Reductions in legal aid cases

Figures released today by the Legal Services Commission show reductions in the number of cases funded by legal aid in the past year. A total of £35.3m less was spent in non-family civil cases and £30m less in criminal cases, but a big rise in child protection cases has soaked up these reductions.

In non-family civil legal aid the main contributor to the reduction in spending has been just under £20m less being spent on asylum and immigration cases. LAG is surprised that around £12m less was spent on asylum cases in the year ending 31 March 2012 as figures from the Home Office show an 11 per cent increase in asylum applications in 2011. We believe that the reduction in expenditure on such cases has been caused by clients being unable to find a lawyer willing to take on their cases.

In the last two years, two of the largest suppliers of advice in immigration and asylum cases, the charities Refugee and Migrant Justice and the Immigration Advisory Service, have folded because of financial problems. Between them these charities undertook around 35,000 cases a year, which is at least a third of the annual total of immigration and asylum cases. LAG believes that the demise of these charities is a large part of the reason for the reduction in cases and fears that clients in need of advice on immigration matters are not getting the help they need.

There are also reductions in spending on housing, welfare benefits, debt and other civil cases. Although not on the same scale as the reduction in spending on immigration advice, these reductions in advice spending, which concern areas of law in which people commonly experience problems in a recession, are again surprising. The numbers of contracts in these non-family areas of law is down by around 200 to 2,640, and so it might be that the public are experiencing greater difficulties in accessing advice.

Police station and magistrates' court cases are down by £30m in expenditure, representing around 100,000 cases. Due to the wider use of cautions, the numbers of such cases have been falling in recent years, but anecdotal evidence from both defence lawyers and the police suggests that the police are increasingly not charging suspects due to budget cuts.

Expenditure on child protection cases has risen again, this year by £65m. The continuing impact of the baby Peter case is a likely factor, but costs per case also rose by approximately £500 to £5,495. This suggests that lawyers are taking more time on these cases. Other costs, such as expert reports, have also increased. These figures indicate that the government needs to do more work on understanding the costs of protecting children, as this remains a priority for the legal aid system. LAG believes that the reduction in expenditure for the rest of the civil legal aid system demonstrates that there is a direct relationship between availability of advice and access to justice.

See the LSC statistics and the Home Office asylum statistics.

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.

Clarke plays hardball with Lords

Despite huge opposition to parts of the Legal Aid, Sentencing and Punishment of Offenders Bill (known as the Legal Aid Bill) from crossbench and opposition peers, the Justice Secretary Ken Clarke has decided to reject most of the 11 amendments made in the Lords stages of the bill.* Two partial concessions have been made by the government on independence in decision-making on entitlement to legal aid in individual cases and the availability of legal aid in appeals on welfare benefits to the Upper Tribunal and other courts.

It is believed that peers are likely to oppose the government strongly over its rejection of moves to set out the evidential criteria required for victims of domestic violence to qualify to claim legal aid. This includes a proposal by the government to time-limit admissible evidence of domestic violence to 12 months. In the debate in the House of Lords, Baroness Scotland argued that evidence such as disclosure of domestic abuse by a victim to a doctor or statutory agency should be sufficient to claim legal aid.

In the LAG-commissioned report from the National Federation of Women’s Institutes on legal aid and domestic violence, a woman who took part in the research said:

'I’ve never reported any incidence of violence with my ex-partner, the only time that I started reporting it is when I got pregnant. And social services were involved so I reported it to them. I never saw the police as an option because I didn’t think they could help abused women.'**

According to research from the campaign group Rights of Women, at least 46 per cent of domestic violence victims who currently qualify for legal aid will be ineligible under the government’s proposed evidence gateways.***

LAG welcomes the government’s decision to allow legal aid in welfare benefits cases before the Upper Tribunal and other higher courts. We believe the government was forced to make this concession due to pressure from Liberal Democrat backbench MPs concerned about the impact of the Welfare Reform Act (WRA). However, we do not believe it is enough, as there are only a few hundred such cases each year but there are likely to be thousands of appeals to the First-tier Tribunal, particularly with the introduction of changes under the WRA. An already creaking tribunal system is likely to be swamped under a deluge of claims with benefit claimants unable to get initial advice on their cases.

