Government pushes ahead with its plans to restrict Legal Aid
Migrant Rights Network, 27 June 2011
The Government has published the Bill containing major reforms to Legal Aid. Despite widespread opposition, only minor changes were introduced to the proposals that went out under consultation in November, meaning that accessible legal advice for migrants on a variety of issues could be compromised in the future.
During the week commencing 20 June 2011, the Government finally announced its definitive plans regarding changes to Legal Aid, the public funding available to support access to legal advice and representation on a wide range of legal issues.
What has happened since November?
On the 21st of June the Ministry for Justice published the ‘Legal Aid, Sentencing and Punishment of Offenders Bill' and on the same day published its response to the Legal Aid consultation that ran between November and February. Controversially, the Government has confirmed that it is fast-tracking the bill through parliament, thus reducing the opportunity to debate and scrutinise its contents.
In the run up to the publication of the bill most of the media's attention became fixated on the proposals to increase prison sentence discounts for early guilty pleas. Mr. Clarke's ill thought comments on perpetrators of rape took centre stage and were followed by the Prime Minister's commitment to change course on the proposed sentencing discounts. The changes to legal aid became buried in this entire saga and never got the sort of exposure that such a drastic change deserved.
The consultation and reponses
The consultation on Legal Aid received 5,000 responses, most of them opposing the changes. The submissions provided ample evidence of the disastrous consequences of withdrawing Legal Aid from large swathes of employment, family, welfare and immigration advice. They argued that the effects of restricting Legal Aid could end up costing the state more than it would save in the long run and some submissions even proposed alternative plans to make the estimated savings of £350 million per year without the need to restrict access to Legal Aid.
But the Government has decided to press along with the changes with only minor amendments to the proposals. That means that in the future there will be no Legal Aid support for immigration with the exception of asylum, asylum support were claims include housing, and cases involving detention. There won't be Legal Aid available for most welfare, housing, employment and family cases either.
The MRN line on the Legal Aid cuts
MRN has argued that these changes will have a serious impact on large numbers of migrants and on the capacity of migrant organisations to provide effective support to many of their clients. For the former it will make it more difficult for those who cannot afford to pay for advice to navigate a complex and fast-changing immigration system. Paradoxically, as ILPA has noted, even though the Government has committed to retain Legal Aid for all cases where there is a risk of loss of liberty, a consequence of not having good advice on immigration will be that in some cases people end up in immigration detention.
The changes will also compromise the ability of migrant community organisations to support their clients as they see an increase in the numbers of people seeking their support at the same time that their ability to refer complex cases to specialists is greatly reduced.
In the end the Government's obsession to create a leaner state and to wean people in need off from public funds has prevailed over the principle that everybody should have meaningful access to the justice system. And yet in the grand scheme of things the savings from Legal Aid will be minuscule.
Next week we will see a flurry of activity from interested parties, including the Sound off for Justice and Justice for All campaigns, to try to get the bill properly debated. However, the fast-tracking of the bill does not bode well in terms of hopes for a proper debate and scrutiny. We will continue to support the campaigns to retain Legal Advice but migrant community organisations can expect the reduction in the availability of affordable specialised legal advice to become accentuated and should begin to think about their response to this new landscape.
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Mounting concerns over legal aid cuts
BBC News, 29 June 2011
The proposals focus on legal aid in civil rather than criminal cases
The government's plans to cut legal aid in England and Wales return to Parliament later, amid opposition from lawyers and campaigners.
The Ministry of Justice aims to cut £300m from the £2.1bn legal aid bill.
Under the plans, people will not be eligible for legal aid in a far broader range of civil cases than at present.
The Law Society said the bill would hit the "weak and vulnerable", but Justice Secretary Ken Clarke said legal aid funded some unnecessary litigation.
Under the Legal Aid, Sentencing and Punishment of Offenders Bill, ministers say they want to end legal aid for:
- Private family law cases, such as divorce and custody battles
- Clinical negligence claims
- Employment and education law
- Immigration, other than where someone is detained
- Some debt, housing and benefit issues.
The government says that domestic violence cases will still receive legal aid and it intends to expand the definition to include mental and sexual abuse.
Mr Clarke has told MPs that the current system "too often encourages people to bring their problems before the courts, even when they are not the right place to provide good solutions and sometimes for litigation that people paying out of their own pocket would not have pursued."
He added that legal aid had expanded into areas beyond its original scope.
