Tag Archive | "Legal Aid"

New Lord Chancellor


In the past two years we have been privileged to serve four holders of the post of Lord Chancellor – Chris Grayling, Michael Gove, Lyn Truss and now, David Lidington.

All four have one thing in common. None is legally qualified.

The demotion of Lyn Truss to Chief Secretary to the Treasury stands out as the only senior casualty in the mini reshuffle following the general election. She has paid the price of the fury caused by her lacklustre defence of a judiciary dubbed ’Enemies of the People’ by the right-wing press over the Article 50 case.

David Lidington was elected Member of Parliament for Aylesbury in 1992 and has held a number of positions including Shadow Secretary of State for Northern Ireland from 2003 to 2007 and Shadow Minister for Foreign and Commonwealth Affairs from 2007 to 2010
He served as Minister of State at the Foreign & Commonwealth Office (FCO) from May 2010 until July 2016, the longest-serving Europe Minister in British history. He was Leader of the House of Commons and Lord President of the Council from July 2016 to June 2017. He was a staunch member of the Remain campaign.

Lidington has generally voted against laws to promote equality and human rights. In May last year he voted in favour of repealing the Human Rights Act 1998. He has also consistently voted against allowing terminally ill people to be given assistance to end their life. He has generally voted against gay rights and voted against allowing same-sex couples to marry.

Lidington has also consistently voted in favour of restricting the scope of legal aid, and for allowing national security-sensitive evidence to be put before courts in secret sessions.

His voting record also shows support for stronger enforcement of immigration rules and mass surveillance of people’s communications and activities.

Commenting on Sunday Lidington said: “Democracy and freedom are built on the rule of law, and are protected by a strong and independent judiciary. I look forward to taking my Oath as Lord Chancellor, and to working with the Lord Chief Justice and his fellow judges in the months ahead, to ensure that justice is fairly administered and robustly defended.”

In May 2009, the Daily Telegraph revealed Lidington had claimed nearly £1,300 for his dry cleaning and had also claimed for toothpaste, shower gel, body spray and vitamin supplements on his second home allowance. He decided to repay the claims for the toiletries, saying: “I accept that many people would see them as over-generous.” He was also criticised by local newspaper the Bucks Herald for claiming £115,891 in expenses in one year, almost double his salary.

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Election manifestoes


Where there is an election there are manifestoes, and both the Law Society and the Bar Council have been quick off the mark.

The Law Society has called on the next government to put access to justice at the heart of Brexit Britain. Society president Robert Bourns said: “Early legal advice prevents difficult societal and personal situations escalating. So if you’ve a problem with housing, how immeasurably better it is to solve that before you and your family become homeless – which is also likely to cost the taxpayer far more than the initial legal advice.”

On human rights, the Society wants to retain the Human Rights Act, but says that if it is replaced by a British Bill of Rights this must protect and enhance rights currently enshrined in UK law.

Regarding Brexit, the Society calls for negotiation of reciprocal rights of practice, audience and legal professional privilege for UK solicitors across the EU and in its courts. The Law Society’s calls include:

  • Reinstate legal aid for early advice, particularly in housing and family law.
  • Negotiate access for UK lawyers to practice law across the EU, base themselves in the EU, and have rights of audience and legal professional privilege in EU courts.
  • Ensure civil justice co-operation is maintained with the EU in the interest of consumers, families and businesses.
  • Combat modern slavery by enforcing the Modern Slavery Act 2015 and allocating the necessary resources to protect victims.
  • Scrap the current employment tribunal fee system.

Echoing the Law Society’s manifesto, the Bar Council says the government must review the consequences of the Legal Aid, Sentencing and Punishment of Offenders Act, which greatly cut back the scope of legal aid. “The loss of nearly £1bn legal aid support has effectively disenfranchised a whole sector of society from obtaining access to justice. Government should reintroduce legal aid to assist vulnerable citizens who are currently left to fend for themselves…Justice is not a commodity and should never be a luxury available only to those who can afford to pay for it. Justice is not like any other public service.”

In a thinly veiled attack on Liz Truss, the Council stresses that the next lord chancellor must be someone whose “experience is combined with the requisite authority among ministerial colleagues to defend the independence of the judiciary.”

On Brexit, the Bar manifesto warns that: “Unless a strategic plan for the future of our legal services is devised and delivered, our exit from the EU will damage the international market value of the legal services sector, and undermine acquired rights and protections for our citizens and for our environment.” In exiting the EU, the government must develop a strategy for the legal services sector which recognises the value that Britain’s legal services contributes.

