Opinion: the Legal Aid Bill is worth a Lib Dem revolt

Day-to-day I can’t help thinking about the positions our MPs and Peers would have taken on issues were we not part of a coalition. I’m far from alone in that, but I also recognise the need to choose what we decide to block with care.

Right now, we need to block the main the legal aid provisions of the Legal Aid, Sentencing and Punishment of Offenders Bill (currently at committee stage in the Lords). In summary, unless amended, the Bill will take away legal aid from clinical negligence, personal injury, welfare/benefits claims, and claims under the Criminal Injuries Compensation Scheme. In family cases there will be no legal aid unless there has been domestic violence (very narrowly defined). It could limit the right of someone arrested to a lawyer.

And maybe most worryingly, the Bill would give the Lord Chancellor sweeping powers to take legal aid away from categories the bill’s drafters haven’t listed in the future.

That is a weirdly sweeping power.

These parts of the bill contain exactly the sort of proposals we would have tried our hardest to eviscerate in opposition. The arguments we would have deployed are so strong that we might have succeeded – in the Lords at least, and maybe the Commons. So I’ve winced watching our justice minister Tom McNally, a peer I like and respect, defending its contents by reading from a script that has a serious credibility gap. It’s not just that I’m embarrassed for Tom – though I am.

If the bill reaches the statute book unamended, it will also render vulnerable some of the achievements and compromises we believe we have secured through participation in the coalition.

On the Welfare Reform Bill, it was reported that many of our peers voted against their hearts because they felt they had to keep our commitment to reducing the deficit. There is no such argument to be made on legal aid. Apart from the fact that there are knock-on costs for the rest of the system, especially on welfare and housing cases, good work on where savings could be made has been completely ignored by the Ministry of Justice.

The Law Society’s legal aid team found £350m of savings that could be made. In the last week, a study from Kings College London found that planned cuts to legal aid in private family work, social welfare law and clinical negligence will save less than half the sum predicted by the government. Kings and The Law Society weren’t alone.

Citizens Advice Bureau have calculated that every £1 spent on timely advice on social housing, debt advice, benefits and employment advice, between £2.34 and £8.80 of public money is saved.

Tom confessed to ‘report fatigue’ on these calculations, but none of their findings have been actually challenged by the Ministry of Justice. I’ve looked for fault in the underlying data, and cannot find any. These reports are, to use another phrase I’m embarrassed to find us on the receiving end of, ‘inconvenient truths’. But we should not just oppose changes to legal aid provision on sound financial grounds. If the bill is carried as it stands, it will undermine the ability of people to protect the rights we think we have used our part in government to protect.

Chief among these is our defence of the Human Rights Act. Nick Clegg’s defence of the HRA was so important – but if some of Britain’s most vulnerable people can’t find a way to make the state keep its HRA promises, then Nick has obtained a worthless concession.

A right to liberty won’t be funded for several key constituencies; the right to a fair trial is also affected; discrimination; the right to an education. And don’t forget, any Lord Chancellor can add to that list at will. Civil servants he appoints can also ‘define’ what might be adequate advice for someone arrested – a lawyer on site (preferable), an email, a phone call – maybe even a text or exchange on Twitter or Facebook.

I wish the latter two were outlandish ideas but there is nothing to stop them being adequate under this bill.

I am also concerned that this bill’s contents, and our supine attitude to it at a senior level, highlights another area of public policy we have failed to pick up on – that our coalition partners do not like the idea that any organisation, public or private, should be held to account by an aggrieved party when it messes up. And here, there is a broader point of importance here for us as Lib Dems in government. It has been said that our ministers are thinly spread – to the point where we miss vital points. If people are able to use the law to assert rights we approve of, then they can be our eyes and ears.

To do this, people need the means and the rights. Unless amended, this bill will be part of the process of taking both means and rights away from them.

That cannot and should not happen.


* Eduardo Reyes is a former Liberal Democrat agent, council candidate and parliamentary researcher.

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8 Comments

  • Malcolm Todd 24th Jan '12 - 9:23am

    Your link to the CAB report doesn’t work. I guess it’s this one:

    http://www.citizensadvice.org.uk/index/towards_a_business_case_for_legal_aid.htm

    I haven’t the time or the mental strength to read it, but I confess I’m always doubtful of reports which obey the principle “every cut in public spending causes a greater increase in public spending” — it just can’t be true most of the time; there’s usually a point along the line where you’ve assumed that the state must do something very expensive to deal with some expected outcome of the cut… mind you, even the executive summary of that report says only that the state “potentially saves” the amounts you mention, not that it certainly does, and uses the word “estimates” rather than “calculated”, so I think you’re overegging a pudding that was already probably pretty high in cholesterol.

  • James Sandbach 24th Jan '12 - 12:15pm

    Well said Eduardo.

    Lib Dem peers have made some excellent and very strong speeches during the debate highlightling the Bill’s flaws and arguing that restricting the ‘scope’ of legal aid so massively is not the right or fair way to reform legal aid and reduce it’s costs…they would look as if they were doing a ‘volte-farce’ if they don’t follow through at report stage by trying to substantially amend it.

    The arguments and logic behind the Bill have always been too simplistic and often inacurate, such as:-

    – the UK spends too much on legal aid “per head” (£38) so therefore the solution is to restrict it’s scope so those most in need can’t access it. But Scotland spends far less on legal per head (£29) but the scope of the scottish scheme is wider, covering all civil matters, and eligibility more generous….they manage the money better and don’t waste it on high cost cases and bloated bureaucracy.

