PARLIAMENTARY DEBATES HOUSE OF COMMONS OFFICIAL REPORT GENERAL COMMITTEES
Public Bill Committee
LEGAL AID, SENTENCING AND PUNISHMENT OF OFFENDERS BILL
written evidence
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LASA Charity UK Limited (LA 01) Professional Negligence Lawyers Association (LA 02) Kirit Champaneria (LA 03) Immigration Law Practitioners’ Association (LA 04) Scope (LA 05) Simon Green (LA 06) Zacchaeus 2000 Trust (LA 08) Consumer Justice Alliance (LA 10) Barnardo’s (LA 12) JustRights (LA 13) Public and Commercial Services Union (LA 14) Sheffield Law Centre (LA 16) Motor Accident Solicitors Society (LA 17) Southall Black Sisters (LA 18) National AIDS Trust (LA 19) Family Law Bar Association (LA 20) Refugee Action (LA 22) Institute of Chartered Accountants in England and Wales (LA 25) Community Law Partnership (LA 27) John Eekelaar (LA 29) WithyKing (LA 31) Linskill Solicitors (LA 33) Refugee Children’s Consortium (LA 37) Refugee Children’s Consortium (LA 38) Clarke Willmott LLP (LA 30) Caroline Sergeant, Solicitor (LA 40) Resolution (LA 41) Ben Hoare Bell LLP (LA 42) Mencap (LA 43) Equality and Diversity Forum (LA 44) Joanna Miles (LA 45) Legal Services Commission (LA 46) Association of British Insurers (LA 47) Andy Brodie, Solicitor (LA 48) Mayor of London (LA 49) Paul Fulcher (LA 50) Children’s Legal Centre (LA 51) Chesterfield Law Centre (LA 52) Legal Aid, Sentencing and Punishment of Offenders Bill
Rene´ Cassin (LA 53) Citizens Advice Bureau (LA 54) All Party Parliamentary Group on Equalities (LA 55) Mr Joseph Anthony Culkin (LA 56) Garden Court Chambers Gypsy & Traveller Team (LA 57) South East Strategic Partnership for Migration (LA 58) Cleveland & Co Solicitors (LA 59) National Accident Helpline (LA 60) JUSTICE (LA 61) Action against Medical Accidents (LA 62) Medical Protection Society (LA 63) Association of Personal Injury Lawyers (LA 64) Still Human Still Here (LA 65) Amnesty International UK (LA 66) Harry Smith Taylor JP (LA 67) British Red Cross (LA 68) Al-Hasaniya (LA 69) Forum of Insurance Lawyers (LA 70) Criminal Justice Alliance (LA 71) Asbestos Victims Support Groups Forum UK (LA 72) Bail for Immigration Detainees (LA 73) Children’s Society (LA 74) Zimbabwe Association (LA 75) Magistrates’ Association (LA 76) Discrimination Law Association (LA 77) Weightmans (LA 78) Leigh Day & Co (LA 79) Thompsons Solicitors (LA 80) Legal Aid Practitioners Group (LA 81) Bar Council of England & Wales (LA 82) Young Legal Aid Lawyers (LA 83) WithyKing (LA 84) CORE (LA 85) Firstassist Legal Expenses Insurance Ltd (LA 86) Liberty (LA 87) Carter-Ruck, Solicitors (LA 88) Centre for Mental Health (LA 89) JUSTICE (LA 90) Hugh James Solicitors (LA 91) Keoghs LLP (LA 92) Legal Aid, Sentencing and Punishment of Offenders Bill
Manley Turnbull Solicitors (LA 93) The Association of British Insurers (LA 94) The Consortium of Expert Witnesses to the Family Courts (LA 95) The Law Society (LA 96) The Mary Ward Legal Centre (LA 97) Stephensons Solicitors LLP (LA 98) Carol Laidlaw and Ellen Lee (LA 99) Coram Children’s Legal Centre (CCLC) (LA 100) Ismail Abdulhai Bhamjee (LA 101) David Glasgow and others (LA 102) Patricia Thomas (LA 103) Howells Solicitors (LA 104) Walker Smith Way Solicitors (LA 105) Rethink Mental Illness (LA 106) Bar Council of England & Wales (LA 107) The Institute of Legal Executives (LA 108) ARAG plc (LA 109) The Barbara Melunsky Refugee Youth Agency Ltd, known as Refugee Youth (LA 110) MG Law Limited (LA 111) Ismail Abdulhai Bhamjee (LA 112) Henry Hyams Solicitors, Leeds (LA 113) The False Allegations Support Organisation (UK) (FASO UK) (LA 114)
Legal Aid, Sentencing and Punishment of Offenders Bill Written evidence
Memorandum submitted by LASA Charity UK Limited (LA 01) Summary We wish to challenge the basis for the removal of welfare benefits advice from the scope of civil legal aid (clause 8 and paragraph 15, Part 2, Schedule 1) under the Legal aid, sentencing and punishment of offenders bill.
