Legal Aid Bill domestic violence concession?

So far the government has made two concessions on the Legal Aid, Sentencing and Punishment of Offenders Bill ('the Legal Aid Bill'), currently in the committee stage of the House of Lords. It seems more concessions might be on the way before the bill is approved.

Speaking at the Westminster Legal Policy Forum yesterday, Justice Minister Jonathan Djanogly said the government was considering the amendments which had been suggested so far by peers. When questioned by LAG on whether the government was willing to reconsider the definition of domestic violence contained in the bill, he said that this was 'in the mix at the moment' and that while he believed that the current definition covered the same points as that of the Association of Chief Police Officers (ACPO), 'if there is a way of making people happy on this issue we will do it'.

Campaign organisations including the Women’s Institute and LAG have argued that the ACPO definition should be included in the bill. ACPO defines domestic violence as,

'... any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults ... who are or have been intimate partners or family members, regardless of gender or sexuality'.

The bill currently uses a different definition referring to physical or mental abuse which includes sexual abuse and: ' ... abuse in the form of violence, neglect, maltreatment and exploitation'.

The ACPO definition is wider and some experts believe that the government might be forced to accept this definition by the courts if the current definition was approved without amendment. LAG believes the government might be taking the view that it should bow to the inevitable and amend it, especially as the Home Office is currently engaged in a consultation process on adopting a wider definition of domestic violence.

The detailed criteria which have to be met in domestic violence cases to qualify for legal aid have not been included in the bill. This is of great significance in ensuring victims get the help they need. Details of this will follow in secondary legislation. In the debate on the bill, Baroness Butler-Sloss, a former senior family judge, asked for the criteria to be published before the report stage so that peers can scrutinise them.

Jonathan Djanogly was more evasive when questioned by LAG on whether the government would concede over the amendment to reinstate legal aid for personal injury cases involving children, a move which is supported by Lord Tebbit and Lord Newton, the former Conservative Cabinet ministers. The minister said this is 'at the margins of what [the government is] looking at'. In response to a question from Cristina Sarb, a policy officer at the charity Scope, he said that the government was not considering bringing welfare benefits back into the scope of the legal aid system.

Earlier in the meeting Roger Smith, director of Justice, had lambasted the government over its failure to recognise the danger of not having an independent appeals system over decisions on entitlement to legal aid: 'It’s a godsend to a litigator,' to be able to argue bias in the process for cases against the government, he warned. Roger Smith also observed that the government’s decision to cut legal aid was a political choice and if the cuts went ahead he predicted it would lead to 'the regeneration of the kind of movement we had in the 1970s,' which was originally responsible for widening access to civil justice.

The government has given way on means-testing advice in police stations and included young people between the ages of 16-25 in the category of people able to claim legal aid for special educational needs cases. LAG believes that we need to keep the pressure on the government to win more concessions on the bill.

Image: LAG: Jonathan Djanogly speaking at the event yesterday

See the report LAG commissioned from the Women's Institute and other news on the legal aid bill.

Lords lash out at Legal Aid Bill

Crossbench and Liberal Democrat peers seem increasingly unhappy with Justice Minister Lord McNally’s attempt to force through the Legal Aid, Sentencing and Punishment of Offenders Bill ('the Legal Aid Bill') unamended. Talking to peers after the second day of the bill's committee stage in the House of Lords on Tuesday, LAG formed the impression that they were frustrated by what they see as the glib approach adopted by Lord McNally in addressing the detail of the bill.

Labour’s Lord Bach, Shadow Justice Minister in the Lords, led the attack against the bill in the debate on the amendments, saying that the government had 'failed to get to grips with the serious consequences of their proposed legislation' and that the bill would have 'profound effects on access to justice and people’s lives'. Speaking to LAG after the debate, Lord Bach said he believed it was unlikely that any votes would be taken in the committee stage, which continues on Monday next week, but that votes on amendments would happen in the report stage, expected to take place late next month or in March.

