Unnecessary legislation

One of the commitments in the Coalition Agreement was the repeal of unnecessary or outdated legislation. The government is now consulting on a bill to implement this commitment.

The Ministry of Justice is collating suggestions for repeal based on the following criteria:

  petty restrictions;
  government over-interference in people’s lives;
  unnecessary criminal offences;
  unnecessary regulations;
  obsolete laws;
  excessive layers of law;
  duplication;
  laws that inform or guide rather than impose an obligation;
  EU and health and safety gold-plating, where gold-plating can be identified;      bye-laws that impose unnecessary restrictions on people’s lives.

The Law Society wants to know what legislation you believe should be repealed or retained, and why. The Society says that it is in a position to have a significant impact on the bill’s shape and content, and would like members to play a role in this process. It is anticipated that the bill will be published in 2012. Members are encouraged to suggest:

  specific proposals for legislative repeal, including both primary and secondary     
  legislation;
  further potential categories of repeal;
  views on the suggested categories/structuring of the bill.

The Law Society asks you to send your views to:

consultationresponse@lawsociety.org.uk

At meetings of the Public Bill Committee considering the Legal Aid, Sentencing and Punishment of Offenders Bill on 6th and 8th September opposition amendments were comprehensively rejected.

Opponents wanted to return the large areas of law that the government has sought to exclude, including welfare benefits, clinical negligence, disability, education and housing law, into the scope of legal aid. Shadow justice minister Andy Slaughter told the Commons committee that the amendments went to the heart of their opposition to the Government’s strategy of restricting legal aid. He said: “Legal aid was devised to allow those who are impecunious and cannot afford access to legal advice to get their cases into court to reach a fair resolution, to be put on a level peg with those who have such resources…The Government’s intention [is] very clear: to be as restrictive as they can possibly get away with being in the provision of social welfare legal aid and to allow exceptions only where they believe it is untenable not to, either for public relations reasons or for reasons of simple morality. Otherwise, they will do their level best to close down those options for legal aid that have grown over time.” 

He went on to say: “We are saying through these amendments that we wish to stay potentially with the status quo. That does not mean things should not be reviewed. On the contrary, the point I am making is that if we want to constantly review what is and is not appropriate, we should not set up a system so restrictive that it will give little justice to anybody who is seeking that in any of the areas currently in scope.”
Justice minister Jonathan Djanogly responded that: “The amendments are contrary to the basis of our whole programme of reform and would increase the cost of legal aid dramatically at a time when we are seeking to focus it on the highest priority cases.” The voting was always close, usually by 11 or 10 to 9, but sufficient to leave the relevant clauses unamended. Any hopes that the two Liberal Democrat members of the committee might be persuaded to vote against the government were dashed.

According to the ‘Law Gazette’, speaking out of committee Andy Slaughter said: “Reading out pre-prepared scripts in response to every amendment and failing to answer questions undermines the ability of the committee to properly scrutinise this legislation and insults lawyers, advisors and volunteers in the sector that are watching us and hoping their voices are heard.” The Parliamentary timetable provides for the third reading of the bill next month before it is passed on for debate in the House of Lords.

“It seems staggering to us that up to three-quarters of probation officers’ time is spent on work which does not involve direct engagement with offenders and we call on NOMS (National Offender Management Service) and individual trusts to increase the proportion of their time that probation staff spend with offenders. It is a concern that probation trusts have laboured under a tick-box culture, and we call on NOMS to provide trusts with greater autonomy.”

So said the Commons Justice Committee in the report following their review of the probation service, published at the end of last month. The committee found that the rest of the probation officer’s time is split between computer activity, drafting correspondence and reports, meetings and dealing with other red tape. The MPs took evidence from one chief probation officer who said that a routine offender in the middle of their probation order might be seen for only 10 minutes, but a serious violent offender who was coming out of prison would mean several hours a week contact time. The review said: “It is unacceptable that sentencers’ hands are tied by the unavailability of certain sentencing options because of inadequate resources. This makes very clear the urgent need to focus scarce resources on the front-line and to continue to bear-down on inefficiencies and unnecessary back-room functions.”

