Legal Aid Act - the fight goes on

What is covered by legal aid has not been set in stone by the passing of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ('the Legal Aid Act'). LAG expects that both secondary legislation and test cases will influence the scope of the legal aid system and the regulations which govern it.

The rules on qualifying for help in domestic violence cases proved extremely controversial during the passage of the bill. Parliamentarians in all parties were concerned that victims would be left unprotected. At the third reading of the bill in the House of Lords, an amendment on the circumstances in which a victim of domestic violence could qualify for legal aid was narrowly defeated. Peers voted 238 votes both for and against the amendment, meaning the government won the day under parliamentary convention. Before this the government had made significant concessions allowing doctors' reports and admission to a refuge to be included in the criteria for qualifying for legal aid. Emma Scott of Rights of Women argues that while this was an important step:

'It does not go far enough to reflect the many different routes that domestic violence victims choose to escape abuse. The regulations, which will provide the framework for eligibility for family law legal aid will still exclude potentially thousands of victims of domestic violence.'

Emma Scott says out of 124,895 women accessing Women’s Aid England member services in 2010, only 17,615 were successful in finding refuge places. The most common reason for not being admitted was lack of beds. She believes over 107,000 women accessing domestic violence outreach services would potentially be ineligible for family law legal aid to resolve important children and financial disputes following the breakdown of their relationship. LAG understands that the regulations on the criteria for qualifying for legal aid in domestic violence cases will be brought before parliament in secondary legislation in the autumn.

'It is vital that we use this opportunity to continue lobbying and campaigning to persuade the government to include evidence of accessing specialist domestic violence services in the regulations. Without it, thousands of women and children will become unable to access justice and remain at risk of violence and abuse,' says Emma Scott.

Discussions are ongoing among campaign groups concerned with access to justice over likely test cases to challenge the legislation. Two years ago the government and the Legal Services Commission (LSC) lost a judicial review case brought by The Law Society and firms concerned about the fairness of the LSC’s procurement procedures, which if they had stood would have meant nearly half the 2,400 firms with family contracts losing them. Much more is at stake with the changes introduced by the Legal Aid Act as large parts of civil legal aid, including family law, will go. LAG sees test cases as a vital part of an ongoing campaign to try and repair the damage the Legal Aid Act will reap on access to justice for the public.

See June’s Legal Action magazine for an article on the next steps in the campaign against the Legal Aid Act.

Photograph: Justice for All

Worries over advice sector fund

Speaking at a meeting in parliament organised by the campaign group Justice for All on 1 May, civil society minister Nick Hurd was evasive on how and when the £40m allocated for advice services in the budget would be spent. He was speaking on the same day that the Legal Aid, Sentencing and Punishment of Offenders Bill received royal assent, and admitted that the cash was earmarked to help advice charities deal 'with the legal aid cliff'.

In comments about the £16.8m Advice Services Fund which has already been distributed to 301 advice charities in England, Nick Hurd said: 'At the time of very little money being around we did find at the centre some money to plug the gap left by local government.' He told the meeting, which was well attended by parliamentarians and representatives from the advice sector, that the government’s advice review would be published later in the year: 'There will be a compelling story to tell on how we can configure services to meet demand.' He also acknowledged that 'government needs to be a lot smarter in reducing demand in the system', and argued that the £40m pot for the UK, which will be spent over the next two financial years, should be used 'to incentivise local support and funding' for advice services and to 'help deliver a better integrated system', but not to support 'business as usual' for the sector. The minister would not give details on the criteria or timescale for applications to the fund saying only that the government 'needs a bit of time to plan to get it right'.

The meeting heard from Mike Dixon, the assistant chief executive of Citizens Advice, who was critical of the way in which the first tranche of money from the advice fund had been distributed. He argued that the funding should be allocated to national organisations such as Citizens Advice to identify services at a local level and that it had been difficult for the Big Lottery Fund (BLF), which was responsible for administering the first round of grants, 'to make good decisions' because of its lack of knowledge about local advice agencies. 'The advice networks know where the problems are', he said. He also pledged that if Citizens Advice was to distribute the cash it would not charge to do so, unlike the BLF.

