Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Liberty (LA 30)

About Liberty

Liberty (The National Council for Civil Liberties) is one of the UK ’s leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research.

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http://www.liberty-human-rights.org.uk/publications/1-policy-papers/index.shtml

Executive Summary

This briefing proposes comprehensive amendments to Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Bill and in particular includes suggested amendments designed to:

· Reverse restrictions on the scope of civil legal aid provision and in particular incorporate: (i) provision for individuals challenging decisions, actions or omissions of public authorities, and (ii) provision for cases involving private family law, debt and applications to the Criminal Injuries Compensation Authority.

· Re-instate the test currently applied for the provision of funding in exceptional cases.

· Widen provision for representation in Court and Tribunal proceedings where an individual faces a local authority.

· Place restrictions on the freedom that the Bill gives to the Lord Chancellor to further undermine the legal aid system by: (i) further restricting the scope of provision in civil and criminal matters, (ii) further reducing the remuneration paid to legal aid professionals, and

(iii) creating tougher eligibility requirements and increasing the level of contributions to legal provision made by the individual.

· Facilitate the increased use of wasted costs orders in cases where costs are incurred as a result of improper actions or poor administration by public authorities.

· Restrict the extent to which the Lord Chancellor can override individual choice both in terms of the means of service provision and choice of representative.

Introduction

Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Bill advances short-sighted proposals announced in March this year to reform the system for funding legal advice, assistance and representation in this country. If implemented, they would decimate the legal aid system, placing justice beyond the reach of many and creating alarming gaps in protection. The ever-present prospect of legal intervention is the surest way of securing a society in which respect for human rights and values of equality and due process guide the behaviour of decision makers – if this Bill passes without substantial amendment, big business, Government and other members of a rich and powerful elite will be able to act with impunity.

The effect of Part 1 of the Bill

Part 1 of the Bill provides for the abolition of the Legal Services Commission (‘the LSC’). It is proposed that the Lord Chancellor will take over governance of the legal aid system and be granted wide powers to make general prescriptions by secondary legislation. A civil servant appointed to a new role of ‘Director of Civil Legal Aid’ (‘the Director’) will deal with the assessment of eligibility in individual cases.

Financial eligibility for legal aid in the areas where it remains is not dealt with substantively in the Bill, rather the Lord Chancellor has the power to ‘make provision about when an individual’s financial resources are such that the individual is eligible…for services..’. [1] Regulations can specify, amongst other things, the circumstances in which individuals are to be required to pay for all or part of the legal services they require, how payments are to be made, how payment is to be enforced and the extent of a costs order that can be made against an individual in receipt of legal aid. The Bill provides for information relevant to the assessment of an individual’s means to be shared between Government departments and creates an offence of providing misleading information.

If implemented, the Bill would oblige individuals to accept assistance in the form prescribed in Regulations, including advice given by telephone or email. [2]

Civil Legal Aid

Clause 8, read together with Schedule 1, establishes the discreet areas in which civil legal aid will remain. Most of these areas are subject to a wide range of exceptions prohibiting the provision of legal aid in cases which involve, for example, personal injury, negligence, assault and battery, human rights violations by a public authority, welfare benefits and applications for compensation where an individual has been a victim of crime. The Bill limits the circumstances in which advocacy, as opposed to early assistance and advice, can be provided in any of the areas of law retained within scope. Other areas of law will be excluded entirely from the system including clinical negligence and the vast majority of immigration, family, employment, education and welfare benefits cases. The Bill also makes specific provision for the removal of assistance for victims of violent crime seeking to make applications for compensation to the Criminal Injuries Compensation Authority. The Lord Chancellor is free to further narrow the scope of legal aid provision by means of secondary legislation. [3]

Clause 9 provides for a new exceptional funding regime to be applied, in individual cases, by the Director. Legal services can be provided in excluded cases where he determines that a failure to provide legal aid would be a breach of Convention rights or EU law entitlements, or that ‘it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that a failure to do so would be such a breach.’ [4] Public interest will no longer be a consideration in determining eligibility for funding, accept in relation to advocacy in proceedings at an inquest. [5]

Eligibility for legal aid will be determined by the Director in individual cases, but his decisions must be made in accordance with regulations of general application which the Lord Chancellor is empowered to make. [6] When assessing eligibility for legal aid, the Director is required to consider the availability of alternative funding sources: there is little detail about how this requirement will work in practice. In making these regulations, the Lord Chancellor is required to have regard to various factors including an express requirement that criteria ‘reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings’. [7]

Criminal Legal Aid

The Bill makes few substantive prescriptions, rather giving the Lord Chancellor extensive powers to make regulations, which could introduce means and merits testing into new areas of criminal law. The Bill lays the groundwork, in particular, for a new system of means testing for individuals seeking legal advice on being taken into police custody. [8] The Bill makes wide provision for secondary legislation to deal with eligibility for legal assistance, at any stage of the criminal justice process, by reference to financial resources. [9] Regulations may provide for a procedure for appealing decisions on eligibility for criminal legal aid. [10]

Amendment 1 - amend clause 1

Page 2, line 8, at end insert –

‘(6) In carrying out all of his functions under this part, the Lord Chancellor must have regard to the need to promote access to justice and equality of arms.’

Effect

This suggested amendment places the Lord Chancellor under a statutory duty to have regard to overarching rule of law principles when exercising his functions under Part 1.

Briefing

It is revealing that there is little reference to the requirements of justice and the rule of law in the Bill. Liberty believes that this Government has shown a worrying tendency to underestimate the value of access to justice and any statutory duty pushing these important principles onto the agenda may provide some measure of protection.