Introduction 1. Government proposes to remove welfare benefits from the scope of legal aid. Statements have been made to the effect that welfare benefit problems are “general” and not “legal” in nature,1 and therefore should not be covered by the legal aid scheme. Additionally, the Government response stated that “we do not consider that most cases before the tribunal will be sufficiently complex”.2
2. We challenge the basis of both of these assertions, as there is clear proof of the legal nature and the complexity of welfare benefit problems, as well as little evidence that legal aid funding is contributing to welfare benefits cases being taken before tribunals unnecessarily.
GeneralA dvice orL egalA dvice? 3. The Legal aid, sentencing and punishment of offenders bill lists six separate pieces of primary legislation (Acts) in paragraph 15, Part 2, Schedule 1, detailing what is out of scope under “social security”, as well as a catch-all statement about “all other social security enactments”.
4. In terms of the Acts alone, these six pieces of legislation contain hundreds of clauses and schedules, detailing entitlement conditions for the range of welfare benefits, tax credits and pension credits that can be claimed by individuals.
5. The reference to “All other social security enactments” covers literally thousands of statutory instruments and regulations related to the six Acts, as well as more than 20 volumes of decision-makers guidance and thousands of pieces of case law further interpreting the meaning of primary and secondary legislation.
6. Child Poverty Action Group’s Welfare Benefits and Tax Credits handbook is more than 1,600 pages in length and is of sufficient complexity that we include a dedicated section on simply using the handbook in our Welfare benefits overview training course.
7. Thus, we feel that it is clear that disputes arising from welfare benefits, tax credits and pension credits are legal in nature and are set against a backdrop of legal complexity that is exceptionally difficult for the average citizen to understand, let alone resolve, without assistance.
WelfareR eform 8. There is an unprecedented level of welfare reform currently occurring, with changes to rules of entitlement now being implemented and also being phased in over the coming years.
9. These include:
— Planned migration of 1.5 million incapacity benefit claimants to employment and support allowance.
— Local housing allowance changes that will see many people struggling to pay their rent.
— Disability Living Allowance to be replaced by the Personal Independent Payment.
— Introduction of the Universal credit from 2013.
10. The impact and success of these reforms, as well as the Work Programme, will all be significantly undermined if people cannot get legal advice on their rights, responsibilities and duties.
1 Jonathon Djanogly, All Party Parliamentary Group on Legal Aid, 22 June 2011. 2 Para 99, Reform of Legal Aid in England and Wales: the Government Response, June 2011. Legal Aid, Sentencing and Punishment of Offenders Bill
11. In particular, it is worthwhile noting that the current Welfare Reform Bill going through Parliament is being introduced because, in the words of the Secretary of State for Work and Pensions Iain Duncan Smith:3 “It will cut a swathe through the massive complexity of the existing benefit system” 12. This statement feels very much at odds with claims that welfare benefits problems are not of sufficient complexity to merit legally aided advice on a face to face basis. We also detail below the knock-on impacts to tribunals that can arise when individuals are unable to resolve their dispute prior to any requirement for a formal hearing.
Tribunals andR epresentation 13. There were 135,000 welfare benefit matter starts of face-to-face legal aid advice in 2009–10 (an increase of 20,000 on previous year). Over the same period, there were zero cases of representation funded, (a decrease of 10 on previous year). 14. Thus, we feel the statement that the complexity of welfare benefits is not sufficient to be bought before tribunals to be inherently misleading and unsupported by the facts. The miniscule level of funding awarded for actual representation, compared to the significant volume of face-to-face interventions, demonstrate that far from driving individuals to tribunals, it is in the interests of both clients and advisers if disputes can be resolved outside of a formal judicial setting. 15. It is worth noting, notwithstanding the lack of legally aided representation at tribunal, that 43% of appeals received across the 36 jurisdictions within the Tribunals Service related to social security and child support, according to the Tribunals Service Annual Report for 2009–10,4 some 339,200 cases in all. 16. Highlighting that, across all of its jurisdictions, the numbers of appeals received in 2009–10 rose by 26% on the preceding year, the Tribunal Service also says that the increase in appeals was particularly notable in the Social Security and Child Support jurisdiction of the Social Entitlement Chamber, where appeals were 40% up on the preceding year, reflecting both economic conditions and a doubling of the number of appeals against incapacity benefit and employment support allowance decisions. 17. The Senior President of Tribunals, Sir Robert Carnwath, is concerned at the implications of removing civil legal aid without investing in alternatives. In an introduction to his Annual Report5, the Senior President says he is: “very concerned at the implications of removing the majority of civil legal aid, including legal help, without investing in alternatives. For example, Citizens Advice Bureaux play an essential role in explaining welfare benefit decisions, helping appellants decide whether to appeal, and helping them to prepare their case. Without their work, not only will many be left in ignorance of their rights, or without the ability to pursue them, but the load of the tribunals may increase rather than decrease, both because cases will come to the tribunal which could (with proper advice) have been avoided or settled, and because lack of preparation may add to the length of hearings.”
