Vote on domestic violence amendment lost

Losing votes is not like losing football matches. Both can turn on luck or chance, but no matter how passionate a team and its supporters are, losing a match is ultimately part of the game, whereas much more can hinge on losing a vote.

Last night Lady Scotland, the former Attorney-General, mounted an impassioned plea in the House of Lords for the government to extend the grounds on which victims of domestic violence can claim legal aid. The vote on her amendment was a draw (238 to 238) which means in accordance with parliamentary procedure that it was lost. If her amendment had succeeded, the government would have been forced to amend the Legal Aid, Sentencing and Punishment of Offenders Bill (known as the Legal Aid Bill).

The government has made significant concessions on domestic violence in the debate on the Legal Aid Bill. It moved the time limit on evidence of domestic violence from one to two years but, as Lady Scotland says, imposing a time limit shows a complete misunderstanding of domestic violence and how victims, usually women, will suffer for some years before finally deciding to take action. The government made concessions on the criteria that will be accepted to claim legal aid in a domestic violence case, including entering a refuge, but as Lady Scotland argued:


It is important that we look at the places where applicants go: it is not just to refuges. For example, we know that many councils outsource their provision of outreach services to [Citizens Advice Bureaux] or local third sector organisations, knowing that they can be more effective at satisfying needs than state social services. Those agencies need to be included.

She also argued that the gateway criteria for legal aid do not include information from police over attendances at the matrimonial home. Those with knowledge and experience of dealing with domestic violence all argue that while police may be called many times it is often the case that the victim will not press charges. At the moment the gateway does not include information from the police that there have been a number of attendances at a matrimonial home. On this Lady Scotland said:

The noble Lord will know that many victims do not press the matter on to charge or to conviction. The police may have been called many times, but if there is not a charge or a caution, the applicant-victim will not be able to rely on that for legal aid.

In response to Lady Scotland’s argument the minister Lord McNally listed the initiatives and cash the government is devoting to services to tackle domestic violence: 'One thing that I am most proud of about this government is that we have put funding into domestic violence issues in a very detailed way,' he said. LAG would argue that the small changes to the proposed legislation which Lady Scotland argued for would have ensured thousands of people could seek legal protection instead of being left without help.

The government confirmed last night its previously announced concession on mesothelioma cases, an industrial disease caused by exposure to asbestos. This is the last now of a number of concessions on the Legal Aid Bill which the government has been forced to make. The bill is expected to become law next week.

Votes in the Lords can come down to a combination of luck and circumstances. When Lady Scotland’s motion was debated on Monday this week it won by 239 to 236. More peers opposed to the government's plans could have attended last night, but equally more government peers could have been present, prepared only to follow their whips and not listen to the arguments. What is surprising with the vote last night and throughout the debates in the Lords, is the large number of Liberal Democrat peers who cravenly toed the government line against, LAG suspects, their consciences.

We cannot help but reflect that such crucial votes as last night's should boil down to more than a combination of unthinking party discipline and who decides to turn up, as there is so much more at stake than which side wins.

Last-ditch concessions on Legal Aid Bill

Justice Secretary, Ken Clarke, announced further concessions on the Legal Aid, Sentencing and Punishment of Offenders Bill, known as the Legal Aid Bill, last night in the House of Commons, but if the bill becomes law next week many thousands of people will still lose out on access to civil justice.

Campaign organisations including LAG, Rights of Women (ROW) and the National Federation of Women’s Institutes had argued that the government should adopt the Association of Chief Police Officers' (ACPO) definition of domestic violence. The ACPO definition covers, 'any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults ... who are or have been intimate partners or family members, regardless of gender and sexuality'. Clarke confirmed last night in the Commons debate on the Lords amendments to the Legal Aid Bill that the government would be incorporating this definition into the bill.

