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

Michael Foot once memorably described him as a ‘semi-house trained polecat’ in recognition of his fierce right wing views. So when the same Norman Tebbit, now ennobled, proposes what can only be described as liberal minded amendments to the current Legal Aid bill it is a moment of significance.

He has put his name down to two, linked amendments that would ensure children, or parents on their behalf, will be entitled to legal aid if they need to pursue medical negligence claims. In relation to depriving claimants under the age of 18 from having access to legal aid for medical negligence claims, he told the ‘Guardian’: “In that area [the bill] may be going too far. I want to hear all the arguments. It’s right that it should be debated.” He had taken up the cause, he said, because: “I have listened and read the arguments …and I think there’s sufficient in it that we ought to [examine]. It’s nice to be on the side of the angels for once.”

At the same time the embattled Ken Clarke contributed an article in the ‘Guardian’ in which, almost apocalyptically, he said: “There should be no doubt that the system is facing an existential crisis.” He went on to say: “So for any reasonable individual it is not a question of whether we reform legal aid, but how. My approach has been to take a methodical, first-principles look at the system. The logic is simple: to determine carefully which types of cases most urgently merit scarce resources, to encourage people to use non-adversarial solutions to their problems where appropriate, and to speed up and simplify court processes where not.” He concluded: “The threat I want my reforms to pose is to a failing system, outdated methods and unreformed working practices, not to the needy.”

He will not have been pleased to hear the right wing former MP for Chingford, a supporter of the government’s draconian spending cuts, say that he feared that some of the economies proposed by the Ministry of Justice may be “going too far.”
The bill came to the House of Lords at committee stage on Tuesday. The debate got no further than amendments to clause 1, which defines the Lord Chancellor’s responsibilities. Four amendments were debated but all four were withdrawn without being put to the vote. Once again, reading the debate, it was noticeable that, apart from the ministerial team, the government had not put up anyone to speak in favour of the legal aid proposals. Committee stage continues on 10 January when further amendments will be discussed.

And finally, may I wish you all a merry Christmas and a happy New Year.

Image courtesy of The Freedom Association’s photostream on Flickr

On Monday the Law Society announced that, jointly with the Ministry of Justice and the Legal Services Board, it intended to commission research to understand more about ‘high street’ law firms, the main providers of legal services and legal aid.

The aim of the research is to understand more about the providers of legal services ahead of regulatory changes, the reforms to legal aid, and other significant changes in the legal sector. This research will act as an initial baseline with the potential for follow-up research to be commissioned at a later date to measure the impact of changes once they have bedded in.

The Law Society needs information from a large and nationally representative sample of legal service suppliers. The research will probably take the form of telephone interviews with 2,000 senior representatives from law firms operating in England and Wales. A significant sub-group of this sample should be legal aid suppliers. Given that most legal services are supplied by smaller law firms the Society proposes to exclude the largest 200 firms (in terms of turnover) from the research, unless the firm is a legal aid provider.

The research will consist of three stages. Stage 1 will be an evaluation of a draft questionnaire provided by MoJ, LSB and LS, and a definition of sampling strategy. Stage 2 will be the main stage fieldwork, consisting of 20 minute interviews with senior representatives from 2,000 law firms across England and Wales. Stage 3 will be the analysis of survey results, together with the written report and presentation of the results. The findings from this research will be used to produce a state of the market report and to inform the on-going work of the three sponsoring bodies.

Stage 1 is expected to take place mid January 2012 – mid March 2012; stage 2 is expected to take place mid March 2012 – end May 2012; and stage 3 is expected to take place beginning Jun 2012 – end July 2012.
Expressions of interest from consortia of institutions (eg joining expertise in legal services with social survey capacity and expertise) are encouraged, although tenders from individual institutions are also welcome. But if you are interested in tendering you will have to be quick. Expressions of interest should arrive at the Law Society no later than 10.00 Monday 5 December 2011.