Speaking to BBC Radio 4's Today programme, Mr Clarke said: "Lots of people think we should have more and more prisons, and more and more prisoners, and there's lots of lawyers who say we should spend more and more money on lawyers.
"[But] we are funding litigation, firstly unnecessarily in less serious matters where really the taxpayers shouldn't pay, and we're also funding litigation where adversarial lawyers are not the best way of sorting out a serious dispute or serious family quarrel."
But Linda Lee, president of the Law Society, said people who were denied access to justice may take the law into their own hands and "civil issues become criminal issues".
"The people who will suffer are the weak and the vulnerable," she said.
"It will be the babies seriously injured in accidents during their birth, for whom there will be no civil legal aid to secure compensation.
"It will be the woman looking after her disabled mother, who can no longer get advice when her carer's benefit is wrongly stopped.
"It will be the man whose ex-wife will no longer let him see his children."
The society, backed by other campaigners and charities, is publishing an analysis of the bill, which says it will end up costing more than it initially saves.
"The prime minister and the government want to reduce crime and the deficit," she said.
"If they force the bill through Parliament in its current form, they risk the opposite. The bill focuses on only short-term budget-gain and not the long-term consequences.
"Ministers must start making the link between cuts to civil legal aid and crime."
The Law Centres Federation says that at least 18 of 52 centres serving poor communities could be forced to close because of the cuts.
'Last resort'
On Monday, Baroness Hale, one of the UK's Supreme Court Justices, became the most high-profile legal figure to question the government's proposals.
In a speech she said the reforms would have a "disproportionate effect upon the poorest and most vulnerable in society."
"If we really want to spend less on lawyers we have to be prepared to spend more on a very different style of court from the ones which we are used to," she said.
"We have to be prepared to spend money on initial advice and assistance schemes because that is where most problems are solved.
"Courts are and should be a last resort but they should be a last resort which is accessible to all, rich and poor alike.
"The Big Society will be the big loser if everyone does not believe that the law is there for them."
Bar Council chairman Peter Lodder said it was a "much-peddled myth" that the legal aid system in England and Wales was more expensive than elsewhere in Europe.
But the justice secretary said the system encouraged lengthy, acrimonious and sometimes unnecessary court proceedings at taxpayers' expense and that it could not be compared with other systems of legal aid around the world.
Analysis
Norman Smith Chief political correspondent, BBC Radio 4
"Whatever the unhappiness on the Tory right - at Ken Clarke's revised plans on sentencing - don't expect any further U-turns by the man in the Hush Puppies.
For a start, he is already facing a £140m black hole in his budget after his decision last week to scrap plans to allow offenders up to 50% off their sentences if they plead guilty early.
The justice secretary simply doesn't have the money for any more concessions.
Secondly, temperamentally, Mr Clarke is in no mood for any more climbdowns. Indeed, one suspects he rather enjoys his bust-ups with the Tory right.
But there is also a bigger problem.
Mr Clarke strongly believes we send too many people to prison and that it costs too much.
On that basic belief he will not give ground."
Legal aid will continue funding:
- Some asylum cases
- Mental health cases
- Debt and housing matters where someone's home is at immediate risk
- Family law cases involving domestic violence, forced marriage or child abduction
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Legal aid bill threatens access to justice
Ekklesia, 29 June 2011
The Legal Aid, Sentencing and Punishment of Offenders Bill passing through the UK Parliament has been widely criticised. It aims to cut the cost of legal aid by making it far less widely available. But critics have pointed out that this will result in injustice to all but the rich, and have drastic longer-term costs.
On 29 June, Linda Lee, President of the Law Society, warned:
- Cuts in civil legal will increase criminality and damage social cohesion;
- Cuts in civil legal aid will penalise the victims of crime and not the perpetrators;
- Clause 12 will undermine a cornerstone of our justice system...
The people who will suffer are the weak and the vulnerable. It will be the babies seriously injured in accidents during their birth, for whom there will be no civil legal aid to secure compensation. It will be the woman looking after her disabled mother, who can no longer get advice when her carer's benefit is wrongly stopped.
Clause 12, on ‘Advice and assistance for individuals in custody', means that in future people who are arrested might not always get the right to free advice from a solicitor. Means-testing might be introduced, resulting in delays and putting off some people from seeking advice.
The Law Society, which is inviting the public to join a ‘Sound off for Justice' campaign, has made alternative suggestions for saving money. But these have not yet been taken on board.