AlternativeS ources ofA dvice 18. The Government response notes that “other sources of advice, particularly the voluntary sector, may not be able to meet the demand for welfare benefit services” but goes onto note that “Job Centre Plus and the Benefits Advice Line [sic] will continue to be available to assist applicants”.6 19. This statement is misleading, for two reasons. First, the primary basis for an individual challenging a welfare benefit decision will be because Job Centre Plus, or agents acting on their behalf, has made an incorrect decision—if Job Centre Plus could act to help them put this decision right, the individual concerned would not need to seek legal advice in the first place. Second, if either of these two avenues were suitable in helping individuals resolve their problems, there would not have been 135,000 acts of legally aided welfare benefits advice in 2009–10.
FundamentalH umanR ights 20. Welfare benefits disputes are intrinsically concerned with a dispute between an individual citizen and a state agency,whether that is DWP,HMRC or their local authority.All these bodies have access to specialist legal advice, particularly if citizens have to pursue challenges through tribunals. There is therefore a blatant inequality of arms if welfare benefits advice is removed completely from scope. Article 6 HRA says everyone has the right to a fair hearing and simple access to a tribunal does not meet this level of equality.
3 DWP Press Release, 11 November 2010—Welfare Reform White Paper: Universal Credit to make work pay—Radical welfare reforms bring an end to complex system. 4 Tribunals Service Annual Report & Accounts 2009–10, 22 July 2010. 5 Senior President of Tribunals’ Annual Report, February 2011. 6 Para 105, Reform of Legal Aid in England and Wales: the Government Response, June 2011. Legal Aid, Sentencing and Punishment of Offenders Bill
21. Further, the European Court of Justice has made rulings with regards to some benefits being possessions, under Article 1 of Protocol 1 (Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law). July 2011
Memorandum submitted by the Professional Negligence Lawyers Association (LA 02) Abolition ofR ecovery ofS uccessF ees and ATE Premiums—s 41 onwardsL egalA idS entencing& Punishment ofO ffendersB ill Terms used: “Conditional Fee Agreement”—“CFA”—the form of retainer between solicitor and client which allows lawyers to act on a “no win no fee” basis and the lawyer to charge a success fee if they win the case which is recoverable from the wrongdoing/losing defendant. “After the Event Insurance”—“ATE”—this is insurance that litigant can obtain at the moment against losing the case—they can typically insure their own disbursements, counsel’s fees and opponent costs. The premium is recoverable from the wrongdoing/losing defendant.
Summary Under the section 41 onwards of the proposed Legal Aid Sentencing & Punishment of Offenders Bill no claimant in ANY civil litigation will recover any damages under the proposed system if £claim is equal to (£success fees plus £ATE premium). Worse the claimant could win the case and go into debt to their own solicitor and ATE insurer if £claim is less than (£success fees plus £ATE premium). This formula is impossible to calculate at the outset of the case. A risk averse claimant would never bring a claim if the Bill is passed. The PNLA have submitted responses to Lord Justice Jackson and the Ministry of Justice consultations which include more detailed submissions.
All Civil Litigation will be Affected for Ordinary People The parliamentary debate on the Bill and the speeches made underline that NONE of the MP’s have strong views about the civil justice system save for abuse by those in the personal injury and clinical negligence sectors. Therefore it appears that ALL other forms of litigation are being swept up in the proposed reforms incidentally and without any good reason. The detriment to ordinary people with strong claims who simply cannot afford to pay lawyers will be immense and the destruction of the civil justice system is inevitable as a consequence. Recovery of success fees and ATE premiums has filled the gap in Civil Legal Aid so that claimant solicitors and ATE insurers have carried the cost and risk of access to justice unless and until the case succeeds when most of the costs can be recovered from a wrongdoing/losing defendant. S 41 onwards will not save the Government ANY money and indeed it may cause losses in particular to HMRC as insolvency practitioners will be unable to bring claims and HMCTS will have fewer actions and fewer Court fees paid.
