Steve Hynes, LAG’s director and author of Austerity Justice, assesses the cuts to civil legal aid that will take effect in April 2013. He argues that campaigning for access to justice must continue and that there is hope that the cuts will be reversed by a future government.
Goverment cuts legal aid to a rump service
Under the smokescreen of austerity measures, the coalition government is set to reap havoc on the civil legal aid system from April 2013, when the scope cuts in the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 are introduced. The government was forced to rethink some of the measures that it proposed originally, but the fact remains that the LASPO Act as it now stands is a disaster for publicly funded civil legal advice services and the clients they serve.
LAG’s new book Austerity Justice
argues that the government’s intention was to move decisively away from legal aid as it had evolved since the early 1970s – a safety net legal service working like a fifth pillar of the welfare state – to a rump scheme to cover people accused of a crime and civil cases for the poorest in which human rights were directly engaged, with the bulk of the civil legal aid expenditure to be spent on child protection cases.1Steve Hynes, Austerity Justice, LAG, November 2012.
There was opposition to some of the proposals in the LASPO Bill from within the government. This, combined with the efforts of the Opposition and the cross-bench peers in the House of Lords, led to some significant concessions being made on the bill.
Opposition to the government’s plans
Conservative MP Helen Grant, now a minister in the Ministry of Justice, was critical of the telephone gateway introduced in the LASPO Act 2012. She believed that the government’s plans for legal aid would impact badly on women. In February 2011, she wrote an article for the Guardian in which she nailed her colours to the mast regarding her views on the LASPO Bill:
Over the last three decades the distance between the haves and have-nots has increased, and our society has weakened due to the demise of the family unit and the rise of the benefits culture. These are ailments that will take some time to cure; but to stem the flow of legal aid while we are in such a critical condition, amid a stifling recession, could prove devastating.2See: www.guardian.co.uk/commentisfree/2011/feb/02/legal-aid-last-line-defence and note 1, p103.
Liberal Democrats were also concerned about the proposals. Justice minister Lord McNally attended a key internal meeting of Liberal Democrat parliamentarians and was told, ‘… the bill failed all tests of Liberal Democrat policy’.3See note 1.
The most sustained opposition to the bill was in the House of Lords, where the government suffered 14 defeats. Tony Newton, a former Secretary of State for Social Security, was the most outspoken Conservative critic of the government’s plans for legal aid. Speaking to an amendment at the committee stage of the bill, he suggested that the planned changes to the benefits system introduced by the Welfare Reform Bill (which was passing through the Lords at the same time):
… creates a certain amount of turbulence, to put it mildly, for a lot of people, including many disabled people and carers. They have great concerns, which may well lead them to want to challenge some decisions. They ought to be able to do so.4Hansard HL Debates 16 January 2012, col 393 and note 1, pp113–114.
Baroness Grey-Thompson, a cross-bench peer, said that the proposals in the bill acted as a ‘double whammy’ for disabled people, who would find themselves without welfare benefits and unable to challenge decisions.5Hansard HL Debates 21 November 2011, col 834.
Another cross-bench peer, Lord Elystan-Morgan, suggested that the provisions in the bill on the criteria to qualify for legal aid in domestic violence cases had been ‘deliberately created as a massive obstacle course for likely applicants’.6Hansard HL Debates 21 November 2011, col 875 and January 2012 Legal Action 4.
A close vote
A tied vote on an amendment about domestic violence marked a dramatic end of the passage of the LASPO Bill through parliament. Supported by cross-bench peers, former Labour Attorney-General Baroness Scotland led a move in the House of Lords to ensure that there were wider criteria to permit victims of domestic violence to claim help from legal aid. Her amendment on this was debated in the last week of the passage of the bill through parliament. At the beginning of the week she won the day by the narrow margin of 239 to 236 votes. If she had been successful in the vote when it was debated for a third time on 25 April 2012, the government would have had to accept her amendment under parliamentary procedure or be forced to ditch the entire bill. The vote was tied at 238 each, meaning that, under parliamentary convention, the government won.
