Government set to press ahead with legal aid cuts and Jackson reforms

The Law Society and legal profession this week vowed to continue campaigning against the government’s legal aid cuts, following publication of the Legal Aid, Sentencing and Punishment of Offenders Bill by justice secretary Kenneth Clarke.

The bill, issued as the Gazette went to press, confirmed the government’s intention to press ahead both with reforms aiming at slashing £350m from the legal aid budget, and Lord Justice Jackson’s proposals on civil litigation costs.

As proposed in last year’s green paper, legal aid will be removed for welfare benefits advice; clinical negligence; debt (except where a person’s home is at risk); private law family cases; employment; non-detention immigration matters; education; and housing (unless a person is facing homelessness).

Public funding will also be removed from those seeking compensation under the Criminal Injuries Compensation Scheme.

There were two minor concessions. Legal aid will be retained for special educational needs cases, and prohibited steps and specific issue orders in private family cases where there is a risk that the child concerned may be taken abroad.

In addition, the definition of domestic violence has been expanded beyond physical abuse to include mental and sexual abuse, neglect, maltreatment and exploitation.

In a small victory for The Law Society, the government decided against seizing the interest from client accounts to supplement the legal aid budget. Chancery Lane has however expressed alarm at a proposal buried in documents accompanying the bill for the state to take 25% of all general damages awarded to claimants in receipt of legal aid (see separate story here).

Legal aid will remain available for judicial review applications, but will be restricted to individuals who will directly benefit from the case, making it impossible for challenges to be brought in the public interest by campaign groups.

In criminal cases, the bill appears to introduce an ‘interest of justice’ test to determine legal representation for those detained in a police station.

The bill provides for the abolition of the Legal Services Commission and the appointment of a civil servant to be Director of Legal Aid Casework, designated by the lord chancellor to administer the legal aid scheme.

Justice minister Jonathan Djanogly said: ‘These reforms will ensure that we have a legal aid system which is targeted at those who need it most, in the most serious cases, as well as providing value for money to the taxpayer.’

But representative groups lambasted the government for seemingly ignoring over 5,000 responses to its green paper, the vast bulk of which were hostile.

Law Society president Linda Lee said: ‘The Law Society and the legal profession will continue its campaign against government cuts to legal aid. Cuts that will cost the taxpayer more than they save; cuts that will leave families, the elderly, victims of clinical negligence and the unemployed without access to justice.’

Lee said the government should have listened to ‘thousands of dissenting voices’ and introduced reforms that would make the necessary savings without simply transferring costs to other parts of the public sector.

‘Instead, the government is risking increased criminality and reduced social cohesion, as the MoJ’s own impact assessment warned, while damaging the ability of ordinary people to get justice,’ said Lee.

Roger Smith, director of law reform and human rights organisation Justice, and a Gazette columnist, claimed the reforms will lead to ‘economic cleansing’ of the courts.

‘Courts and lawyers will be only for the rich,’ he warned. ‘The poor will make do as best they can with no legal aid and cheap, privatised mediation. There will be no equal justice for all, only for those with money.’

Director of the Legal Aid Practitioners Group Carol Storer said she would continue to lobby parliament against reforms that would ‘unravel’ the legal aid system.

‘Groups have put forward alternative proposals for cutting expenditure and have researched the economic case for continuing legal aid. Spending on legal aid cases can save money elsewhere,’ she said.

Steve Hynes, director of the Legal Action Group, said the introduction of the director of casework role will mean the government acting as ‘judge and jury’ on whether cases brought against it are funded.

‘There is a real danger of political bias in decisions on legal aid,’ he added.

On sentencing, the government abandoned its plan to give 50% discounts for those who enter early guilty pleas. Its new sentencing policy will look to: introduce mandatory prison sentences for threatening someone with a knife; review the use of indeterminate prison terms; consult on a new offence of squatting; and write into law the ability of homeowners to use reasonable force to defend themselves or their property.

Campaigners also issued a rallying call to solicitors and their clients to fight against implementation of the Jackson reforms. The Consumer Justice Alliance, a collection of charities, victims’ groups, insurers and law firms which was set up in response to Jackson, said it is ‘now or never’ for practitioners who oppose the plans.

‘This is a call to arms [to] those solicitors who want to join the fight,’ said CJA chairman Nigel Muers-Raby.

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Bar CouncilPeter Lodder QC, chairman, said: ‘The government has failed to listen to the views expressed by many in the judiciary, the legal profession and voluntary organisations in formulating its proposals on legal aid.

‘Legal aid will be withdrawn from whole swaths of areas of law and access to justice will be systematically deprived.