The Bar Council calls on the government to provide appropriate funding which recognises the value of the judiciary and those who work for the administration of justice so that standards of excellence can be achieved; and invest in infrastructure by making proper investment in the infrastructure of justice.

In addition, the government must remedy poor decision-making by those in authority who deal with vulnerable members of society. “For example, approximately half of those detained in immigration detention centres ought not to be there as is demonstrated by charities which provide legal assistance to those who cannot use lawyers.”

The Bar Council’s manifesto ‘The Value of Justice’ can be found at: http://www.barcouncil.org.uk/media/566731/manifesto_for_justicefinal.pdf

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Legal aid for prisoners


The government has lost an important battle in the court of appeal over access to legal aid. Denying prisoners in England and Wales legal aid so they can effectively challenge the conditions under which they are held could be illegal, the court has ruled.

In R (Howard League for Penal Reform and the Prisoners’ Advice Service) v the Lord Chancellor, the court of appeal judges – Lord Justice Leveson, Lord Justice Tomlinson and Lady Justice Sharp – considered five areas of prison law where the Ministry of Justice removed criminal legal aid eligibility in December 2013. Read the full story

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Family courts allow abusers to torment their victims


The head of the Family Division, Sir James Munby, has called for a bar on victims of domestic violence being cross-examined by the alleged perpetrators in court. The practice is not permitted in criminal courts. He said: “Reform is required. I would welcome a bar. But the judiciary cannot provide this, because it requires primary legislation and would involve public expenditure. It is therefore a matter for ministers.”

Liz Truss, the justice secretary, is said to share his concerns about how the family courts can enable perpetrators of domestic abuse to continue their intimidation and harassment through the court system. A senior Ministry of Justice source said: “This is a matter we are extremely concerned about and looking at as a matter of urgency.”

Comprehensive evidence obtained by the ‘Guardian’ has revealed how the family court allows men with criminal convictions for abusing their ex-partners to directly question them; is able to ignore restraining orders imposed by the criminal courts to protect the women; and allows fathers, no matter how violent or abusive, to repeatedly pursue contact with children and their mothers. The evidence also shows that the family court can ignore expert evidence that women are at risk from abusive men and fails to adequately protect vulnerable victims of domestic and sexual abuse.

Women are often cross-examined by violent ex-partners in secretive civil court hearings. Those who speak out risk being held in contempt of court for discussing what went on in their private court hearings, but said they wanted to shine a light on what was going on in the system.

The immediate problem is another of Chris Grayling’s chickens coming home to roost. To satisfy the austerity demands of George Osborne (remember him?) Grayling took the axe to his department’s budget. Legal aid is now denied in most family cases. The main exception is for a victim of domestic abuse. Cuts of more than 30% are crippling access to all sorts of justice.

The number of people going to court without a lawyer has been rising since access to legal aid was cut severely in 2013. The less well off and those with children are more heavily represented in those litigating in person than any other group.

Research by the charity Citizens Advice has revealed that the stress, responsibility and loneliness of going to court without representation can mean ‘Litigants in person’ (LiPS) achieve worse outcomes compared with their represented counterparts.

It also showed 90% of people who had been LiPS found the experience negatively affected their health, relationships, work or finances. Figures from the MoJ in October 2016 reveal that in 80% of family court cases, at least one individual had no lawyer.

The justice secretary has set up an emergency review to find the quickest way to ban perpetrators of domestic abuse from directly cross-examining their victims within the family court system. The research paper being prepared is due to be completed by the end of next week. It will examine whether primary legislation is necessary to end perpetrator cross-examination, or whether it could be stopped through the provision of more legal aid.

Posted in Civil Law, Legal AidComments (0)

Justice denied


Transform Justice is a national charity campaigning for a fairer, more humane, more open and effective justice system. It was set up in 2012 by Penelope Gibbs, a former magistrate who had worked for five years to reduce child and youth imprisonment in the UK.

A new report, Justice Denied, produced by Transform Justice, suggests that a combination of legal aid cuts, complex bureaucracy and inadequate support and information for defendants have led to a surge in people appearing in court without a lawyer. Now all this is not new, but what this report does is to examine in detail the effect on the justice system as a result of slashing legal aid.

