue.

Lord McNally, speaking about the Legal Aid, Sentencing and Punishment of Offenders Bill, which is due to receive its first reading in the House of Lords in October or November, said that while it was 'worth campaigning on the bill' he could not promise any major concessions, as he 'did not want to offer false hope'. However, he conceded that he is open to 'advice and informed briefings' and would take concerns back to his boss Kenneth Clarke, the Secretary of State for Justice.

Alan Beith, a Liberal Democrat MP and the chairperson of the justice select committee, spoke more freely, reiterating the committee’s criticisms of the government’s plans, particularly around the cuts to social welfare law. He said he believed that the £20m Cabinet Office fund announced earlier in the year for the not for profit sector could only be a temporary measure.

The fringe meeting was hosted jointly by JfA and the Law Society. Nick Fluck, deputy vice-president of the Law Society, was critical of the government for talking about 'legal spend, rather than ensuring justice'. He spoke of the need for the government to improve the efficiency of the courts, to introduce 'polluter pays policies' to recover the cost of legal aid and the need for better decision making in government departments to offset the demand for legal aid. Referring to the proposals to reform the funding of damages cases included in the Legal Aid Bill, he said that 'insurers were very pleased about the proposals'. He argued that while they will reduce risk for insurance companies he was doubtful whether any savings will be passed on to the public.

'Despite the minister’s comments it is clear that there is much disquiet among many Liberal Democrats about the impact of the proposed legal aid cuts. Justice for All will hope to build on this to gather support for the bill to be amended once it reaches the Lords,' said James Sandbach speaking to LAG immediately after the fringe meeting.

Legal Action Group sits on the JfA campaign steering group.

Pic: Justice for All

Downs and out!

It emerged last week that Carolyn Downs, the chief executive of the Legal Services Commission (LSC), is leaving to join the Local Government Association (LGA) as its chief executive. It seems curious to LAG that the world has learnt of her departure not from the LSC or the Ministry of Justice (MoJ), but from her new employer which announced her appointment in a press release. Her departure is also rotten timing given the uncertainty over the LSC’s future and the reasons for the departure of her predecessor.

The chief executive’s job at the LSC has proved to be something of a poisoned chalice in recent years. Carolyn Downs stepped into the role as a stop gap when her predecessor, Carolyn Regan, quit after three and half years at the LSC in March last year. At the time LAG said that we believed that CarolynRegan had been made the scapegoat for long-standing financial management and other problems at the LSC. Prior to Carolyn Regan’s departure the commission had been without a permanent boss for over a year. This was due to the then chief executive, Clare Dodgson, being on long term sick leave. Clare Dodgson had joined the LSC in June 2003, replacing Steve Orchard who’d held the top position at the LSC, and its predecessor the Legal Aid Board, for 14 years. In May 2005 Clare Dodgson suffered a serious back injury while at home, after which she did not return to work and this led to her eventually having to agree to resign in June the following year.

The publication of the Magee review on the future of the LSC was the catalyst for Carolyn Regan’s departure. In his report Sir Ian Magee was critical of the duplication of policy functions between the LSC and the MoJ and recommended that the commission be taken under the direct control of the government, (this change of status to an executive agency is included in the Legal Aid, Sentencing and Punishment of Offenders Bill). More importantly Sir Ian’s report found serious weaknesses in the financial management at the LSC, which were also reflected in critical National Audit Office reports.

In a surprise move the week Magee’s report was published, Carolyn Regan’s resignation and the appointment of Carolyn Downs on an “interim basis” were announced by the chair of the LSC, Sir Bill Callaghan. Carolyn Downs moved from her position as Deputy Permanent Secretary at the MoJ to take up the post at the LSC. The Board of Commissioners at the LSC had to agree to her appointment with the MoJ. LAG assumes that any temporary or permanent replacement will have to be agreed by both parties again.

In the short time she has been at the LSC, Carolyn Downs has enjoyed a good relationship with providers, despite continuing disagreements with them. Her move to the LGA fits with her background as she was the chief executive of Shropshire County Council for six years. However, given that the commission has yet to make the transition to executive agency status, LAG asks would it not have been better for the MoJ to persuade her to stay on to oversee this or maybe she believed that it was better to get out while the going was good?

Now Downs is out, what about her successor? The ideal candidate would need to be both a brilliant administrator and diplomat. The diplomatic aspects of the job are the most important and to this end building a good relationship with the suppliers of legal aid is a given. LAG would argue that this is superseded by the need for a chief executive who would fight for legal aid in the corridors of power. This means standing up to ministers to tell them when they have got it wrong. To do this successfully, the head of legal aid will have to tread a fine line between diplomatic persuasion and career suicide- not an easy task.