‘It is wholly unsatisfactory that the government is determined to forge ahead with its radical reform of legal aid in family cases while the important work of the Family Justice Review is still ongoing. The government has apparently not taken any account of the interim recommendations of the Family Justice Review for fundamental reform of the family justice system; reforms which are likely to achieve economies in the delivery of justice.

‘We are very concerned about the risk to significant numbers of children at the centre of family disputes before the courts, whose parents will not be able to receive legal advice or representation. This has significant implications for access to justice of these children, and of their families, many of whom are among the most vulnerable members of our society.

‘The government’s expectations of the impact of increased numbers of unrepresented litigants in the courts are wholly unrealistic. As those who work in the court system made clear in their representations to government, the courts will become clogged by unrepresented litigants, and, in the event that parties are forced to appear without representation, the systems will become slower. The court system will seize up, cases will take longer, and overall costs will increase.

‘In crime it is incomprehensible that the government should do nothing to reduce the burden on the legal aid fund by forcing wealthy defendants whose assets have been restrained to pay for their own defence instead of granting them free legal aid and artificially inflating the cost of legal aid to the taxpayer.’

Young Legal Aid LawyersLaura Janes, chair, said: ‘The burden of these changes will fall on the most vulnerable. Legal aid is already only available to the poorest in society who are in the most desperate situations. Many cases brought by these people are only necessary in the first place because of poor decision-making by the state – particularly in benefits and immigration cases. For these people to bear the brunt of the cuts is completely unprincipled and unfair.’

She said: ‘These changes represent a false economy. It is disappointing that Ken Clarke has not listened to the Justice Select Committee who warned the proposals need to be thoroughly reviewed before being implemented; or the independent Committee of Inquiry who just last week confirmed that the proposals would not bring about long-term savings that Ken Clarke hopes; or the 5,000 people who felt so deeply about this issue that they took time to respond to the original consultation.‘We sincerely hope that the passage of the bill through parliament will provide more of a listening exercise than we have had so far,’ she added.

ResolutionDavid Allison, chair of the legal aid committee, said the cuts will mean thousands of vulnerable parents going through the trauma of divorce and separation will be left without legal help, creating a serious risk that many children will lose contact with one of their parents or be subjected to unfair financial arrangements that harm their upbringing.

He said: ‘Where there are serious problems between parents, stripping away affordable justice will force families into situations where children simply lose contact with one of their parents, which is wholly unacceptable in a civilized society.’

‘The cuts will also mean that, separated parents with primary responsibility for caring for the children may not be able to obtain a fair financial deal from the former partner.’

He said large groups of vulnerable people will no longer be eligible for legal aid, and will be left with mediation as their only option, which although a valuable option it is not only suitable for all and requires both parties to voluntarily agree to take part.

He said: ‘The government seems determined to turn a deaf ear to the misery that these cuts could create for thousands of children and families. Not to mention the long-term impact the cuts will have on wider society and the costs that will transfer to other state funded services as people develop other difficulties such as mental health issues, as they seek to work through these things on their own.

‘These cuts are clearly ill-considered and rushed. The consultation process has been the latest in a line of similar coalition government fiascos. It received an unprecedented 5,000 responses according to the Ministry of Justice’s own figures. It is inconceivable that these responses have been given full and proper consideration.’ He warned that the government’s proposals could be the final nail in the coffin for many legal aid providers, leaving too few lawyers able to help the small numbers of vulnerable people who would still be protected by family legal aid.

‘The cuts are likely to create spiralling costs for taxpayers and chaos in the court system as increasing numbers of people, stripped of their right to legal aid and affordable justice, try to represent themselves,’ he said.

Justice for All coalition Phil Jew, at Advice UK, said: ‘Legal aid cuts are a further blow to a whole swathe of people, those already suffering poverty and discrimination and bearing the brunt of cuts to public services. These are people without a safety net and it costs far more to pick up the pieces when problems spiral out of control than provide them with advice which can keep their families together and in work and education.’

‘When you are destitute, in debt, at risk of losing your family, your job or your right to stay in the UK because of incompetence, bureaucracy or carelessness, legal aid is there for when you cannot sort it out on your own. Bureaucracy should be cut before front line services but at a time of massive cuts, that will not happen if scrutiny of government departments is reduced because people cannot challenge wrong decisions,’ said Jew.

Mary Ward Legal CentreMargie Butler, chief executive, said the cuts are a ‘disaster for justice’ and ‘wholly counter productive’.

She said: ‘They will increase the deficit as they load extra costs on to other government departments. It has been estimated that preventative advice in these areas saves up to £10 for £1 invested. This will be lost if the proposals go ahead.’

She added: ‘The government received over 5,000 responses to the legal aid green paper published in November 2010 and appears to have failed to take into account the majority of representations made to them.’