Such close votes can come down to the luck of who chooses to attend the chamber at a crucial time. The facts are that no Liberal Democrat or Conservative peers voted for Baroness Scotland’s amendment that night, but 90 per cent of cross-benchers did. It is hard not to conclude that these politically independent, expert and non-elected parliamentarians got it right and that the elected politicians in the House of Commons, and their party colleagues in the upper chamber, got it wrong.
The impact of the LASPO Act
For the last few months, LAG has been hearing from firms and advice centres which are being forced to run down services in preparation for the introduction of the scope cuts. LAG believes that talented lawyers and advice workers are being forced to leave publicly funded work at a time when their skills and experience have never been more needed. According to the government’s estimate, 623,000 people will lose out on advice on civil legal problems as a result of the reductions in the scope of legal aid.7Reform of legal aid in England and Wales: equality impact assessment Annex A: Scope, Table 1, available at: www.justice.gov.uk/downloads/consultations/annex-a-scope.pdf.
The government’s impact assessment on the legal aid cuts paints a grim picture of the discriminatory effect of the cuts. For example, it estimates that women will be more affected than men by the cuts in family law (62 per cent), housing law (61 per cent) and education law (72 per cent).8Reform of legal aid in England and Wales: equality impact assessment (EIA), p125.
Vulnerable groups of people will also be hit disproportionately. For example, an estimated 54 per cent of welfare benefits clients cut from scope will have a disability.9See note 8, p127.
According to the latest estimate from the Ministry of Justice (MoJ), the planned cuts will save £410 million, a £60 million increase on the original estimate, with £250 million coming from the changes to scope and £160 million coming from the changes to fees.10Cumulative legal aid reforms, Ministry of Justice, 13 July 2012, p2.
Ministers knew from the outset that targeting a means-tested benefit would mean that the very poorest and most vulnerable people would be the biggest losers. It is these people who are paying the greatest price of the MoJ’s contribution to the austerity cuts.
Some hope for the future
There is hope for the future. LAG believes that the amendment made to section 8 of the LASPO Act, which allows areas of law to be brought back into the scope of legal aid, represented a tipping point between the two parties of the coalition government. While the majority of Liberal Democrats seemed prepared to put aside their consciences and vote for the bill, they did not want to close off the hope of a better legal aid scheme in the future, when the economy improved. In contrast, their Conservative colleagues in government – Secretary of State for Justice Kenneth Clarke and minister Jonathan Djanogly – wanted a once-and-for-all redesign of the scheme to reduce it to a rump service.
Access to justice campaigning is likely to focus on the political parties over the next two years. In an interview for LAG’s book Austerity Justice, the influential Liberal Democrat MP Tom Brake admitted openly that his party’s next general election manifesto is likely to commit the Liberal Democrats to reversing the worse of the cuts. Individual Conservative MPs are known to be unhappy about the impact of the cuts, especially on family law and the not for profit sector. Labour continues to be vocal about the need to provide social welfare law services. LAG has established the independent Low Commission on the Future of Advice and Legal Support. Its main purposes are to ask the next government to develop a strategy for access to advice and support on social welfare law in England and Wales and put right the damage that the cuts introduced by the LASPO Act will cause.
The following five recommendations are made in Austerity Justice:
1Independence in decision-making. The new rules to prevent interference in decisions on entitlement to legal aid in individual cases are not robust enough to prevent real or perceived political interference.
2A review of the impact of the cuts. This needs to be held before the general election in 2015 and scope restored (under LASPO Act s8) for those areas of law in which the withdrawal of legal aid has caused substantial hardship to people and significant knock-on costs to the justice system and other arms of the state.
3End the post code lottery in civil legal advice services. Much of the research and policy thinking on legal services highlights the uneven spread of services. There should be co-ordinated mapping of legal need.
4Rethinking funding legal aid services. Ideas such as ‘polluter pays’ and compensating the legal aid fund for external cost drivers such as the knock-on costs in the criminal justice system have been doing the rounds for some time. The problem has been the lack of political will to implement them. A future government will need to revisit them if it is to be serious about ensuring access to justice in the civil justice system.
5A minister for access to justice. The priority of making sure that people with legal problems obtain meaningful redress needs to be reasserted at the heart of the government and justice system. To do this, and to co-ordinate access to justice policy, LAG suggests that a post of minister for access to justice should be created in the Ministry of Justice.