Of greater significance was the government’s agreement to widen the criteria for victims of domestic violence to qualify for legal aid. Clarke confirmed in the debate:

' … we intend to accept as evidence — we will reflect this in regulations — the following matters: an undertaking given to a court by the other party in lieu of a protective order or injunction against that party for the protection of the applicant, where there is no equivalent undertaking given by the applicant; a police caution for a domestic violence offence by the other party against the applicant; appropriate evidence of admission to a domestic violence refuge; appropriate evidence from a social services department confirming provision of services to the victim in relation to alleged domestic violence; and appropriate evidence from GPs or other medical professionals'.

LAG welcomes what we believe is a significant concession from the government which will ensure justice for many victims of domestic violence. We would, though, highlight the concern raised by ROW that the regulations need to include those who have accessed specialist domestic violence services. Many women are turned away from refuges due to lack of space. A ROW survey undertaken on 16 June 2011 showed that 224 women were refused refuge places: 163 because there were no beds available; 13 because they had no recourse to public funds and 48 for another reason such as complex needs. Many more women who are victims of domestic violence receive help from other services than are admitted to refuges. They need legal assistance as well and the regulations need to reflect this.

Clarke also announced a small concession on welfare benefits advice in response to the amendment which had been tabled by the Liberal Democrat MP Tom Brake. Clarke said that he would bring forward regulations to allow legal aid in cases in which a point of law was being argued before a welfare benefits tribunal, but this will only be relevant in very few cases. LAG believes most of the estimated 135,000 people who currently receive advice on benefits through legal aid will still lose out if the bill is passed.

The Legal Aid Bill will return to the Lords next week. LAG is urging peers to seek assurances on what criteria will be included in the regulations on domestic violence. Also, the Lords made eleven amendments to the bill, which included amendments on issues such as the compulsory telephone gateway. These have been glibly ignored by the Justice Secretary. The government is up against a deadline to get the bill through by the end of this parliamentary session. Peers need to push for more concessions.

Legal Aid Bill back in the Commons

The Legal Aid, Sentencing and Punishment of Offenders Bill, known as the Legal Aid Bill, returns to the House of Commons next Tuesday (17 April). A total of eleven amendments were made to the bill in the Lords, nine of these to the section dealing with legal aid.

When the Legal Aid Bill was completing its passage through the Commons last year, ten Liberal Democrat MPs rebelled against the government, supporting an amendment on legal aid for complex benefits cases tabled by the Labour MP, Yvonne Fovargue. While the vote on this amendment was lost in the Commons, a similar amendment proposed by the Liberal Democrat peer, Baroness Doocey, was successful in the Lords. LAG has written to government MPs to urge them to support the bill as amended by this and the other changes introduced in the Lords.

We view the following issues reflecting amendments made by peers as essential:

1) The Welfare Reform Act will have a significant impact on claimants, particularly disabled people, and LAG believes it is fair that people should be able to access specialist advice on benefits in order to challenge government decisions, particularly at a time of such far-reaching changes.
2) Cases involving children should continue to be covered by the legal aid system.
3) 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.
4) The criteria for qualifying for legal aid should ensure the protection of victims of domestic violence.
5) Decisions on entitlement to legal aid in individual cases should be made independently from ministers.

While not going as far as outright rebellion when the bill was last in the Commons, some Conservative and Liberal Democrat MPs, such as Helen Grant, the Conservative MP for Maidstone and The Weald, were critical of the government’s proposals. Grant expressed disquiet over the availability of legal aid in domestic violence cases, arguing that the definition of domestic violence was inadequate and that the qualifying criteria to be granted legal aid were too restrictive. If the government were to ignore the Lords' amendments on issues such as this, it might risk a rebellion among previously loyal backbenchers.

Another danger for the government is a protracted ping-pong stage between the House of Lords and the House of Commons as peers might choose to dig their heels in if the government rejects their amended bill. The Legal Aid Bill is the last significant piece of legislation in this session of parliament and the government will want it to become law before the Queen's Speech, which is expected early next month.

LAG is urging campaigners to write to their MPs. Please follow this link from the Justice for All website to write to your MP.