There has been widespread alarm about the impact of the Bill. In a speech on ‘Equal Access to Justice in the Big Society', Supreme Court judge Brenda Hale pointed out that "Courts are, and should be, a last resort, but they should be a last resort which is accessible to all, rich and poor alike.”
Indeed, despite government rhetoric about empowering ordinary people, this Bill not only affects access to justice in disputes between citizens but also gives the state greater power. Those harmed by blunders by the government and its agencies will have far less protection if the Bill goes through without major changes.
For many Christians, other people of faith, humanists and all who care about the wellbeing of their neighbours, justice – in the widest sense – is of key importance.
In the Hebrew and Christian tradition, the author of the book of Isaiah has God urging:
seek justice, correct oppression; bring justice to the fatherless, plead the widow's cause. (Isaiah 1.17)
Many will echo that plea in relation to these developments.
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(c) Savi Hensman, an Ekklesia associate, works in the care and equalities sector. She is a noted Christian social commentator.
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Legal Aid Reforms
jcwi.org.uk, 4 July 2011
A few months ago we reported on the proposals to reform legal aid, together with why we thought they were a bad idea
Those proposals have now come to fruition with the publication of the Legal Aid, Sentencing and Punishment of Offenders Bill.
The Bill provisions – what's out of scope?
In a nutshell the effect of the Bill is that funding will not generally be available for immigration cases and appeals. Regrettably this extends to refugee family reunion cases and domestic violance cases, and Article 8 ECHR (right to private and family life) cases and appeals including by failed asylum seekers.
It is proposed that there will be some provision for ‘Exceptional funding' in cases where this is necessary to avoid a breach of ECHR rights, it is not intended that this is generally for use in cases of this kind.
The Bill provisions – what's in scope?
It is proposed that funding will remain available for:
- asylum cases and appeals
- challenges to immigration detention
- advice on claims for support
- judicial review – there are exceptions here
What can you do?
The Bill had its second reading on 29 June 2011. It will now go through to the Committee stage sometime between 9 July and 13 October
The Immigration Law Practitioners' Association is lobbying Parliamentarians about the serious effects that these changes would have for migrants, and those who have been refused asylum. They have detailed briefings and fact sheets on their website, but unless MPs here from YOU- the very people that deal with these cases/ the very people that have benefitted from legal aid, they're not likely to do very much! You can help by:
- Writing to your MP, asking them to vote against the bill and outlining your concerns.
- Submitting evidence to the Public Bill Committee/ lobbying its members (we will publish details of the committee once it has been decided)
- Joining and getting active with Justice for All and/or the Sound Off for Justice campaign.
- Acting locally through local papers, local counsellors, local organisations. You could work with others in your area or field of specialism and make sure they include concerns about immigration advice in their arguments against cuts in general, or cuts to legal aid
If no-one opposes the Bill it will go through unammended, if some oppose the bill, it will most likely go through, but it's our only chance of effecting a change, and at the least limiting the ugliest aspects of it!
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Please sign petition to ensure Gypsies & Travellers still have access to Legal Aid
http://www.petitiononline.co.uk/
We the undersigned call upon the Government to ensure that Legal Aid in the Legal Aid Bill 2011 is available for Gypsies and Travellers to defend evictions from unauthorised encampments and to be advised and represented in High Court planning matters. It is due to the failures of successive central and local Governments to ensure adequate site provision that some 25% of the Gypsy and Traveller population who live in caravans are on unauthorised encampments and unauthorised developments. This is through no fault of their own. Gypsies and Travellers are one of the most disadvantaged groups in the United Kingdom and the Government must ensure that they have access to legal advice and assistance just as any other group does.
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Rich and powerful are the only winners in our civil justice system
Sound Off For Justice, 6 July 2011
Suppose you had the misfortune to be the victim of a high profile crime, and then find that a national newspaper has hacked into your phone. Or you suffer a medical accident because the doctor is distracted by the latest attempt to reform the NHS. Or you are unlawfully kettled at a demonstration. You are entitled to compensation. Who should be left out of pocket for the wrong that has been done to you?
For most people, the only way to seek redress in such a situation would be via a no win, no fee agreement. For some, legal aid will be available. At the moment, if you win your case, the defendant who is found to have acted unlawfully against you will have to meet all your costs of bringing them to account. But if the Government has its way, whether you have legal aid or a no win no fee agreement, you will have to pay up to a quarter of your compensation to meet your own legal costs, and the culprit will be let off the hook.