Steve Hynes

The true cost of the legal aid cuts?

Each government department tends to work on its own budgets in isolation. This can be a problem, especially when cuts are being considered. The order has been handed down from the Treasury to make cash savings and officials in the Ministry of Justice (MoJ) are scrambling around to find these, with little regard to their knock-on impact.

Citizens Advice argues that the state has to pick up the cost of homelessness, poor health and the other consequences of people not receiving advice on civil justice problems. It has published research to back this up which shows the savings other government departments make when people get early advice. LAG has taken the figures which Citizens Advice produced and combined these with the government’s proposed cuts in legal aid for housing, benefits, debt and employment, to arrive at figures which give the true cost of the legal aid cuts (see below).

Our research shows that £49m of expenditure on legal advice saves the government £286.2 million in other expenditure. In other words - £1 of spending on civil legal help saves the government around £5 in other public expenditure.

Category of Law	Reduction in legal aid (08/09 figures)[i]	Savings per £1 spent on legal aid [ii]	Total savings to the state from expenditure on legal aid
Housing	£7m	£2.34	£16.4m
Welfare benefits	£22m	£8.8	£193.6m
Debt	£16m	£2.98	£47.7m
Employment	£4m	£7.13	£28.5m
	£49m		£286.2m

Earlier this year the House of Commons Justice Committee stressed in its report on the proposals for legal aid that it was surprised that the government was introducing changes to civil legal aid for cases such as these, 'without assessing their likely impact on spending from the public purse'. The Committee, which is chaired by the well regarded Liberal Democrat MP, Alan Beith, suggested the government needs to take this into account 'before taking a final decision on implementation'. [iii]

Last week, apart from a few minor changes, the bill committee in the House of Commons considering the legislation which will introduce the legal aid cuts rejected proposals to reverse them. A third reading of the bill is expected to take place late next month. This will be an opportunity for the House of Commons to get the government to think again about these cuts which are penny wise, but pound foolish to the public purse.

[i] Legal aid reform: scope changes, MoJ, 028, page 17.

[ii] Towards a business case for legal aid, Citizens Advice, July 2010.

[iii] Justice Committee Report, page 54.

Legal Aid Bill amendments

Legal aid for housing cases threatened

The committee scrutinising the Legal Aid, Sentencing and Punishment of Offenders Bill resumes its work today (Tuesday 6 September). A number of amendments have been put forward for consideration by members of the committee which includes the justice minister Jonathan Djanogly MP and his Labour opposition counterpart, Andrew Slaughter MP.

Amendments from the government, proposed by Jonathan Djanogly, include a number which alter the current provisions in Schedule 1 of the bill regarding housing law. The grounds on which a tenant can counterclaim in a housing repossession case are widened, but it is unclear if the common counterclaim of disrepair has been brought back into scope. LAG believes this is a glaring anomaly which needs to be addressed as without it irresponsible landlords in both the public and private sectors will have no incentive to keep properties in a good state of repair.

It is also not clear if the government’s proposed amendments reinstate the right of tenants to claim damages if they are illegally evicted by a landlord. Many tenants do not wish to return to the property which they have been illegally evicted from, due to the distress this has caused. As the proposals in the Legal Aid Bill now stand, tenants in this position would not be able to obtain legal aid to assist them in fighting their cases. LAG believes legal aid should be reinstated in illegal eviction cases as the right to claim damages discourages landlords from trying to force tenants out illegally.

Labour members of the bill committee are moving a number of amendments which reinstate cuts the government has proposed to the scope of the legal aid scheme. For example, Andrew Slaughter is moving an amendment which would reinstate legal aid in medical negligence cases. Kate Green MP, another Labour member of the committee, is proposing an amendment which would widen the definition of domestic violence. This is a move widely supported by women’s rights groups including Rights of Women and the Women’s Institute.

LAG argues that the definition adopted by the Association of Chief Police Officers should be included in the bill. This includes psychological, physical, sexual, financial or emotional abuse which takes place 'between adults ... who are or have been intimate partners or family members, regardless of gender and sexuality'. LAG understands that the government is resisting adopting this wider definition, but is likely to face sustained pressure to do so in the coming weeks.

Plaid Cymru's member of the committee, Elfyn Llwyd MP, has also given notice of a number of amendments. It is believed that he might play a pivotal role in persuading government members of the committee, which include the Liberal Democrat MP Tom Brake, to back amendments which are against the government’s line.

The bill committee will also meet on Thursday this week and next week, before breaking for three weeks for the party conferences. The government wants to move the Legal Aid Bill to its next stage in the House of Lords on 13 October, but will be hard pressed to do so, due to the number of amendments which organisations concerned with the provisions in the bill want to be considered.

Image: LAG