News focus: our analysis of the legal aid and sentencing bill

A close reading of the Legal Aid, Sentencing and Punishment of Offenders Bill has left many lawyers, campaign groups and politicians who support the legal aid system more worried than ever about future provision.

Even though the government decided to rush to a second reading of the bill just eight days after the first, this has been long enough to identify clauses and schedules that pose the greatest threat to the provision of justice.

Role for Whitehall

In particular, the bill creates a new civil service post, a ‘director of legal aid casework’, to be appointed by the lord chancellor.

The director will make decisions on whether cases meet twin tests of ‘merit’ and ‘means’.

The director must comply with directions given by the lord chancellor, and ‘have regard to’ the lord chancellor’s guidance.

But the lord chancellor ‘may not’ give direction or guidance to the director on individual cases.

This may seem one of the less obvious elements in the bill with which to take issue, but it concerns Legal Action Group director Steve Hynes.

‘The director of legal aid casework will still be a civil servant,’ Hynes tells the Gazette, ‘so at the very least there is an appearance of the director not being independent.’

He believes that protection from interference in individual cases by the lord chancellor may not be enough in some instances.

He cites the case of peace activist Maya Evans, who brought a case with public funding to prevent the transfer of prisoners from UK custody into Afghan custody, where there was a risk they would be mistreated.

As was recorded in a subsequent judgment, the Ministry of Defence actively lobbied the Ministry of Justice over the provision of legal aid to Evans’s case.

This came in a series of ministerial-level letters.

Under the regime envisaged in the bill, this case could not have been brought anyway, but it does highlight an aspect of Whitehall conduct that has wide implications.

‘All this is less of a concern with a lord chancellor like Kenneth Clarke, who seems not to seek to interfere in individual cases,’ Hynes explains, ‘but a more politicised lord chancellor may take a different approach’.

Liberal Democrat MP Tom Brake, who, independent of the party’s ministerial team, will lead for the party on the Commons stages of the bill, notes: ‘This appointee will need to be able to fight their corner. Decisions on funding have to made on the basis of what legislation says, not on interference.’

Taking out

In other parts of the bill, there is even more danger that provision could be subject to the policy whim of the lord chancellor.

Clause 8, section 2, which is just 32 words long, would allow the lord chancellor to remove legal aid from other types of civil cases, using statutory instruments to ‘omit’ services.

So, whereas the list of exclusions looks formidable now, there is significant freedom to add to it.

Law Society head of legal aid Richard Miller warns: ‘Using secondary legislation, the lord chancellor can cut scope further.’

Brake believes that such an approach by the government would be inappropriate.

‘Clearly, there have been some tough-fought battles on legal aid, in which ministers have been clear about what they intend to take away,’ Brake tells the Gazette.

‘Any attempt to reopen that would be strongly opposed.’

Advice in custody

In addition to civil legal aid, there have already been strong objections to changes to the provision of advice on the criminal side.

Part 1, clause 12 affects the provision of ‘advice and assistance for individuals in custody’, allowing the director of legal aid casework to determine the provision and level of advice available to someone in custody.

Shadow lord chancellor Sadiq Khan’s office confirms that this clause, allowing both a ‘merit’ and a ‘means’ test to be applied at the point where someone has been arrested and is in police station custody, will be challenged.

This concern is compounded by the contents of clause 26, which covers ‘Choice of provider of services etc’.

Here it is clear that the lord chancellor’s duty to make legal aid ‘available’ can be met by providing advice by ‘telephone’ or ‘other electronic means’, presumably email.

Clause 26 may also be a source of division on the coalition benches, particularly in the Lords.

Lord Macdonald, former director of public prosecutions and now a Liberal Democrat peer, has publicly expressed ‘alarm’ at changes to advice available on arrest.

Brake adds that, in practical terms, it is ‘difficult to see how telephone advice could be a satisfactory alternative’.

In general, he says the bill has ‘significant scope for improvement’.

Domestic violence

When the legal aid consultation paper was published, the decision to preserve legal aid in family cases where there had been domestic violence was portrayed by ministers as a civilised concession in the context of its withdrawal for most other family cases.

But if the emotive subject of domestic violence stayed the hand of policy-makers, the bill has complicated matters still further.

Justice minister Jonathan Djanogly has described domestic violence as the ‘gateway’ to public funding for family cases.

A spokesperson for shadow justice minister Andy Slaughter explains the problem: ‘Knowing that public funding in a family case is dependent on a domestic violence element will create doubt in criminal cases as to why an accusation has been made.

'These cases are already difficult to prosecute successfully.’

Brake notes that the incentive of public funding could have the opposite effect, helping to get domestic violence cases into the court system, but admits the government is ‘between a rock and a hard place’ on decisions on funding and domestic violence cases.

Aside from specific areas of concern within the bill, the manner of its drafting has also attracted attention.

Hynes argues that its true intention can best be observed in the list of ‘exclusions’ in schedule 1, part 2.

It is, he says, unexpected to see areas to be excluded from assistance listed in quite this way, as it would require primary legislation to bring any of them back within scope.

‘It seems clear this bill means to create a rump service,’ Hynes says. ‘In the past, in response to changes in the law, changing public policy priorities, or the funding context, the scope of legal aid has been able to change.

'With the rump system proposed, that cannot happen.’ The drafting, he notes, is unusually tight: ‘Clearly, civil servants were instructed to draft a bill that eliminates citizens’ ability to use the law to hold the state to account.’

There is a strong suspicion that the hardening of that position is due, in part, to concessions on the government’s sentencing proposals, following Clarke’s ill-judged comments on rape and sentencing.

Before the u-turn on sentencing, Clarke’s parliamentary private secretary, Ben Wallace, had been able to make strong hints to campaign groups that there would be concessions on the exclusions list - in the event, funding for cases involving children’s statements of special educational needs was the only item to be taken off the MoJ’s hit-list.

Still included on the list of exclusions is clinical negligence, where there had been hints that public funding may remain available, at least for the compilation of experts’ reports.

If it can be shown that extra savings are being sought, Brake promises Liberal Democrat opposition.

‘When proposals on the 50% sentencing tariff reduction were taken out,’ he says, ‘it was obvious that £100m saving would be needed from somewhere.

'In discussions, we have been clear that this must not come from the legal aid budget.’

For supporters of legal aid provision, the quality and effectiveness of all opposition will matter as the bill passes through its Commons and Lords stages.

Clearly, there are key parts of the bill as it stands that allow for the legal aid system to be eroded even further than is currently understood from ministerial statements.

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