More details of the evidence being sought and the expected outputs for each stage can be found in the Law Society’s release at:

http://www.lawsociety.org.uk/newsandevents/news/view=newsarticle.law?NEWSID=444155

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?

333 people died in or immediately after police custody in the years 1999 to 2009,  according to statistics from the Independent Police Complaints Commission. The MoJ report that last year 58 prisoners committed suicide. Now, for the first time, police forces, prisons, youth detention centres and the UK Border Agency could face prosecution for corporate homicide if an individual dies in their custody.

Section 2(1)(d) of the Corporate Manslaughter and Corporate Homicide Act 2007 prescribes a duty of care to a person who, by reason of being a person within subsection (2), is someone for whose safety the organisation is responsible. Subsection (2) states that a person is within this subsection if -

(a) he is detained at a custodial institution or in a custody area at a court or police station;

(b) he is detained at a removal centre or short-term holding facility;

(c) he is being transported in a vehicle, or being held in any premises, in pursuance of prison escort arrangements or immigration escort arrangements;

(d) he is living in secure accommodation in which he has been placed;

(e) he is a detained patient.

Implementation of this clause has been delayed to give police forces and prisons time to inspect their custody facilities and make sure they are up to the required standards. Now Commencement No.3 Order 2011 brings the provisions into force on 1st September.

Among campaigners welcoming the new provisions is Inquest, a charitable organisation that provides a specialist advice service to bereaved people, lawyers, other advice and support agencies, the media, MPs and the wider public on contentious deaths and their investigation. Their casework priorities are deaths in custody (police, prison, immigration detention and deaths of detained patients). The monitoring of such deaths means that they claim to be at the forefront of uncovering patterns and trends, and within this area there are particular concerns about the deaths of women, black people, young people, and people with mental health problems.

Inquest say that, until now, there has been no successful prosecutions for deaths in custody, even in the 10 cases since 1990 where an inquest jury had returned an unlawful killing verdict. Helen Shaw, their co-director, believes that the new provisions will provide a fresh avenue to address the problems of death in custody and should have a deterrent effect, preventing future deaths.

Writing in the ‘Guardian’, Sandra Laville says: “Prosecutions will take place if it can be proved that the way the facilities are managed or organised caused a death and amounted to a breach of the duty of care. The penalty for organisations convicted is a fine with no maximum limit. Crown Prosecution Service guidance says that the fines are likely to be in the many millions of pounds.”

6 October was the date on which the first alternative business structures (ABS) should have been able to open for business in the legal services market place in England and Wales. But now there has been a delay, and it will probably be at least the end of the year before non-lawyers can fully own and invest in law firms.

An ABS is a firm where a non-lawyer is a manager of the firm, or has an ownership-type interest in the firm. A firm may also be an ABS where another body is a manager of the firm, or has an ownership-type interest in the firm and at least 10 per cent of that body is controlled by non-lawyers. Under the proposed rules, ABS are not limited in the services that they can offer to the public. The Act is designed to liberalise the £23bn UK legal market by allowing companies to provide legal services, and will permit firms to float on the stock market or seek external capital. The expressed belief is that ABS will bring benefits to consumers through increased competition, the development of new services and ways of delivering them and the integration of the delivery of legal services with other related services.

The Ministry of Justice has informed the Solicitors Regulation Authority (SRA) that parliamentary approval processes will not be completed in time for the SRA to be a designated licensing authority for alternative business structures (ABS) on 6 October, as originally planned. According to LegalWeek, parliament needs to approve the appeals process before allowing the SRA to start licensing ABSs. Provisions must also be made to enable the SRA to check spent convictions of potential owners of law firms.

On their website SRA Chief Executive Antony Townsend said: “We were on track to license ABS from 6 October, so it is disappointing to learn that we will not be able to do so. We will work with the Ministry of Justice to do all we can to speed up the process. But we are in the hands of the parliamentary timetable. It seems unlikely that we will be able to license ABS much before the end of the year, and we shall make further announcements as soon as we have more certainty.”