If you take out a no win no fee agreement, your lawyer will not be paid if, having investigated the case, it turns out that there is not a valid claim. Nor will he be paid if the case proceeds and is lost. The law is an art, not a science, and there can never be 100% certainty about the outcome of any case. The other side of that coin is that if the case is won, the lawyer gets his fees plus a "success fee”, That success fee ensures that cases can be properly investigated and considered, and that the lawyer can take cases other than those that are overwhelmingly likely to win. As the law stands today, the defendant pays the success fee, and you, the claimant, get all of the compensation the Court has said you should have to right the wrong that has been done to you.
If you have legal aid, the lawyer will be paid his normal fee (but nothing more) by the defendant, and the taxpayer gets every penny back. You get your compensation unless for some reason the defendant does not pay all the costs. For unsuccessful cases, the lawyer is paid a much lower fee at legal aid rates.
Under the Bill going through Parliament, that will change. The defendant will no longer have to pay any success fee. It will come out of your compensation. If you have a no win no fee agreement the amount will be a maximum of 25% of your compensation. If you have legal aid, the Government intends to take 25% of your compensation in every case.
There is rejoicing in insurance company boardrooms at these proposals. We do not understand why the Government is putting the rich and powerful defendants who have acted unlawfully at the heart of our civil justice system. If you agree, Sound Off today.
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Legal Aid set to disappear for tax credits disputes
Low Incomes Tax Reform Group, 30 June 2011
The Government proposes to remove from the scope of legal aid all welfare benefits and tax credits advice. Who will help the poorest and most in need in difficult times?
The Legal Aid, Sentencing and Punishment of Offenders Bill was introduced to Parliament on 21 June 2011. It proposes to remove all welfare benefits and tax credits advice from the scope of legal aid. Furthermore, there will be reductions in legal aid for employment, housing, debt, immigration and family law cases.
At times of economic crisis, a government must take steps to reduce their debt and cut their cloth accordingly.
But LITRG is often at the sharp end of seeing the effects of poor decision-making and inappropriate processes in two of the largest government departments, namely HM Revenue & Customs and the Department for Work and Pensions. These deficiencies generate waste and throw a significant burden onto the unrepresented citizen. Faced with both complexity of the law and bureaucratic processes, the unrepresented turn to the voluntary sector for extra knowledge, help and ultimately justice.
Legal aid supports the low-income citizen to obtain that help, but the Ministry of Justice (despite receiving 5,000, largely critical, responses to its recent consultation) intends to plough on with removing welfare benefits and tax credits advice from its scope. Tax advice, except in rare cases, was never within the scope of legal aid.
Inappropriate timing
Leaving aside whether it is fair to take away a safety net from those who need it most, let us examine the timing of this change.
There are many things happening at the moment which add complexity to the lives of the unrepresented, for example:
- Significant changes to the tax credits system, many of which are complex and reduce the support given
- Preparation for the biggest welfare benefits change for 50 years with the introduction of the Universal Credit from 2013
- Continuing changes to the PAYE systems with automatic reconciliations and the introduction of "real time information” with knock-on effects to welfare benefits and debt
- An attack on error and fraud by both HMRC and the DWP which creates hard justice for a range of people who are caught up in these initiatives, but have done nothing wrong.
In our view, these developments, coupled with an uncertain economic climate, will create an unprecedented need for advice and help in the next few years.
It therefore seems perverse to take away the legal aid safety net at this time.
Inappropriate optimism?
The Government seems to believe that the computerisation of many DWP and HMRC processes and the "simplification” of the benefits system will drive down the need for advice. Those of us within LITRG who have been scarred by so many government computer disasters over the last 20 years find the current optimism too hard to swallow.
We accept that we might be wrong and the changes in the next four years might bring forth great efficiencies and accuracy. But we also know that any change drives a need for greater education and help, particularly for those unable to pay for the support they need.
Our conclusion
In our view, the legal aid changes should be considered only when the welfare benefits and tax changes have been absorbed and the new regime has settled down, but certainly not before then. Indeed, such a decision should be delayed still further to the time when HMRC and DWP have understood why official error happens and have put in place processes to ensure that no claimant ever loses out as a result of administrative error.
(30-06-2011)
Contact – John Andrews (please use form at
http://www.litrg.org.uk/ContactUs/)