Thursday, 28 July 2011

Looming Autumn of discontent and a minister in trouble

Parliament rose for its summer break last week after the Prime Minister David Cameron had given his statement on the phone tapping scandal. The day before on 19th July the Committee scrutinising the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill had met for its first session to consider the content of the Bill.

The Committee last week did not get beyond a general discussion on the Bill and clause one. A point proved we think on the lack of time that LAG and others have complained about being devoted to the Bill. We fear that as little as two and half days will be devoted to the forty clauses in the Bill on legal aid, as the government seems determined to force through the Bill so that it can be sent to the House of Lords by 13th October.

Many organisations are trying to get the Bill amended while it is in the Commons committee stage. Amendments, amongst other issues, will seek to reverse the cuts in scope, widen the definition of domestic violence and introduce an independent appeals system against the refusal of legal aid. Once the Bill is in the Lords further detailed amendments are likely to be pursued by LAG and other organisations concerned about access to justice.

Justice for All (J4A) will be increasing its campaigning and lobbying work over the summer and autumn. The J4A campaign, which is an alliance of charities and other organisations concerned about the legal aid cuts, is expected to employ a full-time campaign manager to be based at LAG’s offices. The campaign manager will be in charge of the day to day running of the campaign while the Bill is being considered.

J4A and LAG will be active at all three autumn party conferences in fringe events and at meetings with parliamentarians. LAG is also involved in a number of research projects over the summer period which will provide evidence on the impact of the proposed legal aid cuts on the public. We anticipate publishing a number of reports to coincide with the Bill’s progress through parliament. All the organisations opposed to the cuts in legal aid intend to increase the pressure on the government over the autumn and into the winter as the Bill makes its way through the parliamentary process.

The phone tapping scandal seems to be a factor in the re-boot of the controversy involving the minister with responsibility for the LASPO Bill, Jonathan Djanogly MP. The Daily Telegraph is carrying a story today that he has been reported to the Information Commissioner’s Office (ICO) over his use of private detectives to covertly monitor members of his constituency party. This story originally broke two years ago. According to the Telegraph the detectives he used have admitted “using subterfuge to gain the information.” The Labour M.P who made the complaint, John Mann, is calling for Djanogly’s resignation, but this seems unlikely to happen as the ICO have confirmed this afternoon the complaint does not fall in their remit.

Monday, 18 July 2011

Bill committee hears from LAG

Last week, LAG’s director, Steve Hynes, gave evidence before the House of Commons committee which is considering the Legal Aid, Sentencing and Punishment of Offenders Bill. He made a number of points, which were intended to challenge the assumptions that underpin the government’s legal aid policy.

The government is fond of asserting that the budget for legal aid is out of control and that the system has expanded far beyond its original purpose. In his opening remarks, Steve Hynes told the committee that the previous government, under the then legal aid minister Lord Bach, had managed to control the budget by implementing changes. He acknowledged that LAG often opposed these changes, but that the budget had been under control for at least the last four years. He pointed out that the last large expansion of the scheme was under Margaret Thatcher’s government with the introduction of the Police and Criminal Evidence Act 1984, which led to the introduction of advisers in police stations: 'No-one is talking about repealing this.'

Government members of the committee had pursued lines of questioning around international comparisons. Steve Hynes quoted from regulations made under section 114 of the New Zealand Legal Services Act 2011, which deal with the means test for civil legal aid in New Zealand. After converting the figures to pounds he told the committee that the New Zealand civil schemes means test is, if anything, slightly more generous than that of England and Wales. He emphasised that the differences in expenditure compared to European and other jurisdictions were caused in large part by the greater number of criminal prosecutions per head of population in England and Wales.

