Looming Autumn of discontent and a minister in trouble

Parliament rose for its summer break last week after the Prime Minister David Cameron had given his statement on the phone tapping scandal. The day before on 19^th July the Committee scrutinising the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill had met for its first session to consider the content of the Bill.

The Committee last week did not get beyond a general discussion on the Bill and clause one. A point proved we think on the lack of time that LAG and others have complained about being devoted to the Bill. We fear that as little as two and half days will be devoted to the forty clauses in the Bill on legal aid, as the government seems determined to force through the Bill so that it can be sent to the House of Lords by 13^th October.

Many organisations are trying to get the Bill amended while it is in the Commons committee stage. Amendments, amongst other issues, will seek to reverse the cuts in scope, widen the definition of domestic violence and introduce an independent appeals system against the refusal of legal aid. Once the Bill is in the Lords further detailed amendments are likely to be pursued by LAG and other organisations concerned about access to justice.

Justice for All (J4A) will be increasing its campaigning and lobbying work over the summer and autumn. The J4A campaign, which is an alliance of charities and other organisations concerned about the legal aid cuts, is expected to employ a full-time campaign manager to be based at LAG’s offices. The campaign manager will be in charge of the day to day running of the campaign while the Bill is being considered.

J4A and LAG will be active at all three autumn party conferences in fringe events and at meetings with parliamentarians. LAG is also involved in a number of research projects over the summer period which will provide evidence on the impact of the proposed legal aid cuts on the public. We anticipate publishing a number of reports to coincide with the Bill’s progress through parliament. All the organisations opposed to the cuts in legal aid intend to increase the pressure on the government over the autumn and into the winter as the Bill makes its way through the parliamentary process.

The phone tapping scandal seems to be a factor in the re-boot of the controversy involving the minister with responsibility for the LASPO Bill, Jonathan Djanogly MP. The Daily Telegraph is carrying a story today that he has been reported to the Information Commissioner’s Office (ICO) over his use of private detectives to covertly monitor members of his constituency party. This story originally broke two years ago. According to the Telegraph the detectives he used have admitted “using subterfuge to gain the information.” The Labour M.P who made the complaint, John Mann, is calling for Djanogly’s resignation, but this seems unlikely to happen as the ICO have confirmed this afternoon the complaint does not fall in their remit.

Legal aid bill row

Last week, the Legal Aid, Sentencing and Punishment of Offenders Bill was published. In LAG's view, the bill as drafted attempts to completely recast the legal aid system as a much reduced rump mainly concerned with criminal justice, child protection and the minimal provision of access to justice around human rights in order to comply with the European Convention on Human Rights. To this end, the rights of ordinary citizens, especially the poor and vulnerable, have been cast aside.

Practitioners and parliamentarians got an early opportunity to see the minister responsible for legal aid, Jonathan Djanogly, defend the government's plans when he was the guest speaker at the All Party Parliamentary Group on Legal Aid (APPGLA) meeting on Wednesday 22 June, the day after the bill was published. The minister was subjected to detailed questioning from the large audience of parliamentarians, practitioners and others concerned about the cuts announced in the bill.

Opening the meeting, Yvonne Fovargue MP, the chairperson of APPGLA, made the point that while provisions on sentencing reforms had made the headlines, it was the cutbacks in legal aid that would have the most significant impact on her constituents. Djanogly reiterated much of what had already been stated by his boss, Kenneth Clarke, the day before while introducing the bill in the House of Commons. He stated that while the government was making cuts, the legal aid scheme would continue to be 'one of the most generous in the world' and that it was 'retaining funding for a wide range of rights' but that 'the overall effect of the bill will be to achieve significant savings'.

Law Society president, Linda Lee, led the comments from the audience: 'I am disappointed and heartbroken; this attack on civil legal aid is an attack on the most vulnerable.' Lord Carlile, a former Liberal Democrat MP, asked the minister how he would advise someone who suspected his/her child had suffered damage during birth: 'Would they fall into the exceptional funding criteria?' Djanogly answered that it was not his role to give advice - s/he would have to go to a lawyer for that. He said that the majority of such cases would be able to use a conditional fee arrangement, but that 'litigation must be a risk and the question I have to ask is whether the taxpayer has to pay'.

To a question raised by Linda Lee about the government's failure to look at the alternative funding put forward by the Law Society, Djanogly said: 'Much of what was suggested by the Law Society was to get others to pay for legal aid. When you go to the Treasury, it is not so keen about creating new taxes.'

The minister left the meeting with an audience disgruntled about his defence of the bill and angry with the government for its complete dismissal of the 5,000 responses to the consultation. Even the widely expected concession on the definition of domestic violence amounts to a highly restrictive one, which will exclude many victims from claiming legal aid.

The parliamentarians at the meeting promised the bill a rocky passage through both Houses. In defiance of convention, the government is moving to a second reading of the bill next Wednesday, instead of leaving the customary two weekends between publication and the first debate in the House of Commons. LAG hopes that some significant concessions will be made by the government to improve access to justice before the bill becomes law.

