Denied. The Legal Aid, Sentencing and Punishment of Offenders Bill: The case for amendment

Transcription

1 Access Denied The Legal Aid, Sentencing and Punishment of Offenders Bill: The case for amendment

2 Foreword The Legal Aid, Sentencing and Punishment of Offenders Bill will lead to the most extensive cuts to the scope of legal aid since its introduction in It also proposes substantial reforms to the funding of civil litigation and changes to the way in which offenders are sentenced and rehabilitated. Since the Bill s introduction to the House of Commons and throughout its subsequent progression through Parliament, it has triggered widespread debate in the media and among various interest groups representing among others women, children, victims of domestic violence and personal injury, and those otherwise involved in the administration of justice. The Bar Council is proud to be speaking up on behalf of the many vulnerable and hardworking members of society who will be hardest hit by these cuts. This report, which summarises the wealth of independent research and expert commentary, makes a strong and persuasive case that the Bill must be amended if access to justice is to be maintained. Michael Todd QC, Chairman of the Bar Council March 2012 Whether it is a victim of domestic violence or abuse [ ] the position of a remote indigenous people living in a rainforest seeking redress against a British company, the mother of a brain-damaged baby or a man dying of mesothelioma, the same principle of being able to seek the righting of a wrong must apply. Lord Alton of Liverpool, Crossbench, House of Lords Second Reading

3 Constitutional issues If we cannot stop unpleasant and painful cuts being made, we can at least stop the pillars of our constitution being knocked down in this way. Baroness Mallalieu QC, Labour, House of Lords Second Reading Several aspects of the Bill have been criticised for their potential to undermine fundamental principles of constitutional importance. These were highlighted in a report by the highly respected House of Lords Constitution Committee, which argued that: J Clause 1 should be amended to read: The Lord Chancellor must secure that legal aid is made available in order to ensure effective access to justice J The House should consider whether the newly-appointed Director of Legal Aid Casework will have sufficient independence from Government interference when carrying out their functions (which will include making decisions on exceptional legal aid funding, sometimes for individuals bringing cases against the Government), and J The Bill should be amended to allow the Lord Chancellor not only to omit services from the scope of civil legal aid but also to add services to the scope of civil legal aid. 1

4 I find it absolutely astonishing that the Government should, in Clause 8, have an arrangement whereby they can delete legal aid but they cannot bring it back. It is particularly astonishing because a number of judges who know what they are talking about [ ] say that this is a false economy. The Rt Hon the Baroness Butler-Sloss, Crossbench, House of Lords Committee Day Three Whether a case falls within the exceptional case category is bound to be somewhat controversial [ ] if a Director is seen simply as doing the bidding of the Lord Chancellor at the relevant time, confidence in his independence will be significantly undermined. Lord Faulks QC, Conservative, House of Lords Committee Day Two The Constitution Committee s criticisms were supported by a report by the Joint Committee on Human Rights, which stated: We are not satisfied that the Bill provides sufficient institutional guarantees of the independence of the proposed Director of Legal Aid Case Work when making decisions about the availability of legal aid to challenge decisions of the Government. The Government indicated that it may be willing to consider the virtue of amendments proposed to resolve these issues in the House of Lords. It is hoped that these indications will be followed by concessions at the Bill s Report Stage. I take on board the fact that there have been cases in the past of friction between senior civil servants and Ministers, and if Parliament is going to create an important body and function it will need to be perceived very clearly. Lord McNally, Liberal Democrat Justice Minister, House of Lords Committee Day Two With the leave of the House [ ] may the Justice Secretary look at these matters again and give serious consideration to the amendments [ ] so that we can bring back proposals regarding [Clause 1] for further debate on Report? Given that assurance that we are taking this matter away in a constructive way, I hope that noble Lords will agree to not to press their amendments today. Lord McNally, House of Lords Committee Day Three 2

5 Domestic violence and child abduction We must have a Bill with the modern definition of [domestic violence] and including provision for those who may be too scared or desperate to call the police. As we all understand, domestic violence brings a cycle of damage and despair that is deeply destructive and anti-social. No Government should ever find themselves on the wrong side of this argument. Lord MacDonald of River Glaven QC, Liberal Democrat, House of Lords Committee Day Four 3

6 The Bill removes legal aid from the majority of private family law, with the exception of victims of domestic violence. These provisions have attracted widespread criticism for two reasons: J The Bill uses a different definition of domestic violence to that used by the Home Office and the Association of Chief Police Officers (ACPO), and J The eligibility criteria laid out in the Government s response to its consultation on legal aid are perceived as excessively narrow, and do not include evidence recognised elsewhere, such as a letter from a GP, an undertaking by the abusive partner or admission to a refuge. Research by organisations representing victims of domestic violence has emphasised the need for gateway criteria which reflect the experiences of victims: J A survey by Rights of Women and Welsh Women s Aid of women already in receipt of specialist support as a victim of domestic violence found that 54% would not have the evidence required, and would not be able to access legal aid, under the Government s current proposals J 99% of those surveyed had reported at least one incident of domestic violence to the police and/or the police had attended an incident involving domestic violence, but only 8.3% would be able to prove that there had been ongoing criminal proceedings in the past 12 months (as required by the proposed criteria), and J A report by the National Federation of Women s Institutes illustrates the limitations of the proposed criteria with a victim s testimony: I ve never reported any incidence of violence with my ex-partner, the only time that I started reporting is when I got pregnant. And Social Services were involved so I reported it to them. I never saw the police as an option because I didn t think they could help abused women. 4