Amendment 2 – amend clause 2

Page 2, line 20, at end insert:

‘(3A) Before making regulations relating to the payment of remuneration to barristers and solicitors in accordance with subsection (3) the Lord Chancellor shall consult the General Council of the Bar and the Law Society. (3B) Where the Lord Chancellor makes regulations in accordance with subsection (3) he shall have regard to the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies.’

Effect

Reinserts a requirement formerly imposed on the Lord Chancellor by section 25(2) of the Access to Justice Act 1999, to consult organisations representative of those affected by changes to the remuneration of service providers prior to making decisions in this respect.

Briefing

The Government maintains the view that sweeping cuts to civil and criminal fees will be sustainable and ‘there will be a sufficient supply of providers of sufficient quality to provide an appropriate level of service’. [11] Under the Bill the Lord Chancellor has the power to make provision for the payment of service providers by secondary legislation. Liberty is concerned that significant cuts in the fees paid to practitioners will create a climate in which legal aid work becomes the domain of inexperienced legal professionals, irrespective of the complexity of the issues involved or the importance of the interests at stake. A consistently good standard of representation, whether publically or privately funded, cannot be assured if junior lawyers are expected to do complex work beyond their experience and without adequate levels of supervision. Liberty believes that the continuing drive to achieve more for less is placing unsustainable pressure on legal aid professionals which will have the inevitable consequence of driving down the quality of legal representation. We further risk a rise in ‘conveyer-belt’ litigation, with solicitors only willing to take on a core of similar cases requiring less case specific research or initiative; as a result individuals whose cases are complex or unusual, and particularly those whose cases span different areas of law will find it increasingly difficult to obtain representation.

Amendment 3 – amend clause 3

Page 2, line 31, omit ‘may’ and insert ‘must’.

Page 2, line 33, omit ‘may’ and insert ‘must’.

Effect

This amendment would replace an optional power with a binding obligation to make provision for accreditation of service providers.

Briefing

As so much in this Bill is left to secondary legislation, it is essential that in the important area of setting standards for the provision of legal services, the Government is obliged to apply time and resources to the development of accreditation systems. Individuals using the legal aid system are frequently the most vulnerable in our society and may be ill-equipped to judge the standard of advice provided or make and pursue complaints. Access to justice involves access to a good standard of advice and representation from a suitably trained individual.

Amendment 4 – amend clause 4

Page 3, line 12, after sub-clause (2), insert:

‘(2A) The Lord Chancellor shall ensure that the Director, or those providing assistance to the Director in the performance of his functions under this

Part, have experience in or knowledge of- (a) the provision of criminal and civil legal services which can be funded under this Part, (b) the work of the courts, (c) social conditions, and (d) management.’

(2B) Every person who exercises any function in relation to the performance of the Director’s functions under this Part shall have regard to the desirability of exercising it

so as to - (a) promote access to justice and equality of arms, (b) promote improvements in the range and quality of civil and criminal services provided in accordance with this Part and in the ways in which they are made accessible to those who need them, and

(c) ensure that the services provided in relation to any matter are appropriate having regard to its nature and importance.’

Effect

This amendment would ensure that those with responsibility for determining eligibility for legal aid have the appropriate expertise and knowledge and are guided by important overarching principles when performing their functions under Part 1.

Briefing

This Bill dismantles some of the structures and safeguards put in place by the Access to Justice Act to ensure those tasked with the administration of the legal aid system have the appropriate knowledge and skills. [12] This amendment would reintroduce some of those safeguards, which are all the more relevant given proposals in the Bill which present a potential threat to the independent administration of the system.

Amendment 5 – amend clause 8

Page 5, line 28, after ‘Schedule 1’ insert ‘or fall within the category of proceedings provided for at subsection (1A)’.

Page 5, line 31, at end insert - ‘(1A) Subject to section 10 civil legal services are to be available to an individual for the purposes of challenging an act or omission of a public authority.

(1B) "public authority" has the same meaning as in section 6 of the Human Rights Act 1998.’

Page 5, line 32, omit subclause (2).

Effect

This amendment would make provision for legal aid available in cases falling within the categories set out in Schedule 1, Part 1 or a residual category capturing cases where the individual is challenging a decision, act or omission of a public authority such as the UK Border Agency, the NHS, an education authority or the Department of Work and Pensions. If implemented, this amendment would provide for continued legal aid provision in many immigration, education, welfare benefits and clinical negligence cases, provided that the individual applicant is otherwise eligible, including to the extent that he has no other viable way of funding litigation (in accordance with amended clause 10(3)(f)).

The removal of subclause 2 would prevent the Lord Chancellor from adding or removing areas of law from the scope of legal aid without the Parliamentary scrutiny which accompanies primary legislation.

Briefing

The Bill provides for the ongoing availability of legal aid for those challenging the decisions of public authorities in judicial review claims, including claims based on fundamental freedoms. Whilst this is a welcome concession, judicial review will not always be available to claimants challenging administrative decisions: there will, for example, be cases in which the prescribed form of redress is an appeal before a court or tribunal for which no publically funded legal assistance will be available. As a legal remedy of last resort, even where judicial review is the appropriate legal avenue for challenging the decision of a public body, such action will ordinarily only become possible after initial legal interventions. [13] As such the removal of areas such as debt, family, employment and welfare law will effectively reduce access to public law remedies for those unable to pay.

We cannot foster a meaningful human rights culture in the UK without accessible justice. Access to legal services to uphold rights does more than simply vindicate the individual in the particular circumstances of his or her case. Successful challenges set precedents, raise awareness and help to place human rights considerations at the heart of public sector decision making. It is a principle of fundamental constitutional importance that arms of state can be held to account by the individual, and given the disparities in wealth and power which exist between the two, recourse to an independent judiciary is a crucial safeguard against an overweening executive.