ABS is the tipping point for the commercial future of the legal profession. The difference is, perhaps for the first time, we will see how non-lawyers will seek to change the way law is practiced in England. The battleground will be online and the future belongs to anyone who uses it well.

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Yesterday’s statistics show that over 3000 people have been arrested following the urban riots. Of these, 1406 have been brought before a court and 157 convicted.

Justice minister Jonathan Djanogly praised staff across the justice system who are working around the clock. He said: “I congratulate courts, prisons, probation, youth and emergency services for the difficult work they are doing. Today I met court staff and Judges who had worked 30 hours straight. I am very grateful for all their hard work.”

But there are concerns about some methods being used. The ‘Guardian’ published a leaked document, called ‘Operation Withern: Prisoner Processing Strategy’, which was circulated among Met officers investigating the disturbances at their height. The document suggests the strategy had been to ask for bail to be refused in all riot cases resulting in charges in order to prevent further disorder. It is therefore no surprise that, of those brought before a court, 62% were remanded in custody, 6 times more than usual. It is certainly putting the already over stretched prison system under intolerable pressure. Cabinet minister Ian Duncan Smith broke ranks when he wrote in the ‘Guardian’: “As senior police officers on both sides of the Atlantic have said, you cannot just arrest your way out of this problem.” The BBC reports that lawyers are planning to challenge the Met’s custody procedures in a judicial review.

Criticism has also been levelled at the severity of sentencing. Director of Campaigns for the Howard League for Penal Reform, Andrew Neilson, said: “While it is understandable that the courts have been asked to treat the public disturbances as an aggravating factor, this should be balanced against a key principle of criminal justice, that of proportionality. The danger is that some of these sentences are disproportionate and indeed devalue our response to more serious crimes. We know the courts are swamped with cases, and handing down hurried and overly punitive sentences will only result in many criminal appeals, which will act as a further drag on the system.”
 
Last week MoJ saw fit to publish a statement explaining how our sentencing system works, stressing that magistrates and judges are independent of government. Senior figures such as Lord McDonald, former head of the CPS, and Lord Carlile, former independent advisor on terrorism strategy, are not alone in voicing the fear that this separation of powers between the government and the judiciary is being put at risk by ministerial comments appearing to give a steer to the courts.

It is probably inevitable that consistency of sentencing is a casualty of this rush to justice. Two men in Chester were jailed for four years for posting messages on Facebook inciting people to create disorder in their home towns despite the fact that the riots didn’t take place. A 19 year old in Gloucester posted messages on Facebook inciting the vandalising of a Spar shop. He was not brought to court but ordered to write a letter of apology. In a third similar case a 21 year old from Bangor received a four month sentence. An 18 year old pleaded guilty to the theft of two T-shirts, worth £60. He pleaded guilty, had no relevant previous convictions, and was sentenced to a day in custody. But a 23 year old Londoner, who also pleaded guilty and had no relevant previous convictions, was jailed for six months for stealing a £3.50 case of water from Lidl supermarket.

And recently, on another planet, David Laws, briefly a cabinet minister in the coalition government, admitted falsely claiming £40,000 of public funds in the MPs expenses scandal. He was suspended from the House of Commons for seven days.

Twelve months ago in the Rose Garden we were promised a coalition government guided by progressive values and reason. Justice secretary Ken Clarke seemed to have been so guided, with a green paper setting out a rehabilitative revolution in penal reform, driven by the prohibitive human and financial cost of the current regime. After the Prime Minister’s rewriting of this bill that rehabilitative revolution lies in ruins.