Penelope Gibbs described the rise in unrepresented defendants as a “travesty”, and warned that justice was in danger of being denied to some on modest incomes who did not qualify for legal aid. “People who are denied legal aid are often not wealthy. They get little information to prepare for court and are thrust into an adversarial and complex process which even those who are represented find hard to follow. No wonder they end up pleading guilty when in fact they have a reasonable defence, or getting a longer sentence.”

There are no official figures for the number of unrepresented defendants in magistrates courts. But this report cites a wealth of evidence, including a survey by the Magistrates Association, official data from the MoJ, freedom of information responses, an online poll of lawyers, surveys of prosecutors, judges and magistrates and fieldwork carried out at courts – as proof that more people are appearing in court without legal representation.

“I have prosecuted trials against unrepresented defendants. It is a complete sham and a pale imitation of justice”, a prosecutor reported. Another prosecutor said: “The magistrate probably thinks if [someone] is stupid enough to represent himself he’s probably guilty… Going unrepresented certainly hinders any defendant, without a shadow of a doubt.” A third prosecutor said “I could count on the fingers of one hand how many have actually understood the charges.”

The report states: “Interviewees had witnessed unrepresented defendants not understanding what they were charged with, pleading guilty when they would have been advised not to, and vice versa, messing up the cross-examination of witnesses, and getting tougher sentences because they did not know how to mitigate.”

One prosecutor suggested that sometimes unrepresented defendants do not realise the strength of their case and “are bullied by the clerks and bench into pleading guilty.” A magistrate was also concerned: “They are told by the clerk if you plead guilty at the earliest opportunity the court will be more lenient than if you plead not guilty and are found guilty in the long run, so it’s a bit of a game of poker in this respect, and I think…that’s wrong.”

The report found that the impact on court staff, judges and advocates of dealing with unrepresented defendants is immense – cases are taking longer, and explanation skills and patience are being tested. A magistrate said: “You definitely take it slower because you want to ensure they understand what’s being said…You always have to keep on repeating to them what they are meant to be doing – they forget.”

Does it save money? Not according to one prosecutor: “It makes the whole system more expensive, because more hearings are required and longer time is needed to explain the system.” The absence of a cost benefit analysis means we don’t know for certain.

In one example given to the charity behind the report an unrepresented defendant remained silent during his appearance via video link from a police station. Only after he had been sent to prison did it emerge that he was deaf. Is that justice?

The full text of the report can be found at:

http://www.transformjustice.org.uk/wp-content/uploads/2016/04/TJ-APRIL_Singles.pdf

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Discriminatory residence test for legal aid summarily thrown out


Our blog on Monday said that the Supreme Court would begin hearing arguments in a case challenging the government’s Legal Aid residence test that day. Remarkably by Monday evening the case was resolved.

The Supreme Court has taken what is believed to be the unprecedented step of allowing an appeal halfway through a two-day hearing. The bench of seven justices in the UK’s highest court abruptly halted the case and announced on Monday afternoon that it had found against the Ministry of Justice.

The government had been seeking to introduce the residence test via secondary legislation. The residence test restricts legal aid to people who are “lawfully resident” in the UK and have been for the past 12 months. The Public Law Project (PLP), which brought the case, said that this is outside the government’s powers and also discriminatory under human rights laws.

As reported in the ‘Gazette’ a brief statement by the supreme court said: “The issues in this appeal were whether the proposed civil legal aid residence test in the draft Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2014 is ultra vires [beyond the powers of the legislation] and unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998.

“At the end of today’s hearing the supreme court announced that it was allowing the appeal on ground [of ultra vires] … The supreme court asked the parties whether they wished to address the court on the second issue. The case has been adjourned while this is considered.”

On Tuesday the court confirmed on its website that the hearing ‘has now concluded’. Full written reasons for its decision ‘will follow in due course’.

Law Society chief executive Catherine Dixon said: “This judgment goes some way in reaffirming the philosophy behind legal aid, which is that everyone should have the ability to get expert legal advice and representation to defend their legal rights.

“The court has upheld the vital principle that government must act within the scope of its powers and particular scrutiny must be given where equality before the law is being threatened.”

John Halford, the solicitor at the London law firm Bindmans, which is acting for the PLP, said: “Right now though, it is clear that the Supreme Court believed rationing British justice using delegated legislation was repugnant to British law and it was willing to act decisively to stop that happening.” Should the government want to introduce a residence test in the future, Halford said it would have to propose primary legislation with the residence test in it.