The Carter review of correctional services in England and Wales, published in 2004, proposed the creation of a National Offender Management Service to break down ‘silos’ between prison and probation and the use of providers of prison and probation from across the public, private and voluntary sectors which, it was felt, would lead to a more effective delivery of services.

The Justice Committee said that the creation of NOMS had been described to them as a takeover of the probation service by the prison service and has not led to an appreciable improvement in the ‘joined-up’ treatment of offenders. Its handling of the community payback exercise has not inspired confidence and it has not proved itself proficient at running effective national contracts. The Committee recommended that the MoJ should commission an externally-led review of NOMS and be prepared to take radical steps to redesign its structure and operation.

Justice Secretary Ken Clarke said he was staggered after reading the report and vowed to end the “tickbox, bean-counting culture” of the probation service. Regarding NOMS, he told BBC Radio 4′s Today programme: “We knew it was a problem, I’ve already started addressing this. We have reduced the number of targets, we have streamlined the national standards, we have said we are going to give probation officers their professional discretion. What I want to measure the probation service by is what works, what output are they producing,” he said.

The full text of ‘Justice Committee – Eighth Report – The role of the Probation Service’ can be found at:
http://www.publications.parliament.uk/pa/cm201012/cmselect/cmjust/519/51902.htm

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

Home Secretary Theresa May went to the House of Commons on Wednesday to announce the results of the counter terrorism review which was one of the main commitments of the coalition government. The headline announcement was the proposal to scrap the very controversial control order regime.

Control orders are to be replaced by “a new package of measures that is better focused and has more targeted restrictions,” to be known officially as terrorism prevention and investigation measures (T-PIMs for short). There will be the removal of those aspects of control orders that most resemble house arrest. Curfews will be replaced by an overnight residence requirement. Forcible relocation will be ended and replaced with the power to order more tightly defined exclusions from particular areas. There will be the power to prevent foreign travel. Individuals will have greater access to communications, including to a mobile phone and to a home computer with internet access. They will have greater freedom to associate and will be free to work and study, subject again to restrictions.

The review accepts that the normal maximum period of pre-charge detention should be 14 days but recognises that in exceptional circumstances this might need to be temporarily increased to 28 days. Draft primary legislation will be drawn up to be introduced for parliamentary consideration only in such circumstances. On the use of section 44 stop-and-search powers, the Home Secretary said: “I have concluded that the current provisions, which were found unlawful by the European Court of Human Rights, represented an unacceptable intrusion on an individual’s human rights and must be repealed. We therefore propose to repeal section 44 and to replace it with a tightly defined power that would allow a senior police officer to make an authorisation of much more limited scope and duration for no-suspicion stop-and-search powers to prevent a terrorist attack where there is a specific threat. This targeted measure will also prevent the misuse of these powers against photographers.”

On the Regulation of Investigatory Powers Act 2000, Mrs May promised implementation of the commitment to prevent the use of these powers by local authorities unless for the purpose of preventing serious crime and unless authorised by a magistrate. She expressed concern at “the use of counter-terrorism legislation by local authorities in respect of matters that clearly had nothing to do with counter-terrorism, such as dog fouling and whether or not children had the right to go to a particular school in a particular catchment area.” Surveillance will only be authorised for offences that carry a custodial sentence of at least six months.
Writing in the ‘Guardian’, Lib Dem MP Tim Farron said: “The ridiculous, heavy handed and easily abused powers brought in by the last Labour regime trampled over centuries of British tradition and liberty. That’s why the Liberal Democrats and other civil liberties campaigners fought to prevent them and railed against them once they were imposed. And that’s why we should all be proud of the steps taken by the coalition government today.” Shami Chakrabarti, Director of Liberty, was less fulsome. She said: “We welcome movement on stop and search, 28-day detention and council snooping, but when it comes to ending punishment without trial, the Government appears to have bottled it. Spin and semantics aside, control orders are retained and rebranded, if in a slightly lower fat form. As before, the innocent may be punished without a fair hearing and the guilty will escape the full force of criminal law.” On ‘This Week’ last night, former Home Secretary Charles Clarke called it “a complete fudge” that endangered national security.

The government is legally required to produce an equality impact assessment examining the effects of any proposed major reforms. The assessment relating to the proposed major reduction in legal aid was published in draft form when the green paper came out last November.

