Legal Aid, Sentencing and Punishment of Offenders Bill – the aftermath
22 Jun 2011
Updated | Yesterday saw the release of the Government’s flagship justice bill, the Legal Aid, Sentencing and Punishment of Offenders Bill.
There is a lot in the bill. In terms of its long term effect on the justice system, the most important parts relate to legal aid and litigation funding; that is, the options available to claimants to fund their cases – for example, no-win-no-fee arrangements or government funding. The reforms have been long-heralded, and the government has now responded to its consultations on both (see here for legal aid and here for litigation funding).
The bill also proposes reforms to the sentencing and punishment system (consultation response here), although as has been widely reported, the reforms are not as ambitious, in relation to sentence discounting for guilty pleas, as those proposed just a few weeks ago. Guardian.co.uk have produced an amusing interactive “highway code” guide to perceived Coalition U-turns, complete with miniature cars performing U-turns.
On a more serious note, Joshua Rozenberg argues that the criminal justice reforms were supposed to reduce prison numbers, but have now led to the government doing “not very much followed by nothing at all“.
On the legal aid and litigation funding aspects of the bill, the Ministry of Justice has largely implemented its plans as advertised despite the widespread opposition within the legal community to the changes (see Maria Roche’s previous post summarising some of the 5,000 consultation responses). The reaction has been predictably negative. Leaving little room for doubt, the Law Society, which represents solicitors, called the bill the
single biggest attack on state-funded legal advice for the poor and vulnerable since the legal aid system was introduced.
The Bar Council, which represents barristers in England and Wales, have similarly warned that “access to justice will be systematically deprived” by the reforms and
The Government has failed to listen to the views expressed by many in the judiciary, the legal profession and voluntary organisations in formulating its proposals on legal aid.
Two major human rights and law reform campaign groups, Liberty and Justice, predictably agree with this sentiment. Justice warns of an “economic cleansing of the civil courts”, Liberty that “publicly funded legal advice and representation will be put beyond the reach of vast swathes of the British population“.
Sound Off for Justice, an umbrella group campaigning against legal aid reforms, warned that Clause 12 – which introduce a merits test for advice for individuals in the police station – is the “one to watch”, and also said
If only the Prime Minister, Ken Clarke, and the government would listen to groups such as Shelter, Netmums and the Women’s Institute and all the people who want to save civil legal aid.
Meanwhile, on the blogs, the Nearly Legal Blog have posted a scathing response to the bill, arguing that
we should be absolutely clear that this bill is a knowing, deliberate removal of assistance and representation from some of the least well off – both financially and socially – in the country and those least able to fight back politically. As any provider can attest, it is massively – if indirectly – discriminatory against women, ethnic minorities, the disabled and those on low income or subsistence benefits.
Nearly Legal also highlight the long heralded abolition of the Legal Services Commission, which until now has handled requests for state funding of litigation. Now,
The MoJ will take legal aid funding decisions in house, with no prospect of possible conflicts of interest at all. Honest.
Lucy Reed at the Pink Tape blog provides a helpful summary of the family law aspects of the reforms, the headline being:
The confirmation of the removal of large numbers of private law cases from scope of legal aid, and of the reduction of family fees by 10% (on top of the FAS cuts implemented in May).
ObiterJ of the Law and Lawyers Blog also provides a useful summary of the key provisions. He rightly concludes that there is still a long way to go for these reforms:
This Bill is likely to take quite some time to pass through Parliament. There will be significant amendments and the inevitable additions. A more detailed look will follow. In particular, the civil legal aid provisions are harsh. There is a lot to look at and much unhappiness!
If you wish to track that progress, the very helpful Parliament tracking page for the bill can be found here. As ObiterJ points out, there will be a lot of people and organisations who are unhappy with the proposals and that may be reflected in changes to the bill after it has been debated in Parliament.
But, ultimately, it is important to remember that the Ministry of Justice has to find around £1.6bn of funding cuts by 2014/5 (approximately 23% of its budget) from somewhere. These cuts have been imposed by central government which is clearly not keen to be seen as soft on crime by reducing prison numbers, so the most obvious area of savings has been taken out of scope.
Without reducing prison numbers, which are high compared to the rest of Europe, it is difficult to see how the budget cuts can lead to anything but a significant contraction of the justice system, affecting both access to justice and the rule of law.
Update, 23 June 2011 – An interesting post this morning on Inforrm’s Blog – Opinion: “Legal costs reforms will virtually kill off CFAs” – Martin Moore:
The government has… introduced reforms that will make CFAs virtually inaccessible. As a result, all but the wealthiest claimants and defendants will be excluded from taking legal action.
It has done this chiefly by abolishing the recoverability of success fees and ATE insurance from the losing party. (ATE – After The Event – insurance insures someone against some of the costs of legal action).
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