Line-by-line scrutiny of the Legal Aid, Sentencing and Punishment of Offenders Bill continued on Tuesday in the House of Lords. Members continued where they left off before the Christmas recess when four amendments to clause 1, which defines the Lord Chancellor’s responsibilities, were debated and then withdrawn without being put to the vote.
Lord Beecham moved another amendment to clause 1 which called upon the Lord Chancellor to review the accessibility and quality of expert advice that is available for civil legal proceedings and ensure that this is maintained or improved. Concern was voiced over creating a two-tier system in which those with money are able to access expertise and those without money have difficulty. It was stressed that an expert is not a luxury, and that there are many technical issues on which a judge would be lost in coming to a proper, conclusive determination of a case without expert evidence to assist him. This amendment was withdrawn, and clause 1 was agreed.

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 The amendment was withdrawn.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.

You’ve probably seen the press adverts already. They ask if you will be silenced by cuts to Legal aid. “The Government is planning cuts that will deny millions of people access to justice. Don’t let this happen. Sound Off for Justice.”

Sound Off for Justice is a campaign aimed at ensuring that the most vulnerable and needy in society continue to have access to justice and legal aid. “We aim to put pressure on the Government to reconsider the proposed cuts that will deny millions of people with significant legal problems access to legal representation. Legal Aid support in cases of medical malpractice, employment and education are just some of the areas to be taken out of scope should the current proposals be taken forward in legislation expected later this year.”

The campaign recognises that the economic climate means that tough decisions need to be made and draws attention to the Law Society’s alternative proposals that will save £384 million from the legal aid budget. This is £34 million more than the government wants to save. The difference drawn is that the Law Society’s proposals will continue to protect the members of society who cannot protect themselves. Their proposals for the positive reform of legal aid would make the necessary savings whilst retaining the key areas that the current government plans want to remove. “This offers the government a very clear alternative to the proposals they have on the table at the moment.”

Amongst those supporting the campaign is Sadiq Khan, Shadow Lord Chancellor & Justice Secretary. He said: “I accept that there should be savings, but I disagree passionately with the way this government is going about doing it, especially in relation to the cuts in social welfare and those who are the most deprived in our community. The unintended consequences of what they are doing are going to be quite severe. What Ken Clarke needs to do is think again – this isn’t the way to do it.”
Lord Bach is calling for a full debate in parliament and society about legal aid before the cuts are rushed through. He also warns about the unintended consequences in cutting social welfare laws: “Social welfare law ensures that families and individuals with legal problems can have them solved before they get much worse and lead to much greater expenditure on behalf of the state.” Lord Bach continues: “Sound Off  for Justice is a sensible, realistic proposal for cutting the amount of legal aid that we spend. What is the point of a legal aid system that does not protect the most vulnerable in our society?”

So what is a Sound Off? According to the campaign’s website it is any action that supports their campaign. You can join them on facebook or twitter. You can sign their letter to Ken Clarke or leave a voicemail for him. And you can lobby your MP. The campaign’s rallying cry is: “For 800 years the UK has taken pride in being a fair society where justice is for everyone – not just those who can afford it. The Government must not be allowed to play havoc with this ancient right when it is their responsibility to protect and uphold it. Join the fight to protect your right to legal aid and justice. Sound Off for Justice. Don’t be silenced in court.”

The campaign’s website can be found at:
soundoffforjustice.org

Legal aid minister Jonathan Djanogly has announced plans to scrap a £2.6 million per year training contract grant scheme. Since the scheme began in 2002 more than 750 trainees have benefited from grants of over £20,000 each to help cover their training fees and salary. The Legal Services Commission gave the grants to legal aid firms to allow them to fund 100% of the tuition fees of the Professional Skills Course, and to contribute towards Legal Practice Course fees and the trainee’s salary for the two years of their training contract.

The Ministry of Justice claims that the cut is an important cost-saving measure. Their spokesman said that when the scheme was introduced, financial inducements were needed to attract more young lawyers into the legal aid market, but now there are too many lawyers chasing too little work. “The grant scheme was a laudable idea, but the long-term future of legal aid is still assured, with enough young lawyers continuing to enter the profession,” he said. Those whose training is already being funded will be unaffected.

The decision has provoked anger from critics who say that the abolition of the scheme will undermine small legal firms who recruit from under-privileged backgrounds, as well as reducing the number of lawyers working in areas such as immigration and crime. Many will not be able to afford to undertake the lower paid work, and the decision could result in new lawyers turning toward more lucrative legal career paths. Laura Janes, chair of Young Legal Aid Lawyers, said: “If the government takes away this tiny but important lifeline, the kind of people who want to use the law to help ordinary people will no longer be able to afford it. This government has not even commenced their analysis of the legal aid position yet, and they already seem to be committed to getting rid of diversity in legal aid provision,” She added: “The provision of these grants went some way toward sustaining the flow of talented entrants into the legal aid sector, and making sure that legal aid work is not a closed door to applicants from poorer backgrounds.”

Lord Bach, former legal aid minister, condemned the move, saying: “This is a mean decision which will lead to some skilled and committed young lawyers not choosing the legal aid path, but looking to other parts of the law. Everyone knows that there may have to be some savings in the total legal aid budget, but to cancel this superb scheme which has worked so well for the last 8 years in order to save £2.6 million, looks petty and incredibly short-sighted.” Beth Forrester of the Junior Lawyers Division said: “The JLD is acutely aware that the current financial climate has had a grave impact on the availability of training contracts throughout the profession, but we are very disappointed to see that those junior lawyers in particular, who are looking to progress in an area of law which is of maximum benefit to the community, are going to be hardest hit.”

Last word to Laura Janes: “In this age of financial austerity, there is going to be more need than ever for the safety net of legal aid. What steps are the government going to take to ensure there is a next generation of properly supervised, qualified legal aid lawyers? Firms are dropping like flies and those left are going to be relying on armies of unqualified paralegals, who cannot deliver the level of quality the government claims it is committed to.”

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