Former director of public prosecutions Lord Macdonald had just risen to propose an amendment to the much criticised clause 12 when, for the government, Lord McNally intervened. He said: “My Lords, if I may interrupt, this may ruin a few speeches but I think it will help if I say that the Government intend to table an amendment to Clause 12 on Report that will remove the power to introduce means testing for initial advice and assistance at the police station.” He went on to confirm that: “For an individual in custody at a police station, or other premises, legal aid will be provided under Clause 12.” At Report stage in the Commons last November, justice minister Djanogly had said: “I appreciate that there are many deeply held concerns across the House and more widely on both the principle and the practicality of means-testing for advice and assistance for those in police custody and in relation to the concept of contingent legislation…I can confirm that we will, therefore, carefully review our approach to these clause issues as the Bill goes through its stages in another place.” The promised review has borne fruit.

This was a welcome relief from the shadow boxing that has occupied the first five days of the Committee stage in the Lords. Over 100 amendments have so far been considered. The government have proposed several textual amendments which have all been agreed, and many other amendments were not moved. The majority of amendments have been debated but all have been withdrawn without being put to the vote. There have been over 30 hours of rhetoric, almost entirely hostile to the provisions of the bill, but the opponents have not laid a glove on the government.

Already many contentious matters have been raised. On Committee days 4 and 5 these included: young people; domestic violence; the definition of abuse; public funding for judicial review claims; those unlawfully deprived of their liberty; the victims of people trafficking; family reunion cases; debt issues; legal aid for employment matters and support for victims of unlawful practice; exceptional cases; and citizens advice bureaux, law centres and other not-for-profit advice and support agencies. Many amendments have been withdrawn on the vaguest government promise “to look again” at the particular matter before Report stage. But, as has been said before, government promises are like pie crusts – made to be broken.

Committee day 6 is listed for next Monday, 30 January. It is to be hoped that some of the teeth shown by their lordships in consideration of the Welfare Reform and the National Health Service bills can be brought to bear on the legal aid proposals. As it is, a great deal seems to be being left to Report stage.

Amendment 21 was moved by Lord Beecham. He said that the bill sought to make legal aid provision a matter of exception rather than of course. Instead of listing only matters that would be eligible for legal aid, they exclude everything except those matters that are contained within the clause. The amendment would reverse the way that the Government are putting matters. It was withdrawn without being put to the vote.

Amendment 22, moved by Lord Faulks, concerned Clause 8(2), which gives the Lord Chancellor the power to modify Part 1 of Schedule 1 so as to omit services from the scope of legal aid and assistance. He said that the power would allow the Lord Chancellor to remove areas from the scope of legal aid without proper debate on the Floor of the House. After debate, he said: “I very much hope that, when this matter comes back on Report, those concerns can be reflected by the Minister. In that guise, I am happy to withdraw this amendment.” Amendments 23 to 27 were not moved.

Consideration moved on to Schedule 1: Civil legal services. Amendment 28 was moved by Lord Lloyd of Berwick, one of a group of amendments concerning clinical negligence proceedings and expert reports. All the amendments were directed towards the retention of legal aid in clinical negligence cases. Lord Wigley said: “Many people involved in cases arising from clinical negligence by a public authority are among the most destitute…Considering the inequality of arms that inevitably arises, having access to expert reports is vital. To put this debate into context, there are about 1 million adverse accidents in the NHS every year.” The debate – described as “very thoughtful” because so many of those who participated had experience, either legal or medical, of cases of this kind – looked at the best way to fund the expert report and resulted in the amendment’s withdrawal pending further figures from the government. Amendments 29 to 31 were not moved.

Baroness Doocey proposed amendment 32, relating to the ability of claimants, the majority of whom are disabled, to appeal against decisions on their entitlement to welfare benefits. She said that the Bill as it stands would remove social welfare cases from the scope of legal aid. “The need for such legal aid is best demonstrated by the fact that nearly 40 per cent of all appeals against work capability assessment decisions are upheld.” After a lively debate and a robust response from minister Lord McNally, Baroness Doocey said: “I really hope that the Minister will reflect again and consider bringing back some hope at Report stage. Meanwhile, I beg leave to withdraw my amendment.”

