Legal aid, sentencing and punishment of offenders bill

The Report Stage debate is underway, with an amendment concerning domestic violence being currently discussed. If you want to watch, you can click this link Parliament TV.

Further, the amendment dealing with welfare benefits is expected to be debated on Wednesday 7 March.

There was a pretty fruitless interview with Ken Clarke, Secretary of State for Justice, and Des Hudson, Law Society CEO, this morning on Today. Clarke claimed the proposals deal with “the amount of money we pay to lawyers from the amount of litigation and the sorts of litigation we pay it for”. Rather than taking money away from women and children, he said, it was “taking legal aid from lawyers”.

Finally, a very strong article from Lord Bach, Shadow Justice Minister, in today’s Independent, titled “Shocking proposals that threaten access to justice for the poorest”.

So why do it? It won’t save money. We spend £64m a year on these areas of law but this will be swamped by the extra cost to other state agencies – local authorities, Work and Pensions, Health, and even the MoJ – that will have to pick up the pieces. Independent econometric analyses by Citizens Advice and Kings College confirm this. It is economically foolish to make 53% cuts to Social Welfare and only 8% to Criminal Legal Aid. Not to mention unconstitutional and just plain immoral to deny the poorest the means to assert their rights.

This should not be a Party issue.  Tories, Labour and Liberals have always supported Social Welfare law. It’s not too late for the Government to pull back. But if it will not, then the House of Lords must make it think again.

Government has suffered 3 defeats in voting on the first day of debate at Report Stage of LASPO.

Peers voted by 235 to 190, to state in the legislation that people should have “access to legal services that effectively meet their needs”.

Their second defeat was for a Labour amendment requiring legal aid protection for victims of domestic violence, that was approved by 238 votes to 201. McNally’s defence of the government position on this issue was excrutiating to observe, to be frank.

There was also an amendment calling for the terms for appointing a Director of Legal Aid Casework to be spelt out in legislation. Ministers were defeated by 212 votes to 195.

Ministers defeated three times in Lords over legal aid bill

Is it too early to say

YAY
?

Unfortunately, on the basis of the overturning of all Lords amendments on Welfare Reform Bill, probably yes, a bit too early.

However, there was also a concession just allowed where Lord McNally asked for another amendment to be withdrawn, on the issue of the Bill being changed to allow matters of scope to be bought into legal aid, rather than simply removed as originally proposed.

He said Government will issue their own amendment to allow for this at Third Reading - on top of the three lost votes, it does give me some heart that we may be able to extract similar concessions on Wednesday on welfare benefits in some shape or form. Baroness Hollis made some very strong points tonight, about the folly of cutting legal aid for welfare benefits at a time of unprecedented reforms, which I’m sure will be revisited then.

Government has been defeated again in the Lords. with peers voting to protect free legal advice for people seeking to challenge decisions regarding their benefits.

Amendment 11 to LASPO was passed by 237 to 198 - a majority of 39.

Credit to everyone involved in the Justice for All campaign for pushing this amendment, and to peers for such a convincing show of support for understanding the need to retain welfare benefits within scope of legal aid.

Ministers suffer fresh legal aid bill blow in Lords

Good round up of the debate now available via the Guardian.

The votes came at the end of a two-hour debate during which every single speaker in the upper chamber – apart from the minister – opposed the Ministry of Justice plans. Peers from all parties questioned whether the proposed savings would be made.

Not-for-profit advice centres that help the most vulnerable in society would lose £51m a year under the cuts introduced by the bill, she warned.>

Legal aid reforms: peers inflict fresh defeats on government

The Public Accounts Committee has published a new report on the Ministry of Justice’s Financial Management, which makes a stark recommendation about the Legal Aid Bill:

6. The Ministry maintains that it has followed Government guidance in producing its impact assessment for proposed changes to legal aid, but admitted that in some areas where there were insufficient data, potential impacts could not be quantified. The impact assessment has not identified the behaviour changes which may arise from the new legal aid arrangements, and should do so. The Ministry should arrange for the National Audit Office to review the impact assessment to ascertain whether the assumptions are sound and uncertainties have been clearly acknowledged.

Public Accounts Committee - Seventy-Fifth Report Ministry of Justice Financial Management

Lord Bach has tweeted to say that the schedule for the Bill’s progress is:

* House of Lords 3rd Reading March 27
* House of Commons consider Lords amendments April 17
* Tentative House of Lords “Ping-pong” from Monday April 23 i.e. if Commons vote down the various amendments passed by the Lords.