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.

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 domestic violence concession?

So far the government has made two concessions on the Legal Aid, Sentencing and Punishment of Offenders Bill ('the Legal Aid Bill'), currently in the committee stage of the House of Lords. It seems more concessions might be on the way before the bill is approved.

Speaking at the Westminster Legal Policy Forum yesterday, Justice Minister Jonathan Djanogly said the government was considering the amendments which had been suggested so far by peers. When questioned by LAG on whether the government was willing to reconsider the definition of domestic violence contained in the bill, he said that this was 'in the mix at the moment' and that while he believed that the current definition covered the same points as that of the Association of Chief Police Officers (ACPO), 'if there is a way of making people happy on this issue we will do it'.

Campaign organisations including the Women’s Institute and LAG have argued that the ACPO definition should be included in the bill. ACPO defines domestic violence as,

'... any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults ... who are or have been intimate partners or family members, regardless of gender or sexuality'.

The bill currently uses a different definition referring to physical or mental abuse which includes sexual abuse and: ' ... abuse in the form of violence, neglect, maltreatment and exploitation'.

The ACPO definition is wider and some experts believe that the government might be forced to accept this definition by the courts if the current definition was approved without amendment. LAG believes the government might be taking the view that it should bow to the inevitable and amend it, especially as the Home Office is currently engaged in a consultation process on adopting a wider definition of domestic violence.

The detailed criteria which have to be met in domestic violence cases to qualify for legal aid have not been included in the bill. This is of great significance in ensuring victims get the help they need. Details of this will follow in secondary legislation. In the debate on the bill, Baroness Butler-Sloss, a former senior family judge, asked for the criteria to be published before the report stage so that peers can scrutinise them.

Jonathan Djanogly was more evasive when questioned by LAG on whether the government would concede over the amendment to reinstate legal aid for personal injury cases involving children, a move which is supported by Lord Tebbit and Lord Newton, the former Conservative Cabinet ministers. The minister said this is 'at the margins of what [the government is] looking at'. In response to a question from Cristina Sarb, a policy officer at the charity Scope, he said that the government was not considering bringing welfare benefits back into the scope of the legal aid system.

Earlier in the meeting Roger Smith, director of Justice, had lambasted the government over its failure to recognise the danger of not having an independent appeals system over decisions on entitlement to legal aid: 'It’s a godsend to a litigator,' to be able to argue bias in the process for cases against the government, he warned. Roger Smith also observed that the government’s decision to cut legal aid was a political choice and if the cuts went ahead he predicted it would lead to 'the regeneration of the kind of movement we had in the 1970s,' which was originally responsible for widening access to civil justice.

The government has given way on means-testing advice in police stations and included young people between the ages of 16-25 in the category of people able to claim legal aid for special educational needs cases. LAG believes that we need to keep the pressure on the government to win more concessions on the bill.

Image: LAG: Jonathan Djanogly speaking at the event yesterday

See the report LAG commissioned from the Women's Institute and other news on the legal aid bill.

Lords lash out at Legal Aid Bill

Crossbench and Liberal Democrat peers seem increasingly unhappy with Justice Minister Lord McNally’s attempt to force through the Legal Aid, Sentencing and Punishment of Offenders Bill ('the Legal Aid Bill') unamended. Talking to peers after the second day of the bill's committee stage in the House of Lords on Tuesday, LAG formed the impression that they were frustrated by what they see as the glib approach adopted by Lord McNally in addressing the detail of the bill.

Labour’s Lord Bach, Shadow Justice Minister in the Lords, led the attack against the bill in the debate on the amendments, saying that the government had 'failed to get to grips with the serious consequences of their proposed legislation' and that the bill would have 'profound effects on access to justice and people’s lives'. Speaking to LAG after the debate, Lord Bach said he believed it was unlikely that any votes would be taken in the committee stage, which continues on Monday next week, but that votes on amendments would happen in the report stage, expected to take place late next month or in March.