The event was chaired by the Liberal Democrat MP Stephen Lloyd, and parliamentarians in the audience included Conservative MP Nicky Morgan and Labour’s Andy Slaughter. Andy Slaughter, the shadow justice minister, stressed the importance of monitoring the impact of the cuts which will be implemented next year and praised Justice for All for 'shifting the public mood on legal aid from how much lawyers get paid to the impact on clients'.

Ruth Hayes, director of Islington Law Centre, told the meeting that her service could not cope with the demand for advice; 200 clients are seen face to face and around 1,000 get help over the phone each week. She said the Law Centre’s clients often faced a 'number of complex problems which require in-depth work' and that it is important that the resources are in place 'to support clients throughout their cases'.

It should not be forgotten that the Advice Services Fund will make up less than a quarter of the cash which the charitable advice sector is losing from legal aid. LAG believes the government is correct to take some time to ensure the right decisions are taken on the strategic use of the cash available, but if local advice centres are going to have any chance of planning for a future without legal aid funding, announcements on the criteria for funding and the application process will have to be made sooner rather than later.

Image: LAG - minister Nick Hurd speaking with Mike Dixon from Citizens Advice.

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.

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.

Report critical of MoJ’s financial management

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

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

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

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

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



PAC report: Ministry of Justice financial management

Further concession on Legal Aid Bill

It looks like a Liberal Democrat peer has inadvertently admitted to members of the Justice for All campaign that the government is going to amend the Legal Aid, Sentencing and Punishment of Offenders Bill (known as the Legal Aid Bill) to allow areas of law to be potentially brought back into scope at a later date.

LAG has been aware for some weeks now that Liberal Democrat parliamentarians have been meeting government ministers behind the scenes to try and persuade them to offer some concessions on the Legal Aid Bill. One of the points they have been pushing is for an amendment to clause 8(2) of the bill, which in its current form only allows for areas of law to be omitted from the legal aid scheme. Campaigners, including LAG and Justice for All, have been asking for this clause to be amended to include a provision to allow work to be brought back into the scope of the legal aid scheme. Non-political crossbench peers, many of which are distinguished lawyers such as Lord Pannick, have also argued for the change.

Justice for All, which is supported by LAG, urged its members to write to peers and MPs to ask the government to think again about the cuts to legal aid. It has been stressing to them how the loss of advice on welfare benefits and other areas of civil law will impact on vulnerable groups. In reply to this correspondence the prominent Liberal Democrat peer, Lord Thomas, revealed:

'You may know that Liberal Democrat pressure has already achieved a concession from the coalition government that the Lord Chancellor should have the power to place areas of legal assistance back into scope, as well as simply remove areas, as the bill stated originally. Hopefully, that power will be exercised if some of the fears expressed of denial of access to justice come to pass.'

LAG believes that the government is considering bringing forward a number of amendments for the report stage of the bill, which is due to commence on 5 March in the House of Lords. Ministers are unlikely to have wanted a planned concession like this to have been revealed before the report stage, as it would risk losing any impact in placating opposition to the bill, which so far from peers has been overwhelmingly hostile.

While the concession to allow areas of law back into scope is significant, because it gives some hope that the planned cuts can be reversed, in terms of its impact on the public it represents a hollow victory. It does not alter the fact that from April next year 650,000 people will lose out on help with common civil legal problems unless the Legal Aid Bill is amended to reverse these planned cuts.

Katie Brown, co-chairperson of Young Legal Aid Lawyers told LAG: 'We have no doubt that once the consequences of these ill thought out reforms come to light, the government will have to use this provision to bring areas of law back into scope. In the meantime there will be many people who will end up as victims of the government’s short-sighted proposals, as they are left in the lurch in the time between the bill being passed and areas being brought back into scope. As such this concession is not enough, and we will therefore continue to put pressure on peers to vote for amendments designed to secure access to justice for the most vulnerable.'

See:
the Justice for All website for a briefing on clause 8.

Wide Support for Amendments to the Legal Aid Bill

Today is the last day for peers to submit amendments to the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill. The LASPO Bill is due for its first day in the committee stage in the House of Lords next Tuesday (20th). There is widespread support amongst peers for changes to the Bill.

Perhaps the most surprising supporter of an amendment is Lord Tebbit, the former conservative cabinet minister and right wing political bruiser, famous for his outspoken pronouncements. In 1981, in a curious echo of contemporary events, commenting on the possible link between unemployment and the riots which had taken place that year he said, “I grew up in the '30s with an unemployed father. He didn't riot. He got on his bike and looked for work, and he kept looking 'til he found it.”