The way it happened on Tuesday is as noteworthy as what happened. It is, to say the least, unusual for the introduction and first reading of a major bill to be prefaced – and thoroughly upstaged – by a Prime Ministerial press conference. Having backed the Clarke plans in private, he emerged to trash them in public as the justice secretary was forced by Downing Street to ditch more than 60% of his original proposals. In a brief exchange in the Commons debate, Ken Clarke confirmed that: “The proposals that I presented for consultation and the Green Paper were the proposals of the Prime Minister, the whole Cabinet and I.” The craven capitulation that followed was caused by the outcry from the Tory right and the tabloid press, and falling poll ratings on law and order. David Cameron defended his actions thus: “It is absolutely vital that the public have confidence in a criminal justice system that the state puts in place. Public confidence is not a side issue in this debate. It is the issue.”

The headline policy reversal was the complete abandonment of the proposed 50% sentence discount for guilty pleas, now deemed “too lenient”. Going beyond the scope of the current bill in some cases, the Prime Minister announced plans to impose a surprise tough “two strikes and you’re out” mandatory life sentence. He also announced that anyone guilty of a sexual or violent offence would spend two-thirds of the sentence in prison, rather than the current half.  The justice secretary has also quietly dropped his original plan to restore the discretion of judges on sentencing, which had proposed the scrapping of David Blunkett’s minimum mandatory sentences. A Ministry of Justice impact assessment estimates the redrawn sentencing package will save just 2,650 prison places each year – or £80m – compared with the original 6,450 and £210m saving. So there is a shortfall to be found, and probation looks vulnerable.

Speaking in the Commons, Clarke said: “Public confidence in the criminal justice system is unacceptably low. That is why we want to take forward plans for a new offence, with a mandatory minimum prison sentence of six months, for adults who use a knife to threaten and endanger. We will also consult on proposals to criminalise squatting, and we will bring forward legislation to clarify the law on self-defence. In addition, I can confirm our intention to improve the use of remand and reduce the number of foreign national prisoners in our jails….We are reviewing so-called indeterminate sentences of imprisonment for public protection, with a view to replacing them with a more sensible, tough system of long, determinate sentences.”

Curiously unremarked is clause 12 of the bill. This introduces an “interests of justice test” for police station advice. At the moment, anyone is entitled to free advice in the police station if they are arrested. For minor cases they get only telephone advice, for more major cases they get a lawyer in the police station for any interview. Clause 12 appears to say that advice in the police station will only be available if the Government decides in the individual case that it is in the interests of justice to do so, and there would also seem to be a financial barrier to negotiate. The role of “Director” in this context will be crucial. At best this will be a bureaucratic nightmare, at worst it creates scope for official abuse. Not a good day for Magna Carta or Human Rights legislation.

Linda Lee, president of the Law Society, has written to the Justice Secretary calling on him to pause legal aid reforms to allow more scrutiny.

She wrote: “The Legal Action Group (LAG) and the Law Society continue to have very serious reservations about the government’s proposals for changes to legal aid provision in England and Wales. We are therefore writing to you formally to request that the government publishes its proposals to reform legal aid as a draft bill to be scrutinised by a special joint committee of the House of Commons and the House of Lords or the justice committee and other select committees with an interest in legal aid and access to justice policy.”

She adds that an estimated 500,000 people would lose out on legal aid services annually and the haste in which the proposals were drafted has meant that many issues with far-reaching impacts on members of the public and the justice system have not been considered. The LAG calculates that the £49m in legal aid cuts to social welfare law will cost the government £286.2m in expense on other public services. For example, the proposed £7m cut in housing advice will cost the state £16m in other services such as benefit payments.

The letter goes on to say: “We also share the justice select committee’s concerns over the definition of domestic violence. It both acts as a perverse incentive to make false claims and prevents women who are victims, but do not wish to pursue a complaint in the courts, from receiving legal aid for assistance with the legal issues surrounding a relationship breakdown.” The letter refers to the government’s proposals to reform the system of litigation costs, the unintended consequences of which are profound; and the strong argument that reducing the damages of victims of negligence is unjust. This policy also needs to be paused, while the potential effects are properly analysed and researched by qualified stakeholders and experts.