Ben Wallace MP (Conservative) asked if further savings could be made from criminal legal aid. Steve Hynes said that the previous government had introduced fee cuts in criminal legal aid; the last of which were introduced in the current year. He explained that competitive tendering for criminal legal aid is 'hanging in the air' and that this has led to a split in the profession as, 'quite a few of the larger firms believe that if they have the volumes of work from police stations to Crown Court and higher courts work, they would save money, of the order of ten per cent. You can probably say that it will be more than that'. However, he warned that: 'You can make savings, but it means consolidation in the market, lack of choice and the potential for cartels … you can push and push and you will get to a stage where you may lose, particularly at the top end, the advocacy and other skills that you need.'

In answer to a question from Yvonne Fovargue MP (Labour) about the proposed telephone gateway, Steve Hynes said that it could work, but only in tandem with adequate coverage of face to face services across the country. Citing LAG’s opinion poll research carried out in November last year, he said this showed: 'If you want a legal aid system that people do not use, then deliver it through telephone advice.'

A full copy of the evidence before the committee is available here:

A report on the evidence hearings will appear in next month’s Legal Action journal.

Image: LAG

Tuesday, 12 July 2011

Immigration Advisory Service in administration

LAG learnt yesterday that the Immigration Advisory Service (IAS) has folded due to financial problems. The trustees of IAS, which is a charity, took the decision to put the organisation into administration from Friday last week. We believe that in recent years IAS has been suffering cash flow problems caused in large part by its dependence on legal aid income. Like Refugee and Migrant Justice (RMJ), which went into administration in June last year, these cash flow difficulties were caused by the change to fixed fees for legal aid work three years ago, which resulted in reduced income and delays in payment. The charity also carried large liabilities for the costs of interpreters, experts and other third parties, who carried out work on cases for it.

LAG understands from a statement on the charity's website that it was trying to negotiate the repayment of money owed to the Legal Services Commission (LSC), but the Board took the view that it would not have sufficient cash in the future due to the pending legal aid cuts to pay off this debt. LAG believes that around 30 per cent of IAS's work involved non-asylum immigration advice, all of which is due to be cut from scope. The organisation would also have been badly hit by the ten per cent reduction in fees due to be introduced in the autumn.

It is thought that IAS has over 25,000 live cases (over double the number which RMJ had when it was placed in administration). IAS employed around 300 staff. It worked from 14 offices and had a further 12 outreach services hosted in other locations. A message on the LSC's website requests that clients check the IAS website for updates on the transfer of their cases.

LAG believes that in some areas of the country, for example Greater Manchester, up to 80 per cent of the supply of immigration legal advice funded by the legal aid system was provided by IAS. Many firms and not for profit organisations either lost some or all of their work to IAS in the last tender round two years ago.
Due to procurement law and the reduction in capacity among firms which lost out in the last tender, it will be extremely difficult to find alternative representation for all of the IAS clients. LAG believes the government could be in danger of breaching international law which requires that legal advice services are provided to refugees seeking asylum.

What has happened to IAS illustrates the folly of pursuing a strategy of trying to concentrate legal aid work between fewer larger suppliers, which is what the LSC has been trying to do in immigration law. Also, in the last year, the legal aid system has lost its two biggest suppliers of immigration law services due to financial difficulties, in large part caused by cuts to the legal aid system. This begs the question when will the government take heed of what the market appears to be telling it - that the fees paid for many types of legal aid work are not sustainable.

Monday, 11 July 2011

Government reveals full extent of legal aid cuts

In a game of statistical catch-up, the government has now revealed a more accurate picture of the impact of the legal aid cuts. The figures, which were published with the Ministry of Justice response to the legal aid cuts consultation, show that its original figures (published in November 2010) understated the impact of the cuts by as much as 20 per cent.

A total of 595,000 people will lose out on civil legal aid, as opposed to the 502,000 which were originally estimated by the government. These figures are close to the ones which LAG calculated in March this year using the up-to-date data for cases completed in 2009/10. The government has used this data in its latest figures. There are some differences between LAG’s and the government's figures, but these can be explained by the small concessions which the government has made from its original plans, including bringing some education and family cases back into scope.