Peers seem emboldened by their votes on Wednesday this week on amendments to the Welfare Reform Bill, including their rejection of plans to means-test employment and support allowance payments to disabled people after a year. Lord Carlile QC, a Liberal Democrat peer and a greatly respected legal figure, told LAG yesterday: 'The House of Lords showed last night it is capable of forcing the government to reconsider policies.' The defeats on the Welfare Reform Bill were the result of a high number of votes against the government from the politically neutral crossbenchers and the Labour Opposition. Liberal Democrat peers mainly voted with the government, but some have hinted to LAG that unless changes are made on the Legal Aid Bill they will be forced, albeit reluctantly, to vote against the government.

A Liberal Democrat member of the House of Lords willing to be upfront about what will happen is Lord Phillips. Speaking at the launch of LAG’s London Advice Watch report yesterday, he referred to 'disaffection across the House of Lords' over the Legal Aid Bill and warned: 'There is no question. If the government makes no concessions, there will be votes and the government will lose.' He added that it was 'reasonable to expect major changes at the report stage of the bill'.

Lord Phillips, who is a patron of LAG and one of its founders, stressed that it was a 'lousy time to be in government' because the economic outlook is so bad and that 'cuts across the board are necessary'. However, he believes that 'the cuts have fallen on legal aid harshly' and questions if it is 'legitimate to deny citizens the means to enforce their rights'. In an impassioned speech he said: 'Justice is fundamental to our democracy' and that legal aid spending was a small but an important part of government spending: 'five per cent of defence spending would be enough to fund what is to be cut from legal aid for least three years'.

What the Welfare Reform Bill amendments show clearly is that peers are reluctant to support measures that impact harshly on vulnerable groups such as disabled people and children. With the Legal Aid Bill there is the additional factor of the crossbench and other peers who are legal experts. They have deep concerns about the detail of the bill, which the government is failing to address, such as the criteria which victims of domestic violence have to meet to qualify for legal aid and the lack of independence in decisions on entitlement to legal aid. Their discontent is likely to grow as the shadow boxing of the committee stage continues. LAG understands that approaches from government peers to ministers to thrash out compromises over key concerns about the bill have so far been rebuffed and this has added to the disaffection felt by government supporters in the House of Lords. It seems unless Lord McNally throws some significant concessions to his backbenchers the government will be risking substantial defeats at the report stage of the bill.

A full report on the launch of the London Advice Watch report will appear in the February issue of Legal Action journal.

Legal Aid Bill in the House of Lords

Before the Christmas recess, momentum was building in the House of Lords on amendments to the Legal Aid Bill (or to give it its full title, the Legal Aid, Sentencing and Punishment of Offenders Bill). Next week, peers will recommence their detailed scrutiny of the bill in committee. LAG believes the level opposition to the bill among peers will not have dissipated over the festive season.

Former Cabinet members in Margaret Thatcher’s governments, Lord Tebbit and Lord Newton, are the most prominent Conservatives pushing for changes to the bill. They have put their names to amendments which would preserve legal aid in clinical negligence cases involving children. Crossbench non-party political peers such as Baroness Butler-Sloss, the well-respected former senior judge, are supporting a raft of amendments which would alter the bill’s provisions on legal aid in domestic violence cases, matters involving children and other issues. Prominent lawyer crossbenchers such as Lord Woolf, the former Lord Chief Justice, and Lord Pannick, a member of the Lords Constitution Committee, are leading the charge against provisions in the bill which, if they are not amended, would leave ministers open to the accusation of political interference in decisions on granting legal aid. They are also concerned about clauses in the bill which seek to curtail a suspect’s right to legal advice when detained in the police station.

