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.

The Home Office has launched plans to tackle violence against women and girls. Spouses and partners of UK residents who are forced to flee their relationships as a result of domestic violence will now be able to access vital support services.
The UN declaration on violence against women defines such violence as “any act of genderbased violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.”
The British Crime Survey reports that every year in the UK more than one million women experience domestic abuse and one in four women will be affected by domestic abuse. More than 300,000 women are sexually assaulted and 60,000 women raped; and more than one in twenty women will be stalked.

The ‘Call to End Violence Against Women and Girls – Action Plan’ has been published alongside the government’s response to Baroness Stern’s review into the handling of rape complaints (see blog “Stern Review” posted on 25.03.10). Key actions from the plan include making data on regional levels of violence against women – including domestic abuse, sexual assault and stalking – more accessible to ensure resources are targeted to where they are most needed. There will be new research aimed at countering the myth that false allegations of rape are common and an independent consultation on the measurement of rape conviction rates.

A new national stalking group will be set up to support the work of the Association of Chief Police Officers and the Crown Prosecution Service in improving the police response to stalking. Action will be taken to raise awareness of the law around sexual offences and challenge attitudes of abuse within teenage relationships. There will be more training for key frontline professionals – including doctors, nurses, health visitors – on identifying and dealing with violence against women. Central funding will be provided for frontline services including rape crisis centres, Independent Domestic Violence Advisors, and four years of funding for the National Domestic Violence Helpline.
Introducing the plan, Home Secretary Theresa May said: “I want to see an end to all forms of violence against women and girls. Our comprehensive and detailed action plan sets out how we are going to tackle these crimes – supporting those at risk, helping victims and ensuring offenders are brought to justice. Most importantly we need to prevent these crimes occurring in the first place. That is why we are challenging and where necessary working to change, attitudes and behaviours.”

The Ministry of Justice has announced more than £10.5 million of funding for three years for rape crisis services. Baroness Stern said: “I welcome the government’s response to the recommendations in my report. Particularly in a time of financial stringency it is good that the government recognises the importance of a specialist and supportive response to rape victims.”

The ‘Call to End Violence Against Women and Girls – Action Plan’ can be found at:

http://www.homeoffice.gov.uk/publications/crime/call-end-violence-women-girls/vawg-action-plan?view=Binary

Photo courtesy of ghetto_guera29′s photostream

In the hiatus following the cancellation of family contracts last autumn two new family fee schemes, due for implementation, were postponed. The Legal Services Commission (LSC) has now announced their belated introduction from 9 May. The new schemes are:

The Family Advocacy Scheme. Under this scheme both solicitor advocates and barristers claim a single, graduated fee for advocacy work done on public and private family law cases.

The Private Family Law Representation Scheme. Under this scheme solicitors claim a standard fixed fee for work done (excluding advocacy) from the issue of proceedings to the conclusion of the final hearing.

The LSC say that online training to help preparation for the new family fee schemes is now available on their training website and encourage family providers and advocates affected by the new schemes to use this training to ensure accurate claiming. The Commission has also published new guidance on their website under Guidance on fees and funding.

Three new forms to support the schemes have been introduced:

• CLAIM1A for non-advocacy work
• CLAIM5A for advocacy work
• Advocates’ Attendance Form for advocates.

If you are an advocate you need to complete the Advocates’ Attendance Form:

• for hearings that last for more than an hour or
• when claiming bolt-ons.

The Court needs to verify the information on this form and it is the advocate’s responsibility to:

• get the form signed at court by the judge, magistrate or legal adviser and
• keep a copy of the signed form.

The advocate should submit this form with their claim. Copies of signed forms will not be kept by the court. The full list of new and revised forms can be found at:

http://www.legalservices.gov.uk/civil/forms/preview_may_2011.asp

But if you are wise enough to be a subscriber to the excellent Anya Designs iLaw system you will have these concerns catered for in the latest service pack being despatched this week.

The number of people who will lose out on access to civil legal advice services if the legal aid cuts are implemented was quoted as 502,000 in the Ministry of Justice’s impact assessment on scope changes published in support of the green paper. A significant number in all conscience, but the Legal Action Group believe that the true number of people who will lose out on legal aid services is 653,659, 30% greater than was previously estimated by the government.

The Official Solicitor to the Senior Courts represents the interests of those involved in litigation who do not have capacity. One of his primary functions is to act as last resort litigation friend in civil and family proceedings. As a matter of law individuals who lack the mental capacity to conduct their own litigation, and the majority of children, are not permitted to conduct their own litigation. He can see no alternative dispute resolution method identified in the Consultation Paper which would provide the protection currently recognised as necessary both for persons who would lack litigation capacity in court proceedings and for the other party or parties to the dispute. In his view there is a very serious risk that the proposals would act to limit access to justice for some of the most vulnerable in society.