Whilst the Government declares itself committed to encouraging alternatives to litigation and is apparently of the view that many claims are unnecessary or susceptible to alternative resolution, such assertions are not born out by the evidence. According to the Citizen’s Advice Bureau, 80% of social welfare legal aid cases dealt with by its staff record positive outcomes for clients, similarly research by Advice UK in Nottingham reveals that 42% of the demand at advice agencies in the city is attributable to failures in the system of public administration [14] and the Community Links advice service records that throughout 2010, 73% of the benefits related cases handled by their staff arose as a result of errors on the part of the Department of Work and Pensions. [15] The quality of first instance decision making in the UK Border Agency is also frequently highlighted as a cause for concern with between 61 and 66% of decisions in refugee family reunion cases overturned on appeal. [16]

The statistics suggest that there exists a significant problem with the standard of decision making and certainly do not indicate that frivolous or unnecessary legal interventions are taking place. [17] Rather than tackling a culture of poor quality decision making in Government departments, this Bill will remove the prospect of effective challenge. If the Bill is implemented in its current form, Liberty believes the consequence will be a diminution of already poor quality decision making in some Government departments. This will create a culture of impunity and facilitate waste and inefficiency in the system. Given the central position of public authorities in the life of the individual and society at large, Liberty believes that it is imperative that individuals challenging the actions of a public authority should have access to advice and, where necessary representation. This need is made all the more pressing by the obvious vulnerability of many of those seeking to challenge the decision making of public authorities. A significant proportion of those embroiled in disputes over welfare entitlements, for example, may have poor levels of education and low standards of literacy: without outside assistance, their prospects of resolving valid complaints would be negligible.

Further, those with disabilities will be disproportionately affected by the removal of welfare benefits from scope, representing, as they do, 63% of legally aided clients in the welfare system. [18] Liberty welcomes concessions which will see welfare benefits cases raising issues under the Equality Act brought within scope, but many welfare difficulties faced by disabled people will have nothing to do with discrimination, but will rather be problems relating to factual disputes or administrative errors. Liberty understands that, in the current fiscal climate, difficult choices have to be made, but the reality of our economic situation is no answer to the injustice of measures which target those who have an overwhelming need for legal support and are least able to bear the impact of the cuts.

Amendment 6 – amend Schedule 1, Part 1

Paragraph 3 – Abuse of child or vulnerable adult

Page 96, line 17, omit ‘3, 8 and 12’ and insert ‘and 3’.

Page 96, line 21 omit ‘other than’ and insert ‘including’.

Effect

This amendment would put clinical negligence cases back within scope in cases involving abuse of a child or vulnerable adult. It also provides for changes consequential to Liberty’s proposed amendments to Schedule 1, Part 2 (as set out at amendment 7 below).

Paragraph 10 – Family matters

Page 100, line 1, omit ‘victims of domestic violence and’

Page 100, line 3, omit ‘where A has been abused by B or is at risk of being abused by B’ and insert - ‘including matters relating to contact with or custody of a child.’

Page 100, line 35, omit lines 35 – 38.

Effect

Extends the provision in paragraph 10 to accommodate all private family cases and not just cases involving domestic violence. The amendment makes specific provision for family cases involving contact with or custody of children.

Paragraph 17 – Judicial Review

Page 105, line 29, omit ‘with the exception of paragraph 15 of that Part,’.

Page 105, line 43, omit sub-paragraphs (5), (6) and (7).

Effect

Judicial review cases would fall within the scope of proposed clause 8(1A) (see Amendment 5 above), which provides for individual challenges to the decision, act or omission of a local authority. Whether or not this amendment is accepted, Liberty believes that paragraph19 should be retained as a protection for a specific category of important cases. This amendment would remove the exceptions for judicial review in immigration cases and provide for changes consequential to Liberty’s proposed amendments to Schedule 1, Part 2 (as set out at amendment 7 below).

Paragraph 19 – Abuse of position of power by a public authority

Page 107, line 14, omit ‘6, 8 and 12’ and insert ‘and 6’.

Page 107, line 18, omit ‘other than clinical negligence’.

Page 107, line 28, omit lines 28, 29 and 30.

Effect

Cases of abuse by a public authority would fall within the scope of suggested clause 8(1A) (see Amendment 5 above), which protects provision for individuals challenging a decision, act or omission of a public authority. Whether or not this amendment is accepted, Liberty believes it is important to retain specific provision for cases which raise a particularly serious variety of public wrongdoing. This amendment would also remove the specific exclusion of clinical negligence cases in this context. The amendment to line 14 also provides for changes consequential to Liberty’s proposed amendments to Schedule 1, Part 2 (as set out at amendment 7 below).

Paragraph 20 – Breach of a Convention right by a public authority

Page 107, Paragraph 20, line 41, omit ‘6,8 and 12’ and insert ‘and 6’.

Page 108, paragraph 20. line 4, omit ‘other than’ and insert ‘including’.

Effect

Although these cases could be brought within the scheme provided for in suggested clause 8(1A) (see Amendment 5 above), this amendment retains specific provision for tort and damages claims engaging Convention rights and extends provision to cases involving clinical negligence.

Paragraph 27 – Loss of home and matters relating to personal debt

Page 110, paragraph 27, line 5, omit sub-paragraph 2 and insert:

‘(2) Civil legal services provided to an individual in debt matters including: (a) advice in relation to bank loans, credit cards or other regulated credit debts,

(b) advice in relation to rent, mortgage, council tax, utilities and court fines, (c) representation on an action to recover monies due or owing against the opponent or owing against the opponent; and

(d) advice and representation in relation to bankruptcy or Voluntary Arrangements.’

Effect

This amendment would allow for advice and assistance to be provided in relation to matters of personal finance whether or not an individual’s home is at immediate risk.

Paragraph 33 – Sexual offences

Page 113, line 3, omit ‘,3,8 and 12’ and insert ‘and 3’.