A full report on the APPGLA meeting will appear in the July issue of Legal Action magazine.

Image: LAG

Legal aid green paper 'imminent' says minister

Clever poker players look for 'tells' in their opponents’ body language to discern what hand they have got. Members of a packed fringe meeting at the Conservative party conference on Tuesday, addressed by legal aid minister Jonathan Djanogly, were all looking for the 'tells' about his plans for the legal aid system. The minister, though, was keeping his cards close to his chest, but he did reiterate some familiar themes, which might give some indication of government thinking. He also told the meeting, which had been organised by the think tank Policy Exchange, that a green paper on legal aid was 'imminent'.

The nub of Djanogly's speech was that spending on legal aid has doubled in real terms in the past 20 years and as his department has to find significant cuts, legal aid will be a target. The minister said that there would be a green paper on legal aid in the next few weeks and reiterated the point he has now made on a number of occasions that the government wants to look at the legal aid system in its totality rather than going down the road of a 'salami-slicing review'. The starting point, he argued, was 'what we need to do to reform the system so that vulnerable people have access to justice'. Ominously, for the legal aid lawyers in the audience, Djanogly talked about what he sees as anomalies in the system such as the higher fees paid for murder trials and that fraud trial fees are paid on the 'value of the case rather than its complexity'.

Some points Djanogly made could have been lifted directly from the previous government’s pronouncements on legal aid. He trotted out comparisons with other countries' spending on legal aid, £3 per head of population in France and £5 in Germany as against £38 in England and Wales. As politicians are prone to do, he was selective in his facts. He did not mention the Ministry of Justice's own research published last year which found that while spending in England and Wales is the highest in Europe, once the total costs of the criminal and civil justice systems are taken into account in the continental inquisitorial systems the figures on spending are similar to the UK.

Another significant point he made, which could have been lifted from a speech given by one of his Labour predecessors in government, was that 'too many cases go to trial in the Crown Court'. When pressed on this point by a member of the audience who argued about the importance of being able to elect to go to a jury trial, Djanogly replied that he was 'thinking hard about the issue as 80 per cent of thief trials in the Crown Court are for less than £200'. He argued that 'other levers such as how legal aid is handed out' can be used to persuade those accused of a crime to elect for trial in an appropriate court.


LAG hopes, perhaps optimistically, that the green paper will acknowledge that much of the cost drivers for legal aid which have led to the increase in expenditure which Djanogly referred to in his speech are outside the control of the legal aid system. Also, expenditure on legal aid has remained static over the past four years. This has been due mainly to the reintroduction of the means test for criminal legal aid and cuts in fees introduced by the last government. While Djanogly could give no indication of the amount which will have to be cut from legal aid, he said that the Ministry of Justice had to find 25 per cent in savings and as the ministry’s total budget is £9.5 billion, of which legal aid makes up £2.2 billion, 'you get some idea of the level' of cuts needed.

In a few weeks we will no longer be looking for clues or 'tells' about the government’s intentions. The comprehensive spending review announcement on 20 October will tell us how much the government intends to spend on legal aid and the green paper will indicate what sort of system it envisages for the future.

Image: Legal Action Group

New legal aid minister

It's been a bit of a wait, but we now have a new minister with responsibility for legal aid. His name is Jonathan Djanogly and he is the MP for Huntingdon, John Major's old seat. Djanogly is a qualified solicitor and was a partner in a large commercial firm.

Yesterday the coalition government published its policy programme. Included in the section on justice is the commitment to ' ... carry out a fundamental review of legal aid to make it work more efficiently'. It is an unfortunate choice of words as legal aid watchers will be aware that we have previously had a 'Fundamental Legal Aid Review', or FLA as it became known, in 2004. The FLA got lost, though, as a final report was never published. LAG believes that ministers did not like what the civil servants had come up with. Instead we got the Carter review, ordered by the then Lord Chancellor, Lord Falconer, and published in July 2006, the findings of which have been partially implemented over the last few years.

To be fair, in opposition the Conservatives did seem serious about trying to find new ways of getting money into the legal aid system, including a £200 contribution from all criminal clients and looking at 'polluter pays' methods of funding. So we will see what Jonathan Djanogly and this latest review of legal aid comes up with. Implementing new funding methods could be wrapped up in a new or amended Access to Justice Act, which could also deal with bringing the Legal Services Commission under the control of the Ministry of Justice as recommended by the recent Magee Review. Perhaps the Queen's Speech will contain details of this next week?

The really interesting part of the justice section of the coalition's plans is the commitment to a 'rehabilitation revolution'. The coalition wants independent providers, paid for by the savings made by introducing the policy, to reduce reoffending. Does this mean the prisons building programme is going to be put on hold and the savings made put into the scheme? Let us hope so. However, the programme also commits the government to a sentencing policy review. A harsher sentencing policy, if this is what is intended, would not necessarily sit easily with the planned 'rehabilitation revolution'.

Picture: Ministry of Justice