Lord Tebbit is supporting an amendment which would bring back legal aid in medical negligence cases concerning children. This is one of the sections of the Bill, which LAG and other pressure groups want to see changed. Many other provisions in the Bill identified as priorities for changing have been covered by the amendments submitted so far. For example an amendment on clause 8 of the Bill, put down by Lord Pannick, Lord Woolf and Lord Faulks, deals with the issue of giving the government powers to put areas of law back into the scope of the legal aid scheme. LAG believes this is important, as without it none of the proposed cuts could be reversed without new legislation. Previous legal aid acts have allowed for changes in what the system covers without primary legislation.

An amendment by Baroness Scotland of Ashal addresses the important issues of the definition of domestic violence and the criteria for qualifying for legal aid in such cases. Lord Bach and Lord Beecham have also put down a number of useful amendments, including one which provides for the establishment of an independent tribunal to review decisions on entitlement to legal aid. LAG believes that both in appearance and practice, decisions on whether cases should be paid for by legal aid must be subject to independent adjudication, otherwise the government will be put in the invidious position of reviewing decisions on whether to grant legal aid for cases against itself.

There is a good spread of support amongst peers from all of the political parties for the amendments. Non-political cross-benchers are particularly prominent in their support of amendments which contradict government policy. Prominent among these are heavyweight legal figures such as Dame Butler-Sloss, former President of the Family Division, who is supporting a number of amendments, one of which would reinstate entitlement to civil legal aid for people with dependent children.

A letter sent to peers this week from the government minister Lord McNally offered no concessions and reiterated arguments made in the House of Commons stage of the Bill in favour of the cuts to legal aid. In essence Lord McNally, who is in charge of trying to steer the Bill through the Lords for the government, was saying- times are hard and we have to make these cuts. LAG believes he is unlikely to be able to continue holding this line, given the breath of support for many of the amendments. Perhaps its time for him to get on his bike and look for some compromises? Otherwise, the government risks some heavy defeats on the LASPO Bill in the Lords.

Pic: Christmas card sent to members of the House of Lords from the Justice for All campaign

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.

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.

New report on impact of legal aid cuts on disabled people

LAG commissioned the disability charity Scope to research the impact of the proposed cuts in legal aid on benefits advice for disabled people. The report, Legal aid in welfare: the tool we can’t afford to lose, which is published today, demonstrates the serious consequences of the government’s proposals on disabled people and argues that taking benefits advice out of scope will undermine the government’s welfare reform programme.

In the report, Scope followed five typical claimants with disabilities as they negotiated red tape and bureaucracy to claim benefits, with and without legal aid. The final report, which is to be launched at an event in the House of Lords this afternoon, makes the following key points:

• Various reports in recent years show that the government has to make a quantum leap in order to improve the quality of decision-making in benefits cases.



• The government inaccurately portrays the benefits appeals system as easy to navigate.
  


• Removing benefits advice from the scope of legal aid at a time when major reforms are being implemented will have a 'knock-on impact on a tribunal system already stretched beyond breaking point'.



• The removal of legal aid 'will delay or even deny justice for many disabled people, and undermine the government’s ambitions to have a fairer benefit system that incentivises work'.

In his introduction to the report Richard Hawkes, chief executive of Scope, says that for the government’s welfare reforms to succeed and to make sure disabled people get the right support, legal aid for welfare benefits appeals is vital. The report highlights the government’s inconsistency in seemingly making the judgment that benefits are not sufficiently complex to merit legal aid while Iain Duncan Smith MP, the Secretary of State for Work and Pensions, is justifying his planned reforms by arguing for the need to 'cut a swath through the massive complexity of the existing benefit system'.

According to the Department for Work and Pensions (DWP), the introduction of universal credit is intended to lift 250,000 households with a disabled person out of poverty, but the report argues that many of these people will miss out due to a lack of awareness over what they are entitled to. Also, the move to transfer more people on to employment and support allowance (ESA) from the fit to work group is undermined by the DWP's tendency to get these decisions wrong: out of 122,500 appeals heard between October 2008 and February 2010 from people turned down for ESA, 48,000 were successful.