The issue of independence in decision-making is something LAG has pursued from the outset of the government's planned reforms of the legal aid system. We believe the amendment proposed by the Justice Secretary, guaranteeing the independence of the Director of Legal Aid Casework, is the very minimum required to prevent political interference in decisions on entitlement to legal aid. We would have preferred an independent tribunal system and believe this may still happen if ministers do not resist the temptation to meddle in individual cases.

The Legal Aid Bill goes into the ping-pong stage between the Lords and the Commons tomorrow. Kenneth Clarke may find that peers have taken umbrage at his high-handed rejection of much of their revised bill.

*See: Consideration of Lords amendments.

** Legal aid is a lifeline: women speak out on the legal aid reforms, October 2011, available on: LAG's website.

*** Rights of Women and Welsh Women’s Aid, Evidencing domestic violence: the facts, January 2012, available on: the Rights of Women website

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 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.

Advice Fund only covers half of charities in need

LAG has learnt that applications to the Advice Services Fund, which was established by the Cabinet Office to offset the impact of the cuts on advice centres in the current year, have outweighed the cash available by more than double.

A total of £16.8m was allocated for England but, according to letters sent to unsuccessful bidders which have been seen by LAG, 622 applications were received worth £35m. In a letter to those rejected, the Big Fund - which is administering the cash on behalf of the government - made it clear that charities which needed money would have to do without: 'Given the competitive nature of this programme and with a budget of £16.8million, we were unable to offer grants to all of the worthwhile applications we have received.'


The balance of the £20m fund was divided between Scotland, Wales and Northern Ireland. Applicants had to demonstrate they would receive a cut of ten per cent or more in the current financial year and applied for grants worth between £40,000-70,000. Advice agencies which had been awarded money from the Transition Fund last year were told they would not get priority for Advice Services Fund cash.

Many not for profit (NFP) advice services are being hit with cuts from local government and other funders. Any help is welcome, but the Advice Services Fund is clearly inadequate, as over £80m is due to be cut from legal aid for housing, employment, debt, benefits and other areas of civil law, usually referred to as social welfare law (SWL), from April 2013. Around 300 advice centres, such as Citizens Advice Bureaux and Law Centres, rely on legal aid income to provide specialist legal advice services in SWL. LAG is calling for the Legal Aid, Sentencing and Punishment of Offenders Bill, which is due to reach the report stage in the House of Lords next week, to be amended to bring back into scope employment, benefits, housing and other areas of civil law that the government plans to cut.


The Transition Fund distributed £105m in grants to charities and other NFP organisations between March and May 2011. Its aim was to assist them to 'adjust to the new spending environment'. The fund was open to all charitable and NFP organisations. LAG has spoken to a number of advice organisations which have lost out on Advice Services Fund grants because they had previously received Transition Fund money. They have been placed on a reserve list for a grant from the fund, but they point out that unlike the Advice Services Fund, the Transition Fund was not intended to replace cash lost from legal aid or other funding intended for providing services to the public.


A review of advice services is also being undertaken by the Cabinet Office. Advice centres across the UK are facing a crisis of shrinking grants and contracts at a time when the demand for their services is rising. The review, which was announced by Nick Hurd, Minister for Civil Society, in November last year, shows that the government at least recognises this. However, it will have to be backed up with a long term financial commitment to the advice sector if it is to have any credibility. The one-off £20m Advice Services Fund in the current financial year does not achieve this and risks appearing to be little more than a bribe to buy off opposition to the legal aid cuts and to secure a government majority for 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.

Massive support from Londoners for advice services

Research published today by LAG has found that 88 per cent of Londoners believe advice services should be free to everyone, or to people on or below the national average income of £25,000. The London Advice Watch (LAW) report also finds that 77,000 Londoners will lose out on help with civil legal problems and that £9.33 million will be cut from advice services, if the reductions in legal aid proposed by the government go ahead.