The government has proposed wide-ranging changes to reduce spending by excluding from eligibility legal advice and representation in some categories of case and save £350m a year out of a £914m annual civil and family legal aid budget by 2014. Out go private family law cases, including divorce and child residence cases, unless domestic violence, forced marriage or child abduction is involved. Out go clinical negligence cases. Other categories to face the chop are education, employment, immigration, some debt and housing issues, and welfare benefits, except where there is a risk to anyone’s safety or liberty, or a risk of homelessness.
 
The Ministry of Justice’s impact assessment makes no bones that the principal driver for reform is financial. It acknowledges that the key groups likely to be affected by the proposals are legal aid clients with matters falling in the categories of law to be removed from the scope of legal aid funding. It admits that tackling disputes in different ways, or of disputes remaining unaddressed, may lead to a deterioration of case outcomes, which might be less fair than beforehand. It also admits that legal aid recipients are amongst the most disadvantaged in society, reflecting both the nature of the problems they face as well as the eligibility rules for legal aid. “Clients who no longer receive legal aid might potentially experience a negative impact on their health. This may stem from the outcomes of disputes being resolved less fairly and this having an adverse impact on health due to the subject matter of the dispute, e.g. housing, employment.” Women are more likely to be affected by the proposals than men. Of those clients who would be affected by the civil proposals, 57% are women and 42% men.

Quoted in the ‘Guardian’, Emma Scott, director of Rights of Women, which is campaigning against the changes, said: “We know already that in family law women are the majority of applicants for legal aid. In 2006, 62% of all applications for legal aid were for women. If you remove legal aid for women to sort out the finances after marriages break down, we know it’s really difficult to represent yourself.”  She also warned against the redefinition of abuse under the proposals. “What they are saying is that legal aid for family law cases will continue to be available where domestic violence is a feature, but they define it as woman being at risk of physical harm. It’s absolutely far too narrow. Psychological abuse is widely recognised by this government, and the UN, as abuse, but this change doesn’t,” she said. The shadow solicitor general, Catherine McKinnell, said: “I believe that [these] legal aid proposals are part of a wider trend, evident under this government, whereby cuts – undertaken for political, not purely economic, reasons – are being targeted at vulnerable people not able to fight back.”

The full text of the MoJ’s Impact Assessment can be found at:

http://www.justice.gov.uk/consultations/docs/legalaidiascope.pdf

In May the Coalition Programme for Government committed to a full review of sentencing and rehabilitation policy. That review has now produced a detailed green paper in which Justice Secretary Kenneth Clarke seeks to tear up rules on fixed jail terms for offenders and restore the discretion of judges when sentencing murderers and other serious offenders.

In the foreword to the green paper, the Justice Secretary said that, despite a 50% increase in the budget for prisons and managing offenders in the last ten years almost half of all adult offenders released from custody reoffend within a year. “It is also not acceptable that 75% of offenders sentenced to youth custody reoffend within a year. If we do not prevent and tackle offending by young people then the young offenders of today will become the prolific career criminals of tomorrow.” He was reported in the ‘Guardian’ as saying that the strategy in David Blunkett’s 2003 Criminal Justice Act, which lays down sentencing ‘starting points’ of 15 years, 30 years and ‘life must mean life’ for specified types of murder, had proved “ill-thought out and overly prescriptive”.

He added: “We do not need to tell judges that murder is a serious offence. They are perfectly capable of setting a minimum term. We need a more sensible approach that is not too prescriptive in cases such as mercy killings or husband and wife killings. All murders are wicked and some are more wicked than others.” He therefore proposes to simplify the sentencing framework to make it more comprehensible to the public, at the same time enhancing judicial discretion and reforming the indeterminate sentence of Imprisonment for Public Protection (IPP)

Other proposals in the green paper include making offenders work hard through the discipline of regular working hours in prison, rehabilitating offenders by getting them off drugs and benefits and into honest work, and increasing reparation to victims. Youth justice is to be improved to prevent and tackle offending by young people and stop them becoming the career criminals of tomorrow. Working with communities is also proposed to reduce crime, with local people playing a more central role in criminal justice with increasing transparency so that local communities are better able to hold services to account. The aim is to move the focus from the centre to local areas and create more opportunities for other providers to deliver services.