Effect

Amends paragraph 33 to reflect suggested amendments to Schedule 1, Part 2.

New paragraph 33A – Criminal Injuries Compensation Board

Page 113, line 10, at end insert –

‘3A Civil legal services provided in relation to applications to the Criminal Injuries Compensation Authority.’

Effect

The suggested amendment would bring legal aid for victims of violent crime making applications for compensation back within scope.

Paragraph 37 – Equality

Page 114, paragraph 37, line 33, omit ‘with the exception of paragraph 15 of this Part,’

Effect

Amends paragraph 37 to reflect suggested amendments to Schedule 1, Part 2.

Briefing

Private family law

Inequality of arms frequently arises in cases between private parties, for example in private family law proceedings where interests as important as contact with children and a share in the family home are at issue. The proposed amendments to Schedule 1, Part 1 would bring private family law cases within scope. Whilst we recognise that mediation is an important tool for resolving disputes in this and other contexts it has significant limitations, particularly in contexts where there are disparities in bargaining power or serious animosity between spouses or partners.

Liberty acknowledges that the Bill makes some provision for impecunious spouses facing wealthy partners in the Court room and we welcome proposals which would allow an interim costs award to be made against a former partner who has the means to pay where the other party would be unable to fund legal representation privately. [19] However, this provision is narrowly drafted, and if a party to proceedings has any other means of funding representation, even the prospect of taking out a loan, an individual will be unable to avail him or herself of this benefit. Liberty further doubts whether these measures, which require an application to the Court, will be practically accessible in the case of many unrepresented litigants pursuing proceedings in the family courts.

Debt

In removing legal aid funding for advice about debt matters where the home is not immediately at risk, the Bill targets an extremely vulnerable group. This proposal must be seen in the context of wider cuts to the provision of advice services. The pending abolition of the Financial Inclusion Fund combined with significantly reduced local authority budgets means that agencies providing free advice about personal financial management will be forced to scale down their operations or close, with the Citizen’s Advice Bureau estimating that cuts will lead to their capacity for debt casework being reduced by 75%. [20] This is in a context where, according to statistics published by Credit Action at the end of last year, the Citizen’s Advice Bureau dealt with 9,389 new debt problems every working day. [21]

Liberty is relieved that the Government recognizes the life-shattering implications of homelessness and has therefore retained public funding for cases where the home is at immediate risk and some housing disrepair cases involving serious harm to health and safety. What is disappointing, however, is that the link between debt, welfare and employment matters and eventual homelessness is not acknowledged in the Bill. That the exclusion of legal aid in these areas is taking place at a time when many face unemployment and financial hardship, means that the effects will be widely felt.

Criminal Injuries Compensation Authority

In addition to other vulnerable people, victims of crime will be directly hit if the Bill is enacted in its current form. Those who may have been left severely physically injured or psychologically scarred by criminal attacks, will no longer have the benefit of legal help when making applications to the Criminal Injuries Compensation Authority. One of the rationales for this exclusion is that claims are of a primarily financial nature. The Bill, in its current form, fails to acknowledge the wider significance of claims for compensation for victims of crime. Compensation can help people to regain control of their lives and dispel feelings of victimisation; it can make a real practical difference to the recovery and quality of life of individuals who may be rendered temporarily or permanently unable to work. Whilst the Government maintains that these individuals will be able to act without assistance, Liberty understands that the process can be lengthy and complex raising technical issues such as time bars on recovery and the quantification of future losses. No provision whatever is made for those with physical and mental health problems which will effectively prevent them from applying without assistance.

Amendment 7 – amend Schedule 1, Part 2

Page 115, line 17, before ‘Part 1’ insert ‘section 8(1A) and’.

Page 115, line 27, omit line 27.

Page 115, line 31, omit lines 31-37.

Page 116, line 8, omit lines 8-18.

Effect

This suggested amendment alters the list of excluded services to remove specific exclusions in relation to breach of statutory duty, claims against public authorities involving the Human Rights Act, welfare benefits claims, and applications to the Criminal Injuries Compensation Authority. The amendments also makes the specific exceptions in Part 2 subject to the category established at suggested subclause 8(1A), namely cases where an individual seeks to challenge the decision of a public authority.

Briefing

This amendment again reflects Liberty’s concern that large scale exceptions to funding envisaged by the Government will create alarming gaps in protection and hit the most vulnerable the hardest.

Amendment 8 – amends Schedule 1, Part 3

Page 117, line 18, omit lines 18-21 and insert:

‘9 Advocacy for an individual in proceedings against a public authority before:

(a) The General Regulatory Chamber of the First-tier Tribunal where proceedings concern a decision of a public authority under: (i) the Freedom of Information Act 2000, or

(ii) the Data Protection Act 1998. (b) The Health, Education and Social Care Chamber of the First-tier Tribunal (Care Standards). (c) The Health, Education and Social Care Chamber of the First-tier Tribunal (Mental Health). (d) The Health, Education and Social Care Chamber of the First-tier Tribunal (Special Educational Needs and Disability).

(e) The Immigration and Asylum Chamber of the First-tier Tribunal. (f) The Social Entitlement Chamber of the First-tier Tribunal.’

Page 117, line 23, omit paragraphs 11-13.

Page 118, line 2, omit ‘13’ and insert ‘10’.

Effect

These amendments would ensure that individuals challenging decisions of local authorities in many contexts would be able to do so effectively and efficiently. This amendment would make provision for legal challenges to be brought by, amongst others, those detained on mental health grounds, those excluded from certain professions or activities under the vetting and barring scheme, appeals by parents against decisions affecting the education of their children, immigration decisions and welfare benefits decisions including asylum support. Whilst representation would be provided for some of these individuals under the Bill, this amendment reflects the importance of proper legal representation in formal legal proceedings for all individuals facing a public body in Court in the areas of law identified.

