As the legal aid, sentencing and punishment of offenders bill returns to the House of Lords at committee stage, an independent report from a leading university reveals how the legal aid changes will incur new costs for the taxpayer by simply shifting the burden onto other parts of the public purse.

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

The government has abandoned plans to scrap the Youth Justice Board (YJB). The decision came shortly after another U-turn over plans to axe the post of chief coroner. Both issues had threatened to derail the passage of the Public Bodies Bill through the Lords last Wednesday.

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?

On Monday the Legal Aid, Sentencing and Punishment of Offenders Bill came before the Lords for its second reading. In eight hours there were over fifty contributors to a high quality debate.

Part 2 (litigation funding and costs) and part 3 (sentencing and punishment of offenders) did not feature greatly in the exchanges, and were largely approved. Overwhelmingly the debate concerned part 1 of the bill – legal aid. And overwhelmingly the contributors opposed the government’s proposals.

Baroness Scotland said: “Justice should be available in times of good and ill. In times of ill, it is more necessary than ever.” She quoted the late Lord Bingham when he argued “that one of the ingredients of the rule of law itself was that ‘means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide disputes which the parties are unable themselves to resolve.” Lord Bingham went on to say that “denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law.” Lord Pannick looked back to the speech of Sir Hartley Shawcross, the Attorney-General, when he introduced the Legal Aid and Advice Bill in December 1948. He said: “His concern and the concern of the Labour Government in those days was that the doors of the courts were in theory open to ordinary people, ‘just as the grill room at the Ritz Hotel is open to all’, but obtaining and acting on legal advice were ‘luxuries which were beyond their reach’.”

Viscount Simon was concerned that taking clinical negligence out of the scope of legal aid will prevent vast numbers of people ever having their case properly investigated. “Because the vast majority of clinical negligence victims are harmed at the hands of a state body – the NHS – there is a strong moral argument that the state should ensure that these people have access to justice,” he said. Baroness Gould said: “The Bill is discriminatory and will entrench inequality for women, people from minority ethnic groups, disabled people and other groups facing discrimination, all of whom will be disproportionately affected.” Drawing on some 25 years’ experience of legal aid litigation, Lord Clinton-Davis said: “The real trouble with this Bill is that there will be no savings: indeed, the very reverse. Unrepresented persons will appear before courts and tribunals and many, through no fault of their own, will make false and incoherent points. Time will be wasted.”

Baroness Kennedy expressed concern that “having ready access to a lawyer will be replaced by a telephone hotline, a sort of call centre. We all know the problems that we have with call centres in every other area of our lives; imagine it when you are in distress and in need of decent legal advice.” Lord Elystan-Morgan asserted that “unless a Government of the future pass a one-clause Bill to abolish legal aid completely, the contents of this Bill and the proposals surrounding them must constitute the most savage and most deadly attack upon the institution of legal aid in the 62 years of its existence.”

As chief prosecutor, Lord Macdonald had seen the extent of the scourge of domestic violence, its impact on those who suffered it, who were mainly women, and its impact on the children, who usually witnessed it. He said: “An inevitable consequence of the Bill’s approach to domestic violence is that more people – again, mainly women and children – will be trapped in more abusive relationships with no succour at all from our law. I venture to suggest to noble Lords that that is a situation that would bring shame upon our entire legal system.” On means testing at the police station he said: “Are we really to say that no interview is going to take place before a means test is considered, no charge may be preferred until the financial forms are filled out and passed – mortgage payments, rents, wage slips, debts, assets and all the rest of it? It is – I choose my words carefully – a foolish notion. Who is going to calculate the cost of this in wasted time and disruption to the forensic process?”

Replying to the debate, minister of state Lord McNally said: “It is not true that we brushed aside the Law Society’s wonderful ideas for saving the money in different ways. We considered its proposals very carefully…A great deal of its proposals were shuffling responsibilities and costs around Whitehall or producing new taxes, which is not the same as making savings.”

The Bill was read a second time and committed to a Committee of the Whole House, on a date to be arranged. That’s when the serious business of attempting amendments to the bill will take place.

A new bare-headed look will prevail from October 1 when judges hearing civil and family cases in England and Wales consign their 300-year-old horsehair headgear to history. From the autumn, most judges will adopt a simple continental-style black gown. The new robe has coloured bands to indicate seniority, with heads of the high court’s four divisions and appeal court judges wearing gold bands and high court judges wearing red. Judges will no longer wear wing collars and bands for civil and family proceedings.

According to Clare Dyer, legal editor of the “Guardian”, the move has been pushed through by the lord chief justice, Lord Phillips, “who has long believed that judges’ fusty headgear and antiquated garments should be consigned to the dressing-up box. He and his recent predecessors have argued that the outdated apparel contributes to public attitudes that the judges are out of touch with ordinary life. But he failed to convince judges hearing criminal cases, who claim that wigs add to the dignity of proceedings and confer an anonymity which stops villains recognising them out of court.” Wigs will continue to be worn by high court judges and circuit judges presiding over criminal cases. Circuit judges will lose their wigs for civil cases but will retain their current gown and tippet rather than moving to the new robe.

When he decided to simplify judges’ garb, the lord chief justice expected barristers to follow suit. But the profession has been fighting to retain its traditional wig and gown. The Bar Council has twice consulted with its grassroots and has still not announced whether it intends to come into line with the judges. The consultation has revealed that well over half want to keep their traditional dress for cases in the House of Lords, court of appeal and high court.

Judges in the House of Lords may adopt a simple black gown when it becomes the supreme court in October 2009.