Peers seem emboldened by their votes on Wednesday this week on amendments to the Welfare Reform Bill, including their rejection of plans to means-test employment and support allowance payments to disabled people after a year. Lord Carlile QC, a Liberal Democrat peer and a greatly respected legal figure, told LAG yesterday: 'The House of Lords showed last night it is capable of forcing the government to reconsider policies.' The defeats on the Welfare Reform Bill were the result of a high number of votes against the government from the politically neutral crossbenchers and the Labour Opposition. Liberal Democrat peers mainly voted with the government, but some have hinted to LAG that unless changes are made on the Legal Aid Bill they will be forced, albeit reluctantly, to vote against the government.

A Liberal Democrat member of the House of Lords willing to be upfront about what will happen is Lord Phillips. Speaking at the launch of LAG’s London Advice Watch report yesterday, he referred to 'disaffection across the House of Lords' over the Legal Aid Bill and warned: 'There is no question. If the government makes no concessions, there will be votes and the government will lose.' He added that it was 'reasonable to expect major changes at the report stage of the bill'.

Lord Phillips, who is a patron of LAG and one of its founders, stressed that it was a 'lousy time to be in government' because the economic outlook is so bad and that 'cuts across the board are necessary'. However, he believes that 'the cuts have fallen on legal aid harshly' and questions if it is 'legitimate to deny citizens the means to enforce their rights'. In an impassioned speech he said: 'Justice is fundamental to our democracy' and that legal aid spending was a small but an important part of government spending: 'five per cent of defence spending would be enough to fund what is to be cut from legal aid for least three years'.

What the Welfare Reform Bill amendments show clearly is that peers are reluctant to support measures that impact harshly on vulnerable groups such as disabled people and children. With the Legal Aid Bill there is the additional factor of the crossbench and other peers who are legal experts. They have deep concerns about the detail of the bill, which the government is failing to address, such as the criteria which victims of domestic violence have to meet to qualify for legal aid and the lack of independence in decisions on entitlement to legal aid. Their discontent is likely to grow as the shadow boxing of the committee stage continues. LAG understands that approaches from government peers to ministers to thrash out compromises over key concerns about the bill have so far been rebuffed and this has added to the disaffection felt by government supporters in the House of Lords. It seems unless Lord McNally throws some significant concessions to his backbenchers the government will be risking substantial defeats at the report stage of the bill.

A full report on the launch of the London Advice Watch report will appear in the February issue of Legal Action journal.

Massive support from Londoners for advice services

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

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

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

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

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

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

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

Read the full report on: LAG's website

Pic: LAG

Legal Aid Bill in the House of Lords

Before the Christmas recess, momentum was building in the House of Lords on amendments to the Legal Aid Bill (or to give it its full title, the Legal Aid, Sentencing and Punishment of Offenders Bill). Next week, peers will recommence their detailed scrutiny of the bill in committee. LAG believes the level opposition to the bill among peers will not have dissipated over the festive season.

Former Cabinet members in Margaret Thatcher’s governments, Lord Tebbit and Lord Newton, are the most prominent Conservatives pushing for changes to the bill. They have put their names to amendments which would preserve legal aid in clinical negligence cases involving children. Crossbench non-party political peers such as Baroness Butler-Sloss, the well-respected former senior judge, are supporting a raft of amendments which would alter the bill’s provisions on legal aid in domestic violence cases, matters involving children and other issues. Prominent lawyer crossbenchers such as Lord Woolf, the former Lord Chief Justice, and Lord Pannick, a member of the Lords Constitution Committee, are leading the charge against provisions in the bill which, if they are not amended, would leave ministers open to the accusation of political interference in decisions on granting legal aid. They are also concerned about clauses in the bill which seek to curtail a suspect’s right to legal advice when detained in the police station.

The government is likely to argue that much of the detail of the circumstances in which someone can claim support from the legal aid scheme will be dealt with in secondary legislation. For example, in domestic violence cases it wants the specific criteria which a victim must meet to qualify for legal aid to be covered in a set of regulations which are not included in the bill. Government supporters are also likely to argue that sufficient safeguards are built into the decision-making process on granting legal aid to prevent political interference. Peers, especially those with an interest in legal matters, are not likely to accept such assurances, preoccupied as they rightly are with the detail of the law and the implications of what is proposed.

