The government has abandoned its controversial plan to pave the way for the means-testing of legal advice for suspects detained in police stations.
The Law Society welcomed the government’s decision, announced in the latest Lords debate on the Legal Aid Sentencing and Punishment of Offenders (LASPO) bill. However it said the concession is ‘far from enough’ and the bill remains un-costed and unjust.
The change, in Clause 12, was one of the most fiercely opposed elements in the bill, condemned as unworkable and undermining the long-established right of detainees to free legal advice.
Justice minister Lord McNally indicated the government’s intention to table an amendment to remove the clause as peers debated the Bill, currently in its committee stage, on Tuesday evening.
Prior to the concession, the former Director of Public Prosecutions Lord Macdonald of River Glaven had tabled an amendment saying the clause ‘raises the spectre that some time in the future legal aid the police stations could be subject to some form of means testing. In other words, what is now an unfettered right, applied with ease, efficiency and, above all, speed, would no longer routinely be available, and where it was it might be subject to some as yet undersigned bureaucratic process,’ he said.
In a report in November the House of Lords constitution committee had warned that the clause would undermine the right to free legal advice in custody that has been enshrined in English law through statute and case law. Despite the clause’s inclusion, justice minister Jonathan Djanogly had maintained that the government did not intend to implement it, telling the Legal Action Group’s conference in July 'we have no intention to take away legal help from the police station'.
A Ministry of Justice spokeswoman told the Gazette: ‘We have listened to the concerns raised in parliament when debating the LASPO bill. We intend to table an amendment to clause 12 at the report stage that will remove the power to introduce means testing for initial advice and assistance at the police station.’
Scrapping the clause had been one of the key changes sought by the Law Society and its Sound off for Justice campaign since the bill was introduced in June last year.
Law Society chief executive Desmond Hudson said the decision showed that the government has finally realised means-testing for initial legal advice at police stations was not going to work.
‘While this a positive step, it is far from enough. There remain deeply contentious measures in the bill - such as the outrageous fiddling with the definition of domestic violence so as to deny more vulnerable individuals access to legal advice,’ said Hudson.
He added: ‘The government needs to do more to make the bill compatible with what is a given tenet of any civilised society - access to justice for all.’
Opponents scored another small victory during the debate when Lord Wallace of Tankerness, for the government, indicated that payment of ‘reasonable costs’ could be made to parties making a successful application for exceptional funding, in cases that would ordinarily fall outside the scope of public funding.
‘Discussions with the Legal Services Commission about the precise arrangements for exceptional funding applications are ongoing and we fully expect to propose that the costs associated with the making of successful exceptional funding applications will be payable,’ he said.
Tankerness said the exceptional funding provisions would be drawn narrowly, but he expected that there will be ‘several thousand’ applications and confirmed that the budget for such cases would not be fixed.
He said the government intends to publish more details on the operation of the scheme in due course.
Support was apparent on both sides of the Lords for the idea that restrained assets of those accused of criminal offences should be used to pay for their legal costs. An amendment to allow this, tabled by Liberal Democrat Lord Thomas of Gresford, took forward an idea that both the Law Society and Bar council have pressed for.
Gresford highlighted the ‘absurd situation’ where legal aid is granted to people of huge means because their assets are frozen, while their assets can be unfrozen to pay for their children’s school fees.
He said: ‘About 50% of the criminal legal aid budget goes on 1% of the cases, and it is in those 1% where assets have been frozen. That is a great resource,’ and one which he said, in 2010-11, amounted to £744m.
Fellow Liberal Democrat and barrister Lord Carlile of Berriew cited examples of cases where substantial sums of money had been released to the defendant, or where assets had not been seized in full, and where the funds could have been used to pay for the defendant’s legal team.
Carlile also pointed out that when confiscation orders are made, the money is not used to fund legal aid, but goes to the Exchequer and therefore does not ‘reflect the strain placed on the legal aid budget by high-cost fraud cases’. He said the amendment was ‘a complete no-brainer’ that would save the legal aid fund ‘shedloads of money’.
Labour’s former legal minister Lord Bach regretted that his party had not introduced the change when in government.
McNally said the government is considering a related proposition under which the value of restrained assets might be taken into consideration in the Crown court means test. ‘Until that proposition has been considered fully, we believe it premature to suggest an amendment to the Proceeds of Crime Act,’ he said.
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