The government is pressing ahead with plans to cut £350m from the more than £2bn annual legal aid bill, despite lawyers’ and campaigners’ opposition. A record response of over 5,000 consultation submissions, universally unfavourable, has produced no U-turn. Under the plans, some 600,000 cases of legal aid in England and Wales will no longer be funded if the full package goes through Parliament.

There have been some minor changes to the government’s earlier proposals. The definition of domestic violence in family disputes has been broadened to include providing legal support to those who have suffered psychological abuse. And legal aid to help children with special educational needs has also been restored. Excluding it would have saved the Ministry of Justice barely £1 million and had already caused a political outcry. Jolanta Lasota, chief executive of Ambitious about Autism, said: “For many of the parents we support, using the legal system is the only way to get a good education for their child with special educational needs. They will be hugely relieved by the government’s decision to support their right to justice for their children.”

The bill proposes the abolition of the Legal Services Commission (LSC), a non-departmental public body which looks after legal aid in England and Wales. It will be replaced by direct government administration of the legal aid system under a Director of Legal Aid Casework, who will be a civil servant answerable to government ministers. The bill also plans wholesale implementation of the Jackson reforms of civil litigation costs, which will have implications for small businesses and access to justice.

In the Commons, the justice secretary said that he would not abolish, as originally proposed, the current capital disregards for pensioners and for equity in the main home in assessing an applicant’s eligibility for legal aid. In response to expressed concerns he also dangled a carrot when he said: “On citizens advice bureaux and other forms of general advice, I hope to be able to say something on Second Reading—I am making advances, but we will see how much we can come forward with.” But he went on to confirm: “Legal aid will no longer be routinely available for most private family law cases, clinical negligence, employment, immigration, some debt and housing issues, some education cases, and welfare benefits. It will also no longer be available for squatters resisting eviction.”

Needless to say the proposals have had a thoroughly bad press. Linda Lee, president of the Law Society, said: “The government has failed to consider alternatives which would make bigger savings without removing civil legal aid from some of the most vulnerable people in society.” Stephen Cobb QC, chairman of the Family Law Bar Association, said: “The threats posed by the government’s proposals are real and potentially brutal.” Gillian Guy, of Citizen’s Advice, predicted that those in greatest need would suffer. Richard Hawkes, Chief Executive of disability charity Scope, said: “As the government presses ahead with its welfare reform agenda – which will hit disabled people hard – it is probably more important than ever that disabled people have access to legal aid and advice.”

The Legal Action Group believes the legal aid cuts are penny-wise but pound-foolish. They calculate that £1 of expenditure on civil legal help saves the government around £6 in other public expenditure. As Zoe Williams writes in the ‘Guardian’: “This might be a cut, but it isn’t a saving. It will cost us a fortune.”

Liberal Democrat MP Dr Julian Huppert secured a debate on legal aid in the Commons last week. He said it was timely because although the Government consultation, which has received around 5,000 replies, has closed no response has been published.

His main concern was the detrimental effect the proposed cuts would have on the disadvantaged. He said that women will be disproportionately affected by the changes in legal aid as they are more often the recipients of it and less often have their own finances in place. Children and young people will also be disproportionately affected, partly because women make up the majority of primary care givers. Similar concerns apply in relation to disabled people, whether young or old, instancing the Government plan to remove legal aid relating to matters of special educational need. He was pleased that asylum will remain within the scope of legal aid, but extremely concerned that other immigration cases have been excluded. He said: “Even under existing arrangements, immigration legal aid providers are struggling to remain viable; if we confine legal aid to asylum, it is doubtful whether good quality practitioners will continue to be available. There is already a surfeit of poor quality lawyers and advisers working in this field, and we would all benefit from better provision because many of them are not up to scratch.”

