Clarke stays tough on legal aid cuts, save for concessions on SEN and domestic violence

The government has vowed to press ahead with the substance of its planned reforms to the legal aid budget, save for a handful of concessions in the areas of domestic violence and special educational needs.

Publication of the Legal Aid, Sentencing and Punishment of Offenders Bill also sees the government unveil a package of criminal justice measures, and confirm its intention to implement the Jackson Review’s recommendations for reforms to civil justice.

Consultation on the controversial legal aid proposals issued in November 2010 attracted more than 5,000 submissions, the Justice Secretary revealed. The cuts are expected to save £450m, but remove almost 600,000 people from legal aid eligibility.

Ken Clarke said the government was determined to introduce a more targeted civil and family scheme. “Prioritising critical areas means making clear choices about availability elsewhere,” he said.

As a result, legal aid will no longer routinely be available for most private family law cases, clinical negligence, employment, immigration, some debt and housing issues, some education cases, and welfare benefits.

“People will instead use alternative, less adversarial means of resolving their problems (notably, in divorce cases, where the taxpayer will still fund mediation),” the Justice Secretary said. “Fundamental rights to access to justice will be protected through retention of certain areas of law within scope and a new exceptional funding scheme for excluded cases.”

The minister confirmed the retention of routine availability of legal aid for cases where people’s life or liberty is at stake, where they are at risk of serious physical harm, or immediate loss of their home, or where their children may be taken into care.

Clarke also said specific provisions would be strengthened to ensure availability in private family cases for victims of domestic violence, for children at risk of abuse or abduction and for SEN cases.

The Bill will lead to the abolition of the Legal Services Commission, which will be absorbed into the Ministry of Justice.

In his statement, the Justice Secretary said the government’s response “makes some significant changes in matters of detail, but seeks to take forward the substance of most of the reforms published in November 2010”.

Clarke said the current system of support too often encouraged people to bring their problems before courts. Legal aid had also expanded into areas far beyond its original scope, he said.

The minister argued that the £2bn cost of the legal aid system – second only to Northern Ireland per head of population – was “simply unsustainable” in the current fiscal climate.

“This constitutes an extensive set of very bold reforms, the overall effect of which should be to achieve significant savings whilst protecting fundamental rights of access to justice,” he claimed.

On civil justice, Clarke said: “We have a system burdened by spiraling costs, slow court procedures, unnecessary litigation, and too limited an awareness of alternatives to court – all of which lead to a fear of a compensation culture.”

In the criminal justice arena, the Prime Minister, David Cameron, had already confirmed in the morning that plans to increase the discount for an early guilty plea to 50% would not be pursued.

However, criminal justice reforms that are set to get the go ahead according to Ken Clarke’s ministerial statement include:

• Creating a working week in prison of up to 40 hours
• Introducing “tougher, properly enforced” community punishments. This would include allowing courts to impose longer curfews; enabling courts to ban overseas travel; and properly enforced financial penalties, including seizing assets from those who do not pay
• Introducing a mandatory custodial sentence for knife possession in aggravated circumstances
• Creating more ways in which offenders make reparation
• Overhauling unpaid work obligations “so that offenders work longer hours, carrying out purposeful, unpaid activity that benefits their local community”
• Getting more offenders off drugs and alcohol for good, by piloting an initial five drug recovery wings and by cracking down on the use of illicit drugs in prison. “The MoJ will also work closely with the Department of Health to tackle inappropriate use of prison house low risk individuals with mental illness”
• Extending the use of payment by results to cut reoffending, “with services delivered by the voluntary, independent and public sectors”
• Opening up justice “so that the public has a clearer view of how the system is working for them”
• Creating a more proportionate justice system, “focusing resources where they will be most effective, including creating a clear national framework for the use of out-of-court disposals, reforming the use of remand, and reducing the number of Foreign National Offenders”. The government is also to conduct an urgent review of the indeterminate sentence of Imprisonment for Public Protection with a view to replacing the current IPP regime with a “much tougher” determinate sentencing framework
• Clarification of the law on self defence
• Reforms to the law on squatting.

Responding to the government’s legal aid announcements, Peter Lodder QC, Chairman of the Bar, said: “Legal aid will be withdrawn from whole swathes of areas of law and access to justice will be systematically deprived.

“Continual misrepresentation on the cost of the legal aid system should fool no one. The Justice Select Committee found that looking at the system in the round, the UK’s expenditure is average for Europe. We will be well below average after these cuts.

“It is wholly unsatisfactory that the Government is determined to forge ahead with its radical reform of legal aid in family cases while the important work of the Family Justice Review is still ongoing. The Government has apparently not taken any account of the interim recommendations of the Family Justice Review for fundamental reform of the family justice system; reforms which are likely to achieve economies in the delivery of justice.”

Lodder said the Bar Council was very concerned about the risk to significant numbers of children at the centre of family disputes before the courts, whose parents would not be able to receive legal advice or representation. “This has significant implications for access to justice of these children, and of their families, many of whom are among the most vulnerable members of our society. “

He also criticised the government’s expectations of the impact of increased numbers of unrepresented litigants in the courts as “wholly unrealistic”.

“As those who work in the court system made clear in their representations to government, the courts will become clogged by unrepresented litigants, and, in the event that parties are forced to appear without representation, the systems will become slower,” he warned. “The court system will seize up, cases will take longer, and overall costs will increase.”

In a comment on The Guardian website, Legal Action Group director Steve Hynes described the legal aid cuts as “penny wise, but pound foolish”.

He said: “The bulk of them fall on the sort of face to face advice services which can deal with legal problems before they spiral out of control and lead to expensive court cases. LAG calculates that the £49m in legal aid cuts to housing, welfare benefits, debt and employment will ultimately cost the government £286.2 million in costs to other public services. In other words, £1 of expenditure on civil legal help saves the government around £6 in other public expenditure.”

Philip Hoult