Who brings professional negligence and liability claims? The PNLA claimant members deal with a wide range of claims of NON MEDICAL negligence and dishonesty of professionals—usually such claimants have trusted a professional and often found themselves financially ruined as a consequence. Examples include: 1. A surveyor negligently fails to spot subsidence in his report for first time home buyers—the property is a “home for hell” and subsides—they lose all their money as it is worth only site value and still have to repay the mortgage. 2. A solicitor negligently helps a dishonest nephew to get his elderly aunt to sign away her home to him—he then throws her out leaving her homeless. 3. A barrister only reads the papers the night before the trial and forgets half the evidence so the case is lost. 4. A financial adviser negligently invests in a high risk investment that fails so the claimant with a spinal injury loses all the damages award they received for their care. 5. An insurance broker negligently forgets to send the form for buildings insurance and the home burns down in a fire—the claimants lose their home and all their possessions. Legal Aid, Sentencing and Punishment of Offenders Bill
6. An accountant negligently fails to prepare proper accounts for a business—HMRC then claim a large payment for tax which the business cannot pay and it goes into liquidation. 7. A solicitor negligently tells a client that litigation has a good chance of success but then change’s his advice just before the trial forcing a settlement involving payment of the opponents costs—the solicitor keeps his fees while bankrupting his clients. 8. A probate solicitor takes three years to deal with a mother’s estate after her death—then charges huge fees some of which were used dishonestly for his own lifestyle. 9. A negligent insolvency practitioner does an administration pre pack—leaving dishonest directors and shareholders of the company with all the assets and the company creditors without any payment. Many PNLA members have developed practices over many years from referral by professionals in their locality or local Law Societies eg The Legal Complaints Service (formerly part of the Law Society) had a Negligence Panel Referral Scheme for those claimants needing advice about negligence claims against solicitors. It is not thought that there is widespread use of claims management companies or referral fees in this sector—on the contrary most deserving claims come by way of referral from another professional in the same profession who is horrified by the service provided to a consumer.
Why professional negligence cases cannot be funded under the proposed reforms? The real victims of the proposed reforms are professional negligence and dishonesty claimants with claims of a value as follows: £claim is equal to or less than (£success fees plus £ATE premium) The fundamental problem is that “£success fees” is directly caused by the conduct of the defendant in defending the claim and cannot be calculated or predicted with any certainty at the outset of the claim. The proposals do not recognise that wrongdoing defendants choose to fight strong claims—and it is only if they do that then they have to pay high claimant CFA/ATE costs awards. “£claim” is a very fine art indeed to calculate in this type of case. It is based on what the financial position of the claimant would have been in if they had been correctly advised (a wholly hypothetical scenario) compared to their actual financial position. It is rare that this figure is not open to challenge in defence. The existing system places the risk on the wrongdoing defendant—if they choose to defend the claim then the costs including (£success fee and £ATE premium) are the defendant’s risk as they pay those costs if they lose the case. The Government’s proposed new system places the risk on the claimant because if the defendant chooses to defend the claim then (£success fee and £ATE premium) cannot be recovered and comes out of any damages the claimant receives. Even if liability is admitted in these cases—technical legal defences are commonly raised including “causation”– ie even if there was negligence then it did not cause the loss claimed, “contributory negligence” ie that the claimant should share the blame and “failure to mitigate” ie the claimant has not done enough to reduce the loss and the defendant should not pay because the claimant did not act sooner. These cases are always complicated. They often take two to three years to resolve and the parties may well can incur typically costs of about 100 hours each. The PNLA ATE Scheme premium is at a set level increasing in four stages starting at about £2,000 pre action and ending at about £50,000 for a trial. If the matter settles just before trial and “£success fee” is £200 plus VAT per hour for 100 hours% £20,000 plus VAT and the ATE premium is £50,000 then (£success fee plus £ATE premium)% £74,000. If the damages recovered by the claimant are £74,000 then he/she gets nothing from the litigation even if they win the case. Worse—if the damages recovered are less than (£success fee plus £ATE premium) then even if the claimant wins the case he/she will go into debt to his/her own solicitors and ATE insurer—in the above example if (£success fee plus £ATE premium)% £74,000 and the damages recovered are only £30,000—then the claimant has won the case but will be in debt to his own solicitors and ATE insurers for £44,000. The real legal experts are the Professional Indemnity Insurers and their large teams of litigators and claims handlers both in house and in their panel solicitors firms. Claimant specialists are few and unlikely to have anything like the same expertise. The odds are stacked against claimants inherently because of this imbalance in legal skills and experience—under the proposed reforms many claims become impossible because the financial risks to the claimant compared to the chances of potential recovery will not make sense. The proposed reforms do not offer any realistic alternative funding for claimants. Civil Legal Aid is largely unavailable. The proposals seek to make the uncertainty worse as to how much of the claimant’s costs can be recovered giving greater discretion to Costs judges to slice off chunks of costs in their discretion. Contingency fees make no greater financial sense in claims within the above formula. Claimants will run the risk of paying the defendant’s costs if they lose without ATE Cover in an amount that cannot be predicted Legal Aid, Sentencing and Punishment of Offenders Bill