Government has just been defeated on another vote on an amendment to LASPO, raised by Dame Tanni Grey-Thompson, relating to the provision of legal aid for children and young people, following the campaigning work of the Just Rights campaign.

edit, sorry, amendment 3 is for “Civil legal services in relation to advice and proceedings where a child is, or proposes to be, the applicant or respondent in proceedings, or where the child is represented by a legal guardian”

The amendment 5 for everyone under the age of 24, which is the Just Rights amendment has now been taken to a division.

For information, an amendment on clinical negligence has also just been voted in favour of.

Amendment 5 voted against unfortunately.

On top of the two defeats on Tuesday for the government, they also made several concessions, including accepting an amendment that the lord chancellor could bring back into the scope categories of legal aid without the need for primary legislation.

More on this from the Guardian Fresh series of defeats for proposals to cut access to legal aid for children

Justice for All are asking for one last push to save legal aid, after the Government was defeated a record-breaking eleven times in the House of Lords on the legal aid bill, on amendments that would make a real difference, protecting access to legal aid for those who most need it including disabled people, victims of domestic violence, and brain damaged babies.

Unfortunately Government can still overturn these amendments in the House of Commons. They are asking everyone to try and help persuade MPs not to. A template letter has been prepared but please adapt it if you can, explaining your experience locally and offering to meet with your MP if possible.

You can find more details here Final chance to protect legal aid

Lasa was amongst the signatories to a joint letter printed in the Observer asking the Prime Minister and the Deputy Prime Minister to ‘accept the sensible and considered amendments to the Laspo bill made by the House of Lords, so that access to civil justice is protected for ... vulnerable people.

Please listen to the Lords on the dangers of legal aid bill

A reminder that the LASPO bill returns to the Commons tomorrow, for debate on the 11 Lords amendments. The government response is, as expected, that it doesn’t want to accept any of the Lords amendments, other than one provision to:

‘Appeals relating to welfare benefits  

(a) a social security enactment, 
(b) the Vaccine Damage Payments Act 1979, or
(c) Part 4 of the Child Maintenance and Other Payments Act 2008.

House of Commons Notices of Amendments given up to and including Friday 13 April 2012

I think the best way to view this amendment is the comment made by a poster on ilegal discussion forum, who said that it is ‘like throwing a cup of water on a forest fire’

Please, if you haven’t followed the Justice for All link in my previous post, to contact your MP to ask them to support the Lords amendments, take 5 minutes to do it before the end of today. Many thanks.

The legalfutures website reports that the government will today invite the House of Commons to invoke ‘financial privilege’ to overrule eight LASPO amendments. The bill begins the ‘ping pong’ stage today, under which the Commons and Lords have to agree on the exact wording of the bill, starting with the 11 defeats inflicted on the government by peers in the Lords recently.

Financial privilege is used in relation to the Budget each year and it means that the House of Lords is not allowed to change or reject tax and other financial proposals agreed by the Commons. This tactic was used with the recent welfare reforms bill, which caused much anger in both houses.

The government is accepting amendments that ensure the independence of the new director of legal aid casework, retain legal aid for welfare benefit appeals on a point of law to the upper courts, and widen the definition of domestic violence for the purposes of legal aid eligibility.

Government to invoke controversial rule in bid to squash LASPO changes

Commons just passed a programme motion that allows for debate on domestic violence, welfare benefits, clinical negligence and children Lords amendments from 5.30pm until 8.15pm, as well as invoking financial privilege on a vast number of amendments.

So, under 3 hours of debate for matters that will affect literally hundreds of thousands of people every year, and no real chance for Lords to disagree with whatever happens (or doesn’t happen) this afternoon.

Lords amendment 1 voted down by 300 votes to 251 - the constitutional duty to provide access to legal services is removed.

Lords amendment 24 voted down by 300 votes to 248 - the mandatory telephone gateway.

Now onto debate on DV, welfare benefits, clinical negligence and children, Ken Clarke detailing why the government do not agree with Lords amendments here, starting with the tired old argument about UK legal aid system being the costliest and the most litigatious.

Lords amendment 194 to put the evidence criteria for getting legal aid in a domestic violence case in Bill is removed, government win vote by 302 votes for, 243 votes against.

Lords amendment 168 on retaining legal aid for welfare benefits reviews and appeals is removed, government win votes by 288 votes for, 246 votes against. Smallest majority so far but that is meaningless overall as they claimed financial privilege, so I don’t think Lords can resurrect now.

Very sad news, as anticipated, the £20m announced in the Budget used variously as justification for removing welfare benefits from scope of legal aid, other than in case to UT and beyond. A few Tories spoke in favour but clearly the party whips did their job today.

And did you see Jonathon Danglybits behaviour, smirking through MP’s descriptions of the plight of mesothelioma sufferers during the debate on the Lords amendment seeking to exempt them from the effects of the bill, even inviting one Labour MP to request the Speaker to have him formally censured.  What a humanitarian!