In LAG’s view a major goal of all government departments should be to try and get the vast majority of their decisions right first time. Withdrawing legal aid at a time of massive change in the benefits system will exclude many disabled people from claiming what they are entitled to. This report makes the case eloquently, through the experience of disabled people, as to why the government needs to think again. LAG and the other organisations supporting the Justice for All campaign will be working to persuade the House of Lords to amend the Legal Aid, Sentencing and Punishment of Offenders Bill to bring advice in welfare benefits appeals back into scope.

A copy of the report is available on LAG's website at: http://www.lag.org.uk/Templates/Internal.asp?NodeID=88856

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

Legal aid and domestic violence

LAG has been working with the Women’s Institute (WI), Rights of Women (ROW) and other organisations to try and influence the government into rethinking its proposals on restricting legal aid to women and other victims of domestic violence. We are urging MPs to support an amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill (the Legal Aid Bill) which has been drafted by LAG and other campaign groups (the full text of the amendment is reproduced on LAG’s website: www.lag.org.uk/policy).

The WI will be publishing a report next week, which was commissioned by LAG, on the impact of the government’s proposals on legal aid in domestic violence cases. The report draws on academic research and the experience of women who have suffered domestic violence. In a key passage it states that the proposed criteria to qualify for legal aid '… fail to reflect the reality of women’s lives; and in practice will leave vulnerable women without access to legal aid'.

In the government’s response to the consultation on legal aid reform, it outlines criteria intended to act as a gateway to qualifying for legal aid in domestic violence cases. The criteria include obtaining a conviction against the perpetrator but, as the WI report points out, very few women who are victims of violence are able to do this. A woman who left an abusive partner to live in a refuge told the WI: 'I was with him for eight years, the police had been called so many times, I’d been in and out of hospital because of him, I always dropped charges, I was petrified to take it further.'

Many women who spoke to the WI researchers were concerned that they would not be able to gather the necessary evidence to prove domestic violence in order to qualify for legal aid: 'He was a psychopath and I was in intensive care for three weeks and he threatens you doesn’t he, that the children will be taken away, so you stay because you’re frightened to lose the children, so you stay for that purpose, you get brainwashed. The thing about this is they also rape you, they drag you about, they tie you up, but you may not have the scars, but it’s there.'

One of the proposed criteria is that the conditions to qualify for legal aid in cases of domestic violence have to have been met in the last 12 months. Many women told the WI they were not able to pursue legal proceedings within this time limit: 'My husband raped me two years ago and I fled two days later with my children and I immediately went into refuge, survival mode. I needed a home; I needed to sort out money. I couldn’t have been producing evidence in 12 months, I mean it’s taken me two years effectively to leave my home and then be in a situation where I am now, where I have a new house, you know, furniture, sorted out my garden, the children’s schools and everything. It’s been two years, not 12 months.'

In LAG’s view, the WI report provides compelling evidence of the government's need to rethink the criteria to qualify for legal aid. The government has got its priorities wrong. Protection of all victims of domestic violence is what it should be focused on and the amendment drafted by LAG, the WI, ROW and other campaign groups will create fair criteria in the Legal Aid Bill to ensure that this happens.

Read the WI report at: www.lag.org.uk/policy.

Legal aid boss fears political bias in decisions

Chairman of the Legal Services Commission (LSC), Sir Bill Callaghan, has warned of the potential for political interference from ministers in decisions on whether to grant legal aid in controversial cases.

Speaking at the Legal Aid Practitioners Group conference in Birmingham on Friday (7 October) he said that one of the disadvantages of the plan for the Ministry of Justice to take direct control of the administration of legal aid would be the lack of independence in the decisions on whether or not to grant legal aid to groups such as 'Travellers and terrorists' who can be politically controversial: 'It is very important there is some protection from political interference in decisions on granting legal aid.'

Questioned by LAG on what he believed would be the right way to do this, he replied that the LSC has advised ministers that an 'independent tribunal to appeal decisions on granting legal aid would be the best system'. He expressed concern that the Legal Aid, Sentencing and Punishment of Offenders Bill, currently before parliament, did not have any provisions to protect the civil servants who would be making decisions on entitlement to legal aid from political interference from ministers. Implying there had been problems in the past he told the meeting of around 200 legal aid lawyers that as chairman of the LSC, 'I've seen ministers with arms of very different lengths when it comes to decision-making on entitlement to legal aid.'