The LAW report used data from an opinion poll survey carried out by polling company GfK NOP for LAG, as well as interviews with providers of advice services and their representatives in London. GfK NOP interviewed 1,603 people across 32 London boroughs.

In addition to overwhelming support for the availability of free services the opinion poll found that:

• 94% of people who got advice received a free service.
• 81% of people were satisfied with the service they received.
• 65% of people said their situation improved due to the advice they had received.

London’s population of 7.6m is served by 900 legal aid suppliers including 80 charities. Many of these will be forced to close or severely curtail their services if the government goes ahead with its plans to cut back on civil legal aid. For example, Law Centres in London will lose 43 per cent of their funding and some may be forced to close. Other advice agencies will also be badly hit. Brent Citizens Advice Bureau holds legal aid contracts in housing, benefits, debt and immigration law. Under the government's plans, detailed in the Legal Aid, Sentencing and Punishment of Offenders Bill currently going through parliament, it will lose £275,000 a year in funding and will be forced to close its specialist casework services in these areas of law.

LAG anticipates that amendments to the Legal Aid Bill, which would put back into scope the areas of work being cut in housing, employment, benefits, debt and immigration law, will be debated next week in the House of Lords. LAG is urging peers and the government to think again, before cutting legal aid to thousands of Londoners and the hundreds of thousands of ordinary people across the country who will lose out on help with civil legal problems if the bill is not amended.

LAG is launching the LAW report this afternoon at a special meeting of the All Party Parliamentary Group on Legal Aid in the House of Commons. The meeting will be hosted by Yvonne Fovargue MP and speakers will include Tom Brake MP, the Liberal Democrat MP for Carshalton and Wallington in south London, Liberal Democrat peer Lord Carlile and Andy Slaughter MP, Labour MP and Shadow Justice Minister.

Read the full report on: LAG's website

Pic: LAG

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

Legal aid cuts delayed

Lord Chancellor Kenneth Clarke today put back the implementation of the legal aid cuts from October 2012 to April 2013. LAG welcomes this news. It at least delays the end of legal advice for thousands of people with common civil law problems by six months. However, we believe the pressure needs to be kept on the government to amend the Legal Aid Bill, which is currently before the House of Lords, so that the planned cuts to employment, benefits, debt, housing, immigration and other civil legal aid cases do not go ahead.

The six month delay will also apply to the abolition of the Legal Services Commission (LSC), the introduction of the mandatory telephone gateway and the revised eligibility criteria for civil legal aid. LAG believes that the deadline to implement the government’s planned changes to legal aid was always going to be hard to meet on a practical level- notice to providers of legal aid services would have had to been given immediately after the Bill had received Royal assent. Most experts including LAG had said that the time-table was too tight to implement the changes by October next year. Rumours had been circulating in recent months that the LSC was telling the Ministry of Justice this. It would seem that the government eventually decided to listen to this advice.

In another humiliating move for the government, they have also announced that they are putting plans on ice to implement competitive tendering for criminal legal aid. In November last year ministers had announced their intention to produce a consultation paper on competitive tendering for criminal work. This has now been put back to the autumn of next year. The first contracts are scheduled to begin in the summer 2015. We have a feeling of deja vu about this decision. The previous government announced plans to introduce competitive tendering for criminal legal aid only to abandon them as the last general election approached.

In LAG’s opinion this is very much a case of pain delayed for civil legal aid clients, as well as for the firms and not for profit agencies which serve them. While it is to be welcomed that the government has paused on the brink of destroying access to justice for 650,000 people; the challenge remains to make them turn back.

Pic: Ministry of Justice

Advice fund opens today

The Cabinet Office has advised LAG that the advice fund will be open for applications from 12 noon today. Applications can be made on the Big Lottery Fund website at: http://www.biglotteryfund.org.uk/prog_advice_services_fund

LAG understands that the application process should take no longer than one hour to complete. Detailed notes on how to apply and the eligibility criteria will be available on the website later today. Grants of between £40,000-70,000 will be made to frontline advice providers in England.