at the outset. Claimants can pay the hourly rates of their solicitor up front—but how many can afford to do that?—and these are claimants who believe that they have already been let down by a trusted professional adviser. July 2011
Memorandum submitted by Kirit Champaneria (LA 03) TheL egalA id,Sentencing andP unishment ofO ffendersB ill (LASPO) 1. The Legal Aid Practitioners Group has brought to my attention that this bill is due for consideration by your Committee shortly. 2. I am a partner in a small four partner firm of solicitors in Wrexham, North Wales. One of my partners and I concentrate almost exclusively on family work. We have a significant legal aid caseload. We are deeply concerned about the removal from scope of all private family work (save where Domestic Violence is an issue). 3. The change will mean that many children will be denied contact with their father by short sighted and often immature young mothers who have installed a “new dad” in the previous family home. There will be children who fall short of the significant harm threshold for Local Authority involvement but for whom the mother is not providing the quality of care that they need and deserve, due to issues with drugs and or alcohol. In this sort of case often there is a concerned father or grandparents who will have to make an application for a residence order. They may have to try and obtain evidence from social services. These are matters not easily dealt with alone. 4. The Family Proceedings Rules have recently been overhauled and there are new rules and practice directions covering all the work we do in the Family Courts. It is wholly unreasonable to expect a litigant in person to be conversant with those rules and know how to apply them. It matters not that a clerk/district judge can do so. Ultimately they are not there to give advice or particularly explain the procedure involved. 5. If the Government is serious about supporting families they should look long and hard at how these changes will help separating families reach fair solutions. I realise that it has been suggested that mediation will be the first port of call but given the type of families that we regularly deal with and the entrenched positions often adopted without the benefit of legal advice it unlikely that much progress will be made. 6. For all the above reasons please stop and consider the impact of these changes before they are forced through. July 2011
Memorandum submitted by the Immigration Law Practitioners’ Association (LA 04) Introduction 1. ILPA is a professional association the majority of whose members are immigration, asylum and nationality law practitioners. Academics and charities are also members. Established over 25 years ago, ILPA exists to promote and improve advice and representation in immigration, asylum and nationality law. ILPA is represented on numerous Government, including UK Border Agency and Legal Services Commission, consultative and advisory groups. 2. This Memorandum addresses matters related to immigration and asylum law, focusing on Legal Aid.
Analysis of theB ill and theG overnment’sR ationale:LegalA id(I mmigration/Asylum) 3. The Government identifies four factors relevant to what should remain in scope for Legal Aid:7 (a) importance of the issue; the following are of high priority: cases concerning life, liberty, physical safety, homelessness, intervention by the State and holding the State to account; (b) individual’s ability to present his/her own case, with consideration given to whether proceedings are adversarial or inquisitorial and whether litigants are “from a predominantly physically or emotionally vulnerable group”; (c) availability of alternative sources of funding, with Conditional Fee Agreements, legal insurance and trade unions identified; and
7 Proposals for the Reform of Legal Aid in England and Wales: Consultation Response. Ministry of Justice, June 2011 paragraph 6 (page 11). Legal Aid, Sentencing and Punishment of Offenders Bill
(d) availability of alternative means of resolution, with alternative sources of advice, ombuds and complaints procedures identified. 4. The Bill excludes all immigration cases from Legal Aid except for asylum cases, challenges to immigration detention (such as bail applications) and cases before the Special Immigration Appeals Commission.8 This general exclusion is in conflict with the Government’s “four factors”-analysis and risks serious undesirable and perverse outcomes. 5. In immigration cases, there are no alternative means of resolution. There is no mediation or other dispute resolution option (save insofar as constituency MPs may intervene). Neither an ombuds nor complaints process can address the question of a person’s entitlement to continue to reside in the UK. Nor are there generally alternative sources of funding or advice for those who qualify for Legal Aid. Immigration is peculiar in that advice and representation in this area are regulated (under pain of criminal sanction).9 Charities and other advice organisations, if unable or unwilling to meet the requirements of the regulatory scheme, are thus prohibited from filling any gap that may be left by the removal of Legal Aid. For those without leave to be in the UK (including those whose leave has been taken away), working will generally be illegal. Accordingly, individuals will be unable to raise funds themselves, save by exposing themselves to the risk of serious exploitation. While sometimes friends or family may be able to collect funds for legal advice or representation, MPs immigration caseloads will be aware that this can also leave individuals open to exploitation. Thus the Government’s factors (c) and (d) point overwhelmingly in favour of retaining Legal Aid. 6. The Government’s stated approach was to consider all four factors together (“no one factor was determinative”).10 The remaining two factors (a) and (b) are considered in respect of the discrete matters addressed in the following paragraphs. As regards factor (a), “holding the state to account” has benefits in providing incentive for the state to improve. Removing effective scrutiny of the state by removing Legal Aid, allows the state to continue bad practices and can exacerbate these. This is certainly of concern in relation to the work of the UK Border Agency.