The Law Society say the Government runs the risk of reduced social cohesion, increased criminality, reduced business and economic efficiency. “In a time of economic difficulties, the demand for legal aid services increases. More people will need advice. Increased poverty and financial stress may lead to crime, and to abuse or neglect in the home, requiring intervention from social services.” The Society does not agree that the telephone helpline should be the single gateway. A significant proportion of clients who qualify for legal aid find accessing services by telephone difficult or even impossible. The cost of calls may be a significant barrier. In addition, the consultation paper fails to recognise the combined impact of the proposed cuts on other areas of work. The removal of many categories of social welfare law and family work from the scope of legal aid is likely to hit the viability of many crime firms very hard.

Liberty believe that in excluding large areas of the law from the scope of legal aid, the proposed reforms will create alarming gaps in protection, denying justice to many but hitting the most vulnerable the hardest. This will contribute towards a culture of impunity amongst the rich and the powerful. They are “profoundly concerned about proposed measures which risk fundamentally diluting principles of transparent justice and due process. Liberty is further deeply troubled about the potential of these measures to erode the constitutional bulwark of the right to trial by jury.”

Legal Aid Practitioners Group find “profoundly objectionable…the Government’s idea that people are rushing to litigation and that lawyers in the legal aid system are encouraging this.” The number of providers of Legal Aid has dropped from 11,000 in the early 1990s to approximately 3,000 now. The number continues to fall as less and less can survive the poor remuneration and burdensome restrictions imposed upon them. The proposed reforms will lead to huge further losses, and the Legal Aid system is already rationed by the lack of providers. Young Legal Aid Lawyers  believes that, if implemented, these proposals will destroy one of the best legal aid systems in
the world. The impact assessments also confirm that the proposals are likely to disproportionately affect women, Black, Asian and Minority Ethnic groups and disabled people. The proposals will “shake the foundations of our society as they will mean that the rule of law will only apply to those who can afford the law or the very poorest in the most desperate of situations.” In their view the legal aid scheme is fundamental to the rule of law and for ensuring justice is properly administered.

Over 5,000 responses were sent to the MoJ from both individuals and organisations concerned about the provision of legal aid services. It remains to be seen whether this barrage of detailed, informed criticism will have any effect. The best way to access many of these responses is on the admirable ilegal site at:

http://www.ilegal.org.uk/

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.

In the aftermath of the horrific bombings of 7/7 there was a rush to further anti-terrorist legislation. The pre-charge detention limit was central to the debate. It had stood at seven days for many years until it was doubled to 14 days in 2003 and was extended again, in the 2006 Terrorism Act, to 28 days. This was after Tony Blair suffered his first ever defeat in the Commons in November 2005 when he tried to extend the limit to 90 days.

When Gordon Brown became Prime Minister he returned to this particular fray in autumn 2008, nailing his colours to the mast of 42 days. This proposal was crushed by the House of Lords when peers voted against the measure by 309 votes to 118. The 42 day plan was only passed by MPs by nine votes after the Prime Minister won the support of the nine Democratic Unionist MPs. If ministers had insisted on keeping the 42 day plan there would have been the need for a series of votes in the Commons to overturn the Lords’ rejection and eventually the use of the Parliament Act to force the bill through. As a result the then Home Secretary Jacqui Smith (remember her?) conceded defeat. The Counter-Terrorism Bill continued its journey through Parliament without the 42 day measure. Gordon Brown made his displeasure very clear.

When the coalition government came to power it was announced that there would be an urgent and comprehensive review of counter terrorism powers. In July last year the Home Secretary, Theresa May, announced that she was renewing the current order for 28-day pre-charge detention for six months, while the powers were considered as part of the wider review. That order expires next Monday and it looked as if the Government was going to quietly let it go by default. The opposition would have none of this and demanded a statement. Labour MP Tom Watson, who spotted the move, said it was odd that the Home Secretary would not be making a statement to the Commons before such a major change to the justice system.

Because the Home Secretary was in Budapest at an informal meeting of the Justice and Home Affairs Council, it fell to the Minister for Immigration, Damian Green, to make yesterday’s statement. He told MPs: “I can announce that the Government will not be seeking to extend the order allowing the maximum 28-day limit and, accordingly, the current order will lapse on 25 January and the maximum limit of pre-charge detention will, from that time, revert to 14 days. We are clear that 14 days should be the norm and that the law should reflect that.” He added: “However, we will place draft emergency legislation in the House Library to extend the maximum period to 28 days to prepare for the very exceptional circumstances when a longer period may be required. If Parliament approved, the maximum period of pre-charge detention could be extended by that method.” He also drew attention to the fact that since July 2007 no one has been held for longer than 14 days, despite the many terrorists arrested since then.

We are promised that next Wednesday the Home Secretary will announce to the House the findings from the wider review of counter-terrorism and security powers.