7 We should look at the average case, such as when a woman has run from her home. She manages to go to her GP, who sees the injuries and notes them and then sends her to hospital because there are fears that she may have cracked a rib or another bone. She is seen by the medical staff and they verify that the injuries that she complains of are genuine. Her neighbours may have come in to rescue her from an assault. They may not have seen the assault taking place but have noted what was happening and taken her away. Social services may have come along and examined the children, spoken to them and heard what they had to say. All of that might have been used by the police who then came along and arrested the man. He may then acknowledge that he has indeed committed the offences that are alleged against him. Even if all those things had happened, under these provisions the woman would not be entitled to legal aid. That cannot be right. The Rt Hon the Baroness Scotland of Asthal QC, Labour, House of Lords Committee Day Four These views were supported by the Joint Committee on Human Rights, which stated: We recommend that the Bill be amended by using the ACPO definition of domestic violence, broadening the forms of evidence which are capable of establishing that domestic violence has taken place, and removing the 12 month time limit on eligibility. The importance of ensuring that victims of domestic violence receive legal support and representation is illustrated by research by the NSPCC which found that 39,000 babies under one year old live in households affected by domestic violence in the last year. Many of these children will later be the subject of contact disputes between their parents; not to mention divorce and other private family law proceedings. Frankly, in their understanding of domestic violence, the proposed legal aid reforms could have been written 10 or 15 years ago [ ] This risks condemning many victims of domestic violence to a future with little or no legal succour. It is a policy with which the Government should not be associated. Lord MacDonald of River Glaven QC, Liberal Democrat, House of Lords Committee Day Four The Bill also removes cases involving child abduction within the UK from the scope of legal aid, retaining it only for international abduction. The removal of a child from, for example, Plymouth to Carlisle may be just as disruptive for the child as emigration abroad. A decision of such vital significance for the child, with considerable ramifications for their relationship with one parent and their future wellbeing, should not go unchallenged for the simple reason that the parent feels unable to make an application to the court without legal representation. If we are to look after what is in the paramount interest of a child, in most circumstances, that means contact with both parents. In the absence of legal aid, the parent who does not want to have contact effective who wants to frustrate contact will simply up sticks and go off with the child. If that happens, it is extremely important that measures are taken instantly to return the child [ ] Absence of legal aid will encourage people to do that, which is of great concern. Baroness Shackleton of Belgravia, Conservative, House of Lords Committee Day Three 5

8 Clinical negligence I entirely accept what drives the need to restrict the scope of legal aid but this, I regret to say, is a step too far for me. Lord Faulks QC, Conservative, House of Lords Committee Day Three The Bill proposes to remove clinical negligence in its entirety from the scope of legal aid. This is perhaps the most controversial of all of the Bill s provisions, having prompted strong criticism from Parliamentarians from all parties (and the Crossbench) in both the Commons and the Lords. Support from Lord Tebbit for an amendment tabled by Lord Newton provoked widespread media coverage. I also want to say to my noble friends that when they come across an amendment with the names Newton and Tebbit on it, they are in trouble. The Rt Hon the Lord Newton of Braintree, Conservative, House of Lords Committee Day Three The Government estimates that the majority of cases currently funded by legal aid will in future receive representation from no win, no fee lawyers (a conditional fee agreement ). But clinical negligence claimants will face a double whammy effect from the removal of legal aid and reforms, within Part 2 of the Bill, to the funding of civil litigation (see below). These reforms will deter lawyers from taking on cases which are risky or complex a description which applies to almost all clinical negligence claims. The paradigm case which concerns me and, I dare say, many other noble Lords is that of a brain-damaged baby [ ] such cases are particularly complex and often need many experts to tease out whether or not there is a case on liability or causation. Lord Faulks QC, Conservative, House of Lords Committee Day Three The savings which the Government estimates it will achieve from this proposal, at 10.5m, are relatively minor. In fact, research by King s College London predicts that they will be outweighed by knock-on costs of 27m, caused by: J The cost of after the event (ATE) insurance premiums for expert reports, which will remain recoverable from losing defendants (i.e. the state) and were described by Lord Justice Jackson as the most expensive and inefficient mechanism which it is possible to devise in order to achieve the policy objective, and J The 10% increase in general damages which is to be implemented alongside these reforms. What is perhaps most distressing in cases centring on charges of clinical negligence is that individuals will come up against the state, with its teams of lawyers, during proceedings. Never is an inequality of arms more blatant than in those situations. Lord Wigley, Plaid Cymru, House of Lords Committee Day Three 6