A copy of yesterday’s Hansard covering the debate is here Legal Aid, Sentencing and Punishment of Offenders Bill - Consideration of Lords amendments

The debate, as there was, on welfare benefits and legal aid is probably best summed up by this exchange:

17 Apr 2012 : Column 227

Mr Clarke: Of course there can be borderline cases, but, with great respect to my hon. Friend, in the vast majority of cases it is fairly obvious whether one is arguing a point of fact or a point of law. In an ordinary welfare case, the question will be whether someone is fit for work or not fit for work, or living or not living at a particular address. When a point of law arises whereby it is not a question of the complexity of the regulations but of the actual meaning of the regulations, somebody like a tribunal judge will know that instantly and think, “That is quite an interesting point of law that I’ve not had before; this will go to the upper tribunal and I will certify that it would be rather nice to have some guidance.” In the end, we have to leave it to tribunals themselves to decide on the facts. Some may be blurred, but by and large, in the vast majority of cases, they will be reasonably clear.

Media coverage has been concentrated on Kenneth Clarke’s perceived climb-down on domestic violence.

Ken Clarke climbs down on legal aid for domestic violence - Guardian

More domestic abuse victims to qualify for legal aid after Government climbdown - Telegraph

Government overturns Lords justice reforms changes - Independent

Clarke makes ‘formidable’ concessions on legal aid reform - Financial Times

MPs vote to reverse Lords changes to legal aid bill - BBC news

Bill goes back to the Lords on 23 April, next Monday.

The Bill returns to the Lords today, with Lord Bach raising an amendment that would allow all first tier social security tribunals to be bought back into scope (see under Schedule 1 of the link below)

So they’re still trying to get the government to change their minds on this.

Consideration of Commons Reasons and Amendments HL 140-b

Yes sadly the welfare benefits tribunal vote was lost, as were the votes on the mandatory telephone gateway and children. The government were defeated on an amendment to insert the legal principle of what legal aid is supposed to provide being included on the face of the bill, as well as an amendment on the domestic violence definition.

The bill returns to the Commons today for MP’s to reconsider the remaining amendments but it does look likely that the room for further manoeuvre or amendment is very limited now. By all accounts, a large showing of Lib Dem peers effectively saw the government win on crucial votes.

Anyone who works in a constituency where your MP supported the cuts to social welfare law should be sure to send any clients in need of advice or representation with appeals on benefits decisions to their MP’s surgery, so that their elected representative can demonstrate, face-to-face, just how “easy” it is to deal with welfare benefits issues. After all, none of this stuff is legal is it, it’s all just general advice…..

Lord Bach’s amendment (motion G1) on welfare benefits advice for first tier tribunals (FTT) was defeated by 197 votes against to 159 votes for the motion. There was debate around a point raised in the Commons last week, under which it appears that Ken Clarke gave some ground on the possibility that welfare benefits “might” be awarded for FTT cases where the issue at hand is a point of law, rather than simply on the facts, although it is extremely unclear how this would work in practice.

Speaking in support of this issue, which was raised following an amendment laid by Tom Brake MP and then not pressed to a vote, Lord Thomas of Gresford said:

23 Apr 2012 : Column 1638

I suggest to the Government that when it comes to tribunals, anybody representing the state-the Government or a government department-in a tribunal should be under a duty, which regulation should point out, to inform an unrepresented applicant if that state representative appreciates that a point of law arises. This is so that before they even get before the tribunal, the state representative will have told the litigant or applicant in person, “Look, my friend, you have a point of law in this case, which you must mention to the tribunal judge. If you don’t do it, I will”. That is the tradition of the legal system, and it must apply even when the state is represented not by lawyers but by representatives of the department in question. I urge upon my noble friend that he takes that on board and ensures that there is such a duty, as there is elsewhere, for lawyers to point out to the unrepresented applicant that there is a point that he should take.

In responding to the various interventions by other peers prior to the vote, Lord McNally said:

23 Apr 2012 : Column 1649

I also think that we are not being idle while welfare benefit reforms are being brought forward. A number of proposals currently are being considered across government that should make it easier for people to receive the right provision of entitlement in areas such as welfare, benefits and education. The most notable of these is the universal credit which will help to reduce the scope of error significantly as it makes the whole benefit system simpler and easier to understand. We are working closely with DWP as part of its wider welfare reform programme to improve the quality and effectiveness of its initial decision-making.

So let’s all look forward to the world where DWP never make mistakes, and even when they do, they are pro-active in helping the person at the sharp end in properly challenging any mistakes that they make, just like now.