“Today accident victims are given the impression that they may be entitled to handsome rewards just for making a claim regardless of any personal responsibility – adding to a real sense that we live in an increasingly litigious society…Britain’s ‘compensation culture’ is fuelled by media stories about individuals receiving large compensation payouts for personal injury claims and by constant adverts in the media offering people non-refundable inducements and the promise of a handsome settlement if they claim.”

So said Lord Young of Graffham in his report ‘Common Sense – Common Safety’ following his review, commissioned by the Prime Minister, of the operation of health and safety laws and the growth of the perceived compensation culture in England & Wales. The Ministry of Justice quote examples of advertising by claims management businesses that promote inducements and which are currently permitted:

“We’ll pay you £200 immediately after our solicitors approve your claim.”
“As soon as we accept your claim, we promise to give you a £150 cash advance.”
“If the solicitor believes they can win the case for you and accepts it, we will award you £300 as an up-front payment.”
The Ministry intend to put a stop to all this by preventing claims management businesses from offering any kind of financial or similar benefit as an inducement for making a claim at any stage throughout their dealings with a client. The proposal is to amend Rule 6b of the Conduct of Authorised Persons Rules 2007 by deleting:

“6. In soliciting business through advertising, marketing and other means a
business must –
b) Not offer an immediate cash payment or a similar benefit as an inducement for making a claim.”

and inserting:

“6. In soliciting business through advertising, marketing and other means a
business must –
b) Not offer any cash payments or similar benefits as an inducement for making a claim.”
MoJ have launched a consultation exercise on this proposal and are seeking contributions by 10 February.
For the full text of Lord Young’s report “Common Sense – Common Safety” see:

http://www.number10.gov.uk/wp-content/uploads/402906_CommonSense_acc.pdf

The MoJ consultation paper is at:

http://www.justice.gov.uk/consultations/docs/consultation-claims-man-reg-cp1910.pdf

On Tuesday MPs were told the results of the consultations about court closures. Public consultations were launched in June and produced 2552 responses. Decisions have been made to close 93 magistrates’ courts and 49 county courts, with ten magistrates’ courts and five county courts on the original list being retained.

The Parliamentary Under-Secretary of State for Justice, Jonathan Djanogly, said that the court estate had not kept pace with the changing nature of society or with the demands modern society places on the justice system. An estate of over 500 court buildings is not now considered necessary, sustainable or a reasonable expense for the taxpayer. He said: “We are closing the worst courts in the estate – so we can concentrate our limited resources on the best ones. We are investing in the court estate with new buildings and with refurbishment of facilities.” He told MPs that the closures will not mean people losing access to local justice, and the provision of a better, more efficient and more modern justice system with good facilities and efficient courts would provide better local justice. He said: “Much has been said by Members about travel times to court. I can reassure the House that our plans will only very slightly reduce the percentage of the population able to access their nearest court by public transport in under an hour, from just under 90% to 85%.”

He estimated that the closures will save £41.5 million during the spending review period, excluding closure costs, and bring in £38.5 million in receipts from the sale of assets. He also announced that £22 million of capital will be reinvested to improve and modernise the courts to which work will be transferred. “The timetable is that the first courts will start to close on 1 April next year, and I can confirm that travel arrangements will be organised on a local basis. It is important to make the point that during these reorganisation proposals, we have been considering not just closures but how we can best reorganise the remaining Courts Service. That includes looking at how people can best get to their local courts.”

Responding to the announcement, shadow justice minister Andrew Slaughter said that courts are an important part of many communities. He added: “Claimants and defendants, witnesses and victims will all be inconvenienced and, in many cases, disconcerted by the loss of the local criminal or civil court, or both, only to find them replaced with anonymous court centres many miles away. Secondly, not everyone has the mobility or resources to travel long distances to find justice, especially in rural or remote areas.” He said: “The Minister said that some capital will be reinvested in specific projects, but there is no allowance for the extra pressures on remaining courts. Is that not proof that this is no more than a crude cost-cutting exercise with none of the benefits that he half-heartedly claims?” He quoted the Lord Chief Justice, Lord Justice Goldring, as noting that poor public transport meant it would be difficult for many people to arrive at court before 10am or return home after 4pm.

The full list of courts to be closed and those to be retained can be found at:

http://www.justice.gov.uk/news/newsrelease141210a.htm

When Kenneth Clark made his Commons statement on 15 November it was the detail of the slashing cuts in legal aid that made the headlines. But there was a second, equally important, consultation announced, on implementing Lord Justice Jackson’s recommendations on the reform of civil litigation costs and funding arrangements.
Lord Justice Jackson was commissioned in late 2008 by the then Master of the Rolls to undertake a review of the rules and principles governing the costs of civil litigation in England and Wales and to make recommendations to promote access to justice at proportionate costs. The review was established on the basis that the costs of civil litigation are too high, and the report made a broad range of recommendations for reducing those costs. A particular recommendation was to reform the operation of no win, no fee conditional fee agreements (CFAs), which are funding agreements under which lawyers are not paid if they lose, but may charge an uplift or a success fee of up to 100% on their base costs if they win.