Briefing

As the Government acknowledges in its literature review, the weight of the evidence demonstrates that litigants in person face a wide range of problems including understanding evidential requirements, difficulties with forms, problems identifying which facts are relevant to their case and even understanding the nature of proceedings. The evidence also supports the contention that litigants in person are frequently overwhelmed by the procedural and oral demands of the courtroom, and have difficulty explaining the details of their cases. [22] The Government’s literature review also acknowledges the views of court staff, the judiciary and other parties’ representatives, who have reported that they are effectively forced to compensate for the difficulties experienced by litigants-in-person. In addition to producing extra work, this also presents them with ethical challenges. [23]

The Government’s only answer to these conspicuous difficulties is to point to the availability of assistance such as guides to court procedure, assistance from court staff and online help. [24] Liberty maintains that these alternatives are wholly inadequate.

Amendment 9 – amend clause 9

Page 6, line 12, insert: ‘(c) that there is a significant wider public interest in the resolution of the case, (d) that the case is of overwhelming importance to the individual, (e) that should the individual represent himself this would create obvious

unfairness in all the circumstances of the case.

(3A) For the purposes of subsection (3)(c), exceptional funding should be provided where, in the particular circumstances of the case, the provision of legal services under this Part is likely to produce significant benefits for a class of person, other than the individual and members of the individual’s family.’

(3B) For the purposes of subsection (3)(d), exceptional funding should be provided where a case has exceptional importance to the client, beyond the monetary value (if any) of the claim, because the case concerns the life, liberty or physical safety of the client or his or her family, or a roof over their heads or raises other significant human rights issues.’

Effect

This amendment would expand the exceptional funding regime to capture cases where, should an individual represent him or herself, there would be obvious and significant inequality of arms and cases which do not fall within the individual categories listed at amended Schedule 1, Part 1 or proposed clause 8(1A), but notwithstanding, are of exceptional importance to the individual involved, or of significant interest to a wider social group.

Briefing

In excluding so many areas of law from the scope of legal aid, the Bill throws into sharp focus the need for a robust mechanism for providing exceptional funding on an individual basis. Clause 9 provides that the new Director can bring excluded cases back into scope where he is ‘satisfied’ that a failure to make legal services available ‘would be a breach of the individual’s Convention rights (within the meaning of the Human Rights Act 1998)… or that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that a failure to do so would be such a breach’. [25] This carefully worded provision limits exceptional funding to cases where it is the decision not to fund which would lead to a violation of human rights. [26]

The due process aspects of the right to a fair trial provide hugely important protection, but they do not extend to, for example, immigration cases and of course will have no impact on the range of early advice and assistance provided to people in many areas of law, undertaken with the aim of resolving matters before they reach the court doors. [27] It is at best uncertain that the exceptional funding regime will be of assistance to those seeking initial advice on for example, welfare benefits, debt or employment issues; this would appear to be the case whether or not an individual’s case raises human rights issues.

Liberty believes that the exceptional funding test currently established by guidance drafted pursuant to the Access to Justice Act provides a sensible means of determining the requirements of effective access to justice in priority cases which nevertheless fall outside of the scope of legal aid. In particular the criteria, mirrored in Liberty’s proposed amendment, allow for cases of exceptional importance to the individual, wider social significance or cases involving significant inequality of arms to be funded on an individual basis.

Amendment 10 - amends clause 10

Page 6, line 42, after ‘particular,’ omit ‘consider the extent to which the criteria ought to’ and insert ‘ensure the criteria’.

Page 7, line 19, after line 19 insert:

‘(3A) In determining whether an individual qualifies for civil legal services under this part, nothing in any regulations produced by the Lord Chancellor shall preclude the provision of services on the basis of the availability of alternative sources of funding save where the Director can show:

(a) an alternative source of funding is practicably accessible to the individual in all the circumstances of the case, (b) it is reasonable to expect the individual to access this alternative

source of funding, and (c) funding by this alternative route does not substantially prevent the individual from being fairly compensated by an award of damages. ‘

Effect

This section preserves the substantive criteria set out in the Bill by reference to which the Lord Chancellor will draft regulations which will form the basis of an assessment of eligibility made by the Director. The amendments would require the Lord Chancellor to ensure that his regulations reflect certain important considerations, and would further restrict the circumstances in which the Lord Chancellor could provide for funding to be excluded on the grounds that alternative provision is available.

Briefing

Liberty recognises the importance of assessing the availability of other sources of funding; legal aid should be confined to those scenarios where it is the only viable option. Conditional Fee Agreements (CFAs) as currently provided for in the Access to Justice Act have proved a valuable resource and an alternative to state funded provision in a number of contexts. CFAs do not however, even if current provision remains, provide a realistic alternative in many categories of case. They would, for example, be of no assistance to those seeking early advice in debt or welfare benefits cases. In situations where conditional fee arrangements could provide a realistic alternative, proposals set out at Clause 41 of the Bill will provide a further bar to access. These proposals, which would prevent claimant’s representatives from recovering success fees from unsuccessful defendants, will reduce the practical availability of CFAs, particularly complex or difficult cases or in uncertain test-case litigation.

In additional to forcing representatives and claimants to bear greater risks in litigation, the Government has pointed to the voluntary sector and pro bono legal representation as means of plugging the gaping hole in legal protection for those who cannot afford to pay. Liberty believes that neither source can offer anything approaching the scale of advice and support provided by the legal aid system. Whilst we recognise the valuable contribution made by pro-bono lawyers, professionals cannot be expected to work for free on a large scale to ensure that individuals receive the legal protection they so often desperately need. The legal help and representation provided by the not-for-profit sector is frequently funded by legal aid. Without this resource, and with cuts to local authority budgets, there is likely to be a significant impact on services provided by organisations such as the Citizen’s Advice Bureau.

