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