Such a swift ruling is a humiliating setback for the MoJ. Reversals were a regular matter for the previous unlamented justice secretary Grayling, but Gove has had the sense to abandon many unpopular measures introduced by his predecessor. He has blotted his copybook by allying himself with this now thrown out policy. He intended to proceed with plans to introduce the scheme this summer.

A Ministry of Justice spokesperson said: “We are of course very disappointed with this decision. We will now wait for the full written judgment to consider.”

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The impact of legal aid cuts


The number of people going to court without a lawyer has been rising since access to legal aid was cut severely in 2013. The less well off and those with children are more heavily represented in those litigating in person than any other group.

Research by the charity Citizens Advice has revealed that the stress, responsibility and loneliness of going to court without representation can mean “litigants in person (LiPS) achieve worse outcomes compared with their represented counterparts.”

It also showed 90% of people who had been LiPS found the experience negatively affected their health, relationships, work or finances. Some lost their jobs due to the pressure, while others got into debt due to court issues, including paying for photocopying and travelling to and from court.

Meanwhile, seven in 10 reported they might ‘think twice’ about taking a case to court themselves if they could not afford a lawyer.

The charity said it was only after people had been through the process of going to the family court that they realised the value of having a lawyer, with 70% saying that instructing a professional would have benefited their court experience. The lack of professional support has also placed intolerable pressure on the court system.

Gillian Guy, chief executive of Citizens Advice, said: “For people representing themselves in the family courts, whether in a divorce case or to keep the legal right to see their children, the workload to prepare can be unmanageable. In extreme cases people are quitting their job so they have the time to do research before going to court.

“The stress of making your case against qualified barristers and navigating complex court processes without the right guidance can make existing mental and physical health problems worse.”

In January the lord chief justice, Lord Thomas of Cwmgiedd, delivered a warning about the legal aid situation in England and Wales. “Our system of justice has become unaffordable to most,” he said. “In consequence, there has been a considerable increase of litigants in person for whom our current court system is not really designed.”

Three years after the government scrapped legal aid across much of civil law, more ‘advice deserts’ are emerging in the sectors that remain in scope. Several parts of England and Wales now have inadequate housing law cover which could give rise to potential conflicts of interest. A number of areas have no cover at all.

According to the ‘Gazette’ the Law Centres Network said: “Parliament’s intention in LASPO was that the most vulnerable people should still be able to access legal assistance. As evictions and homelessness rise steadily, a decline in housing legal aid uptake suggests that need is not being met.”

From the usual spokesperson for the Legal Aid Agency we learn that the ’vast majority’ of England and Wales have access to LAA-funded housing advice. “We constantly monitor the situation across the country and we are actively seeking new providers in two areas,” the spokesperson said. “Legal aid is a vital part of our justice system but we must ensure it is sustainable and fair for those who need it, those who provide services and for the taxpayer, who pays for it.”

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Law Society submissions to the Bach Review


The ‘Gazette’ reports that the Law Society is considering how an innovation fund could help legal aid solicitors harness new technology to improve access to justice.

In a submission to the Labour party’s legal aid review, the Society said there was “scope for innovation” among solicitors to produce “bespoke technological solutions that reflect their businesses and meet the needs of their clients.”

Inevitably there are doubts whether solicitors could afford the investment required. “The Society is therefore looking into whether there might be scope for an innovation fund, whereby grant funders would make grants to firms that have ideas for ways of using technology to improve access to justice,” the submission states.

In its submission to the review, the Society identifies the Partnership Initiative Budget, which operated under the former Legal Services Commission, as a precedent. “We are still in the early stages of considering this idea, but our initial thinking is that such a fund might be generated from a combination of private, third sector and public sector sources,” the submission states.

The Society also suggests that alternative approaches to civil legal aid remuneration should be considered. “We believe it is worth looking again at the fundamental point that legal aid currently works on the basis of paying individually for each of millions of pieces of advice provided.”

The submission points out that “there is a precedent in the form of the old block contracting system for the not-for-profit sector where the provider was remunerated on the basis of caseworker hours rather than for each individual case.”

The Law Society also warned that civil legal aid cuts will result in an increase in costs to the tax payer because failure to get early expert legal advice can result in people’s problems escalating dramatically, when they could have been nipped in the bud.

