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.

House of Lords motion to stop legal aid cuts

Lord Bach, the former legal aid minister, is taking advantage of a rarely used parliamentary procedure to get a debate on the statutory instrument which will introduce the ten per cent pay cut for all legal aid practitioners this month. The motion will be debated in the House of Lords on 26 October.

'Community legal aid lawyers do a fantastic job for little reward. This crude ten per cent cut will threaten the future of many charities and firms which provide services to their local communities. We have evidence this is already happening,' said Lord Bach.

In July this year the large west London-based legal advice charity, Law For All, shut down. The charity had branches in the London boroughs of Hounslow, Kingston and Ealing, as well as in East Anglia and the Midlands, but got into financial problems after the succession of changes to legal aid in recent years. The charity’s board of trustees cited the ten per cent cut as one of the reasons why they decided to put the organisation into liquidation.

The Law Centres Federation (LCF), the national voice of the network of 56 specialist legal advice centres, has warned that 18 of its members are at risk of closing due to the legal aid cuts. According to LCF, 60 per cent of Law Centres' income comes from legal aid and much of this will be lost if the government’s plans for civil legal aid, including the ten per cent cut, are implemented.

Lord Bach will be leading Labour’s opposition to the bill in the House of Lords: 'Many people, including vulnerable groups, rely on these charities and legal aid firms for advice to do with housing, employment, benefits, debt and other civil legal problems. Without them people facing everyday legal problems will be denied access to justice.'

The ten per cent cut on all legal aid fees was first announced by the government in November last year as part of its consultation into proposals which will lead to a £350m cut in the £2.1bn legal aid budget. Nearly £300m of the expected cuts are being made from civil legal aid. Members of the public will lose the right to get help with divorce, employment, benefits, debt and other common legal problems. According to the government’s own estimates, over half a million people will lose out on help with civil legal problems.

The full text of Lord Bach's motion is:

'Lord Bach to move that a Humble Address be presented to Her Majesty praying that the Community Legal Service (Funding) (Amendment No 2) Order 2011 (SI 2011/2066), laid before the House on 24 August, be annulled, on the grounds that the reduction in civil standard and graduated fees for Legal Help and Help at Court will seriously undermine access to justice because it threatens the financial viability of already hard-pressed community legal practitioners who carry out an essential service to those least able to afford it, including the most vulnerable in our society.'

Image: LAG

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

Downs and out!

It emerged last week that Carolyn Downs, the chief executive of the Legal Services Commission (LSC), is leaving to join the Local Government Association (LGA) as its chief executive. It seems curious to LAG that the world has learnt of her departure not from the LSC or the Ministry of Justice (MoJ), but from her new employer which announced her appointment in a press release. Her departure is also rotten timing given the uncertainty over the LSC’s future and the reasons for the departure of her predecessor.

The chief executive’s job at the LSC has proved to be something of a poisoned chalice in recent years. Carolyn Downs stepped into the role as a stop gap when her predecessor, Carolyn Regan, quit after three and half years at the LSC in March last year. At the time LAG said that we believed that CarolynRegan had been made the scapegoat for long-standing financial management and other problems at the LSC. Prior to Carolyn Regan’s departure the commission had been without a permanent boss for over a year. This was due to the then chief executive, Clare Dodgson, being on long term sick leave. Clare Dodgson had joined the LSC in June 2003, replacing Steve Orchard who’d held the top position at the LSC, and its predecessor the Legal Aid Board, for 14 years. In May 2005 Clare Dodgson suffered a serious back injury while at home, after which she did not return to work and this led to her eventually having to agree to resign in June the following year.

The publication of the Magee review on the future of the LSC was the catalyst for Carolyn Regan’s departure. In his report Sir Ian Magee was critical of the duplication of policy functions between the LSC and the MoJ and recommended that the commission be taken under the direct control of the government, (this change of status to an executive agency is included in the Legal Aid, Sentencing and Punishment of Offenders Bill). More importantly Sir Ian’s report found serious weaknesses in the financial management at the LSC, which were also reflected in critical National Audit Office reports.

In a surprise move the week Magee’s report was published, Carolyn Regan’s resignation and the appointment of Carolyn Downs on an “interim basis” were announced by the chair of the LSC, Sir Bill Callaghan. Carolyn Downs moved from her position as Deputy Permanent Secretary at the MoJ to take up the post at the LSC. The Board of Commissioners at the LSC had to agree to her appointment with the MoJ. LAG assumes that any temporary or permanent replacement will have to be agreed by both parties again.

In the short time she has been at the LSC, Carolyn Downs has enjoyed a good relationship with providers, despite continuing disagreements with them. Her move to the LGA fits with her background as she was the chief executive of Shropshire County Council for six years. However, given that the commission has yet to make the transition to executive agency status, LAG asks would it not have been better for the MoJ to persuade her to stay on to oversee this or maybe she believed that it was better to get out while the going was good?

Now Downs is out, what about her successor? The ideal candidate would need to be both a brilliant administrator and diplomat. The diplomatic aspects of the job are the most important and to this end building a good relationship with the suppliers of legal aid is a given. LAG would argue that this is superseded by the need for a chief executive who would fight for legal aid in the corridors of power. This means standing up to ministers to tell them when they have got it wrong. To do this successfully, the head of legal aid will have to tread a fine line between diplomatic persuasion and career suicide- not an easy task.

Steve Hynes