However, it seems the government has persisted in basing its estimates on closed cases as opposed to those opened in the year. LAG revealed in March that this understates the figures by around 50,000. LAG argues that to present an accurate picture of who will lose out on legal aid services the cases opened in the year should be the baseline. Removing areas of law from the scope of the legal aid scheme stops new cases being opened, while existing cases will continue for months or years until they are closed.

Initial advice on cases, known as legal help, is the big loser in terms of both new cases and cash. A total of £130m will be lost in funding for this type of advice, £16m greater than originally estimated. Advice on common types of problems (known as social welfare law) loses an additional £10.5m in funding:

  • Welfare benefits - initial estimate: £22m; updated estimate: £25m

  • Debt - initial estimate: £16m; updated estimate: £20m

  • Housing - initial estimate: £7m; updated estimate: £10m

  • Employment - initial estimate: £4m; updated estimate: £5m

  • Education - initial estimate: £1m; updated estimate: £0.5m

  • Total - initial estimate: £50m; updated estimate: £60.5m

Citizens Advice Bureaux, Law Centres and other not for profit (NFP) legal advice centres will lose the bulk of the above funding. At least £40m will be cut in funding to the sector as the vast majority of cases in benefits and debt are undertaken by NFP agencies which contract with the Legal Services Commission. The sector is already being hit by cuts in local government and other central government support for advice services.

If these planned legal aid cuts go ahead nearly 100,000 more people than the government originally estimated will lose out on advice and providers will lose 20 per cent more income. LAG is urging MPs to substantially amend the Legal Aid, Sentencing and Punishment of Offenders Bill currently in the committee stage in the House of Commons to prevent these cuts which will have such an impact on members of the public.

Read LAG's document: The real impact of the legal aid advice cuts

Image: LAG

Tuesday, 5 July 2011

Politics is local

In our democracy people expect to be able to enforce the laws which politicians like to boast about having made. They need access to legal and advice services to do this. LAG has produced new sets of figures to demonstrate the impact of the legal aid cuts at a local level.

On our website you will find a document which breaks down the reductions in legal aid for housing, debt, benefits and employment cases. Figures are shown for each area of the country (or 'bid zone' as referred to by the Legal Services Commission).

Local MPs need to be aware of these figures. So do local councils, as the next phase of opposition to the Legal Aid, Sentencing and Punishment of Offenders Bill is to bring it home to politicians what the impact of these cuts will be. In an article in the July edition of LAG's magazine Legal Action, we give the examples of Bolton and Ealing. Very different areas of the country, both with marginal seats - one with a Conservative marginal and one with a Labour marginal. Both will be hit by cuts in legal aid which the public should be made aware of. While this might not be as decisive in an election as cuts in education or health, it can contribute to a general feeling of dissatisfaction and disillusionment with a government.

Above all politics is local. A local Citizens Advice Bureau cutting back or closing completely has an impact, particularly if the government is seen to be at fault. Solicitors are often reluctant to publicise withdrawing from legal aid work, cutting back or closures, but publicity about this can get the public to make the political connection between government policies and their local community.

Making the case at local level against these cuts is part of a dual strategy to resist this bill. We would urge advice agencies and solicitors to publicise the impact of these cuts at a local level using the figures above. The second part is to persuade parliament to agree to amendments. The Liberal Democrat peer Lord Carlile speaking at the last All Party Parliamentary Group on Legal Aid made a number of salient points on this.

The government is up against a tight timetable. It has to get the bill through both houses by May next year. Concessions will need to be made. The government has already recognised the strength of the not for profit sector's case with the announcement of the £20m fund last week. We would stress, though, that the details of this have to be worked out and we cannot be detracted from ensuring that amendments to the bill articulate a vision for the legal system that ensures access to justice.

This blog is adapted from a speech by LAG's director Steve Hynes given at LAG's recent social welfare law conference. A full copy of the speech is available here.