Baroness O’Loan proposed amendment 33, which sought to restore families with dependent children to the list of those eligible for legal aid and advice. She said: “Some 650,000 of the poorest people will be deprived of the access that they currently have through solicitors, CAB law centres and other advice centres…140,000 children will be affected by the proposed measures as legal aid is withdrawn from the adults who care for them, and…at least 6,000 children will be deprived of legal aid altogether.” In response to the debate, Lord McNally said: “I am not waving a white handkerchief and making specific concessions, but I take the point made by the noble and learned Baroness in closing that this has been an array of experience and expertise that we would do well to consider, and this we will do before we bring these matters back on Report. I ask the noble Baroness, Lady O’Loan, who started this debate, whether she will now withdraw her amendment.” She did.

More to come, with day four scheduled for Wednesday, 18 January.

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The King’s College London report ‘Unintended Consequences: the cost of the Government’s Legal Aid Reforms’ was commissioned by the Law Society because of the Ministry of Justice’s reluctance to publish estimates of the knock-on costs of its proposed changes to legal aid policy. Published on Monday, the report shows that the government will produce less than half of the predicted savings through the proposed reforms to legal aid. In his report Dr Graham Cookson, from the Department of Management, analyses the intended changes to family, social welfare and clinical negligence law, which together are expected to produce savings of £240 million. He identified knock-on costs of £139 million per annum, and these unintended costs will largely be borne by other government departments, including a predicted £28 million being shouldered by the NHS each year. This means that the Government will only realise approximately 42 per cent of the predicted savings.

Dr Cookson said: “This research undermines the Government’s economic rationale for changing the scope of legal aid by casting doubt on its claims of realising savings to the public purse.” He concluded: “I echo the Justice Select Committee’s call for the Government to estimate the knock-on costs of these reforms before legislation is passed.”

Desmond Hudson, CEO of the Law Society, said: “The Ministry of Justice has defended swingeing cuts to Legal Aid in civil cases, which will deny justice to thousands, on its need to contribute savings to the Government’s deficit reduction programme. The Law Society accepts the need to achieve savings, but this report confirms that much of the Ministry of Justice’s claimed savings are being achieved at the expense of other parts of Government. This is kamikaze accounting and will do little to tackle the deficit while sacrificing access to justice. Should we be promoting our justice system internationally while denying access to ordinary citizens?”

At the same time, the London Advice Watch report was published. Sponsored by the Legal Action Group, it is based on an opinion poll of 1,600 Londoners who gave their views on advice services such as Citizens Advice Bureaux. It argues that London is unique in the diversity, range and numbers of law firms and advice centres which provide advice on civil legal problems. The city will be the largest loser in the country as London spends around a fifth of the budget for help with common civil legal problems. A cut of just under £10m in civil legal aid for London would see nearly 52,000 Londoners lose out on advice for problems with housing, welfare benefits, debt and employment law. It claims that the planned cuts will have a devastating impact on the specialist advice services which are an important part of the fabric of local communities in the city.

Commenting on the reports, Richard Hawkes, chief executive of disability charity Scope, said: “Legal advice is vital for disabled people if they fall foul of poor decision-making, red tape or administrative error, and this makes it crucial to the success of the government’s welfare reforms. For welfare reform to work disabled people have to get support to appeal decisions relating to their benefits, especially within a system where errors are commonplace. Cutting legal aid for welfare cases at a time when the Government is radically reforming the welfare system will leave disabled people at the mercy of a labyrinth of bureaucracy, and push many further towards poverty.”

The full text of the report ‘Unintended Consequences: the cost of the Government’s Legal Aid Reforms’ can be found at:

http://www.kcl.ac.uk/content/1/c6/08/81/08/UnintendedConsequencesFinalReport.pdf

Lord Bach moved a new clause calling for a pre-commencement impact assessment of the effect of the legal aid changes. After a full debate he said that the Government have clearly not done the work that should have been done before bringing in such controversial and fundamental legislation. “It is not too late for them to start doing it now, and I would encourage them to do so” he said. The amendment was withdrawn. So were two amendments to clause 2 – which deals with arrangements – proposed by Lord Beecham, and the clause was agreed, as was clause 3.

Clause 4, which covers the new post of Director of Legal Aid Casework, was the subject of an amendment moved by Lord Pannick. The amendment arises out of the transfer of responsibility for the allocation of legal aid from the independent Legal Services Commission to the Lord Chancellor’s Department. Decisions on legal aid in individual cases will be taken by a civil servant, who will be designated by the Lord Chancellor. Lord Pannick concluded: “Noble Lords prefer the drafting of Clause 4 to contain clear limits on the powers, in this context, of the Lord Chancellor and clear safeguards of the independence of the director. I hope that the Minister will be able to ask his officials to look again at the wording of Clause 4 so as to achieve these objectives, otherwise we will undoubtedly be returning to this matter on Report. For the time being, I beg leave to withdraw this amendment.” Clause 4 was agreed.