Victim SupportJaved Khan, chief executive: ‘Plans to make prisoners work, learn new skills and pay more towards supporting victims of crime are welcome. We know that victims want justice to be done and for offenders to stop committing crime and to repair some of the harm they have caused.On sentencing he added: 'We welcome government having listened and responded to concerns about reducing sentences for pleading guilty early.

‘But the debate about reduced sentences has underlined the need for greater transparency and greater public understanding about sentencing.

‘Many of the public were no doubt unaware that by pleading guilty early offenders could already reduce their sentence by a third.’

Access to Justice Action GroupAJAG co-ordinator Andrew Dismore: ‘The government does not care about the ability of ordinary people to enforce their rights. Their view of justice is based on the interests of big business insurance companies, not the person in the street.

‘The winners under the government’s plans are the insurance company major shareholders, the losers are ordinary people.

‘This is "Ritz justice": anyone can go there, but only if you can afford it. Justice ministers can, senior judges can, but the average "no win, no fee" claimant cannot.

'Our research has shown that the typical "no win no fee" claimant is not wealthy, but lives on average or below average income.

‘Their claims are mostly worth under £5,000 – a lot of money to most hard-working families, but not the millionaires in the cabinet who cannot, or will not, comprehend the impact of these changes on their victims.’

Law firm ProlegalSusan Brown, director: ‘Introducing a system which has no certainty of reducing costs and could equally well increase them, will undoubtedly lead to satellite litigation, will make it more difficult for claimants to find an experienced personal lawyer to represent them, and is extremely dangerous at a time when the legal services industry is on the brink of the major upheaval that will result from the introduction of alternative business structures.

‘With so much of the emphasis of this bill on legal aid and sentencing proposals, it seems the justice secretary has failed to understand the implications of the proposals in relation to litigation funding and costs.’

London Solicitors Litigation AssociationSeamus Smyth, president: ‘In so far as the bill relates to civil litigation it contains no surprises.

‘We are however disappointed that the bill has not clarified the position in regard to offers to settle and seems to contradict the Ministry of Justice’s earlier announcement in March that the rules governing Part 36 would be amended, reversing the effect of the decision in Carver v BAA plc. In our view the draft S51 makes the position less clear and will inevitably result in satellite litigation.’

Law firm Mayer BrownRani Mina, commercial dispute resolution partner: ‘The recoverability of ATE insurance premiums will be abolished as expected. It is likely this will result in a lower overall take-up rate and reduce access to justice for many who could not afford to take on the risk of litigation without such protection.’

Association of Personal Injury LawyersDavid Bott, president: ‘Cutting legal aid for medical injuries at the same time as restricting ‘no win, no fee’ is a savage blow for patients whose lives may have been shattered by their injuries.

‘Obviously, this is an enabling bill and we still need to see the detail, but the intent behind it is clearly just as brutal as we had been led to expect.

‘The drive to cut costs by forcing injured people to give up part of their compensation to pay legal fees is unfair, unjust and unwarranted. People don’t choose to be injured, but when negligence happens, the guilty party – the losing defendant – must surely be held fully to account.’

Consumer Justice AllianceNigel Muers-Raby, chairman: ‘This government is pushing through sweeping and dangerous reforms with alarming speed. The government knows full well that by publishing such a wide-ranging bill, it is the controversial sentencing aspects that will grab the headlines.

‘However, buried in the bill, you can see that thousands of injured people will suffer as a result of what is being proposed today – the door to justice is effectively being slammed in their faces.

‘Every day across the country, victims of accidents or negligence have to confront a future in the face of life-changing injuries.

‘The bill threatens their ability to seek proper legal representation and to receive the compensation they need to begin to rebuild their lives.’

Citizens Advice BureauChief executive Gillian Guy: ‘The government is making a fundamental mistake on legal aid and it is those in greatest need who will suffer. Restricting the scope of legal aid is the wrong way to reform the system and may cost more than it saves.

‘Civil legal aid keeps people in their homes, in their jobs and out of debt. These cuts will leave hundreds of thousands with nowhere to turn for help. Serious cases of family breakdown, unfair dismissal and refusal of benefits will simply get worse.’

BeachcroftAndrew Parker, head of Strategic Litigation at the national law firm and an assessor to the Jackson Review, commented: 'It's good to see the government sticking to its guns on implementing the core principles of LJ Jackson's recommendations; businesses and consumers will benefit from this control of disproportionate legal costs. ‘We do, however, need to see delivery of the second phase of the Jackson reforms, in which legal costs in low value personal injury cases are fixed and the process for paying compensation is simplified. That will help put claimants with genuine claims at the centre of the process.'