It is reckoned that the sentencing reforms will generate savings of £210m a year as a result of needing 6,000 fewer prison places than previously planned. The estimate is that the daily prison population in England and Wales by 2014 will be 3,000 lower than the record 85,500 it is today. The policy of encouraging defendants to plead guilty early by offering a discount of up to 50% instead of 34% would mean 3,400 fewer prison places needed in 2014/15. Reducing the remand time in prison for people accused of minor offences who would not get a prison sentence on conviction will save a further 1,300 places a year.

The consultations on proposals continue to 4 March 2011, and a response setting out plans will be produced in May 2011. The full text of ‘Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders’ can be found at: http://www.justice.gov.uk/consultations/docs/breaking-the-cycle.pdf

And a merry Christmas and a happy New Year to you all.

Ken Clarke has been a big beast in the Westminster jungle for a long time and he more than most understands how the pecking order works. A minister’s standing in the eyes of his own and other departments is directly related to his success in standing up to the Treasury in any budgetary negotiations. On this basis, the Ministry of Justice’s above average cut of 23% in this week’s spending review is not good news, but he is such a wily operator that it is most unlikely that he would be wrong footed by a rookie Chancellor of the Exchequer. The suspicion must therefore be that he has got more or less what he wanted.

The upshot is that the department’s budget, which is currently £8.9bn a year, will fall to £7bn by 2014/15, seeing on average a 6% reduction in each of the four years covered by the spending review. The Chancellor of the Exchequer said that the MoJ will seek to make savings by reform of sentencing, improving the treatment given to mentally disordered offenders and through the increased use of public/private sector initiatives to reduce re-offending. The £1.3bn funding to maintain the current prison estate will continue, but plans to build a new 1,500 capacity prison have been put on hold. There will, he said, be reform to the criminal justice system, the closure of underused courts and a reduction in the legal aid bill. The Law Officers Department, comprising the Offices of the Attorney General and Solicitor General, will see a 25% reduction to its budget, and the Crown Prosecution Service will be required to greatly reduce its cost base. He said there needed to be access to justice but at a fair cost to the tax payer.
As always, the devil will be in the detail, and that will be revealed next month when the department concludes the consultations on reductions in legal aid and the proposed closure of 157 magistrates and crown courts. Already it is clear that there will be a saving of £350m in the legal aid bill and that most, if not all, the programme of court closures will be carried out. The department has produced outline plans for changes to court business hours, including weekend and evening sessions, in the forthcoming magistrates courts business strategy with the aim of improving access to justice and making greater use of the court estate. Other key priorities are the saving of £1bn from administration and frontline efficiency, including a one third reduction in administration, meaning 14,000 jobs will go; the courts and tribunals system will be brought together in a single agency; and the central London estate will be reduced from 18 buildings to four, saving £40m.

Legal aid has never been a vote winner, so it was an all too easy target in the government’s spending review. Law Society president Linda Lee said: “While the figure of £350m is less than some had feared, losing this amount of money from the system will inevitably prove to be a significant blow to legal service provision and access to justice. A creaking system is going to be less able to deliver the needs of the vulnerable in society. It is a basic feature of a democratic society which supports the rule of law that vulnerable people, whether they are children, or have mental health or housing problems, are accused of crimes or have suffered loss, are able to have access to legal advice and representation to secure justice.” For his part, Secretary of State Clarke said: “We need to create a justice system that punishes the guilty, reduces re-offending, protects our liberties, and helps those most in need. Over the period of this spending settlement the Ministry of Justice will be transformed into a lean, transparent, and affordable department.”

The full text of the Spending Review can be found at:
http://cdn.hm-treasury.gov.uk/sr2010_completereport.pdf

The Ministry of Justice have announced plans to close 157 magistrates and county courts in England and Wales, at a saving of £36.8m.