Alarmingly, the Under-Secretary of State for Justice has been reported as saying that he believes that pro bono work is ‘a good filler’ for unemployed lawyers, or women attempting to re-enter the job market after time spent raising a family. [28] The interests currently defended by legal aid lawyers are amongst the most important and fundamental; it is critical that such support is provided by motivated and paid professionals committed to achieving just results for vulnerable clients. The Government should certainly not be attempting to rely on the labour that can be supplied by lawyers unlucky enough to find themselves out of work. Similarly it should not be seeking to take advantage of the notorious difficulties facing women seeking to re-enter the labour market following maternity leave.

To the extent that these proposals are based on the ability of individuals to pursue resolution of their issues without legal assistance, Liberty believes the Bill is premised on false assumptions about the accessibility of justice in the absence of legal advice. There will be many for whom an adverse decision will seem unfair, but very many fewer who will recognise that they may seek legal redress to uphold their entitlements; fewer still will be adequately aware of the processes for challenge and have the confidence to put forward arguments against formidable opponents in formal court proceedings. In this respect the Government is right to suggest that a reliance on self-representation will significantly reduce the expenditure of the Ministry of Justice, but this will be at the expense of access to justice for those ill-equipped to navigate the justice system alone. For those individuals who make it as far as the Court door without assistance, their cases are likely to last longer and consume more of the time of court staff and the judiciary, creating major and lasting financial burdens in other areas of the MOJ budget.

Amendment 11 - amend clause 11

Page 7, line 32, after ‘available.’ Insert –

‘(1A) A determination that an individual does not qualify under this Part for civil legal services must be fully reasoned and communicated in writing to the individual or his representative.’

Effect

This amendment would ensure that, where an individual is refused legal aid, he receives a reasoned written decision.

Briefing

When the interests at stake are as important as the deprivation of funding for legal assistance, it is imperative that decisions are rational and based on an accurate assessment of the information. A requirement of a reasoned written decision will help to secure an acceptable standard of decision making and ensure individuals understand the reasoning behind a refusal.

Criminal Legal Aid

Amendment 12 - amend clause 12

Page 8, line 23, after premises, omit - ‘if the Director has determined that the individual qualifies for such advice and assistance under this Part (and has not withdrawn the determination)’.

Page 8, line 26, omit lines 26 - 32 and insert:

‘(2) Regulations may require the Director to make a determination in a form and manner which complies with regulations save insofar as subsection (3) applies.

(3) The Director may not make a determination that an individual does not qualify for advice and assistance under this section by reference to:

(a) section 20 (financial eligibility) and regulations under that section, or (b) the interests of justice.’

Effect

This amendment would ensure that advice and assistance is provided to individuals taken into police custody as a matter of course and not subject to means or merits testing. The Lord Chancellor would still be able to make prescriptions going to the form and content of determinations, time-limits, circumstances in which they must be withdrawn etc, but only insofar as the regulations do not lead to an assessment based on the interests of justice or financial eligibility.

Briefing

Liberty is extremely concerned about the broad powers outlined at Clause 12 of the Bill which would allow the Lord Chancellor to introduce means testing into new areas of the criminal law. Justice requires that, as a bare minimum, all individuals taken into police custody have access to legal advice and representation when facing criminal allegations with the potential loss of liberty, disruption and damage to reputation they entail. Further it should be noted that any attempt to introduce means testing at this stage in the criminal justice process is likely to be practically unworkable. Means testing requires documentary verification of financial resources which may well be not be available to an individual escorted to police custody. If means testing is introduced and enforced in this context, investigations will be delayed and scarce resources wasted.

Amendment 13 - amends clause 14

Page 9, line 43, omit ‘may’ and insert ‘must’

Page 10, line 42, omit ‘may’ and insert ‘must’

Effect

These amendments would ensure that the Lord Chancellor makes provision for criminal legal services to be available for those within the criminal justice system in specified circumstances and having regard to the interests of justice. This largely reflects the current regime under the Access to Justice Act 1999. This amendment would further oblige the Lord Chancellor to provide for a right of appeal against a decision not to provide legal services.

Briefing

With the abolition of the LSC and the transfer of its functions to Ministry of Justice, Liberty has ongoing concerns about the independence of decision making which are exacerbated by provision in the Bill for the Lord Chancellor to reform the criminal legal aid system without the Parliamentary scrutiny which accompanies primary legislation.

Amendment 14 - amends clause 16

Page 12, line 20, omit subclause 3.

Effect

This amendment would remove the Lord Chancellor’s power to add to or vary the factors to be considered in determining whether an individual qualifies for representation in criminal matters, save in the form of primary legislation.

Briefing

This clause is designed to limit broad executive powers to set the agenda for the provision of criminal legal aid.

Amendment 15 - amend clause 17

Page 13, line 24, omit sub-clause 7.

Effect

This amendment would remove the power of the Lord Chancellor, by regulations, to create exceptions to the right to appeal a decision by the Director that an individual is not eligible for representation within the legal aid system.

Briefing

This amendment would add an extra layer of protection for individuals refused legal aid in criminal matters. This is particularly important in a context where the executive is seeking to reserve to itself extensive powers to regulate criminal legal aid provision by means of secondary legislation.

Amendment 16 - amend clause 19

Page 14, line 30, omit subclause 3.

Effect

This amendment reverses the exclusion of appeal rights in relation to provisional determinations of eligibility for criminal legal services.

Briefing

This amendment is similarly designed to create an additional layer of protection for those refused access to criminal legal aid.

Financial eligibility

Amendment 17 - amend clause 20

Effect

These amendments place restrictions on the Lord Chancellor’s freedom to make prescriptions about financial eligibility for legal aid, in accordance with amended clause 22.

Amendment 18 - amend clause 22

Page 17, line 15, omit lines 15-20.