JudicialR eview 7. The Government generally accepts that judicial review should remain in scope for Legal Aid and the Green Paper contains a robust defence of judicial review.11 However, the Bill introduces immigration exceptions. These exceptions are said to be a response to proposals made by the Judge’s Council,12 but they do not accord with the Judge’s Council’s proposals in critical respects: (a) The Judge’s Council’s proposals were predicated on retention of Legal Aid for immigration appeals. However, the immigration judicial review cases, which the Bill excludes from Legal Aid, are also excluded from Legal Aid for appeals.13 (b) The Judge’s Council’s proposals sought (albeit ILPA considers unsuccessfully) to exclude only unmeritorious cases. However the Bill excludes all immigration judicial review cases save where the UK Border Agency has not acted within 12 months of a final decision of a court or tribunal, regardless of merit. (c) The Judge’s Council’s proposals were intended to address a group of cases, which the Government and the Government’s lawyers have indicated are generally not brought on Legal Aid.14 8. The provisions on judicial review risk the following undesirable and perverse effects: (a) The immigration exclusions apply where there have been previous court or tribunal proceedings (on the same or a similar issue), even when the individual succeeded in those proceedings. Thus, if the UK Border Agency fails to act on the decision of a court or tribunal (or acts in disregard of that decision), the individual will be excluded from Legal Aid in seeking to “hold the state to account”. (b) The Judge’s Council’s concerns, if the Government and its lawyers are correct, largely relate to cases brought without Legal Aid. These would include litigants in person and cases where family or friends have paid for the lodging of a judicial review application but there are no funds for continued legal representation. The exclusion of Legal Aid may increase the number of judicial reviews brought without any or competent advice and representation, without decreasing the total number brought. (c) Individuals may be discouraged from exercising appeal rights (for which Legal Aid is excluded) to preserve their entitlement to Legal Aid on judicial review.
8 Paragraphs 21–25, Part 1, Schedule 1, paragraphs 21–25; paragraph 26 also preserves Legal Aid for some asylum support. 9 Immigration and Asylum Act 1999, Part V: the Office of the Immigration Services Commissioner. 10 Consultation Response, op cit, paragraph 7, page 12. 11 Proposals for the Reform of Legal Aid: Consultation, paragraphs 4.16 and 4.95ff. 12 Consultation Response, op cit, paragraph 13 et seq, page 13. 13 Bill, Part 1, Schedule 1, paragraph 25. 14 Consultation Response, op cit, paragraph 14, page 13. At the Administrative Court Users’ Group meeting on 28 June 2011, Treasury Solicitors indicated that around 70% to 80% of immigration judicial reviews were without Legal Aid. Legal Aid, Sentencing and Punishment of Offenders Bill
9. These measures have not been the subject of consultation. They concern cases directly concerned with the intervention of the State, holding the State to account and liberty: hence the Government’s robust defence of judicial review. Judicial review is subject to complex and adversarial procedures. Potential litigants may fall within the Government’s “vulnerable group” analysis. The exclusion of Legal Aid for these immigration judicial reviews offends against the Government’s “four factors”-analysis and creates additional risks.
OnwardA ppeals 10. The Bill generally ignores this subject. Either Legal Aid is retained for court or tribunal proceedings, in which case onward appeal from an initial decision of the relevant first instance court or tribunal is within scope; or Legal Aid is excluded at first instance and for any stage thereafter. There are two undesirable and perverse outcomes from this: (a) Onward appeals generally (and always in immigration cases) are only available where the first instance court or tribunal has erred in law. They therefore require legal expertise. (b) Onward appeals generally are available to both parties. In immigration matters, the other party is the State (the UK Border Agency). The Bill would permit the UK Border Agency to pursue onward appeals all the way to the Supreme Court, with expert representation, while leaving an appellant who had succeeded at first instance alone and unaided to address the questions of law to which any onward appeal must necessarily be restricted. A more striking example of inequality of arms is difficult to imagine and such inequality of arms does not assist the courts in developing the law.