    – legal aid spending has gotten “out of control” and therefore needs to be pruned back radically, again by resticting its scope. But where’s this spending going? The significant increase in the legal aid budget has been spending on criminal defence costs, and especially on Barriter’s advocacy in the Higher Criminal Courts – most particularly on “High Cost Cases” such as fraud or terrorism trials where defence costs in one individual case run into several millions. Spending on civil areas such as social welfare law (which is low cost but high volume work) has actually declined. However, the cuts in the Legal Aid fall entirely on civil legal aid and don’t touch criminal legal aid or advocacy fees at all.

    – legal aid incentivises publicly funded litigation and people instead should go to the CAB for “general, practical” advice to resolve problems sensibly instead of rushing to the nearest lawyer’s office. But what’s being cut “Legal Help” much more than representation/advocacy – legal help is practical general advice, and for social/welfare problems this type of legal aid is delivered by the CAB (usually not by lawyers/litigators but specialist caseworkers). In fact the Bill, contary to it’s own logic, prioritises the funding of Judicial Reviews at the expense of ceasing any funding for preventative legal help which keeps cases out of court.

    – civil legal aid should prioritise only the most serious cases which deal with fundamental rights (life, liberty, domestic violence, discrimination and eviction from home). But what about basic subsistence – issues to do with welfare, job loss or money/debt and financial expolitation are excluded – these too surely engage rights at a fundamental level?

    @Malcolm- I’m the author of the CAB report and it does not say or assume that every cut in public spending causes a greater increase in public spending. All it does is analyse the recorded outcomes (as with most publicly funded services there is a system of outcomes monitoring and recording) and extrapolates from this data what would happen if those outcomes were not achieved by looking at the known and recorded adverse consequences of unresolved legal problems, their costs and where those costs fall.

    I’ve argued elsewhere that the Bill is completely inconsistent with the Party’s principles and policy positions
    http://www.guardian.co.uk/law/2011/sep/23/nick-clegg-liberal-legal-aid
    http://www.lincolnhousechambers.com/download/cv/ASWQC.pdf
    https://www.libdemvoice.org/access-to-justice-why-liberal-democrats-should-not-sit-on-the-sidelines-24347.html
    https://www.libdemvoice.org/the-unintended-costs-and-consequences-of-legal-aid-cuts-26569.html

    But there’s another reason why libdems should seek to change the shape of Bill which will no doubt sound like ‘special pleading’ to some – if we as lib dems are all about community politics, community groups and organisations, localism etc..then we should not support a policy that will simply simply end of ALL legal aid funding to Citizens Advice Bureaux and Community Law Centres (this is where the cuts are are quite deliberetely targetted). Not a great idea for our councillors, campaigners and candidates to be out there in the high street and canvassing in estates having to defend the closure of local advice agencies!

  • I agree with Eduardo (not just because he is a friend of mine since University days). Incidentally, another member of our student Lib Dem executive, Fiona Scolding, also keeps up a endless tweet campaign against this bill….

    The facts are quite simple. Legal Aid was always bound to suffer cuts but I agree with those who say that the priorities are wrong (Eduardo is also right to highlight the sweeping power which people should be opposed to in principle).

    I also agree with James that the cuts in CAB and Community Law centres are amongst the worst. First, these cost peanuts and use a large amount of volunteer help. Secondly, for the reasons given above, they likely save money in the long run and certainly reduce the amount that ends up going to lawyers. Let’s cut costs in a more sensible way than this.

  • Eduardo Reyes 24th Jan '12 - 4:49pm

    Thanks James – saw your good Voice piece too. Thanks for the links to the others.

    Malcolm, I take your points about such reports (not recommending you read every page of them – we all need to conserve mental strength) – all I’ll say is the thing though that struck me about the CAB figures is how true the scenarios on which they based it rang for anyone who’s been involved with constituents’ casework.

    Aside from that numbers’ game though, what worries me is how ‘theoretical’ our wins on behalf of the poor and vulnerable are when they effectively have no rights – because they don’t have the means to enforce them.

    What we’re under appreciating in Government is how anti-rights the Conservatives are. Legal aid proposals are one way in which they mean to bin rights – but there are plenty of examples of more subtle ways they’re out to remove rights.

    Sorry both for a delay in responding – hope my comments are still of interest. Best things, Eduardo

  • Eduardo Reyes 24th Jan '12 - 10:28pm

    And thanks Mark – our comments crossed. We are right – this bill is about much more than cuts.

  • Tony Dawson 25th Jan '12 - 1:30pm

    If CABx lose their Legal Aid for helping people with Benefit Appeals, MPs offices are likely to be swamped with those seeking advice and assistance.

  • Good piece Eduardo. I am glad to see the government today dropped the plans for means testing of arrested persons in police stations. That is a step forward. Hoping for better news v soon re domestic violence provisions. It will be an absolute disgrace otherwise.

  • Gemma Roulston 20th Feb '12 - 7:23pm

    Thank you very much for putting into words something that needs to be said. Legal aid is needed by many people – otherwise it will be just a sphere for the rich and famous – the disabled and their carers need legal aid for things that many have said here. Despite what is being proclaimed – this bill is about cuts. The disabled need it for their welfare claims, and also help with sen tribunals. Not everyone is as rich as the MPs. MPs if this gets through will just probably ignore the disabled – and let them suffer.
    We cannot allow that to happen.

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