The proposal is to abolish recoverability of high success fees and the associated after-the-event insurance premiums in CFA cases. Currently defendants must pay those additional costs if they lose. In addition, significant costs may arise from claimants’ purchase of after-the-event insurance (ATE), which may be taken out by parties to insure against the risk of having to pay their opponent’s costs and their own disbursements if they lose. The Secretary of State told the Commons: “We are proposing that claimants should have to pay their lawyer’s success fee. They will, therefore, take an interest in controlling the costs being incurred on their behalf. That will also reduce the disproportionate costs burden on defendants.” Also under consideration is a 10% increase in general damages to help the claimant to pay the success fee; a mechanism of qualified one-way costs shifting; and to allow damages-based agreements or contingency fees in litigation before the courts, another form of no win, no fee agreement. The Secretary of State added: “Other proposals would further encourage parties to make and accept reasonable offers, and introduce a new test to ensure that overall costs are proportionate. We also propose to increase the modest costs that can be recovered by people who win their cases when they represent themselves without lawyers.”

The proposed reforms have been criticised as complicating the prospects of obtaining legal representation for poor people. The fear is that costs of personal injury cases will be reduced by taking legal fees out of the damages awarded to the injured person, rather than by recovering additional funds from the losing party. The president of the Association of Personal Injuries Lawyers, Muiris Lyons, said:  “No win, no fee has helped provide access to justice for injured people who cannot otherwise afford it. The only party to benefit from this proposal is the negligent person, and through him his insurer…Those who will be affected most are likely to be people suffering serious or catastrophic injury, where the damages involved are often very high.” The Law Society said: “Neither we nor the government can know how the Jackson proposals will work in reality and whether the squeezed middle will have access to justice.” They are “considering strategies for defending access to justice.”

This very detailed consultation is aimed at the legal profession, the judiciary, insurance companies involved in civil litigation, and all with an interest in this area in England and Wales, and runs from 15 November 2010 to 14 February 2011. The full text can be found at:

http://www.justice.gov.uk/consultations/docs/jackson-consultation-paper.pdf

On Monday Ken Clarke took his knife to legal aid. The scale 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. The total bill of civil and criminal legal aid currently runs to £2.1bn a year, and a substantial contribution towards the reduction of 23% over four years in the Department’s budget was inevitable.

So far so predictable. But the surprises come in the parts of the legal aid budget that he has decided to protect. In his Commons statement he said: “I do not propose any changes to the scope of criminal legal aid… I plan to retain legal aid for asylum cases, for debt and housing matters where someone’s home is at immediate risk and for mental health cases. It will still be provided where people face intervention from the state in their family affairs that may result in their children being taken into care, and for cases involving domestic violence or forced marriage. I also propose that legal aid should remain available for cases where people seek to hold the state to account by judicial review and for some cases involving discrimination that are currently in scope. Legal assistance to bereaved families in inquests, including for deaths of active service personnel, will also remain in scope.”

The axe falls elsewhere, and the criterion is those areas that are not considered of sufficient priority to justify funding at the taxpayer’s expense. Out go private family law 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. According to the ‘Guardian’, there will be a reduction of 246,000 private family law cases predicted to save £178 m a year; a reduction in welfare and debt cases of 123,000 cases predicted to save £22m a year; around 43,700 fewer immigration cases predicted to save £18m a year; and 6,100 clinical negligence cases a year, saving £17m a year. These are the deepest and the most far reaching cuts since legal aid was created.

In response to the proposals of the coalition government, Clark’s Labour shadow Sadiq Khan said that they too would have cut legal aid, so it is a done deal. Opposition can only come from pressure groups. The Law Society said the changes to funding civil litigation confirmed their worst fears and is considering strategies for defending access to justice against the proposed cuts and responding in detail the Green Paper. Peter Walsh of Action against Medical Accidents said:  “Whatever the Ministry of Justice would save by scrapping legal aid will cost the NHS many times more. At the same time, the overall effect of changes will hit the poorest hardest, denying them access to justice even if they have been seriously harmed by negligence in the NHS.” Writing in the ‘Guardian’ Steve Hynes of the Legal Action Group said: “More than half a million people, half of all people assisted by civil legal aid each year, will lose out on being able to get help with housing, benefits, employment, debt and other legal problems. These are often truly desperate people.”

Linked with these cuts the Ministry of Justice has 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 runs from 15 November 2010 to 14 February 2011, and the full text can be found at:
http://www.justice.gov.uk/consultations/docs/legal-aid-reform-consultation.pdf