Page 18, line 19 insert:

‘(11A) The Lord Chancellor may not, in regulations under this Part, make

prescriptions which would require: (a) an individual with £3000 or less to make any capital based contribution to the cost of legal services,

(b) capital, whether real or nominal, in a primary dwelling, to be taken into account when assessing capital eligibility under this section,

(c) an individual with monthly disposable income of less than £316 to make any income based contribution towards the cost of legal services,

(d) an individual with monthly disposable income of between £316 and £733, to make a contribution which exceeds 30 percent of disposable monthly income.

(2B) The Lord Chancellor may, by Regulations, amend the capital and income eligibility thresholds provided for in subsections (b)(i), (iii) and (iv) to take account of variations in the value of sterling.’

Effect

This is a probing amendment to initiate debate around provisions of the Bill which would allow the Lord Chancellor to make cuts additional to those currently alluded to in the Government’s consultation response, to the remuneration of legal aid professionals. Read together with the proposed amendment to clause 20, See Amendment 17 above) these amendments limit the extent to which the Lord Chancellor can change the thresholds for eligibility for legal aid and the extent and level at which contributions are set.

Briefing

Liberty recognises the importance of maintaining a system in which not just the poorest of the poor, but also those on low or average incomes are not effectively discouraged from vindicating their rights by the considerable costs involved. Provisions relating to eligibility in the Bill are largely skeletal, but Clause 20 provides for the Lord Chancellor to make regulations setting eligibility thresholds. At present the only indication of the level and nature of reviewed eligibility requirements is set out in the Government’s response to the consultation on reform to the legal aid system. The Government intends to continue with plans to increase the level of income based contributions to a maximum of 30% of monthly disposable income. Liberty believes that higher thresholds for financial eligibility and further changes to the level of financial contribution will place even more people with low disposable incomes in the unenviable position of choosing between financial hardship and a lack of advice and assistance in upholding their fundamental rights. Liberty believes this will have a chilling effect significantly undermining the effective protection of human rights in our country.

Costs in civil proceedings funded by legal aid

Amendment 19 - amend clause 25

Page 20, line 3, omit line 3. ‘

Effect

Removes the Lord Chancellor’s power to create exceptions to the rule that individuals cannot be required to pay any amount in costs which exceeds what is reasonable in accordance with the individuals financial means and bearing in mind his or her conduct during the proceedings.

Amendment 20 – insert clause 25A

Page 20, line 31, insert:

‘25A Wasted costs orders in civil proceedings

‘(1) Where a case is funded in accordance with section 8, the costs of and incidental to proceedings in any of the Courts or Tribunals listed at Schedule 1, Part 3 shall be in the discretion of the Tribunal or Court in which the proceedings take place save insofar as subsection (2) has effect. (2) A Tribunal must make a wasted costs order against a public authority where the court or the Ministry of Justice has incurred costs as a result of any improper, unreasonable or negligent act or omission on the part of the local authority or any of its representatives, including:

(a) an administrative failure which could have been prevented by due diligence at individual or organisational level, (b) a failure to make out an arguable case against the individual on the basis of the facts and the law, (c) A failure to concede a case at any stage where due to any new development, whether evidential or legal, there is no longer an arguable case against an individual,

(d) A fundamental misunderstanding or ignorance of the facts or the law in a case which could have been prevented by the exercise of due diligence, or (e) A delay in providing or failure to provide relevant information or evidence, which could not be obtained otherwise than from the public authority, without reasonable justification.

(3) A costs award under section 2 may reimburse the legal aid fund in the sum of any amount of any costs which the Court or Tribunal assesses as flowing from the act or omission. (4) Where the Court or Tribunal concludes that proceedings before it would not have been required, or would have been shorter or otherwise less expensive were not for the act or omission, it may order that costs be paid to the Tribunal.

(5) Wasted costs awarded in accordance with subsections (3) and (4) above must not exceed the amount of the actual wasted expenditure resulting from the act or

omission. (6) For the purposes of this section, "public authority" has the same meaning as in section 6 of the Human Rights Act 1998.

Effect

This is a probing amendment which would oblige Courts and Tribunals dealing with cases funded by legal aid to make wasted costs orders against public authorities where the acts of the latter have led to wasted expenditure, whether this be cost relating to the legal aid fund or costs incurred by the Courts and Tribunals system.

Briefing

Liberty believes that the financial objectives pursued by the Government will not be well served by the scheme set out in the Bill. Many of the cost-cutting claims made by the Ministry of Justice are inadequately reasoned and pay little regard to the wider savings that an effective system of early legal help can provide. Findings by the Citizens Advice Bureau indicate that for every £1 spent on legal aid, £10 will be saved in costs to the welfare system. [29] Without early interventions manageable problems can become expensive and complex to resolve. In the context of social welfare law or debt advice, for example, what begins as a small issue which could have been resolved with the early assistance of a lawyer can become extremely costly further down the line. The court time, resources and legal fees involved in a possession hearing far outstrip the small sum necessary to secure legal help from a debt caseworker. Further expenditure may include the significant cost of re-housing a homeless family in bed and breakfast accommodation. A risk of possible resort to crime for those finding themselves in financial crisis will contribute to a great social ill and will frequently mean that the state must incur all the costs involved in bringing a defendant to trial, not to mention the wider financial and social implications.

The Government’s case for the financial eligibility of reforms to the legal aid system is based on flawed assumptions. As a starting point, the Ministry of Justice claims that the legal aid system in this country is far more expensive than those across the EU. Liberty believes that this is an oversimplification and does not account for the increased litigation costs involved in an adversarial system of justice. Further, whilst litigation costs in England and Wales are higher than in other European countries, our spending on sustaining and managing the Court system is comparably lower than that in other EU jurisdictions. These assertions are born out by research commissioned by the Ministry of Justice and render the claim that our system of legal aid is significantly more expensive than those operating in comparable democracies somewhat misleading. [30] In this context it is easy to see the folly of creating a system in which many more people will be forced to represent themselves, thus consuming more of the Court’s resources and shifting costs to another area of the MOJ’s budget.