Sir Bill argued that the special review system which currently looks at decisions in complex cases using independent experts could be examined as a possible alternative to the tribunal system which he suggests. He said that he would be looking carefully at the legislation to ensure that there was an element of independence in the decision-making process to stop interference from ministers.

LAG has spoken to other senior sources at the LSC who share Sir Bill's fears about ministers exercising improper influence in cases. Interestingly they have no concerns about their current political master, Kenneth Clarke, doing so, but say that there were incidents under the previous Labour administration in which ministers might have done so. Sir Bill is the first official from the LSC to go on the record to voice his fears. His comments will be embarrassing to the government which has so far rejected calls to amend the bill to include an independent tribunal system to hear appeals against a refusal to grant legal aid.

In the case of Evans, which was widely reported earlier this year, evidence emerged of Lord Bach, the then legal aid minister, being lobbied in secret by the Defence Secretary Bob Ainsworth to prevent legal aid being granted in such cases. The rules were subsequently changed to prevent third parties from claiming legal aid to bring human rights challenges in similar cases.

In LAG's view, whether officials believe an individual secretary of state might or might not decide to try and prevent legal aid in a politically sensitive or otherwise controversial case is not the point. LAG believes Sir Bill is right - an independent tribunal system to appeal decisions on entitlement to legal aid will be essential if the government goes ahead with its plan to take direct control of the administration of legal aid. What matters is that both in practice and appearance there is no suggestion of political interference in granting legal aid as the credibility of the justice system is at stake.

Image: Legal Services Commission

Legal aid and the missing minister

Justice for All (JfA) was at the Conservative party conference this week, bringing to an end its tour of the three main party political conferences. As with the other two conferences, JfA talked to MPs and delegates attending the conference in Manchester and held a joint fringe meeting with the Law Society. This took place yesterday afternoon. Unlike the Liberal Democrat conference at which Lord McNally defended the government, no minister attended the fringe meeting at the Conservative conference. Perhaps the minister with responsibility for legal aid, Jonathan Djanogly, did not fancy venturing out from behind the security barriers to face campaigners? Instead the Conservative backbench MP, Ben Gummer, was present to give his thoughts on government policy. He gave a nuanced performance which offered some hope to the not for profit sector especially, but reiterated the government's case for the cuts due to the overall budget constraints.

Jonathan Djanogly did appear at a fringe meeting in the secure zone on Monday (the night before the JfA meeting) to defend the government's proposals on civil damages claims which are included in the Legal Aid, Sentencing and Punishment of Offenders Bill. He argued that these would return the law to the position it was in prior to Labour's Access to Justice Act 1999. In a question, LAG pointed out to the minister that the Lord Justice Jackson report, which the proposals are based on, stated that legal aid should not be reduced further if the report's recommendations were to be implemented and that clinical negligence especially should not be removed from scope. In response Jonathan Djanogly said that such cases could be picked up by no win, no fee agreements which he stressed would continue under the new legislation and that plaintiffs would 'have to look harder at their chances of success before bringing a claim'. He said he believed that a third of such cases would fall under the new exceptional cases rule which would be introduced by the bill.

It was disappointing that Jonathan Djanogly refused the invitation to attend the JfA and Law Society fringe meeting. He appears to be more engaged with the parts of the bill which deal with reforming damages claims or 'ending the compensation culture' as he sees it than the reductions in legal aid which will lead to over 500,000 people losing entitlement to help with their civil legal cases. His boss, Kenneth Clarke, made only one reference to legal aid in his speech to the conference, referring to the need to cut out 'excessive spending on legal aid'.

In his speech to the fringe meeting, Ben Gummer continued with the theme of the necessity of cutting spending and to 'make savings in this parliament'. He said that even with the proposed reductions the legal aid system would remain 'more generous than most European countries'. Ben Gummer, who is a member of the House of Commons committee scrutinising the bill, offered some hints that amendments might be considered on the detail of the bill. He was pressed by Lucy Scott- Moncrieff from the Law Society and LAG on the clauses in the bill dealing with victims of domestic violence. He said he was aware of the argument to adopt the Association of Chief Police Officers' definition of domestic violence and added that 'the debate on this would have to be held in the House'. On the criteria for claiming legal aid in domestic violence cases he said this was 'an evolving area and I hope we will see a more settled position on this in the next few months'. When pressed by Paul Waugh, who was chairing the meeting, about what amendments the government was bringing forward, he said 'he was not in a position to be indiscreet about these' as he was not party to the government's thinking on this, but said that he hoped that 'especially the advice sector would be pleased by some of these changes'.

