Further defeats on Legal Aid Bill for government

Last night the government suffered two further defeats on the Legal Aid, Sentencing and Punishment of Offenders Bill (known as the Legal Aid Bill) at report stage in the House of Lords. Peers have now voted in favour of eleven amendments to the bill, more than any other bill in this parliament.

Peers voted by 232 to 220 last night to keep legal aid funding for children in civil legal cases. They also voted by 228 to 215 to retain legal aid in clinical negligence cases. Speaking to her amendment on legal aid for children in civil cases, Lady Grey-Thompson, the paralympian and disabled rights campaigner, said: 'Children are not adults. They do not have the capacity to represent themselves or to interpret the thousands of pages of laws and regulations that affect them.'

Nine of the eleven defeats have been over the provisions in the bill on legal aid. It returns to the House of Commons next month to enter what is known as the 'ping pong' stage, in which the amended bill goes between the Lords and the Commons until agreement is reached. Key areas of the bill which have been amended include provisions relating to qualifying for legal aid in domestic violence cases, as well as retaining legal aid for welfare benefits and cases involving children. LAG also argues that the decision-making process on entitlement to legal aid in individual cases should be independent of government. An amendment which ensures this was supported by peers and the government has indicated that it would consider introducing an independent review procedure for cases.

LAG and Justice for All are urging supporters to contact their MPs, especially Conservatives and Liberal Democrats, to ask the government to support the Legal Aid Bill as amended by the Lords.

Report critical of MoJ’s financial management

The Public Accounts Committee (PAC) in the House of Commons has published a report this week which is critical of the Ministry of Justice (MoJ) and its failure to deliver accounts on time. Margaret Hodge MP, chairperson of the PAC, said that while the MoJ’s financial management had improved, it 'remains unable to deliver timely and accurate financial accounts'. The PAC, which scrutinises the spending of government departments to ensure value for money, pointed to 'significant problems' with the accounts produced by the Legal Services Commission and the figures from the Courts Service. In the report, published on Tuesday (20 March), the committee raises concerns about the MoJ’s ability to meet its cuts targets, 'given the demand-led nature of its business'.

'Without full information on its costs, there is a risk that savings will be made through unnecessary cuts to frontline services essential to the poorest in the community, rather than through genuine improvements in the Ministry’s efficiency,' said Margaret Hodge.

The report is also scathing about the MoJ’s ability to maximise income to the department. It points to an improvement in fine collection, but observes that this is being 'outpaced by the growth in fines outstanding' and that there has been no progress in increasing fee recovery levels in the Courts Service. The MoJ also admits that 60 per cent of the cash in confiscation orders in criminal cases might never be recovered.

Problems with financial management at the MoJ are not a new story. For years the MoJ and its predecessor departments have struggled to control the demand-led budgets of the courts system and legal aid. Under the last government the prisons budget was added to this mix. At the heart of the financial management difficulties is a lack of political will to do anything which would require thinking beyond short-term budget cycles. The cuts to legal aid illustrate this. Cutbacks in family legal aid especially are likely to have a knock-on impact to the courts and other budgets, but no-one, least of all officials in the department, has any idea what the financial and other consequences of these will be.

A total of nearly £2bn is owed to the MoJ in unpaid fines and confiscation orders. This is nearly equivalent to the entire legal aid budget. LAG believes that the government should be pursuing a long-term strategy to maximise the collection of this income, rather than rushing for short-term cuts in legal aid, which will disproportionately impact on the poor and most vulnerable.



PAC report: Ministry of Justice financial management

Time to compromise on Legal Aid Bill?

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

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

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

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

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

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

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

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

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

Government loses crucial votes in Lords on legal aid

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

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

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

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

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

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

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

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

Government ignoring public opinion on civil legal aid

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

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

The report’s findings include:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Steve Hynes,
Director of LAG

Legal Aid Bill concessions

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

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

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

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

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