The previously announced criteria for the fund are that those applying:

• are from the not-for-profit sector;
• provide advice in at least one of the following areas: debt, welfare benefits, housing and employment;
• are able to evidence funding cuts of at least ten per cent for the eligible advice service areas from central and local government sources in 2011/12.

And that:

• priority will be given to organisations with high levels of cuts and those that have not received grants from the Transition Fund;
• account will also be taken of how applicants plan to use their grants, their plans for the future (including ways to improve efficiency) and how the quality of their advice services help meet local needs.

Legal Aid Bill concession?

The Daily Mirror ran a story yesterday (24 November) saying that Secretary of State for Justice Kenneth Clarke had decided to allow legal aid in clinical negligence cases. LAG checked with the Ministry of Justice (MoJ) and it confirmed that no statement on this has been made by the department and that the 'measures in the bill still stand'. LAG understands that the Mirror story is based on a source at the MoJ. Maybe a minister or an official has spoken out of turn?

It does seem likely to LAG that a concession on clinical negligence and legal aid will be made at some point. Even before the bill was finalised there had been talk of an exception being made for clinical negligence cases. When Labour introduced the Access to Justice Act (AJA) 1999, the then Lord Chancellor, Derry Irvine, looked at doing away with legal aid for clinical negligence cases, but decided that this would lead to the more difficult cases not being pursued, as lawyers would not want to act for claimants in such cases on conditional fee agreements. LAG believes that Derry Irvine was right.

Since the AJA came into force over ten years ago, it has been the more difficult cases that have stayed in the legal aid scheme. This has worked in the interests of justice and the public. Legal aid funding is the only way in which many victims of medical accidents or negligence can obtain justice. At the very least the government ought to look at legal aid funding for investigation and gathering of medical evidence in clinical negligence cases. Much of the cost of such work could be recouped by the legal aid fund in successful cases. It would also ensure that large drug corporations and medical professionals who have been negligent are held to account. It is in the public interest that this happens, so mistakes are not repeated.

It is in no doubt that the government took a pasting in the House of Lords' debate on Monday this week. Lord McNally, the MoJ minister, looked rather hapless as he took a barrage of criticism from all sides over the government’s legal aid proposals. To get the Legal Aid Bill through, the government is up against a tight deadline. The parliamentary session ends in April 2012 so the House of Lords does have the option of trying to talk the bill out if it wishes to. This makes it more likely that concessions will be made in the committee stage in the House of Lords which is due to start sometime next month.

The government will not be pleased that news of the concession on clinical negligence has leaked out. LAG suspects that it would have wanted to time the announcement for later in the process, in order to maximise its impact to shore up support for the rest of the bill among its own backbenchers. It is now stuck with a difficult dilemma - of either sticking to the line that the bill is not going to be changed, and looking foolish when it does so, or admitting there was a leak and announcing the concession. The problem then is that attention shifts to who leaked the information?

Image: LAG

Details of advice fund announced

LAG has been advised by the Cabinet Office that the £20m fund to assist not for profit (NFP) agencies hit by spending cuts will be officially launched today (Monday 21 November).

The fund will be aimed at frontline NFP advice providers in England, which give advice on one or more of the following areas of law - debt, welfare benefits, housing and employment. To qualify for a grant of between £40,000-70,000, organisations must have suffered a ten per cent cut in funding for advice services from either central or local government in the current year (2011/12). According to the Cabinet Office, priority will be given to those organisations with a high level of cuts which have not received cash from the Transition Fund. A review of NFP advice services has also been announced.

'This is a serious commitment to help free advice services carry on delivering much needed help to people struggling with debt, welfare benefits, employment and housing problems in these difficult economic times. The Cabinet Office will also be carrying out a review of free advice services to ensure that we do all we can to help the sector,' said Nick Hurd, Minister for Civil Society.

England will receive £16.8m of the £20m fund, with the balance being split between the devolved administrations in Scotland, Wales and Northern Ireland. The fund will be administered by the Big Lottery Fund and details of how to apply to the fund will be posted on its website by the end of November.