Motion G1 (as an amendment to Motion G)

Whole debate Hansard

In another part of the debate, on the mandatory telephone gateway, there was this quote from Baroness Northover speaking for the government, explaining how people who might find it a struggle to use the phone line to access legal aid could be helped.

23 Apr 2012 : Column 1600

Baroness Northover: I understand what my noble friend means about getting to that point. I ask him to ask himself how they would get to face-to-face advice. There they are with a major problem. They may very well end up in a CAB, in which case the CAB may assist them in phoning the telephone gateway and may indicate in its call that this is a suitable candidate for face-to-face advice.

So rather than simply letting the CAB have a legal aid contract to help people, let’s put in place a service that aims to have the CAB helping people to call a helpline to be told that, yes, that person can indeed get face-to-face advice and then told where to go next…...it would be laughable if it wasn’t so lousy.

It also assumes that there will still be a CAB to go to, seeing as the withdrawal of Legal Aid may mean cut-backs in face to face advice and a move to (guess what), a telephone and Email based service-which this hypothetical client would be unable to access!!!

It would be laughable if it wasn’t so serious!

The legal aid bill has survived a last-ditch attack in the Lords and is now set to become law. Peers tried and failed to amend those parts of the bill that apply to victims of domestic violence. After a parliamentary passage that saw it defeated 14 times in the Lords, the bill now awaits Royal Assent.

Legal aid bill survives Lords domestic violence challenge

And they still claim that the UK is a democracy…....

Never mind, they’re going to get rid of all those unelected, out-ot-touch fuddy-duddies and replace them with another elected house. So there won’t be a problem any more.

Bill got Royal Assent earlier .....

http://lscupdate.org.uk/4P-SEF0-991YC2PCA/cr.aspx

http://www.justice.gov.uk/legislation/bills-and-acts/acts/legal-aid-and-sentencing-act

Patrick Torsney of ilegal writes about the future, post-legal aid in the Guardian.

The launch of alternative business structures has been mooted as a way of filling the gap, too, with proponents saying it will enable legal services to be delivered in innovative ways. But relying on the combined impact of Laspo and ABS is an explosive and haphazard approach to reforming the legal landscape. The deregulation of legal services, like the privatisation of public services, will not automatically improve them. In fact, the contrary may be true.

Legal aid is (almost) dead

The final equalities impact assessment was published last month by MoJ. The contents make my blood boil to be frank. On mortgages, for example:

We also considered further the situation where the client’s home is at immediate risk due to rent or mortgage arrears, and these arrears are caused by a dispute about welfare benefits. In such cases respondents urged us to allow legal aid to provide advice on the welfare benefits dispute. We consider that because there is a user-accessible tribunal to resolve welfare benefits problems, legal aid is not justified for such welfare benefits matters. Where the client loses their benefits appeal, and subsequently faces action for rent or mortgage arrears that places the home at risk, legal aid will become available to deal with the housing dispute (for example, to negotiate with mortgage lenders), but it will not be available for the welfare benefits matter.

So rather than try and solve the problem emerging in the first place (i.e. early intervention which is widely recognised as being the most cost-effective approach), MoJ are actually pursuing a course that will cost more and probably lead to more evictions.

Similarly, on decisions following the June 2011 consultation:

Funding has been retained for homelessness matters but, for benefits cases, the accessible and relatively user-friendly nature of the tribunal means that applicants can generally present their case without legal assistance. Whilst we acknowledge that respondents told us that other sources of advice, particularly the voluntary sector may not be able to meet the demand for welfare benefit services because of factors such as local authority cuts, it remains the case that Job Centre Plus and the Benefits Advice line will continue to be available to assist applicants.

JCP and the Advice Line are neither independent, nor competent, to undertake this role and it’s pretty derisory that this so-called impact assessment can make such utterly preposterous assertions unchallenged. It goes onto say:

For several years, reports by the President of the Appeal Tribunals have shown that most welfare benefits decisions are overturned on the basis of new factual evidence obtained orally from the appellant, rather than legal submissions.

This would be the same President who stated in his response to the 2011 consultation:

In the Consultation Paper great weight is placed on the “userfriendliness” of the tribunal in concluding that Legal Help is unnecessary for welfare benefits. But that misses the point that the tribunal has no role to play in assisting the claimant to decide in the first place whether to appeal or not, nor in helping the claimant to prepare his or her case. The Paper’s reference to DWP as an alternative source of help is incongruous in cases where the claimant is in dispute with that body.

The paper also reveals that at least 135,000 individual acts of welfare benefits assistance will be lost from the scope of legal aid on 2009/10 statistics.

If you want to access the final EIA, scroll to the bottom of this page LASPO background information and I have also attached a copy of the particular EIA with the information above.