Children 11. The Government revised its original proposals concerning family law to take into account “that children are not able to represent themselves”.15 Children are no better placed to represent themselves in immigration proceedings. The exclusion for immigration cases particularly affects children in the following situations: (a) Separated (unaccompanied) children, other than those pursuing asylum claims. This will include children, some of whom will have been in the UK for several years, applying for an extension of discretionary leave and who are being cared for by a Local Authority. (b) Children facing removal from the UK along with a parent, or separation from a parent by reason of that parent’s removal where their interests require separate representation. 12. Where a separated child with no Legal Aid and no income is in the care of a Local Authority, that Local Authority may be looked to for funding for representation.16 This would constitute a substantial (and unpredictable) transfer of cost from the Ministry of Justice to Local Authorities17 (something antithetical to the Government’s stated antipathy to public expenditure “cost shifting”18); and would risk increasing costs because paying privately for representation will cost more than is paid under Legal Aid rates. This group may therefore, uniquely among the immigration cases, be able to find an alternative source of funding, but is this desired? 13. As to family removals, the Supreme Court and its predecessor have highlighted that there will be cases where the child needs separate representation. Two cases were, in the view of those courts, examples of this. In EM (Lebanon),19 removal of him and his mother to Lebanon would have resulted in his custody being given to his estranged and abusive father with permanent separation from his mother. In ZH (Tanzania),20 the effect of the children’s mother’s removal would either be to separate the British children from their mother or to remove them from their settled life in the UK and their father. 14. These cases involve international and domestic obligations concerning the best interests of the child21 and the safety and welfare of children.22 The State (the UK Border Agency, which has been found wanting in this regard)23 must be held to account. The Government is correct that children are not able to represent themselves. The exclusion of Legal Aid for children in immigration proceedings as intended by this Bill offends the Government’s “four factors”-analysis; and does so with additional undesirable and perverse risks.
15 Consultation Response, op cit, paragraph 50, page 21; Bill Schedule 1, Part 1, paragraph 13. 16 Community Legal Service (Financial) Regulations 2000 SI 200/516, regulation 11, but see the Legal Service’s Commission’s Funding Code, Chapter 29 Immigration at paragraph 29.11.2. 17 With implications for the Home Office/UK Border Agency budget in view of the grant arrangements by which Local Authorities receive payment for care responsibilities toward separated children seeking asylum. 18 Hansard HC, 29 June 2011: Column 1063 (per Jonathan Djanogly MP, Parliamentary Under Secretary of State for Justice). 19 EM (Lebanon)v Secretary of State for the Home Department [2008] UKHL 64. 20 ZH (Tanzania)v Secretary of State for the Home Department [2011] UKSC 4. 21 Article 3.1, 1989 UN Convention on the Rights of the Child. 22 Section 55, Borders, Citizenship and Immigration Act 2009. 23 On 18 March 2011, ILPA wrote to the UK Border Agency having reviewed the decisions of the higher courts in respect of the Agency’s duties under section 55 and the UN Convention on the Rights of the Child (op cit), which show serious failings in several parts of the Agency. Legal Aid, Sentencing and Punishment of Offenders Bill
Victims ofD omesticV iolence 15. Despite representations, proposals to exclude victims of domestic violence making an application under the domestic violence rule24 have not been revised. The rule enables those on a spousal/partnership visa to escape their abusive relationship by providing an alternative means to indefinite leave to remain. The Government said that the applications “are generally straightforward”; and that an application does not require a victim to “face the alleged abuser in court”.25 16. The domestic violence rule is designed to ensure that victims (and their children) can escape abuse without putting at risk their immigration status, so that they do not remain in the abusive relationship. These victims constitute a paradigm “physically or emotionally vulnerable group.” The exclusion of these victims from Legal Aid offends the Government’s “four factors”-analysis. 17. Domestic violence applications are far from straightforward: (a) the UK Border Agency’s record in dealing with these cases is especially poor. Some 61% to 69% of refusals are overturned on appeal;26 (b) the gathering and presentation of evidence, with associated costs and risks, is often necessary for success. Many applications are (including wrongly) refused by the UK Border Agency on the grounds of inadequate evidence; and (c) to escape abusive relationships, victims need to understand the implications for their immigration status. They need immigration advice. As described above, only regulated advisors can provide this; a refuge etc. cannot. Without advice and assistance, the aim of the domestic violence rule is defeated because victims do not find the confidence to escape. 18. The Bill risks the undesirable outcome that victims of domestic violence remain (with their children) in abusive relationships for fears of the immigration consequences of escape. It may lead those with a risk on return to advance an asylum case they would not otherwise have made.