The letter concludes: “As you are aware, such is the interest in the government’s plans for the legal aid scheme over 5,000 responses to the consultation were received by the Ministry of Justice. A draft bill would give an opportunity for a thorough, comprehensive consultation on the impact of this important legislation to take place and we would strongly urge you to consider this suggestion.”

Writing in the ‘Guardian’, Law Society CEO Des Walker said: “We at the Law Society find it surprising – and disappointing – that the current justice secretary appears to prefer to make cuts targeted to reduce the legal aid budget by £350m – which could put genuine redress beyond the reach of half a million people – without assessing the wider impact on access to justice for all of us…(when) we have offered a fully costed alternative, which would save £384m in the next 12 months when fully implemented and preserve the rights to legal aid for all those who need it most.” He adds that leaving fellow citizens to fight their own cause on their own, by denying them access to proper professional advice, represents a gross injustice when it is hard enough for full-time professional solicitors to keep up with both the current complexity and any changes in the law.

Last November Ken Clarke took his knife to legal aid. The extent of the reductions revealed in the Green Paper – £350m a year to be taken out of a £914m annual civil and family legal aid budget by 2014 – had been widely anticipated, but the scale of cuts both to scope and eligibility occasioned much dismay.
Linked with these cuts the Ministry of Justice announced a very detailed consultation paper ‘Proposals for the Reform of Legal Aid in England and Wales’, aimed at providers of publicly funded legal services and others with an interest in the justice system. The consultation ran from 15 November 2010 to 14 February 2011. Thanks to archiving on the ilegal website it is possible to view the very detailed responses, universally opposed to the green paper and united in apprehension and foreboding.

The Child Poverty Action Group believe that the proposed reforms will have a negative impact on child poverty by reducing access to welfare rights and social welfare advice. “There is no alternative source of funding for welfare rights services; if legal aid is cut, law centres, citizens advice bureaux and advice centres will shut down, local authorities’ welfare rights units will go.” The Citizens Advice Bureaux submit that social welfare law raises complex legal issues, and problems are often extremely serious to users of the justice system. Limiting the scope of issues with which legal aid funded advisers can help means they will not be able to solve people’s problems fully, as many clients experience multiple problems across different civil justice and social welfare scope areas.

Gingerbread, the national charity working with single parent families, is concerned that the loss of legal aid in private family law proceedings threatens the vital role of the family court as the final arbiter in difficult, complex or intractable parental disputes. “Approximately 10 per cent of separating parents use the family courts to resolve disputes over residence and contact. These families are often the ones facing the most difficult and extreme situations which involve high levels of dispute and/or child protection issues. If these proposals are implemented, access to justice will be severely curtailed for literally thousands of parents and their children.”

Rights of Women oppose the proposed changes, claiming that they are discriminatory and will entrench inequality, with the disabled, poor and marginalised disproportionately affected. Women will be at greater risk of violence and an important check to abuses of power and incompetence will be lost. While welcoming the proposed helpline they are “strongly opposed” to the move to a single telephone gateway. “What provision will be made for those without access to a telephone?” they ask. “How are asylum-seekers or those with an insecure immigration status supposed to access advice and representation? How are children – for example, separated children seeking asylum in the UK – supposed to use the helpline? How likely is it that a woman experiencing domestic or sexual violence will be able to disclose this to a (male?) operator?”

The Association of Lawyers for Children submit that the proposals take little or no account of the complexities of society today, will have major regressive impacts and should not be considered further until after the Family Justice Review has published its final report. In similar vein, the Royal College of  Psychiatrists do not accept the distinction that seeks to suggest that unless there is actual domestic violence then contact and residence disputes should be outside the purview of legal aid. “These matters are crucial to children’s lives. They are dependent and have no power in the situation. If their resident parent is coerced and appropriate resolution of the matter, if necessary by the courts, is not supported by the State, then the risk of mental health harm is much higher for the child.”

For these and many more responses go to ilegal at:
http://ilegal.org.uk/