LAG welcomes this announcement. NFP organisations have been hard hit by cuts in legal aid and other funding. We have also argued that the government needs to consider developing a strategy to better fund and co-ordinate the provision of NFP services. LAG hopes this review will be the starting point for this. However, we would warn that if no cash is made available on an ongoing basis, the fund announced today will be seen as providing nothing more than a transition from the frying pan into the fire for advice services facing big cuts in legal aid funding next year.

Both NFP and private practice legal aid providers were hit by a ten per cent reduction in fees last month (October). Next year the government plans to remove employment, debt and welfare benefits law completely from the legal aid scheme, as well as large parts of housing and immigration law. In total, £80.5m funding for this work will be lost if the Legal Aid, Sentencing and Punishment of Offenders Bill, which is receiving its second reading in the House of Lords today, is approved without amendment. LAG estimates that around £50m of this money is currently paid to NFP organisations and the government plans to cut this from October next year.

Particularly in these difficult economic times, LAG believes the government is wrong to abandon members of the public who need advice with what are everyday legal problems. We are urging the House of Lords to amend the bill and the government to rethink its plans.

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.

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

Justice for All at the Labour party conference

Supporters of Justice for All (JfA) have been meeting MPs, lords and delegates at the Labour party conference this week, to build support for the campaign against the legal aid cuts. At a crowded fringe meeting yesterday, organised by the Law Society and JfA, shadow ministers Andy Slaughter and Lord Bach condemned the government's plans for legal aid and promised to continue the support for amendments to the Legal Aid, Sentencing and Punishment of Offenders Bill.

LAG's director Steve Hynes spoke on behalf of JfA at the meeting. He stressed the need to 'pick our battles', singling out clinical negligence, the definition of domestic violence, social welfare law and the independence of the decision-making process as areas which should be fought hard at the report stage of the bill in the House of Commons and House of Lords. 'The network of firms and not for profit organisations across the country will be devastated if the bill is passed without amendment, leaving the public with nowhere to go to get advice locally.'

Lucy Scott-Moncrieff, vice president of the Law Society, began by emphasising the principle of the rule of law, which she said these reforms put at risk, undermining the central tenet that no-one is above or outside the law, and that rights must be enforceable to be valid. She defended the role of lawyers in the system, saying litigation should always be a last resort but that consulting a lawyer can be a very good first step. And she picked up particularly on the effect these reforms would have on children and on women who are victims of domestic violence, on those bringing cases under conditional fee arrangements (who would have to pay their legal costs out of the winnings under the reforms), and the dangers of making areas of advice such as community care only accessible via the telephone.

Lord Bach, the former legal aid minister who will lead Labour's opposition to the bill in the House of Lords, pledged: 'We will try to at least mitigate the worst effects of the bill' by supporting amendments in the Lords. Lord Bach condemned the proposals as 'practical and financial madness', which will cost more and leave people queuing at their MP's surgery with nowhere else to turn. He defended Labour's record on maintaining legal aid for social welfare law, and expressed his disappointment with the Liberal Democrats who he said 'have a proud record of supporting legal aid, sometimes holding us - correctly - to account as we changed the system in government' but who are now voting through the bill.

Andy Slaughter MP, the shadow legal aid minister, said the proposals were 'the most sustained attack on access to justice since legal aid began', and suggested the government's motivation was ideological as well as financial. He promised Labour's continued opposition to the measures, particularly around the cuts to social welfare law, and in answer to a question he promised that Labour would not be cutting social welfare law were they in power. He also drew particular attention to the proposed definition of domestic violence, citing a Liverpool law firm which estimates that only five of their current 278 clients who are victims of domestic violence would be eligible for legal aid under the new definition.

The feedback which JfA has had this week from members of the House of Lords has been positive over the chances of amending the bill. They believe that support from cross-benchers, who are politically independent, as well as Conservative and Liberal Democrat members of the House of Lords who are concerned about provisions in the bill, will be crucial in winning concessions from the government.

JfA will be attending the Conservative party conference next to meet politicians and delegates to build support for the campaign. A fringe meeting will be held next Tuesday afternoon (4 October) at 12.30 pm at the Radisson Edwardian Hotel, 38-40 Peter Street, Manchester.

Picture: LAG