LAG believes that now the conference season is over, attention will shift once again to parliament and pressing for the bill to be amended either at the report stage in the House of Commons or in the House of Lords. Ben Gummer's comments at the fringe meeting yesterday also seem to indicate that MPs on the government benches want ministers to make good on their promises to assist the not for profit sector to deal with the planned cuts in legal aid. Gummer made several references to the £21m fund which has been promised to the sector, but as LAG pointed out to him in the meeting this will be of little use if it is only a one-off grant in the current year as the cuts in legal aid will hit the sector next year.

Image by LAG shows Ben Gummer at the JfA and Law Society fringe meeting yesterday

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

Liberal Democrat 'disquiet' over legal aid cuts

Justice for All (JfA), the campaign against legal aid and other cuts in legal advice services, held a fringe meeting this morning at the Liberal Democrat party conference.

In a strong speech, James Sandbach, from JfA, told the meeting that the areas of law the government is preparing to take out of the scope of the legal aid system affected the 'most vulnerable in society' and that the proposals amounted to a '66 per cent cut to civil legal aid'. Sandbach said, 'It is disappointing that the government has targeted social welfare law cases as this is the gritty law that affects ordinary people’s lives'.

The government intends to cut all help with benefits, employment and debt cases, as well as severely limiting advice on housing and other civil law cases. On Saturday morning the conference approved a resolution critical of the government’s plans for the reform of welfare benefits. The resolution, which was drafted by Sandbach, argued that claimants going to appeal should be 'given access to adequate support and legal representation'. At the fringe meeting this morning the justice minister Lord McNally dismissed this saying it was a 'Saturday morning resolution, which cannot mean that parliamentarians have to follow it', although he conceded he had to take account of his party’s views on the issue.

Lord McNally, speaking about the Legal Aid, Sentencing and Punishment of Offenders Bill, which is due to receive its first reading in the House of Lords in October or November, said that while it was 'worth campaigning on the bill' he could not promise any major concessions, as he 'did not want to offer false hope'. However, he conceded that he is open to 'advice and informed briefings' and would take concerns back to his boss Kenneth Clarke, the Secretary of State for Justice.

Alan Beith, a Liberal Democrat MP and the chairperson of the justice select committee, spoke more freely, reiterating the committee’s criticisms of the government’s plans, particularly around the cuts to social welfare law. He said he believed that the £20m Cabinet Office fund announced earlier in the year for the not for profit sector could only be a temporary measure.

The fringe meeting was hosted jointly by JfA and the Law Society. Nick Fluck, deputy vice-president of the Law Society, was critical of the government for talking about 'legal spend, rather than ensuring justice'. He spoke of the need for the government to improve the efficiency of the courts, to introduce 'polluter pays policies' to recover the cost of legal aid and the need for better decision making in government departments to offset the demand for legal aid. Referring to the proposals to reform the funding of damages cases included in the Legal Aid Bill, he said that 'insurers were very pleased about the proposals'. He argued that while they will reduce risk for insurance companies he was doubtful whether any savings will be passed on to the public.

'Despite the minister’s comments it is clear that there is much disquiet among many Liberal Democrats about the impact of the proposed legal aid cuts. Justice for All will hope to build on this to gather support for the bill to be amended once it reaches the Lords,' said James Sandbach speaking to LAG immediately after the fringe meeting.

Legal Action Group sits on the JfA campaign steering group.

Pic: Justice for All

Legal Aid Bill amendments

Legal aid for housing cases threatened

The committee scrutinising the Legal Aid, Sentencing and Punishment of Offenders Bill resumes its work today (Tuesday 6 September). A number of amendments have been put forward for consideration by members of the committee which includes the justice minister Jonathan Djanogly MP and his Labour opposition counterpart, Andrew Slaughter MP.

Amendments from the government, proposed by Jonathan Djanogly, include a number which alter the current provisions in Schedule 1 of the bill regarding housing law. The grounds on which a tenant can counterclaim in a housing repossession case are widened, but it is unclear if the common counterclaim of disrepair has been brought back into scope. LAG believes this is a glaring anomaly which needs to be addressed as without it irresponsible landlords in both the public and private sectors will have no incentive to keep properties in a good state of repair.