LAG believes the House of Lords as a whole will want to scrutinise and amend the detail of a bill which is mainly aimed at saving cash from the Ministry of Justice budget at the expense of civil rights and access to justice. All the indications are that peers are very exercised about the impact of the proposals contained in the bill on vulnerable groups such as children, victims of domestic violence, people with disabilities and other minority groups. It is likely that a high level of vocal support for amendments in the committee stage to protect these groups will persuade the government to bring forward concessions at the final report stage in the Lords to avoid embarrassing defeats. If it does not, it could face a tussle between the Lords and the Commons in the spring, with time running out to approve the legislation before the parliamentary session ends in the run-up to the local elections on 3 May.

Justice for All (JfA) has collated the briefings prepared by organisations for the committee stage in the House of Lords, see:
the JfA website

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

The value of justice

District Judge Nicholas Crichton takes exception to the recently announced £41m increase in the cost of the opening and closing ceremonies for the Olympics. It is difficult not to agree with him, however much you might be looking forward to next year’s festivities, especially when vital services such as the Family Drug and Alcohol Court (FDAC), which he leads, have a financial question mark hanging over their future.

Last night DJ Crichton, along with consultant child psychiatrist at FDAC, Dr Mike Shaw, and FDAC's service manager, Sophie Kershaw, gave LAG’s annual lecture. DJ Crichton sees FDAC as a 'problem-solving court' which gets results because of the strength of its interdisciplinary team. He does not tolerate delays and pointed out that the court is geared towards resolving issues over the custody of children quickly. Dr Mike Shaw stressed the importance of doing this as 'relatively short periods of time represent a big portion of a child’s life' and the need to establish attachment bonds between parents and children early in life.

Inspired by a trip to the US, where there are between 15-20 similar courts which try to tackle the problem of drug and alcohol addicted parents, DJ Crichton persuaded the government to establish the FDAC in January 2008. Parents are offered intensive treatment and support to assess if they can have continuing contact with, or custody of, their children. It is not a soft option. They are expected to attend court every two weeks to report on progress and are subject to regular drugs tests.

DJ Crichton spoke of the pride of some parents when they appear before him to report their success in staying off drugs. Some are not successful. At the lecture, he told the heartrending story of a mother who had received two months of treatment from FDAC, but realised that her rehabilitation would take two years. This was too long for the FDAC process, which expects to resolve issues over the care of children after nine months, and the mother agreed to give up her baby for adoption.

Research has shown that the FDAC approach works (see below) - it manages to reunite more mothers with their children; more parents get treatment to deal with their addictions; and more parents stay together after the court’s final order. 'Parents who have learnt on the way [through the FDAC support] are less likely to contest a care plan' and this also saves costs says Sophie Kershaw. She argued that the cost of a case at around £12,000-13,000 is not expensive, but all of this amount will have to be met by local authorities if the government does not renew its grants to FDAC. She fears that cashed strapped local councils might not be prepared to do this.*

Despite the success of FDAC (the service has won four major awards - see below), no renewal of grants has been agreed by the government when the current funding ends in March 2012. This prompted DJ Crichton’s remark to LAG about the increase in the cost of the Olympic ceremonies which he thinks cannot be justified given the austere times the country is facing.

LAG believes the doubt over FDAC’s continued existence is a symptom of the government’s obsession with budget cuts without regard to their wider impact. Helping parents resolve addiction problems while protecting children saves other costs to the government. Above all the work of FDAC should be valued as providing a beacon of hope for tackling social problems that no-one in the family justice system believes the law and the current courts system can adequately deal with.

*This is a change from the original blog as Sophie Kershaw contacted LAG to clarify her comment about local council support.

Visit: http://www.lag.org.uk/Templates/Internal.asp?NodeID=93969 to read the evaluation report on the work of FDAC and find out about the awards the FDAC team has received.

An abridged version of the speech will appear in the February 2012 edition of Legal Action journal.

Picture: Robert Aberman

Legal aid cuts delayed

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

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

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

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

Pic: Ministry of Justice