Liberty believes that limiting legal advice in the manner proposed in the Bill will cost this country more in the long term. In addition to ensuring that costly litigation is a measure of last resort, legal aid helps to ensure that public services operate effectively and that errors are corrected. Without the checks currently provided by legal interventions, public services will not be called to account and standards may well diminish, resulting in poorer services and greater expenditure in the long term.

The Government’s proposals perpetuate the myth that the legal aid budget has reached its current size as a result of unnecessary litigation instigated by unscrupulous lawyers. In the Green Paper which preceded this Bill, the Government pointed to a culture in which individuals resort to legal remedies unnecessarily and before exploring less expensive and less combative ways of resolving their issues. Liberty does not recognise either of these trends. The implication that there exists wide-spread profiteering amongst legal aid professionals is an insult to those who work tirelessly, for extremely modest recompense, to support those who cannot afford to pay for legal help. Similarly for the vast majority of individuals embroiled in litigation, participation in court proceedings provokes great anxiety and is a significant disruption to their lives. For them, as with many people, litigation is very much a last resort reached after protracted attempts to resolve their dispute by means including both formal and informal complaints.

Liberty believes that the most effective and just way of curtailing legal aid expenditure is to encourage a better quality of decision making by public bodies. It is to be hoped that imposing cost orders on the wasteful activities of these bodies would encourage a better quality of decision making and in turn reduce the number of cases unreasonably pursued by public authorities. Whilst this might initially seem like a simple shifting of costs from one area of the public sector to another, Liberty believes that increased costs liability in this context will help to combat a culture of poor quality decision making and an overt willingness on the part of some Government agencies to make decisions liable to be overturned by the judiciary.

Providers of services

Amendment 21 - amend clause 26

Page 20, line 34, omit subclauses (1), (2), (3) and (4) and insert:

‘(1) Subject to subsection (2) the Lord Chancellor may discharge his duty under section 1(1) by arranging for services to be provided by telephone or by other electronic means. (2) The Lord Chancellor may not arrange for services to be provided by

telephone or electronic means where an individual requests that advice be provided in person. (3) An individual who qualifies under this Part for representation for the purposes of any civil or criminal legal services may select any representative or representatives willing to act for the individual, subject to regulations under subsection (6).’

Page 21, line 24, omit subclauses (8), (9) and (10).

Effect

This amendment would restrict the power of the Lord Chancellor to override individual choice both in terms of the means of service provision and choice of representative.

Briefing

The Bill provides for the Lord Chancellor, to discharge his duty to provide services for those who are eligible in accordance with primary and secondary legislation, by any means he chooses, including explicit provision for services to be provided by telephone or electronic means. [31] The Government’s response to the consultation exercise carried out earlier this year confirms its intention to press ahead with plans for a mandatory single telephone gateway to be used, with a few narrow exceptions, by those seeking to access the legal aid system in four key areas. [32] In addition the Government envisages the provision of at least some ongoing casework through a ‘specialist advice service’, including complex cases and cases involving extensive documentation. [33]

Whilst there is still little detail about how this system would work in practice, Liberty has serious ongoing concerns about the proposals. No information is given about the level of training or qualifications to be expected of those channeling requests for legal advice and assistance. Advisors with an incomplete understanding of the legal issues involved may well misdirect inquiries, which could compromise the interests of individuals who must bring claims within set limitation periods. Legal issues are often complex and an individual’s concerns frequently span areas of law and require a combination of specialisms. There is real risk that telephone operatives will artificially demarcate areas of law and the specific needs of the individual will not be met. Liberty believes that face to face contact with clients is a critical component of good quality legal advice, facilitating a comprehensive understanding of issues and helping to build a relationship of trust and confidence.

Liberty is also concerned about the removal of choice from clients seeking legal representation. Under clause 26 of the Bill, the Lord Chancellor would be empowered to remove the individual’s ability to choose her legal representative. Liberty believes it is fundamentally important that individuals have the freedom to choose a representative in whom they have confidence because, for example, he or she has built up a strong reputation through the provision of good quality representation and advice.

Position of providers of services

Amendment 22 – amend clause 27

Page 21, line 39, omit line 39.

Page 21, line 44, omit lines 44 and 45 and insert:

‘(3) The withdrawal of a right to representation previously granted to an individual shall not affect the’.

Effect

Re-instates the system established by the Access to Justice Act whereby provision is made in primary legislation for representatives to receive payment for work done, notwithstanding a subsequent determination that the individual is ineligible for legal aid.

The amendments to clause 27 would also remove the Lord Chancellor’s power to, by regulation, redefine the relationship between service provider and service recipient.

Amendment 23 – amend clause 38

Page 27, line 32, omit lines 32-34.

Page 27, line 38, omit "25(3) or".

Page 27, line 39, omit "or 8".

Effect

Makes consequential amendments.

Conclusion

Achieving successful long term savings to the MOJ’s budget requires joined up thinking between Government departments. Over a decade of largely unfair and deliberately damaging political attacks on ‘the gravy train of legal aid’ have demoralized the system and tainted it in the eyes of the public. Governments of all colours inevitably under-value those tasked with holding them to account and as the most vulnerable people in society are inevitably highly dependent on government, law and lawyers are a vital counterweight in this unequal relationship. Liberty believes that the scheme for reform of legal aid and civil litigation funding set out in the Bill will lead to widespread social exclusion and unforeseen future costs which will place a much greater strain on the public purse. We urge the Government to think again.

July 2011