A bad day for justice

So that’s that then.  The Legal Aid, Sentencing and Punishment of Offenders Bill has completed its way through parliament and about an hour ago received Royal Assent after months of fierce debate and a savaging by the peers.

I was in the House of Lords as it completed its passage last week. The Bill received a deserved kicking in the Lords; but, frankly, the legislation remains substantively as it was when the green paper was published in autumn 2010.

‘I genuinely believe access to justice is the hallmark of a civilised society,’ said Ken Clarke back then. The justice secretary was introducing the most radical reforms to the legal aid scheme since it was introduced as a building block in the architecture of the postwar welfare state.

‘So large a volume of defeats occurred because the Government adopted inflexible attitudes and lost the arguments on their merits,’ Lord David Pannick argued on LASPO’s last day in the Lords. The Bill had been made ‘marginally better’ by the forced changes, reflected the barrister fairly; adding that it would have been ‘marginally better’ still had his own amendment been accepted. Pannick sought to remedy the perceived ‘defect’ in Clause 1 of the Bill, which omitted to reflect that the objective of the justice secretary and his legislation was to secure ‘access to justice’.

Pannick argued that the ‘unsatisfactory manner’ in which the Government treated that amendment was ‘typical of the unsatisfactory manner in which the Government have proceeded on this Bill generally’. ‘The Government were defeated on this Bill on 11 occasions on report and three times again last Monday,’ he added.  

According to the silk, the Government's ‘general inflexibility’ involved ‘a failure adequately to assess the impact of the provisions’; ‘a refusal to take on board the fact that many of the financial savings are illusory’; as well as ‘a refusal to recognise that the limits on the scope of legal aid imposed by Part 1 will hit hardest the weakest and most impoverished sections of our society.’ It remained ‘a bad Bill’, he said.

So what has been achieved by access to justice lobby? Quite a lot. As the campaigning group Justice For All point out, in the wake of the green paper, legal aid was saved for special educational needs and international child abduction cases; the hugely controversial mandatory telephone gateway was limited to a pilot involving four, and later restricted to three, areas of law; and the plan to force those with more than £1,000 of disposable capital to make a £100 contribution to their legal costs was dropped.

Thanks to the Lords there were three major concessions (reported in this blog last week), ministers gave significant ground in a number of areas of their plans relating to domestic violence; public funding will now remain for welfare benefit appeals to the second tier tribunal and higher courts and for the first tier tribunal on 'points of law'; and the Director of Legal Aid Casework will be independent from Government. Plus, ministers will be able to add, as well as remove areas of law, from the scope of legal aid without primary legislation. Victims of trafficking will still be entitled to legal aid, and funds will remain for clinical negligence cases where the negligence occurred during the first eight weeks of life. Legal aid will still be available in police stations.

All important changes. Nonetheless the Act represents a filleting of our legal aid system - removing £350m from the £2.2bn scheme by cutting entire areas of law from scope. It is the end for funding for much of what is known as 'social welfare law' - that’s advice on debt, benefits, employment, family (unless it involves domestic violence) and housing advice (unless someone is left homeless). 

Talking to Lord Bach after last week’s debate, the peer repeated his damning assessment of the Bill as ‘wicked’. ‘It is an attack on poor people, the vulnerable and disabled: the people who cannot answer back,’ Bach, who led the opposition attack on LASPO in the House of Lords, said.

Lord Pannick, a member of the House of Lords' constitutional committee, identified a vacuum at the heart of LASPO: its failure to recognise ‘access to justice as a vital constitutional principle’. The QC’s amendment to clause 1 stated that the Lord Chancellor ‘must secure, within the resources made available, that individuals have access to legal services that effectively meet the needs’. Some 18 months down the line, Ken Clarke’s stated belief in ‘access to justice’ being the ‘hallmark of a civilised society’ rings particularly hollow.