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

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.

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.