The government is likely to argue that much of the detail of the circumstances in which someone can claim support from the legal aid scheme will be dealt with in secondary legislation. For example, in domestic violence cases it wants the specific criteria which a victim must meet to qualify for legal aid to be covered in a set of regulations which are not included in the bill. Government supporters are also likely to argue that sufficient safeguards are built into the decision-making process on granting legal aid to prevent political interference. Peers, especially those with an interest in legal matters, are not likely to accept such assurances, preoccupied as they rightly are with the detail of the law and the implications of what is proposed.

LAG believes the House of Lords as a whole will want to scrutinise and amend the detail of a bill which is mainly aimed at saving cash from the Ministry of Justice budget at the expense of civil rights and access to justice. All the indications are that peers are very exercised about the impact of the proposals contained in the bill on vulnerable groups such as children, victims of domestic violence, people with disabilities and other minority groups. It is likely that a high level of vocal support for amendments in the committee stage to protect these groups will persuade the government to bring forward concessions at the final report stage in the Lords to avoid embarrassing defeats. If it does not, it could face a tussle between the Lords and the Commons in the spring, with time running out to approve the legislation before the parliamentary session ends in the run-up to the local elections on 3 May.

Justice for All (JfA) has collated the briefings prepared by organisations for the committee stage in the House of Lords, see:
the JfA website

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

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

Justice for All meeting in the House of Lords

Members of the House of Lords attended a meeting yesterday organised by Justice for All on the future of civil legal aid. The meeting was hosted by Baroness D’Souza, Lord Newton, Lord Bach and Lord Phillips.

Welcoming members of the House of Lords and Justice for All to the meeting, Lord Bach, the former legal aid minister, stressed that the event was not a party political one. He said, 'I fear if the government’s proposals on legal aid become a reality it will be the very poor who will lose out most.' Lord Newton, the former Secretary of State for Social Security under Conservative Prime Minister Margaret Thatcher, spoke of his 'anxiety' about the proposed reforms and stressed the need for Lords to be 'kept very well informed about them'. Lord Phillips, a Liberal Democrat peer said, 'With 10-1,300 new statute laws a year, it is organised hypocrisy if the government does not give people the means to access these laws.' Baroness D’Souza, a crossbench peer, stressed that it is 'important to organise' the effort to influence the legislation when it reaches the Lords.

After the initial speeches from the hosts, the meeting heard contributions from practitioners, organisations and clients concerned about the government’s proposals for civil legal aid. Laura Janes from Young Legal Aid Lawyers spoke about her work at the Howard League for Penal Reform, 'The children in prison I see usually have a history of years and years of unmet legal needs, which if they had been met would have most likely meant they would not have ended up in prison.' Many speakers stressed the importance of initial advice on problems to prevent them escalating. James Sandbach from Citizens Advice emphasised that it was through legal aid that Citizens Advice Bureaux provide specialist advice as 'sometimes those services provided by volunteers can only go so far'.

A speaker from the Women’s Institute, which is a member of Justice for All, talked about how the legal aid system helped her to escape a violent husband. She said that without legal aid she would have most likely remained in the abusive relationship afraid to bring divorce proceedings because her husband was 'a wealthy man'. A former client from the housing charity Shelter spoke of the need to be able to talk to someone face to face as many people facing multiple problems like her 'often do not have the confidence to simply pick up the phone for advice'.

Lucy Scott-Moncrieff from the Law Society said, 'We have come up with a package of cuts, including cutting fees, but not cutting scope, as we do have an alternative to the government’s proposals.' Steve Hynes from LAG said that he believed the bill to include provisions on legal aid is likely to receive its first reading in the House of Commons next month and that LAG would hope that, unless the bill was amended in the Commons, the Lords would take the opportunity to support amendments which provided 'alternatives to cuts in scope as these would hit the poorest and most vulnerable hardest'.

Gail Emerson from Citizens Advice closed the formal part of the meeting by outlining Justice for All's plans for the day of action on 3 June. She said that the day had been planned for the parliamentary Whitsun recess 'so that Justice for All members can see their MPs locally' and to 'highlight the impact of the proposed cuts at a local level'.

Image: Lord Phillips, a founder member and patron of LAG