It is also not clear if the government’s proposed amendments reinstate the right of tenants to claim damages if they are illegally evicted by a landlord. Many tenants do not wish to return to the property which they have been illegally evicted from, due to the distress this has caused. As the proposals in the Legal Aid Bill now stand, tenants in this position would not be able to obtain legal aid to assist them in fighting their cases. LAG believes legal aid should be reinstated in illegal eviction cases as the right to claim damages discourages landlords from trying to force tenants out illegally.

Labour members of the bill committee are moving a number of amendments which reinstate cuts the government has proposed to the scope of the legal aid scheme. For example, Andrew Slaughter is moving an amendment which would reinstate legal aid in medical negligence cases. Kate Green MP, another Labour member of the committee, is proposing an amendment which would widen the definition of domestic violence. This is a move widely supported by women’s rights groups including Rights of Women and the Women’s Institute.

LAG argues that the definition adopted by the Association of Chief Police Officers should be included in the bill. This includes psychological, physical, sexual, financial or emotional abuse which takes place 'between adults ... who are or have been intimate partners or family members, regardless of gender and sexuality'. LAG understands that the government is resisting adopting this wider definition, but is likely to face sustained pressure to do so in the coming weeks.

Plaid Cymru's member of the committee, Elfyn Llwyd MP, has also given notice of a number of amendments. It is believed that he might play a pivotal role in persuading government members of the committee, which include the Liberal Democrat MP Tom Brake, to back amendments which are against the government’s line.

The bill committee will also meet on Thursday this week and next week, before breaking for three weeks for the party conferences. The government wants to move the Legal Aid Bill to its next stage in the House of Lords on 13 October, but will be hard pressed to do so, due to the number of amendments which organisations concerned with the provisions in the bill want to be considered.

Image: LAG

Do the Scots beat the English and Welsh at providing legal aid?

The Scots seem content with retaining the old picnic table brand for legal aid, while the English and Welsh have dropped this and replaced it with three logos!

Over the last few months the government has grown fond of making comparisons with other countries to try and justify its planned legal aid cuts. Comparisons are difficult to make as the British adversarial system is very different to the inquisitorial systems that predominate in the rest of Europe. However, somewhat nearer to home a legal aid system can provide some pointers to where the system in England and Wales might be going wrong. In Scotland, while its legal aid system shares the same origins, it seems to have worked out how to provide a system that costs less, but is more extensive, than the one south of the border.

A big difference between the two systems is that personal injury cases are still covered in Scotland. In England and Wales the Access to Justice Act 1999 ended this and introduced changes to the law on recovery of costs in damages cases. The Scottish legal system does not allow costs for insurance and success fees to be charged to the losing side. There are other differences in the scope of legal aid, for example, representation in employment tribunal cases is covered by legal aid in Scotland.

Colin Lancaster, director of policy and development at the Scottish Legal Aid Board (SLAB) said: 'SLAB and the Scottish government see the use of legal aid in personal injury and other damages-based cases as a worthwhile social investment.' He pointed out that over 80 per cent of the fees paid out in such cases are recovered. This is the same as what used to happen in England and Wales.

By not going for radical change and adopting a more gradual approach to legal aid reform and by having stable management at the top of the SLAB, the Scots seem to have been more successful in delivering their legal aid system than England and Wales. Perhaps the government needs to learn from this rather than rushing to slash entitlement to legal aid as it plans to?

An article on the Scottish legal aid system will appear in the September issue of Legal Action journal.

Cash for social welfare law announced

During the debate on the second reading of the Legal Aid, Sentencing and Punishment of Offenders Bill, the Justice Secretary Kenneth Clarke announced a fund of "up to £20million" to pay for Citizens Advice Bureaux and other not for profit advice agencies to provide advice on housing, debt, employment, benefits and other common civil legal problems (known as social welfare law). LAG welcomes this announcement, but has some concerns about the proposed fund and the provisions on legal aid in the bill.

Over recent months LAG, along with The Baring Foundation, has been working with the Cabinet Office to try and influence government thinking on social welfare law. Progress has been painfully slow. Hopes were raised when at short notice a summit was organised jointly with the Cabinet Office in February to look at the problems faced by the providers of social welfare law services. We were disappointed by the bland statement from ministers in response to the issues raised at the summit, but believed it was worth persevering as we were assured that these issues had been considered at the highest level of government.

