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LIBERAL DEMOCRAT LAWYERS ASSOCIATION
NOTE ON THE LEGAL AID PROVISIONS OF THE LEGAL AID, SENTENCING AND PUNISHMENT OF OFFENDERS BILL
1. At the LibDem Spring Conference, 2011, the LDLA proposed, via its Chairman, Alistair Webster Q.C., a motion which dealt with access to justice. The motion recited various failings on the part of past governments and the Legal Services Commission, called for careful and proper trialling of any proposed changes, and suggested alternative sources of funding. It was passed overwhelmingly, with only one vote against the motion.
2. The government has consulted upon its proposals to reduce the legal aid budget and has published the Legal Aid, Sentencing and Punishment of Offenders Bill. Unhappily, the proposals have substantially ignored not only the official policy of the Party, but also the vast majority of the responses it received during the consultation.
3. The Association, in common with virtually every body which is involved in the administration of justice, deplores the failure of the government to look for more appropriate ways to control costs, deprecates the failure of the coalition government to put the Party’s policy into effect in any meaningful way, and calls upon Parliament to modify substantially the proposed legislation.
PRINCIPAL DEFECTS
The most glaring defects can be identified as follows:
a) The bill fails to ensure that the obligation under Article 6(3) can be met. It grants to the Lord Chancellor, via clauses 1.1 and 2.1, powers to make regulations which are significantly unfettered, in a way which would have made even the more Stalinist members of the last government somewhat embarrassed. There is no obligation ( central to the motion ) to ensure that the powers are subject to the obligation to ensure ( as currently provided by s. 25 Access to Justice Act, 1999 ) that there are a sufficient number of competent persons and bodies to provide the relevant services. This means that regulations can be introduced without trialling and without anything other than lip service to the need to ensure that this essential duty owed by the state to its citizens is met by ensuring that there are sufficient numbers of competent lawyers practising in the relevant fields. These clauses must be amended.
b) The provision of advice and assistance at police stations is an essential component of reforms which have been very successful in eliminating many of the bad practices which used to surround “verballing” at police stations. Until the reforms, much time was spent during criminal trials examining allegations that apparent confessions had either been invented or inappropriately obtained. This now rarely happens, saving enormously on expensive court time. The bill proposes a means test and some undefined criteria. What is essential is that:
a. Any criteria are defined in the Act, and not left to poorly scrutinised secondary legislation;
b. Any means-testing should lead to contributions owed and recovered after the advice, and not to a non-availability of advice at the police station
c) The costs of an acquitted defendant. The proposal is that the state brings a charge against a citizen which fails. The citizen should be, in normal circumstances, entitled to recover the costs of defending himself. The proposal that the costs of an acquitted defendant should not be able to recover his costs ( Schedule 6 ), is a moral and constitutional outrage. It was forced though by the Labour government and successfully challenged as unlawful. The arguments in support of it are slippery and spurious and do no credit to the government. It is particularly unintelligent, given that the development of insurance policies provides a good alternative to public funding. Indeed, there is a good argument for insisting upon appropriate insurance for directors and officers of PLCs. This proposal will kill such alternative funding dead. There may be an argument for limiting the amount of costs recoverable, but a blanket refusal of them cannot be justified. There could be no argument against limiting recovery to costs which are necessary, reasonable and proportionate to the nature of the allegation. Thus, the recoverable costs ( much cited ) of Steven Gerrard on an assault case would be much lower than those reported, as they would be disproportionate to the charge.
d) Choice of representative. It is fundamental to the legal aid scheme ( and one would hope is axiomatic in any event ) that a party should be able to choose his own representative, provided that that representative is willing to act at the fee available. The range of such advocates will significantly diminish in the light of other proposals in the bill ( which will drive able practitioners out of publicly funded work ). But the principle remains. S. 15 Access to Justice Act specifically guarantees the right. There is no such provision in the bill: it will repeal s. 15. This represents a fundamental change which cannot be justified and it should be resisted.
e) Provision of public funding in family proceedings. This has already been reported upon by the Select Committee. We endorse their criticisms. It is particularly important that provision is made for cases where violence is involved. Unrepresented parties in such cases should be discouraged, not promoted by a lack of funding.
ALTERNATIVE FUNDING
The motion specifically referred to alternative sources of funding. These have been ignored. It appears that the ministers have adopted the failed mindset of the civil service and the LSC. If one accepts the constraints on public funds as a given:
i) Promotion of insurance based funding needs to be encouraged. We have dealt with this at c) above;
ii) It is not sensible to refuse allow the costs of a person whose assets are subject to an interim restraint order to be met out of those funds. A blanket prohibition throws unnecessary costs onto the legal aid funds. A provision as suggested in relation to the costs of an acquitted defendant is a far more sensible and principled way of dealing with this issue.
THE TRUTH ABOUT SUCCESSIVE LEGAL AID CUTS
1. Ministers continue to trot out the old chestnut about the legal aid budget being higher in UK than elsewhere in Europe. It is a disingenuous argument which does them no credit and is simply misleading. It ignores the different nature of our system and the many costs drivers resulting from government legislation.
2. The fact is that there has been good control of costs in the vast majority of cases, both criminal and civil, over the past 10 years. This has been due, in no small part, to provisions suggested by the profession.
3. It is a sad truth, which ought to be recognised, that the effect of cuts has already been to drive standards of representation down and to encourage practices which are detrimental to the system of justice in England and Wales. The judges regularly report dropping standards of advocacy ( ask any experienced Crown Court Judge ); solicitors are demanding unlawful referral fees in a desperate effort to keep afloat; the duty to put the interests of the client above that of the lawyer is in ( in many instances ) facing a losing battle against the need to generate income. The author of this note challenged a representative of the LSC at a public forum on this topic. The response was not that the LSC would take steps to deal with it, but that the market would deal with it! This is a cynical approach and one quite contrary to the interests of justice and the interests of the public in having a suitable judicial system.
SUMMARY
The legal aid provisions of the bill need radical rethinking and amendment. The present proposals should not attract the support of the Parliamentary Party, either in the Commons or in the Lords, which is called upon to oppose them if they cannot be substantially amended. Many members of the Association are extremely disenchanted at policies which are so inappropriate and which are fundamentally at variance with the principles for which we stand and with party policy which carries overwhelming support.
NOTE: The need for appropriate mechanisms to hold Liberal Democrat ministers to account for party policy will be the subject of a fringe debate at the 2011 autumn Conference.
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