Wednesday, 29 June 2011

Cash for social welfare law announced

During the debate on the second reading of the Legal Aid, Sentencing and Punishment of Offenders Bill, the Justice Secretary Kenneth Clarke announced a fund of "up to £20million" to pay for Citizens Advice Bureaux and other not for profit advice agencies to provide advice on housing, debt, employment, benefits and other common civil legal problems (known as social welfare law). LAG welcomes this announcement, but has some concerns about the proposed fund and the provisions on legal aid in the bill.

Over recent months LAG, along with The Baring Foundation, has been working with the Cabinet Office to try and influence government thinking on social welfare law. Progress has been painfully slow. Hopes were raised when at short notice a summit was organised jointly with the Cabinet Office in February to look at the problems faced by the providers of social welfare law services. We were disappointed by the bland statement from ministers in response to the issues raised at the summit, but believed it was worth persevering as we were assured that these issues had been considered at the highest level of government.

We have been reassured by sources close to Ken Clarke that the cash announced today is new money, which will be available in the current financial year to help advice services such as Citizens Advice Bureaux, Law Centres and other independent advice centres. LAG is grateful to those who argued for this in government. Spending is tight and this is a significant sum of money which we estimate would pay for 500-700 posts in the sector and means over 100,000 members of the public will receive advice services.

However, it is only transitional funding and so not permanent, though Ken Clarke said that they will look at continuing the fund beyond this year. The common problems faced by people on low incomes are not going to disappear in a year. Legal aid for advice will though. Advice on benefits and employment problems will go completely by next year or, at the latest, 2013. This amounts to a cut of £26m which mainly goes to not for profit advice providers. A further £23m is being cut in advice on housing and debt cases. £12m is being cut from immigration cases. Again, this is mainly money which funds services in the not for profit sector.

LAG is concerned that many of the provisions on legal aid in the bill before parliament seek to restrict people’s rights to legal aid. The bill also gives too much power to the government to restrict access to justice with no vote in parliament. We believe the bill should be amended to restore people's rights to legal advice on common legal problems and to ensure that parliament is consulted before further changes to legal aid are introduced.

Delegates at LAG's conference on Monday (4 July) will get the opportunity to hear from justice minister Jonathan Djanogly MP about the government's plans for legal aid and from the Shadow Justice Secretary Sadiq Khan MP, as both are giving keynote speeches at the event.

Find out more about LAG's conference and book places

Read more news on LAG's campaign to save social welfare law services:

LAG calls for joint review of social welfare law services

Choices and compromises

Saturday, 25 June 2011

Legal aid bill row

Last week, the Legal Aid, Sentencing and Punishment of Offenders Bill was published. In LAG's view, the bill as drafted attempts to completely recast the legal aid system as a much reduced rump mainly concerned with criminal justice, child protection and the minimal provision of access to justice around human rights in order to comply with the European Convention on Human Rights. To this end, the rights of ordinary citizens, especially the poor and vulnerable, have been cast aside.

Practitioners and parliamentarians got an early opportunity to see the minister responsible for legal aid, Jonathan Djanogly, defend the government's plans when he was the guest speaker at the All Party Parliamentary Group on Legal Aid (APPGLA) meeting on Wednesday 22 June, the day after the bill was published. The minister was subjected to detailed questioning from the large audience of parliamentarians, practitioners and others concerned about the cuts announced in the bill.

Opening the meeting, Yvonne Fovargue MP, the chairperson of APPGLA, made the point that while provisions on sentencing reforms had made the headlines, it was the cutbacks in legal aid that would have the most significant impact on her constituents. Djanogly reiterated much of what had already been stated by his boss, Kenneth Clarke, the day before while introducing the bill in the House of Commons. He stated that while the government was making cuts, the legal aid scheme would continue to be 'one of the most generous in the world' and that it was 'retaining funding for a wide range of rights' but that 'the overall effect of the bill will be to achieve significant savings'.

Law Society president, Linda Lee, led the comments from the audience: 'I am disappointed and heartbroken; this attack on civil legal aid is an attack on the most vulnerable.' Lord Carlile, a former Liberal Democrat MP, asked the minister how he would advise someone who suspected his/her child had suffered damage during birth: 'Would they fall into the exceptional funding criteria?' Djanogly answered that it was not his role to give advice - s/he would have to go to a lawyer for that. He said that the majority of such cases would be able to use a conditional fee arrangement, but that 'litigation must be a risk and the question I have to ask is whether the taxpayer has to pay'.