Law Society president Jonathan Smithers said: “Successive governments have repeatedly cut back the legal aid budget and this review provides a crucial opportunity to consider the fundamental question of how to restore and protect access to justice for everyone in the 21st century, regardless of their economic circumstances.”

Smithers said: ‘There is an imbalance of power and knowledge when legal advice is solely available to wealthy individuals, corporations and state bodies, and not to ordinary people. There are significant cost savings for society if people can obtain expert legal advice and representation,” adding that “early legal advice can forestall an escalating sequence of problems that in extreme cases can result in issues like homelessness. Prompt intervention can also help people to find a solution that doesn’t involve the courts.”

“The current legal aid system needs reform,” he said. “The capital means test for benefit claimants and evidential burdens for domestic violence determine who qualifies for legal aid help. These are preventing victims of domestic abuse from accessing legal aid in family cases. When no other realistic option exists for someone to assert their legal rights, funding from government must be available.”

‘Technology can improve access to justice, but proposals for digital courts will not remove the need for solicitors, who play a vital role in overcoming the barriers that people face in obtaining justice,” he said.

Labour is to present the findings of Lord Bach’s legal aid review at this year’s party conference in the Autumn.

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Labour’s review of the government’s legal aid reforms


When Jeremy Corbyn was elected leader of the Labour party last September one of his first acts was to announce an immediate review of legal aid.

He said: “I have asked Willy Bach, the former Shadow Attorney General, to undertake an immediate review of the assault on Legal Aid by the Government over the last five years. This has resulted in many of our fellow citizens, often the poor and marginalised, not being able to get advice or representation when they are faced with legal problems such as housing, welfare benefits, debt and employment. Many vital advice services, including Law Centres, have had to close.

Read the full story

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Goodbye to new legal aid contracting regime


It’s a bit like the failing football manager syndrome. The chairman of the club vigorously defends the current occupant until he has a replacement lined up. Then out goes the old manager with glowing praise and thanks.

In a written ministerial statement this afternoon, justice secretary Michael Gove, having given fulsome praise to his unlamented predecessor, said he had decided ‘not to go ahead with the introduction of the dual contracting system’. He will also suspend, for a period of 12 months from 1 April, a second fee cut which was introduced in July last year.

Under the dual contracting system, two types of contract were to be awarded to criminal legal aid firms.

  • An unlimited number of contracts for ‘own client’ work based on basic financial and fitness to practise checks – in others words continued payment for representing existing and known clients.
  • And a total of 527 ‘duty’ contracts awarded by competition, giving firms the right to be on the duty legal aid rota in 85 geographical procurement areas around the country, with between 4 and 17 contracts awarded in each. In other words, these contracts would allow a limited number of firms the chance to represent new entrants to the criminal justice system.

Gove said: “The dual contracting model was a carefully designed initiative from my department that aimed to meet concerns expressed by the legal profession about price competition. But over time, opposition to this model has been articulated with increasing force and passion by both solicitors and barristers.”

He said: “These arguments weighed heavily with me, but the need to deliver reductions in expenditure rapidly, and thus force the pace of consolidation, was stronger. Since July 2015, however, two significant developments have occurred.

“Firstly, thanks to economies I have made elsewhere in my department HM Treasury have given me a settlement which allows me greater flexibility in the allocation of funds for legal aid.

“Secondly, it has become clear, following legal challenges mounted against our procurement process, that there are real problems in pressing ahead as initially proposed.

“In addition, a judicial review challenging the entire process has raised additional implementation challenges.”

The Legal Aid Agency will extend current contracts so as to ensure continuing service until replacement contracts come into force later this year and more details will follow in due course.

One reason Mr Gove has earned the respect of his political opponents is his willingness to reverse many of Grayling’s least effective decisions, such as the restriction on books for prisoners, the proposed young offenders prison, the Saudi Arabia prisons deal and abolishing the much criticised criminal courts charge.

And now the demise of this half baked dual contract fiasco. What a waste of money and what a waste of time and effort. Don’t know whether to laugh or cry.

Law Society president Jonathan Smithers said: “It is clear that a competitive approach to the provision of criminal legal aid services is not appropriate. The assurance that there will be no competitive tendering in the future gives practitioners greater certainty for the future.’

LCCSA president Greg Foxsmith said: “We sincerely hope the MoJ learn lessons from this sorry affair, and we are ready and willing to work constructively with Mr Gove to replace “two-tier justice” with sustainable legal aid provision that provides justice for all.”

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