In a written statement to the Commons on 23 June, Secretary of State Kenneth Clarke said that Her Majesty’s Courts Service (HMCS) currently operates out of 530 courts, some of which do not fit the needs of modern communities. Their number and location do not reflect recent changes in population, workload or transport and communication links over the years since they were originally opened. Consultation papers have been published setting out proposals to close 103 magistrates courts and 54 county courts and inviting views on how best to provide local justice services in communities across England and Wales. He said: “In reaching decisions on closures I will ensure that we keep courts in the most strategically important locations, communities continue to have access to courts within a reasonable travelling distance, that cases are heard in courts with suitable facilities and that there is an overall reduction in cost.” Closure of the courts covered in the consultation would achieve running cost savings of around £15.3 million per year. These courts also have backlog maintenance of around £21.5 million, costs that can be avoided if the closures go ahead. “I believe that as well as savings to HMCS there will also be savings for other criminal justice agencies by focusing their attendance at a single accessible location within a community.”
 
The Secretary of State added that current arrangements are historical and now need to be reassessed to see if they meet the needs of today’s society. Modern communications and greater transport facilities mean that providing access to justice does not require a courthouse in every town or city. He said that, across the civil and criminal courts, there are great opportunities to harness technology more effectively so people do not necessarily have to physically attend court when they give evidence or access court services. Not all disputes need to be resolved in court. “I will also examine ways of enabling more people to resolve their disputes in a way that leads to faster and more satisfactory solutions. We will continue to develop proposals for introducing alternatives that deliver a better service for less money.”

Courts Minister Jonathan Djanogly said: ‘The Lord Chancellor and I are keen to hear the views of everyone with an interest in local justice arrangements. He will take all views into account before making any decision on which courts ought to be closed and when. As well as consulting on the courts we need today I want to begin a conversation about how the courts service could be modernised to improve the justice system as well as reduce its costs.”
The closing date for consultation responses is 15 September 2010. The full list of courts threatened with closure, together with links to the consultation documents, can be found at:

http://www.justice.gov.uk/news/announcement230610a.htm

The Ministry of Justice has announced a further analysis of expert witness fees paid in legal aid work. It is seeking the support of civil and criminal legal aid solicitors in a data collection exercise being conducted on their behalf by the Legal Services Commission.

This follows a consultation exercise carried out last year on legal aid funding reforms. A response to the main consultation was published in December last year, but this did not include the proposals relating to experts’ fees. A further analysis, published in March this year, showed that 270 responses were received to the part of the consultation paper on experts’ fees. The majority of respondents were against imposing either fixed fees or the suggested hourly rates on the basis of current knowledge. There was a strong message from all categories of professional expert witness that if inadequate remuneration rates are imposed, this would lead to more experienced practitioners refusing to undertake the work, potentially leading to access and quality problems across England and Wales. It was accepted that something should be done to regulate rates charged as they were often variable and too high.

MoJ felt that several expert groups would be keen to assist them in gaining a better understanding of their work and better control over both price and quality. They therefore proposed a data gathering exercise to increase their understanding of the type of work experts undertake and what current rates are paid for this. Undoubtedly this is in response to the National Audit Office’s highly critical report to Parliament on the procurement of criminal legal aid in England and Wales and the Public Accounts Committee’s savaging of the Legal Services Commission. The PAC said: “Because the Commission is the sole buyer of legal aid, it is important that it knows it is paying the right price for this and the effects its policies are having on the sustainability of providers. But it does not know enough about the costs and profitability of firms to know if it has set its fees at an appropriate level”. To help analyse and validate the findings of this exercise, and work towards establishing fixed fees and hourly rates, where appropriate, MoJ also propose to set up a working group including expert witness representative bodies and other interested stakeholders.

The LSC has issued a request for participants in a file review of  experts costs in legal aid work to ensure that the information collected is as comprehensive and representative as possible. The Commission has asked that practitioners send any recently closed legal aid case files that include invoices for expenditure on one or multiple expert witnesses, for inclusion in the review. They need to receive a representative sample across Family (certificated); Clinical Negligence (certificated) and Crime, for a list of specified matter types. The exercise will not include an examination of the costs of instructing interpreters. Practitioners willing to contribute to the file review should contact the LSC’s Chester office as soon as possible. The data collection exercise will be taking place over 7 or 8 weeks from the beginning of May.

For the text of the letter of invitation go to:

http://www.justice.gov.uk/consultations/docs/legal-aid-expert-witness-fees-letter.pdf

For the full text of “Legal Aid: Funding Reforms Part Three: Experts’ Fees” see:

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