TEXT of the Bill). Many peers were highly critical of the legal aid provisions which are in Part 1 of the Bill. The next stage of its Parliamentary progress is that a Committee of the Whole House will consider the bill. This process may well prevent detailed line-by-line scrutiny but will enable many more peers to speak on aspects of the bill which concern them.
Writing in The Times 24th November, Lord Pannick QC summarised the principal objections to Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO). His article was entitled - "The Legal Aid Bill will turn access to justice into life's little luxury." In the article, Lord Pannick recognises that legal aid costs money - the annual budget in England and Wales is £2.1 billion. The Bill aims to cut £350 million. The following is a summary of his views:
1. Rights conferred, and the duties imposed, by Parliament are undermined to the extent that people cannot enforce their legal entitlements through the judicial process.
2. The Bill fails
to recognise that access to justice is an important constitutional principle. Clause 1 states that the Lord Chancellor must secure that legal aid is available in accordance with this Part." This formula narrows the scope of legal aid to just that included in LASPO Part 1 and nothing else. Currently, section 4 of the Access to Justice Act 1999 imposes a duty to secure, within the available resources, that individuals have access to legal services that effectively meet their needs. This duty will disappear.
2. LASPO removes from the scope of legal advice and assistance family law cases except where domestic violence is alleged, clinical negligence, welfare benefit cases and many other complex areas where the law is a vital safeguard of basic needs for vulnerable people. The removal of legal aid will result in many hopeless claims being pursued by litigants in person. The removal of clinical negligence is especially unfortunate. The victims are the unborn child, the physically or mentally ill or infirm, and the majority of claims arise out of alleged wrongs done to patients being treated in the NHS. In family law, there will be what the Commons Justice Committee described as a "perverse incentive" to allege domestic violence so as to try to secure legal aid.
3. LASPO gives the Lord Chancellor power to remove further services from the scope of legal aid. This would be done by making subordinate legislation. This is all the more objectionable because there is no power on the Lord Chancellor to add services if, for example, experience shows the lack of wisdom of removing something or when the economy improves.
4. The money that the government hopes to saver by these measures needs to be assessed by reference to the financial costs that will have to be met by the State. Judges will need to deal with many more hearings with litigants in person wasting valuable and expensive court resources as they struggle to present their cases. The health and housing agencies of the State will have the burden of dealing with the consequences of vulnerable children and adults being denied the benefits to which the law entitles them. There is no study of the costs of the provisions within the Bill.
There is also the additional point that decisions on legal aid for individual cases will come under the aegis of a civil servant to be known as the Director of Legal Aid Casework. The present Legal Services Commission will be abolished. Whilst LASPO prevents the Lord Chancellor giving directions to the Director in relation to individual cases, the Lord Chancellor will be empowered to give general directions relating to the discharge of the official's duties. Concern therefore exists as to just how truly independent the Director will be.
Thus, it is not so much the fact that £300m is to be taken from a £2.1 billion budget. The major problem lies with the distribution of the remainder of the money and the fact that the cuts are targeted at areas of law where persons in need of help are particularly vulnerable whether through lack of means, illness or disability. Part 1 of this Bill is an abomination and it is to be hoped that the Lords extract major changes. If they do not, they should reject the Bill in its entirety. Their constitutional right and power is to ask the Commons to think again.
The Guardian 23rd November - "Lords give legal aid bill a good bashing."
The Youth Justice Board has been saved from the "Quango Cull" as well as the post of Chief Coroner - see BBC 23rd November 2011. There was continuing opposition in the Lords and elsewhere to proposals in the Public Bodies Bill for their abolition. Subject to what is referred to as "ping-pong", this Bill will go for Royal Assent whereupon it will be law.
28th November - The Guardian - "Lady Hale warns of the consequences of legal aid cuts"