Lord Bach moved an amendment to insert a new clause on appeals following a decision made by the Director of Legal Casework in respect of eligibility for legal aid. He said: “The principle of being able to appeal against a decision made in this case by a civil servant who has been appointed by the Lord Chancellor is very important. I beg leave to withdraw the amendment, but we may come back to this on Report. If we are coming back to the earlier independence issue, we shall have to come back to this one as well.” Clauses 5, 6 and 7 were agreed.

Sixteen amendments were up for consideration on Tuesday. Eight were not even moved and the remaining eight were withdrawn without being put to the vote. It all had the feel of preliminary skirmishing with the main events still to come. The committee stage resumes on Monday, 16 January, when perhaps some of the red meat will be reached. The Lords may then exercise their muscle as they did with the government’s Welfare Reform bill on Wednesday.

He has put his name down to two, linked amendments that would ensure children, or parents on their behalf, will be entitled to legal aid if they need to pursue medical negligence claims. In relation to depriving claimants under the age of 18 from having access to legal aid for medical negligence claims, he told the ‘Guardian’: “In that area [the bill] may be going too far. I want to hear all the arguments. It’s right that it should be debated.” He had taken up the cause, he said, because: “I have listened and read the arguments …and I think there’s sufficient in it that we ought to [examine]. It’s nice to be on the side of the angels for once.”

At the same time the embattled Ken Clarke contributed an article in the ‘Guardian’ in which, almost apocalyptically, he said: “There should be no doubt that the system is facing an existential crisis.” He went on to say: “So for any reasonable individual it is not a question of whether we reform legal aid, but how. My approach has been to take a methodical, first-principles look at the system. The logic is simple: to determine carefully which types of cases most urgently merit scarce resources, to encourage people to use non-adversarial solutions to their problems where appropriate, and to speed up and simplify court processes where not.” He concluded: “The threat I want my reforms to pose is to a failing system, outdated methods and unreformed working practices, not to the needy.”

He will not have been pleased to hear the right wing former MP for Chingford, a supporter of the government’s draconian spending cuts, say that he feared that some of the economies proposed by the Ministry of Justice may be “going too far.”
The bill came to the House of Lords at committee stage on Tuesday. The debate got no further than amendments to clause 1, which defines the Lord Chancellor’s responsibilities. Four amendments were debated but all four were withdrawn without being put to the vote. Once again, reading the debate, it was noticeable that, apart from the ministerial team, the government had not put up anyone to speak in favour of the legal aid proposals. Committee stage continues on 10 January when further amendments will be discussed.

And finally, may I wish you all a merry Christmas and a happy New Year.

Image courtesy of The Freedom Association’s photostream on Flickr

The public access scheme was first established in 2004 and allows a barrister to be instructed directly by a lay client without the need for a solicitor. In order to take on public access work a barrister must have more than three years’ practising experience, must be properly trained and must have registered with the Bar Council as a public access practitioner. One stumbling block has been payment of barristers by clients.

In his inaugural speech to the Bar Council on Monday, Michael Todd QC, Chairman-Elect, confirmed that he is “chairing a Working Group, essentially led again by the Member Services Team, to look at the feasibility of a service which would provide BSB-regulated entities and Public Access barristers with an escrow account facility in which can be placed ‘client monies’ and which will be administered centrally from one location by a third party.” He said: “Already considerable interest has been displayed by a number of potential providers of this service.”

He told the Bar Council: “We have no entitlement to work. We must compete for it. We must invest better to adapt, to change, and to flourish. The returns on such investment are, in my view, undeniable.” He went on to say: “Of a Bar of about 15,000 members, nearly 5,000 are now ‘Public Access’ trained. They have made an investment in their future.” In his CrimeLine twitter

Andrew Keogh confirms that: “My police rep courses are mainly filled with barristers at the moment.”

Then on Wednesday last week the Bar Standards Board (BSB), the regulatory body for barristers in England and Wales, announced that it is consulting on amendments to its Code of Conduct for barristers following a review of its public access rules. The BSB said: “Public access rules do not allow a client who may be eligible for public funding to instruct a public access barrister. This is one of the rules the BSB seeks to change. The consultation also suggests that barristers should have a duty to ensure that, before accepting public access instructions, the client is able to make an informed decision about whether to apply for legal aid or to proceed with public access representation.” The lifting of the ban on barristers with under three years’ practising experience from accepting public access instructions is also proposed.