To a question raised by Linda Lee about the government's failure to look at the alternative funding put forward by the Law Society, Djanogly said: 'Much of what was suggested by the Law Society was to get others to pay for legal aid. When you go to the Treasury, it is not so keen about creating new taxes.'

The minister left the meeting with an audience disgruntled about his defence of the bill and angry with the government for its complete dismissal of the 5,000 responses to the consultation. Even the widely expected concession on the definition of domestic violence amounts to a highly restrictive one, which will exclude many victims from claiming legal aid.

The parliamentarians at the meeting promised the bill a rocky passage through both Houses. In defiance of convention, the government is moving to a second reading of the bill next Wednesday, instead of leaving the customary two weekends between publication and the first debate in the House of Commons. LAG hopes that some significant concessions will be made by the government to improve access to justice before the bill becomes law.

A full report on the APPGLA meeting will appear in the July issue of Legal Action magazine.

Image: LAG

Tuesday, 21 June 2011

Legal aid bill

The long-awaited Legal Aid, Sentencing and Punishment of Offenders Bill was published this morning and then unpublished by the government - it seems it was posted on the web by mistake! We expect it to be posted on the House of Commons' website again once the Justice Secretary, Kenneth Clarke, has made a statement to parliament around 3.30 pm.

It would seem from reading the bill that the bulk of the cuts trailed in the consultation paper last year will go ahead. Some are detailed in the bill, for example, advice on benefits is excluded from the legal aid scheme in Schedule 1 clause 15 (see page 116 of the bill).

LAG believes the legal aid cuts are penny-wise, but pound-foolish. The bulk of them fall on the sort of face-to-face advice services which can deal with legal problems before they spiral out of control and lead to expensive court cases. LAG calculates that the £49m in legal aid cuts to housing, welfare benefits, debt and employment will ultimately cost the government £286.2 million in costs to other public services. In other words, £1 of expenditure on civil legal help saves the government around £6 in other public expenditure.

The bill proposes the abolition of the Legal Services Commission (LSC) as a separate organisation, to be replaced by direct government administration of the legal aid system under a Director of Legal Aid Casework who will be a civil servant. The LSC currently makes decisions on entitlement to legal aid and is controlled by an independent board.

Under the government’s proposals, decisions on entitlement to legal aid will be taken by civil servants who are directly answerable to government ministers. While the bill does say that ministers are delegating the decision-making on entitlement to legal aid and will not interfere in individual cases, LAG believes an independent appeals system is essential to eliminate the risk of real or perceived political bias in decisions on entitlement. Otherwise, the government will be seen to be acting as judge and jury on whether cases brought against it should be supported by legal aid.

The July Legal Action magazine will give more details about the bill and LAG’s conference on 4 July will be an opportunity to hear from speakers reacting to the bill, including Jonathan Djanogly MP, the minister with responsibility for legal aid.

Image: Legal Action Group

Friday, 17 June 2011

Follow the money

Like in good comedy, timing is everything in politics. The minister responsible for legal aid, Jonathan Djanogly, released the figures for the highest paid legal aid solicitor firms and barristers yesterday. Call us cynical, but this is a sure sign that the delayed bill containing the legal aid cuts is to follow next week.

Publicising the top earners figures as a means of justifying the planned legal aid cuts would be hypocritical in the extreme - not that this is likely to stop some, particularly as the political pressure over the cuts mounts. What should be remembered is that nearly £300m of the total cuts of £350m likely to be announced next week have little bearing on the high-earning people on this list. These cuts instead fall disproportionately on the lower end of civil legal aid work, undertaken by solicitors and not for profit organisations earning far less than the elite few reflected in these figures.

The Bar usually comes in for criticism when these sorts of figures are released as individuals earning high amounts of public money are an easy target for sections of the press. What partners in solicitors firms earn from legal aid is less transparent. Fortunately, there are no barristers earning over one million pounds topping the list to hang a story on. LAG believes this is in large part due to the changes to Very High Cost Cases (VHCC) fees made by the last government. Barristers and solicitor advocates have also taken a 12.5 per cent reduction in Crown Court fees over the last two years.

