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

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

Legal aid bill

The long-awaited Legal Aid, Sentencing and Punishment of Offenders Bill was published this morning and then unpublished by the government - it seems it was posted on the web by mistake! We expect it to be posted on the House of Commons' website again once the Justice Secretary, Kenneth Clarke, has made a statement to parliament around 3.30 pm.

It would seem from reading the bill that the bulk of the cuts trailed in the consultation paper last year will go ahead. Some are detailed in the bill, for example, advice on benefits is excluded from the legal aid scheme in Schedule 1 clause 15 (see page 116 of the bill).

LAG believes the legal aid cuts are penny-wise, but pound-foolish. The bulk of them fall on the sort of face-to-face advice services which can deal with legal problems before they spiral out of control and lead to expensive court cases. LAG calculates that the £49m in legal aid cuts to housing, welfare benefits, debt and employment will ultimately cost the government £286.2 million in costs to other public services. In other words, £1 of expenditure on civil legal help saves the government around £6 in other public expenditure.

The bill proposes the abolition of the Legal Services Commission (LSC) as a separate organisation, to be replaced by direct government administration of the legal aid system under a Director of Legal Aid Casework who will be a civil servant. The LSC currently makes decisions on entitlement to legal aid and is controlled by an independent board.

Under the government’s proposals, decisions on entitlement to legal aid will be taken by civil servants who are directly answerable to government ministers. While the bill does say that ministers are delegating the decision-making on entitlement to legal aid and will not interfere in individual cases, LAG believes an independent appeals system is essential to eliminate the risk of real or perceived political bias in decisions on entitlement. Otherwise, the government will be seen to be acting as judge and jury on whether cases brought against it should be supported by legal aid.

The July Legal Action magazine will give more details about the bill and LAG’s conference on 4 July will be an opportunity to hear from speakers reacting to the bill, including Jonathan Djanogly MP, the minister with responsibility for legal aid.

Image: Legal Action Group

LAG calls for a draft legal aid bill

LAG and the Law Society have today written a joint letter to the Secretary of State for Justice Kenneth Clarke calling on the government to publish its proposals for the reform of legal aid as a draft bill to be scrutinised by a special joint committee of the House of Commons and the House of Lords.

Draft bills provide an opportunity for the public and special interest groups to give evidence on the impact of the proposals in them. In the letter to Kenneth Clarke, LAG and the Law Society point out that the government has received over 5,000 submissions on its proposals for legal aid and that the Justice Committee in its recent report argued that the proposals needed 'substantial further refinement'. LAG has calculated that the proposed cuts of £49m in social welfare law alone will cost the government £286.2m in extra spending on other public services.

The letter goes on to say: 'We also share the Justice Select Committee’s concerns over the definition of domestic violence. It both acts as a perverse incentive to make false claims and prevents women who are victims, but do not wish to pursue a complaint in the courts, from receiving legal aid for assistance with the legal issues surrounding a relationship breakdown.'

LAG and the Law Society are also concerned over the government's proposals on civil litigation. They argue in the letter that the government's plans to change the rules on paying for damages cases are 'unjust' and call for more research on the effects of the proposed changes.

LAG believes that what the government is proposing for legal aid will have a profound impact on the ability of many ordinary people to obtain legal advice and representation. Our recent research shows that 150,000 more people than the government's original estimate of 500,000, will miss out on being able to get help with housing, employment and other common civil legal problems. We believe a draft bill would give an opportunity for a proper consultation to take place on the plans for legal aid, as without this tens of thousands of people will be denied access to justice.

A copy of the full text of the letter is available at: http://www.lag.org.uk/Templates/Internal.asp?NodeID=88856.

Image: Ministry of Justice

Legal aid under threat

As anticipated the government has announced its review of legal aid. The announcement was made in a written ministerial statement to parliament yesterday by Lord Chancellor and Secretary of State for Justice, Kenneth Clarke.

LAG understands that the government is currently studying the previous reviews of legal aid before releasing a consultation paper in the autumn which will outline some options for reforming the system. Kenneth Clarke made it clear in his statement that the priority for the government is to reduce the financial deficit.

Significant cuts in legal aid spending are a very real possibility. In the budget this week the government outlined its policy for reducing the deficit which includes a 25 per cent or more cut to expenditure in departments other than health, education and defence. For the Ministry of Justice (MoJ), a 25 per cent reduction means around £2.25 billion would need to be found from a budget which has already been hit by ten per cent spending cuts over the last three years.

Some savings might be found by closing under-utilised courts and reducing prisoner numbers, but LAG believes that to reach a 25 per cent target significant cutbacks would also have to be made in legal aid. The options are limited. Revisiting the levels of fees paid to lawyers in legal aid cases is not likely to meet with much protest from the public, but there will be increasing complaints if people cannot find help as firms are forced to withdraw from legal aid. Other options include cutting what legal aid will pay for, for example, the government could decide to take help with divorce cases out of scope. The government’s room to manoeuvre is limited due to its obligations under the Human Rights Act 1998.

Finding cash from other sources to off-set the cuts could be a solution. Ideas such as a levy on all criminal clients and using interest on money held by solicitors on behalf of clients have been suggested by some as ways of funding the system. The consultation in the autumn should provide the forum to explore these and other ideas, as some original thinking will be needed if access to justice is to be maintained.

Image: Legal Action Group