Labour MP Yvonne Fovargue quoted the Legal Action Group when she said: “The personal, social and economic consequences of removing access to justice for so many people is unknown and unforgiveable.” A former chief executive of St Helens Citizens Advice for more than 20 years, she deplored the loss of most early intervention advice, with access available solely through a telephone gateway. “I believe that such proposals will disadvantage the most vulnerable in our society—the disabled, the elderly, those on a low income with a pre-paid mobile phone who often ring about debt issues, those with mental health issues, those whose first language is not English and many others” she said. Citizens Advice has produced detailed briefings showing the unintended consequences of the Government’s proposals on social welfare law work. Its cost-benefit analysis makes a strong case for retaining and even strengthening its role. It estimates that if funding were no longer available for these categories of law, at least £172 million of additional costs would accrue for both state and society. MP Jeremy Corbyn said: “The number of cases that are dealt with by legal aid in this country at the moment is 934,000…The cuts being proposed will mean that more than 600,000 people will not have access to legal aid. If we want a fair, decent and just society, everyone must have access to the law.”

After a universally negative critique of the green paper from his fellow MPs, Justice Minister Jonathan Djanogly wound up the session with a stonewall recitation of its contents, without giving away any potential significant concession. But the immutable timetable of Parliamentary affairs did leave one cliff hanger. Much had been made during the debate that domestic violence cannot refer simply to physical violence. Dr Huppert said: “We must all be concerned about people suffering the threat of violence and mental torment. I hope that the Government will take seriously the criticisms that they have received on that point and will clarify and strengthen their definition of domestic violence so that those at risk have access to justice and are protected.” The Minister said: “In the consultation, we proposed that private law family legal aid should continue to be available where there is objective evidence of domestic violence. We have asked for views on what might provide objective evidence and therefore trigger private family law legal aid. We have been giving careful consideration to the points raised in response—.” At which point the Chairman said: “Order. I am afraid that we have run out of time for this debate.” It was time to discuss the Avon Ring Road (M4 Link).

Criminal firms have seen the introduction of fixed fee schemes for police work and a standard fee system in magistrates courts following a review of legal services by Lord Carter three years ago. Now the consultations on proposals for competitive tendering by criminal defence work firms have come to an end, with solicitors’ firms across the country voicing strong opposition to the proposed system.

The Law Society, the Bar Council and the Criminal Bar Association are all gravely concerned about BVT as currently proposed by the LSC, involving a limited scheme which would cover lower crime work in police stations and the Magistrates’ Courts. This would probably be extended should it prove successful. BVT involves competitive tendering based on price for criminal defence work, as solicitors’ firms will bid for blocks of work, with the lowest bidder getting the work. Strong concerns are expressed that criminal legal aid firms could be drastically reduced, meaning the number of firms available to clients will diminish, as the already financially vulnerable supplier base is put at risk. “The widespread use of BVT is likely to… deny clients access to many competent and dedicated solicitors who want to serve them. The bidding processes proposed are opaque and not suited to the commissioning of professional services, where the freedom of the individual is put at risk”, said Paul Marsh, Law Society President.

In their response to the proposals, the Law Society said that they will have a hugely detrimental impact on the quality of representation in police stations, and thereby damage the criminal justice system as a whole. Of equal concern is the failure to conduct a full and proper impact assessment, taking account of the potential disproportionate impact on women and BME practitioners. Desmond Browne QC, the Chairman of the Bar, said that “we cannot afford to sacrifice the present robust system for a scheme which lacks all economic justification, and which will have a disproportionate impact on BME practitioners. The LSC’s failure properly to assess the impact on BME practitioners is potentially discriminatory and may be unlawful; it has a statutory duty to avoid discrimination and promote equality of opportunity, and it has comprehensively failed to comply with this requirement”.

Speaking at a conference organised by the Legal Action Group to celebrate 60 years of legal aid, justice department minister Lord Bach said that BVT is “not a simple cost cutting exercise. It’s aimed at securing a sustainable, effective and efficient supplier base”. In an interview with the ‘Guardian’ he acknowledged that his policies are deeply unpopular among many former colleagues, adding that “I have to do what I can to ensure the legal aid is spent in the best possible way, and that’s what I’m trying to do.”

The Law Society’s response to the Legal Services Commission’s consultation on best value tendering for CDS contracts 2010 can be found at:-
http://www.lawsociety.org.uk/secure/file/180185/e:/teamsite-deployed/documents/templatedata/Internet%20Documents/Government%20proposals/Documents/bvt_response180609.pdf