The BSB claim that the change would improve client choice and provide greater access to justice for clients who find themselves without access to legal aid solicitors. Removing the three-year rule and allowing barristers to do direct access work from the time they qualify would expand consumer choice, create greater competition and increase the supply of high quality and competitively priced advocacy services.

According to the Law Gazette, the consultation paper states: “The purpose of allowing lay clients to instruct barristers directly is to remove unnecessary barriers to the provision of barristers’ services and to save costs by cutting out superfluous intermediaries.”

The consultation will close at 5pm on 9 March 2012, and the consultation paper can be found at:
http://www.barstandardsboard.org.uk/assets/documents/Public%20access%20consultation%20paper%20new.pdf
PS: “Escrow generally refers to the placing of property which is the subject of a commercial transaction (money, title deeds, software source code, etc.,) into the hands of a trusted third party for safekeeping until some specified event occurs which will trigger the release of the property to one party to the initial transaction.” (Out-Law.com)

The revised timetable will be:

Consultation paper published: Autumn 2013

Response to consultation paper: Spring 2014

Tender opens in first competition areas: Autumn 2014

First contracts go live: Summer 2015

In an almost throw-away last paragraph of this statement he went on to say: “I would also like to inform the House that we intend, subject to parliamentary approval of the Legal Aid, Sentencing and Punishment of Offenders Bill, to implement all of the legal aid reforms in April 2013. This will include the abolition of the Legal Services Commission under the Bill and the creation of the new agency in its place.” This amounts to a six-month delay to the programme.

The ‘Guardian’ reports that Labour’s shadow justice secretary, Sadiq Khan, said: “This six-month stay of execution due to government incompetence will do little to reassure the millions of people who rely of social welfare legal aid to gain access to justice. Rather than delaying the implementation of their disastrous reforms to social welfare legal aid, which supports some of the most vulnerable people in our society, this government should abandon them completely.”

The bill goes to the committee stage in the House of Lords on 20 December. At its second reading in the chamber last month, the proposed legal aid cuts were savaged by the overwhelming majority of speakers in the debate. Since then Lord Wilson, the newest appointment to the supreme court, and Sir Nicholas Wall, president of the family division, have added their voices to the opposition. Three other supreme justices – Lord Hope, Lady Hale and Lord Dyson – have also expressed concern about the effect of government proposals to save £350m a year by reducing the availability of legal aid.

The Government showed with the Public Bodies bill last month that they are prepared to jettison proposals to ensure the passage of a bill. It will be interesting to see how they react to the Lords’ amendments and what, if anything, is thrown off the sledge to escape the chasing pack.

The aim of the research is to understand more about the providers of legal services ahead of regulatory changes, the reforms to legal aid, and other significant changes in the legal sector. This research will act as an initial baseline with the potential for follow-up research to be commissioned at a later date to measure the impact of changes once they have bedded in.

The Law Society needs information from a large and nationally representative sample of legal service suppliers. The research will probably take the form of telephone interviews with 2,000 senior representatives from law firms operating in England and Wales. A significant sub-group of this sample should be legal aid suppliers. Given that most legal services are supplied by smaller law firms the Society proposes to exclude the largest 200 firms (in terms of turnover) from the research, unless the firm is a legal aid provider.

The research will consist of three stages. Stage 1 will be an evaluation of a draft questionnaire provided by MoJ, LSB and LS, and a definition of sampling strategy. Stage 2 will be the main stage fieldwork, consisting of 20 minute interviews with senior representatives from 2,000 law firms across England and Wales. Stage 3 will be the analysis of survey results, together with the written report and presentation of the results. The findings from this research will be used to produce a state of the market report and to inform the on-going work of the three sponsoring bodies.

Stage 1 is expected to take place mid January 2012 – mid March 2012; stage 2 is expected to take place mid March 2012 – end May 2012; and stage 3 is expected to take place beginning Jun 2012 – end July 2012.
Expressions of interest from consortia of institutions (eg joining expertise in legal services with social survey capacity and expertise) are encouraged, although tenders from individual institutions are also welcome. But if you are interested in tendering you will have to be quick. Expressions of interest should arrive at the Law Society no later than 10.00 Monday 5 December 2011.

More details of the evidence being sought and the expected outputs for each stage can be found in the Law Society’s release at:

http://www.lawsociety.org.uk/newsandevents/news/view=newsarticle.law?NEWSID=444155

In October 2010 it was announced that the YJB would cease to function as a public body, and the leadership of youth justice and functions of the YJB would move into the Ministry of Justice. Justice minister Jonathan Djanogly said at that time: “This organisation has helped to transform the delivery of youth justice and has fulfilled an important role in reducing offending and re-offending by young people. Now is the right time to look more radically at the arrangement of youth justice, including the role of the YJB, ensuring that a dedicated focus on rehabilitation needs of young people is driven forward in the future.”

