After the battering the Government’s legal aid proposals took in the Commons it was the turn of the Lords to sink their teeth in when the proposals were the subject of a debate last Thursday.

Opening the debate, Lord Beeching pointed out that the Government’s Green Paper on legal aid reform proposes a massive cut in the civil legal aid budget of £279 million, with a much smaller reduction of around £71 million in the criminal legal aid budget. It achieves this by substantially reducing the scope of the scheme across most of the categories currently covered, while several categories are removed entirely. He said that, based on the latest Legal Services Commission data, some 725,000 cases will not be assisted, adding that the impact is concentrated on the poorest. Currently, 80 per cent of legal help cases and 90 per cent of cases where legal representation is funded involve the poorest 20 per cent of the population. As regards alternative sources of support, he said that law centres and Citizens Advice are under extreme financial pressure, both from the withdrawal of government funding implicit in the proposals of the Green Paper and from local councils struggling to cope with the largest ever reduction in government grants. He urged the Government to consider very carefully the Law Society’s proposals for savings which he reckoned could bring a total of £469 million-worth of savings. He quoted the current Lord Chief Justice as saying that the proposals fail “to recognise the depth of the problem,” and “would lead to a huge increase in the incidence of unrepresented litigants, with serious implications for the quality of justice and for the administration of the justice system.”

Baroness Sherlock focused on one particular aspect of the Government’s plans for legal aid, the proposal to take social welfare law out of scope. She said that of the cuts to be made, more than £l00 million will be cut from social welfare legal aid and, as a result, most social welfare law and legal advice will no longer be covered. This is at a time when the Welfare Reform Bill, described as the biggest change to the welfare system for over 60 years, is currently making its way through Parliament. She concluded: “My concern is that when Governments make changes on this scale, mistakes inevitably happen. Given all those changes, does this feel like a good time to stop providing advice and help to benefits claimants in those settings? I think not.” Lord Thomas’s concern was medical negligence, his fear being that the removal of legal aid “will deny access to justice to some of the most vulnerable groups in the country – children, the sick and disabled. The need to streamline costs and for systems to be efficient should not be at their expense.”

Baroness Helena Kennedy drew attention to something Jonathan Djanogly, the justice department Minister in charge of legal aid, said at the Conservative Party conference last year. He said: “Legal aid can be a good filler for those lawyers out of work or women who want to get back into the legal job market after having children.” Baroness Kennedy said: “It shows an attitude to legal aid which is to misunderstand it.” Her concern was also medical negligence cases, saying that “removing legal aid completely will mean that poor people who suffer terrible things within our hospitals will not be able to sue.”

Replying to the lengthy debate, Minister of State Lord McNally said: “We are still in consultation. I cannot say that the consultation is going to produce some Pauline conversion at the last moment. As I say, we have made a commitment to savings and we intend to deliver them.” Then, like Jonathan Djanogly in the Commons earlier, he played a dead bat. A contributor to the BBC’s online commentary while the debate was taking place said: “Poor McNally, poor performance. Mostly today…he’s just reading out word for word the introduction to the Green Paper published last November. Does he know? Pretty disrespectful to the House if he does. Civil servants in MoJ can’t be bothered to write him a speech and he can’t be bothered to check.” Another contributor said: “Only one speaker in favour of the reforms…That sums up the whole debate perfectly. Nobody was interested in seeking to defend what the government is doing, even those on the government benches.”

Picture courtesy of UK Parliament’s photostream

Introducing proposals for legal aid reform last week, Legal Aid Minister, Willy Bach, said that the UK has one of the best funded legal aid systems in the world. He went on to say that “legal aid practitioners provide a fantastic service and should be paid accordingly; and that means rebalancing some fee structures so that there is greater fairness across the board. Today’s consultation paper sets out proposals to make better use of the legal aid budget and ensure access for as many people as possible”.

The proposals set out to rebalance the legal aid budget seek to ensure that the £2 billion currently spent every year goes as far as possible in favour of civil help for those who need it most. “Legal advice, in the fields of housing, debt, and welfare benefits, can solve people’s legal problems, with the result that their lives and lives of their families are improved. It can literally change people’s lives”, said Lord Bach. During the current economic downturn “more people who are homeowners, consumers, employees and those facing financial hardship, are vulnerable in ways that require them to use the civil law system”.

One proposal is to rationalise the rate of pay for barristers in Crown Court cases. On average, barristers acting for the prosecution receive 23% less pay than if they were acting for the defence. Ending the current duplication of fees, which remunerates litigators for preparation for committal hearing but which also remunerates the same litigators for consideration of the Committals Bundle in preparation for trial in the Crown Court, is also proposed, with one fixed fee to be paid out of the Litigator Graduate Fee Scheme. The anomaly by which practitioners in criminal cases receive a fee for file reviews which does not apply in civil cases is to be removed, with the ending of payments for criminal file reviews.

A particularly controversial proposal is the reduction in police station fees in the most expensive and oversubscribed areas. The Law Society is clear that many solicitors will not be able to provide a service if rates are reduced further. This will be particularly the case in London, where, it claims, solicitors work on the very edges of profitability. Many of the worst affected solicitors will be from the BME community, who provide important advice to members of that community, who are statistically more likely to be arrested. Des Hudson, Law Society Chief Executive, said: “Solicitors don’t create the demand for advice in police stations; they simply respond to requests from people who’ve been arrested… Arbitrarily cutting the fees that they are paid will reduce access to this vital service for the people who need it most”.

In addition, the Legal Services Commission have been asked to consider changes to payments made to experts in both criminal and civil cases. Currently, the legal aid budget pays different amounts for the same work by different experts and across categories of law. The change would see payments standardised “to ensure better value for money”.
If you wish to have your say, you have until 12 November 2009, when the consultation will close. Following consultation, MoJ intend to publish their response by December 2009. The full text of the consultation paper ‘Legal aid: funding reforms’ can be found at:-

http://www.justice.gov.uk/consultations/docs/legal-aid-funding-reforms.pdf