There remains, though, a striking differential between the amounts being earned by the top criminal barristers as opposed to civil barristers. The lowest earning criminal barrister in the list would come near the top of the civil earnings list. Across all levels of fee income, civil law legal aid barristers generally earn much less than their criminal counterparts. This is a reflection of the number of criminal VHCC and, it has to be said, the more generous fee structure for criminal cases. Only two women feature in the list of top criminal barristers, as opposed to six in the civil list - a sure sign perhaps that most of the money is in criminal work?

The Law Society has called for a cap of a quarter of a million pounds to be imposed on individual earnings from the legal aid fund. LAG doubts that this is something which could be easily implemented. To be even-handed it would be difficult to apply to partners in solicitors firms with a mix of private and legal aid income. Also, as Jonathan Djanogly correctly points out in the letter in which he released the figures, the earnings for barristers are not necessarily calculated over a calendar year, and can include fees for junior counsel, as well as other overheads.

LAG accepts that excellence in advocacy carries a cost which has to be met to ensure equality before the law. However, we do not believe the differential between civil and criminal fees can be justified. If the policy choice boils down to higher fees at the top end of criminal work, against access to justice for the public coping with everyday civil legal problems, criminal barristers and solicitor advocates should be prepared to take a hit in income.

Read the letter and full list of figures here:

Picture: Ministry of Justice, legal aid minister Jonathan Djanogly

Wednesday, 15 June 2011

Unlikely bedfellows

At an event held at the House of Lords yesterday (14 June) the Haldane Society of Socialist Lawyers and the Young Legal Aid Lawyers revealed the findings of their commission of inquiry into legal aid.

The commission comprised the former Liberal Democrat MP Dr Evan Harris, Diana Holland, the assistant general secretary of the trade union Unite and the Reverend Professor Nicholas Sagovsky, a former sub-dean at Westminster Abbey. This independent panel gathered evidence on both sides of the argument about the future of legal aid and heard testimony from former legal aid clients. These included Mrs Whitehouse who had been threatened with eviction by her landlord after being a tenant in her flat for nearly 50 years.

'What happened to my husband and I could happen to anyone. You can lose your home especially if you are renting, but also if you are buying.' She lost her case at the first court hearing and was concerned about the amount of public money her case was costing in legal aid, but was successful in the Court of Appeal. 'What was most important to me was that costs were awarded against the landlord which meant all the public money was paid back.'

An unlikely attendee at the event, which was graced by a good few left-leaning lawyers and was hosted by the shadow legal aid minister, Lord Bach, was the former Conservative Secretary of State for Social Security, Lord Newton. He made the point that three sets of interconnected proposals, the Welfare Reform Bill, the Localism Bill (especially with regard to its provisions on tenure) and the legal aid reforms, will have a major impact on advice providers and the people they serve. He said: 'I am not satisfied that what is proposed is protecting vulnerable people' and, as the former chairman of the Administrative Justice and Tribunals Council , he was concerned about 'the costs of some processes if people do not have help and advice. Some people going to tribunals need to know what points to argue'.

The findings of the commission included:

'Legal aid is vital in protecting the righs of vulnerable people ... many of those who receive legal aid are among the most vulnerable in society. They include the elderly, the disabled, the abused, children and the mentally ill. They each have legal rights which they would not have been able to enforce without legal aid.'

'Legal aid is vital in upholding the rule of law ... There can be no semblance of equality before the law when those who cannot afford to pay a lawyer privately go unrepresented or receive a worse kind of representation that those who can.'

'Legal aid is essential to holding the state to account ... It would be wrong in principle for the state to tolerate bad decision-making while at the same time removing the ability of ordinary people to hold those bodies to account for their mistakes by reducing legal aid.'

'Cutting legal aid is a false economy ... When coupled with the human cost to the vulnerable and socially excluded of reducing legal aid, the panel finds these increased economic costs are unacceptable.'

In closing the launch event, Lord Bach said that he understood the government's response to the consultation on the legal aid changes would be published within the week and 'despite over 90 per cent of those who responded to the consultation disagreeing with the government’s plans, in general it will go ahead with the scope cuts. This should not be seen as just a legal problem for lawyers. Legal aid cuts are an issue for everyone as it is about fairness and morality'.

View pictures from the event by Ripon Ray:

Image: LAG

Wednesday, 8 June 2011

Will the Treasury pay?