Both the YJB and the office of the chief coroner were to have been scrapped as part of a so-called ‘bonfire of the quangos’. But the government was defeated in the House of Lords on both decisions earlier this year, and further defeat was expected at the latest stage of the bill. The Ministry of Justice said the youth justice system still needed reform to make it more efficient and directly accountable to ministers, but, “following careful consideration”, the board would be saved. So both burning brands were plucked from the fire at the last moment.

Crossbench peer and former chief inspector of prisons Lord Ramsbotham, whose amendment reprieving the board was accepted by the government, welcomed the decision. He said: “I would like to thank and congratulate the Government on the decision that they have come to. By deciding to retain the Youth Justice Board, they have provided a service to two separate organisations and bodies: first, the youth justice system as a whole, which has benefited from the leadership and direction of the Youth Justice Board since 1999; and, secondly, the Ministry of Justice itself, because it has retained an independent body capable of directing and overseeing the youth justice system on its behalf that is accountable and responsible to Ministers.

“This is particularly important in the light of the riots in the summer, because during that period the Youth Justice Board played an enormously important part both in liaising with, overseeing and helping the youth offending teams out in the community and in overseeing the introduction and reception into custody of people who required a great deal of help.”

In a BBC report, Juliet Lyon, director of the Prison Reform Trust, is reported as saying that the government had shown that it is prepared to listen to reason. “By holding on to the Youth Justice Board it can build on an impressive drop in youth crime and continue to reduce the numbers of children and young people getting into trouble,” she said.

So what’s next for U-turning?

Then, in a Commons written statement in October 2010, justice minister Jonathan Djanogly said: “After careful consideration, we have decided that in the current economic climate we cannot go ahead with plans to implement national leadership from a Chief Coroner….We have proposed that the abolition of the office of the Chief Coroner should be included in the Public Bodies Bill…and we are further considering the transfer of some of the Chief Coroner’s functions to suitable alternative bodies.” This was part of the coalition government’s plan to cull the number of Whitehall quangos. Peter Thornton QC, a senior circuit judge at the Central Criminal Court, had been appointed to the post of Chief Coroner but had not taken up his duties.

This announcement provoked widespread dismay. The Royal British Legion had welcomed the original legislation, believing that the establishment of a Chief Coroner’s Office was critical to improving the working of the inquest system in relation to military inquests. Chris Simpkins, Director General of the Legion, said: “We are concerned that the families of our fallen heroes will no longer have confidence that the circumstances of their loved ones’ deaths will be thoroughly investigated.” He added: “We believe this decision would be a deep betrayal of bereaved Service families.”

Now, in another government u-turn, the proposal to abolish the office has been dropped from the Public Bodies Bill currently progressing through Parliament. This is largely thanks to the strong opposition by the Lords. A year ago the Lords decisively rejected the Government’s plan to abolish the position of chief coroner by a majority of 112. Last Wednesday the bill was again before the Lords for consideration of amendments and minister of state Lord McNally bowed to the pressure by withdrawing the proposal to allow progress on the bill. He assured “Noble Lords that this appointment will go ahead with all due speed.” The concession was, as Lord Bach said: “At the 59th minute of the 11th hour. They deserve credit, but as the noble Lord, Lord McNally, will recognise from his position at the Ministry of Justice, there is an analogy with someone in the dock who does not deserve the credit that someone who makes an early admission of guilt deserves.”

Baroness Finlay, one of the main campaigners for the post, said: “I know that this means an enormous amount to those people who have been bereaved, who have had bad experiences, and who have campaigned tirelessly in spite of their overwhelming grief to try to ensure that others do not suffer.” Baroness Fookes, president of the War Widows Association of Great Britain, said: “Its members know above all others what it is like to suffer the loss of loved ones and to go through military inquests. Over the years, they told me in no uncertain terms how difficult it was if a coroner was inexperienced in dealing with inquests, the nature of the war scene and the military ethos. To put it bluntly, the Ministry of Defence could pull the wool over the eyes of coroners not experienced in wartime matters.”

Outside the debate, Juliet Lyon, director of the Prison Reform Trust, said: “Saving the office of the chief coroner…can improve standards and reduce unacceptably long delays for all bereaved families including those waiting for years to know how and why a loved one died in custody whilst in the care of the state.”