Dispatches from the Front

 

june2012counselclarkecleggcamAs the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) receives Royal Assent, Harriet Deane reflects on why making laws is never a pretty business
“I am sorry to say that the product of the Minister’s hard work and the process followed by the Government on the Bill do not reflect well on this Government’s reputation. They have damaged access to justice, a fundamental constitutional principle.”

 


The words of the eminent Crossbencher, Lord Pannick QC, on the final day of debate on the Legal Aid, Sentencing and Punishment of Offenders Bill (“LASPO”) before it received Royal Assent on 1 May, reflected the sentiments of the many organisations and individuals who had spent the previous ten months attempting to engage with the Government on this much opposed piece of legislation.

Throughout that process, the Bar Council was a prominent voice of dissent. And although the final Act of Parliament remains a potent package of reform, with the potential to damage seriously access to justice for some of the most vulnerable members of society, it does bear the scars of the battle waged between the Government and the Bill’s many opponents.

It is often said that laws are like sausages – it is best not to see them being made. We could all be forgiven for feeling that way sometimes. And this is neither a celebration of the final product, nor a claim that the Bar single-handedly defeated the Government on the Bill’s core principles. But the Bar Council exists to serve and represent its members to the best of its abilities, which why it is so important for us to describe our lobbying activities on this Bill.

After generating the expected noises of dissent to the media, our first response was to assemble a working group of practising barristers and members of the executive. Several had practices which would be unaffected by the proposals, but still felt moved to give up their time to lobby in the public interest. I had the honour to support this dedicated group of practitioners, ably Chaired by former FLBA Chairman Stephen Cobb QC, as they gave up many an early morning to plotting the demise – or lethal wounding, at least – of LASPO.

From the start, we had to be realistic about how much we could achieve. With drastic cuts to its budget, the Ministry of Justice had made it clear that it intended to make deep cuts to legal aid, whether we liked it or not. This was further exacerbated by broken promises on the Liberal Democrat side of the Coalition deal – plans to reduce the use of prisons and save funds from the criminal justice budget – which were significantly weakened after a backlash from the tabloid press. But, as primary legislation, the Bill’s passage through Parliament could and would provide opportunities for dissent and reform.

The LASPO Bill consisted of three main parts, on the third of which, focusing on the sentencing and rehabilitation of offenders, we largely followed the lead of excellent specialist organisations such as the Prison Reform Trust. Of the other two sections, on legal aid and civil litigation reform, it was the former which provoked the most widespread dismay, removing as it did the majority of private family law, social welfare law, clinical negligence and many other areas of civil law from the scope of legal aid. Our briefing materials – compiled and issued to MPs or Peers before every debate, and distributed in countless one-to-one meetings – were quoted and echoed by Parliamentarians from across the political spectrum.

These reforms, we argued, would cost more in the long term. The removal of legal aid from private family law would flood the courts with self-representing litigants, lengthening cases and causing significant delays. Early advice on social welfare law saves money in the long term. And the impact on clinical negligence claimants would be magnified further by the cherry-picked aspects of Lord Justice Jackson’s recommendations for the reform of civil litigation funding contained within Part II of the Bill.

These arguments did not fall on deaf ears, with many Conservative and Liberal Democrat MPs calling on the Government to listen to those who knew what a terrible impact these reforms would have. Few were convinced by the Government’s repeated assertion that those campaigning against the Bill were just lawyers complaining about their fees – particularly when we had the support of respected organisations such as Shelter and the NSPCC. But unfortunately, when the division bell rang, either party loyalty or career ambitions led most of those who had agreed with us behind the scenes to vote with their feet, in support of the Government.

The working group’s concerted lobbying efforts were supplemented by ongoing media activity, in an attempt to capture the public interest in these reforms at a time when the Health and Welfare Bills were attracting far more coverage. Working with nine other organisations, including the Women’s Institute and the Children’s Commissioner, we published the “Manifesto for Family Justice”, which called for the Government to protect victims of domestic violence (for whom legal aid in private family law was to be retained) by widening the Bill’s definition of domestic abuse and extending the criteria under which victims would be eligible for legal aid (to include admission to a refuge, for example).

The Manifesto achieved widespread coverage, both in the broadsheets and tabloids. Stephen Cobb QC put in a sterling performance on the Today programme opposite John Humphries; no mean feat. The Manifesto’s signatories can claim some credit for the Government eventually backing down on those two important issues, with the result than many more victims of domestic abuse will gain access to legal aid in the future.

Like most of the concessions eventually achieved, it was the work of those in the House of Lords which secured this small victory. Former DPP Lord Macdonald and former Attorney General Baroness Scotland campaigned vociferously for victims of domestic abuse, joining the many Peers who abandoned party allegiances not only to speak against, but also vote against, the Government.

We were always aware that we would gain greater traction in the Lords, but the cross-party support for our arguments was heartening. During almost every debate in the Upper House, not a single Peer spoke in favour of the Bill’s provisions on legal aid. Almost all of our proposed amendments, expertly drafted by former Parliamentary Counsel Gordon Nardell QC, were tabled and debated in the chamber.

As the Bill progressed further, we were forced to focus on the areas in which we had garnered most support: legal aid for victims of domestic abuse, clinical negligence, social welfare law and issues of constitutional importance (such as the ability of the Lord Chancellor to re-include, as well as remove, areas from the scope of legal aid). By then, the Government had already backed down on the proposed introduction of means testing for legal aid in the police station, which had provoked outrage in both Houses.

Eventually, the Government was defeated on 11 amendments, losing 14 votes in total. According to The Guardian, this is the heaviest series of defeats for any Government in 50 years. Unfortunately, not all were retained by the Commons, with only limited concessions on welfare benefits advice and the wholesale rejection of Lord Pannick’s amendment (proposed by the Bar Council), which would have imposed a duty on the Lord Chancellor to ensure that individuals have access to legal services which effectively meet their needs. On other issues, the Government backed down and tabled its own amendments. Many Peers, described proudly by Lord Alton as members of “the awkward squad”, stood firm on matters on which they were absolutely convinced that the Government had taken the wrong approach.

Lord Alton’s battle to exclude mesothelioma victims from the civil litigation reforms was successful. Others, such as the late Conservative Peer Lord Newton, who spoke movingly on behalf of clinical negligence claimants, achieved only partial success, with the Government retaining legal aid only for pre and peri-natal brain injury cases. Lord Newton sadly passed away before the Bill received Royal Assent, and was particularly sorely missed during the final few debates.

Lord Pannick’s remarks reflected widespread frustration at the way in which the Government had responded to many of the issues on which Peers (and those lobbying on the Bill) felt strongly. Financial privilege was claimed for amendments which either had no obvious upfront cost or would save the Government more in the medium to long term.

We can only hope that these short-sighted cuts will be reversed by future administrations; but even of that, we have little confidence. Unfortunately, legal aid is deemed an easy target, with the majority of the electorate living in confidence that they will never need legal help. It is only in their darkest hours, facing battles over access to their children, negligent medical treatment or the withdrawal of essential welfare benefits, that the security net of legal aid, and the expertise of dedicated members of the legal profession, prove life-saving. From April 2013, for many, that will no longer be the case.

The author acted as secretary to the Bar Council’s working group on the LASPO Bill.

Harriet Deane is a Communications Officer at the Bar Council

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