9 Social welfare It is worth reminding the House why the scope of legal aid was extended to include social welfare law, and why advice agencies and not-for-profit advisers were able to enter the field [...] Dealing with problems at an early stage stopped people reaching crisis point and turning to other more expensive Government-funded services.. Yvonne Fovargue MP, Labour, House of Commons Second Reading Employment, welfare and debt law and aspects of immigration and housing are among the many areas to be removed from the scope of legal aid. Without legal representation, there will be a significant inequality of arms, particularly when the dispute involves a public authority. Issues arising under these areas of law will often affect the poorest and most vulnerable members of society. Advice at an early stage can be one of the most effective ways of saving money later on in the process, such as for those facing eviction from their homes and who need help with welfare benefits. In its publication Towards a business case for legal aid, Citizens Advice found that early intervention can make a significant difference: J For every 1 of legal aid expenditure on housing advice, the state potentially saves 2.34 J For every 1 of legal aid expenditure on debt advice, the state potentially saves 2.98 J For every 1 of legal aid expenditure on benefits advice, the state potentially saves 8.80, and J For every 1 of legal aid expenditure on employment advice, the state potentially saves Ensuring access to justice by broadening the scope of exceptional cases permitted under the Bill and supporting the legal advice sector will make a significant difference to the many people who encounter problems with employment, debt, housing and welfare benefits. Not for profit does not mean No funds, please. Those organisations still need cash just to stand still, let alone to deal with the massive glut of cases that will fall into their laps Helen Grant MP, Conservative, House of Commons Second Reading 7

10 Civil litigation funding The gainers from this Bill are losing claimants and losing wrongdoers and their insurers. The losers are claimants who prove their cases and defendants who are held not to be at fault. Such outcomes are at best curious to those who prefer justice and fairness. Lord Davidson of Glen Cova QC, Labour, House of Lords Second Reading The Government s proposed reforms to civil litigation funding will threaten access to justice to all but those with the most simple and certain claims. There are particular concerns about the impact on deserving claimants in personal injury and clinical negligence cases, some of whom have sustained very serious injuries and require lifelong care. The Government has also cherry-picked from the recommendations of Lord Justice Jackson, rejecting recommendations which would have enhanced access to justice (e.g. in public law claims). In all of these areas, there is inevitably a fundamental inequality between the claimant (an individual unlikely to be of significant means) and the defendant (either the state or an insurer). 8

11 We often hear, and we have heard today, of the so-called compensation culture, fuelled by media stories about individuals receiving large compensation payments, constant adverts in the media offering the promise of a handsome settlement if they claim and businesses fearing litigation and being subject to expensive insurance premiums. However, as many of my noble friends have pointed out today, the noble Lord, Lord Young, noted that the problem is one of perception rather than reality. [ ] My fear is that the Government are using a sledgehammer to crack a nut, especially in the light of other developments since the Jackson report was published. I suspect this is why the impact assessment contains so little data in support of their arguments. Lord Collins of Highbury, House of Lords Second Reading These reforms cannot be justified by the current financial climate: they will not save the Government money. In fact, research by London Economics estimated that they would actually cost the Government 70.2m per year. The main sources of loss are: J The reduction in recoverability (from private employers and others) of expenditures relating to personal injuries, such as medical costs and social care (which will instead have to be funded by the state), and J The loss of tax revenues from law firms (due to the reduced willingness of law firms serving claimants to take on cases and reduced success fee income from cases which they do take on) and from providers of after the event insurance. Removing areas of civil legal aid from scope in their entirety, whilst abolishing the current funding regime, is a double whammy which will deprive many with genuine claims from being able to argue their case in court. Further reading J Constitution Committee (2011) Twenty-first report: Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Bill J Human Rights Joint Committee (2011) Twenty-second report Legislative scrutiny: Legal Aid, Sentencing and Punishment of Offenders Bill J Rights of Women and Women s Aid (2012) Evidencing domestic violence: the facts J The NFWI (2011) Legal aid is a lifeline: Women speak out on the legal aid reforms J The NSPCC (2011) All babies count: Prevention and protection for vulnerable babies J King s College London (2011) Unintended consequences: the cost of the Government s legal aid reforms J Citizens Advice (2010) Towards a business case for legal aid J London Economics (2011) The fiscal impact of the Jackson Proposals: the case of employers liability J The Bar Council s briefings on the Legal Aid, Sentencing and Punishment of Offenders Bill (

12 The Bar Council represents barristers in England and Wales. It promotes: The Bar s high quality specialist advocacy and advisory services J Fair access to justice for all J The highest standards of ethics, equality and diversity across the profession, and J The development of business opportunities for barristers at home and abroad. The General Council of the Bar is the Approved Regulator of the Bar of England and Wales. It discharges its regulatory functions through the independent Bar Standards Board.