After pressure from some sections of the media and the Conservative party, the government has backed down on its plans for sentencing reform. LAG supported the reforms, which included a 50 per cent discount for early guilty pleas, and the government’s u-turn is a big disappointment to the cause for penal reform. The government's change of heart means the bill including the legal aid reforms will not be published today as had been intended, but will be delayed until next week or later. It also leaves the Ministry of Justice's (MoJ's) budget plans in disarray as a further £100m will need to be found to meet the 25 per cent cuts target imposed on it.

Officials at the Legal Services Commission have been saying for some weeks that more money might have to be found from legal aid. LAG believes that the planned cuts of £350m will be difficult to realise. We believe there is considerable disquiet in government about the impact of the cuts on social welfare law, especially on the Citizens Advice Bureaux service and the rest of the not for profit sector. The cuts are clearly in danger of undermining the 'Big Society' policy agenda and leaves the government open to the charge that they disproportionately impact on the very poorest and most vulnerable. In family legal aid, where the bulk of the cuts will fall, LAG questions whether in principle the cuts can be justified but also if they can be delivered in practice.

Ministers have already indicated that a change in the definition of domestic violence is almost certain to be included in the bill and this is welcome, but it means many more women will be eligible for legal aid, and this will increase costs. Also, the fact remains that relationships will continue to end with continuing legal ramifications, especially over child custody, which will have to be met. Cutting off legal aid just means more litigants in person increasing costs in the family courts.

The MoJ might look for cuts in criminal legal aid to meet the shortfall. However, they have limited options. They could cut rates of pay, but these were cut under the last government. Crown Court fees have been reduced by 13.5 per cent over the past two years following one of Labour’s last big decisions on legal aid policy. Rates on police station and magistrates' court work could be looked at again, but these have already been cut to the bone. Competitive tendering for the work might produce some savings, but this will take time to implement. High cost cases could be examined again, but this would be vulnerable to protest action by the Bar.

The government is happy to publish the earnings figures for the top end of the Bar (due out this week as LAG understands) as a stick used to beat legal aid lawyers. However, the political will to reduce such fees rapidly diminishes when the Bar threatens to boycott (or rather not be available for!) such work (as happened under the last government). The red top press will happily run fat cat lawyer stories to traduce legal aid, but would give much greater prominence to stories of trials of dangerous criminals collapsing due to the lack of qualified defence counsel.

In LAG’s view, the MoJ has only two options. It could cobble together another £100m in legal aid cuts, which officials will know are not deliverable, or persuade the Treasury to increase the budget by £100m. Like it or not, the backsliding on sentencing reform policy is a decision which has been taken by the Prime Minister, backed by the cabinet. Such fundamental shifts of policy need resourcing and it is the Treasury which should find the cash. If it does not, it will be unlikely that the Civil Justice, Sentencing Reform and Legal Aid Bill will make it into the legislative timetable this year. Not something LAG and the legal aid lobby would shed any tears over, but a delay which would create a considerable headache for the government.

Image: LAG

Monday, 6 June 2011

The impact of legal aid cuts

To coincide with the Justice for All day of action last week, Legal Action Group has published figures which show that over 50,000 Londoners will lose out on advice on common legal problems if the government goes ahead with its plans to cut civil legal aid.

Currently, 78,480 Londoners with problems in housing, benefits, employment, debt and education receive advice paid for by legal aid. According to the government’s own figures, if the cuts planned in the legal aid bill (due to be published next week) go ahead, nearly 52,000 Londoners will no longer get help. LAG calculates that advice providers in London, mainly Citizens Advice Bureaux, Law Centres and other not for profit organisations, along with some solicitors firms, will be cut by just under £10m, forcing many to either close their doors for good or cut back drastically on their services to the public.

LAG’s director Steve Hynes, speaking at a rally outside the Supreme Court in London on Friday, said, 'It is pointless for parliament to pass laws if people are denied the means to enforce them. The government needs to think again about its plans for civil legal aid or thousands of ordinary people will be denied justice.'

Overall LAG has estimated that more than 650,000 people will lose out on access to civil legal aid services if the government implements its plans for legal aid. LAG believes these cuts will lead to a rights deficit between what the law says people are entitled to and access to the advice and expert help often needed to enforce their legal rights. A full report on the figures is available on LAG's website. This also includes the details of the number of social welfare law cases for each area of the country and how to calculate the services which will be lost.

Image: LAG: Protesters outside the Supreme Court. More pictures are available at: