Legal Aid, Sentencing and Punishment of Offenders Bill – the aftermath

22 June 2011 by

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. 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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  1. human rights says:

    Its very good to see that The government has finally published its long awaited bill on civil litigation cost reform, bundled in with legal aid and sentencing reform. It is highly controversial and the government has done nothing to calm fears by fast-tracking the bill through parliament. In the foreword to “Legal Aid Reform in England and Wales: The Government […] Related posts: Parasites and Legal Rights……….

  2. ObiterJ says:

    Corrupted Mind has kindly supplied more detail and has based it on the MoJ’s own funding analysis. My own brief analysis merely highlighted the obvious areas of expenditure. Was my “off the top of my head” analysis really all that different to the MoJ’s? The fact remains that there will be even more pressure to cut court estate, staffing and probation. It may also be the case that the size of the judiciary will come under some pressure.

    Cuts to probation services will have the effect of making it even more difficult to find effective alternatives to imprisonment for the less serious offenders. Some delivery of programmes might be “privatised” but they are not necessarily as cheap as they might appear.

    I have not, as yet, seen an analysis of how much the abolition of the Legal Services Commission will save bearing in mind the transfer of its essential functions to a new “executive agency.” (Exchange one quango for another?).

  3. ObiterJ says:

    See also the HENRY VIII clause – Cl. 114

  4. What we’re seeing is the systematic removal of the basic human right of legal representation under law. The Proceeds of Crime Act in 2002 removed more rights than you can shake a stick at and the removal has been going on ever since and the man on the streets is unaware that they can now be carted off on an allegation of fraud, their entire assets seized and removed, any money they have in the bank removed so they can’t pay for legal advice, have their home repossessed and find themselves homeless – all on the say so of some minor civil servant who is protected from any comeback or repercussions for their failings.

    This is a systematic and unlawful abuse of power at the hands of a government who seems even more power and seeks to remove an individuals right to defend themselves. Is it any wonder that those who are aware of these things are turning to the Magna Carta and seeking remedies under Common Law through Lawful Rebellion?

  5. ObiterJ says:

    Thank you for the mention. Where will the savings come from? Within the justice system there are a number of significant outgoings: (1) the MoJ itself; (2) prisons; (3) court estate; (4) staff in HMCTS; (5) the judiciary; (6) Probation services. I have not tried to put these into any particular order. The most likely cuts will now have to be borne by (3), (4) and (6).

    On the criminal front, everyone is very worried about Clause 12. A very good post today appeared in The Defence Brief:

    In criminal work, there is a lot to be said for a stitch in time saves nine. Defence Brief’s post tells how.

    Obiter J

    1. Adam Wagner says:

      Thanks ObiterJ – I did try to order the MoJ’s outgoings from high to low a while ago in this post

      It appears that staff pay is by far the highest outgoing, almost doubling that relating to prisons, but I wonder if that figure may include prison staff too.

      Anyway, the saving will have to come from somewhere and legal aid has been in the firing line since the proposals were announced, long before the roll back of the sentencing reforms. We shall see what happens!

      1. Corrupted Mind says:

        Adam, I remember reading your August 2010 post and thinking “A” for effort and “C” for execution in understanding how to make the numbers “dance” as it were. Also I find Obiter J’s list a bit odd. If we begin to look at the numbers how the Department looks at them (see: you’ll note that rather than six headings – there are really only four.

        Under the first heading (i.e. MOJ HQ) you’ll see that there isn’t really much fat to cut. Obviously, Item 1 – Corporate Services, Estates and ICT and Item 5 – funding for the Youth Justice Board are the big ticket items. You would think that the department would have jettisoned those ICT contracts that it could and there is already a large Estate consolidation on foot. This leaves the Department with the horrid proposition of trying to get rid of contracts that may result in legal action or reducing funding in place that prevents youth offending.

        Under heading two, you have HMCTS (see: The important point to note here is how aggressive the plan already was (see the IA in particular the paragraphs on the “Monetised Benefits”). The risk of changing the strategy mid-stream without affecting performance is the central difficulty – how do you sell the idea of a re-re-structure midway through the first? Answers on a postcard.

        This leaves heading three NOMS, and heading four Legal Aid. We already know the plans vis-a-vis Legal Aid so its difficult to see how any further cuts can be made without a complete rethink on how NOMS operates. This obviously is where things get nasty. More privatised prisons? Aggressive introduction of payment by results schemes? I’m sure people are considering the nuclear wholly privatised offender management operations as £120-odd million is such a large gap to fill.

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