We have been reassured by sources close to Ken Clarke that the cash announced today is new money, which will be available in the current financial year to help advice services such as Citizens Advice Bureaux, Law Centres and other independent advice centres. LAG is grateful to those who argued for this in government. Spending is tight and this is a significant sum of money which we estimate would pay for 500-700 posts in the sector and means over 100,000 members of the public will receive advice services.

However, it is only transitional funding and so not permanent, though Ken Clarke said that they will look at continuing the fund beyond this year. The common problems faced by people on low incomes are not going to disappear in a year. Legal aid for advice will though. Advice on benefits and employment problems will go completely by next year or, at the latest, 2013. This amounts to a cut of £26m which mainly goes to not for profit advice providers. A further £23m is being cut in advice on housing and debt cases. £12m is being cut from immigration cases. Again, this is mainly money which funds services in the not for profit sector.

LAG is concerned that many of the provisions on legal aid in the bill before parliament seek to restrict people’s rights to legal aid. The bill also gives too much power to the government to restrict access to justice with no vote in parliament. We believe the bill should be amended to restore people's rights to legal advice on common legal problems and to ensure that parliament is consulted before further changes to legal aid are introduced.

Delegates at LAG's conference on Monday (4 July) will get the opportunity to hear from justice minister Jonathan Djanogly MP about the government's plans for legal aid and from the Shadow Justice Secretary Sadiq Khan MP, as both are giving keynote speeches at the event.

Find out more about LAG's conference and book places

Read more news on LAG's campaign to save social welfare law services:

LAG calls for joint review of social welfare law services

Choices and compromises

Follow the money

Like in good comedy, timing is everything in politics. The minister responsible for legal aid, Jonathan Djanogly, released the figures for the highest paid legal aid solicitor firms and barristers yesterday. Call us cynical, but this is a sure sign that the delayed bill containing the legal aid cuts is to follow next week.

Publicising the top earners figures as a means of justifying the planned legal aid cuts would be hypocritical in the extreme - not that this is likely to stop some, particularly as the political pressure over the cuts mounts. What should be remembered is that nearly £300m of the total cuts of £350m likely to be announced next week have little bearing on the high-earning people on this list. These cuts instead fall disproportionately on the lower end of civil legal aid work, undertaken by solicitors and not for profit organisations earning far less than the elite few reflected in these figures.

The Bar usually comes in for criticism when these sorts of figures are released as individuals earning high amounts of public money are an easy target for sections of the press. What partners in solicitors firms earn from legal aid is less transparent. Fortunately, there are no barristers earning over one million pounds topping the list to hang a story on. LAG believes this is in large part due to the changes to Very High Cost Cases (VHCC) fees made by the last government. Barristers and solicitor advocates have also taken a 12.5 per cent reduction in Crown Court fees over the last two years.

There remains, though, a striking differential between the amounts being earned by the top criminal barristers as opposed to civil barristers. The lowest earning criminal barrister in the list would come near the top of the civil earnings list. Across all levels of fee income, civil law legal aid barristers generally earn much less than their criminal counterparts. This is a reflection of the number of criminal VHCC and, it has to be said, the more generous fee structure for criminal cases. Only two women feature in the list of top criminal barristers, as opposed to six in the civil list - a sure sign perhaps that most of the money is in criminal work?

The Law Society has called for a cap of a quarter of a million pounds to be imposed on individual earnings from the legal aid fund. LAG doubts that this is something which could be easily implemented. To be even-handed it would be difficult to apply to partners in solicitors firms with a mix of private and legal aid income. Also, as Jonathan Djanogly correctly points out in the letter in which he released the figures, the earnings for barristers are not necessarily calculated over a calendar year, and can include fees for junior counsel, as well as other overheads.

LAG accepts that excellence in advocacy carries a cost which has to be met to ensure equality before the law. However, we do not believe the differential between civil and criminal fees can be justified. If the policy choice boils down to higher fees at the top end of criminal work, against access to justice for the public coping with everyday civil legal problems, criminal barristers and solicitor advocates should be prepared to take a hit in income.

Read the letter and full list of figures here: http://www.lag.org.uk/Templates/Internal.asp?NodeID=88856

Picture: Ministry of Justice, legal aid minister Jonathan Djanogly