TraffickedP ersons 19. The Bill would exclude from Legal Aid trafficked persons who do not claim asylum. Asylum claims are based on risks on return; while some victims face such risks, others do not. Trafficked persons constitute a paradigm “physically or emotionally vulnerable group.” Their cases often require expert evidence (including medico-legal reports, country expert evidence and evidence on the modus operandi of traffickers) for which, without Legal Aid, they will be unable to pay. The exclusion of Legal Aid for trafficked persons offends against the Government’s “four factors”-analysis. Additionally, it may increase the number of cases in which an asylum claim is made.
RefugeeF amilyR eunion 20. Despite representations, proposals to exclude refugee family reunion cases from the scope of Legal Aid have not been revised. The consultation response says that these applications are “generally straightforward” and that an alternative for family members is to claim asylum in their own right.27 It is incorrect: (a) The family members are outside of the UK and hence cannot claim asylum. It would be unlawful28 to assist them to do. To deny family reunion increases the risk that they make hazardous and clandestine journeys to the UK. (b) The UK Border Agency routinely requires DNA testing to establish family relationship. It does not provide or pay for testing. Without Legal Aid to pay for tests, many applications would be doomed to failure. (c) The UK Border Agency’s record in dealing with these applications is especially poor, and belies the suggestion they are straightforward. Some 61% to 66% of refusals are overturned on appeal.29 21. Family members (often in situations of extreme risk, such as hiding in the country of origin or in camps) constitute a paradigm “physically or emotionally vulnerable group.” Their exclusion from Legal Aid as intended by this Bill offends the Government’s “four factors”-analysis.
24 Immigration Rules (HC 395), paragraphs 289AA et seq. 25 Consultation Response, page 27 (paragraph 87). 26 Figures disclosed by the UK Border Agency to Rights of Women show success rates on appeal within this range for the period April 2009 and September 2010. 27 Op cit paragraph 90, page 28. 28 Immigration Act 1971, s 25A. 29 Management information collected by the UK Border Agency for 2009 and 2008, and shared with ILPA and others in discussion on refugee family reunion applications and policy. More recent evidence is not to ILPA’s knowledge available. Legal Aid, Sentencing and Punishment of Offenders Bill
Removal,Deportation andD etention 22. Challenges to removal and challenges to deportation are both removed from scope. These are cases where a person may face removal from his/her family, including British citizen family members, and from the place where s/he has lived sometimes since early childhood. As set out in ILPA’s response to the Green paper, the removal and deportation cases that pass the merits threshold for legal aid are among the most serious cases that come before the courts. They have also been among the cases that have seen the most egregious errors by the State, including wrongful removals of British citizens or persons with a right of abode in the UK. The importance of the issues at stake, the absence of alternative funding, as described above, or of any possibility of mediation, demonstrate that their exclusion from scope is contrary to the Government’s “four factors”-analysis. It also risks creating unintended and perverse effects, in particular an increase in claims for asylum. If such claims are not meritorious, the individual will not obtain Legal Aid and the case will proceed as an asylum case run by a litigant in person. 23. The Bill would retain Legal Aid for challenges to detention.30 This is considered a high priority because “the individual’s liberty is at stake”.31 The Consultation response records that: “[a]lmost all of those [who disagreed with the immigration and detention proposals in the Green Paper] felt that it would be practically impossible to distinguish between the underlying immigration matter and the detention matter . . .”.32 It continues: “The Government considers that contracted legal aid providers should not generally find it difficult to distinguish between advice related to aspects of immigration detention or bail and the underlying immigration issue.”33 24. The difficulties with this are: (a) In immigration cases, particularly in removal and deportation cases, the individual’s liberty is immediately at stake. The State (the UK Border Agency) has, and exercises, broad powers of detention which are directly consequent upon its immigration decision. (b) Challenging immigration detention is necessarily and intrinsically linked to challenging the underlying immigration decision which is both the cause of, and justification for, detention. Seeking release (eg bail) involves challenging the prospects of removal. Challenges to detention will not enjoy the priority intended if the means to challenge the practicality, reasonableness or legality of the immigration decision on which detention is founded are constrained. 25. An example may assist. In Muuse,34 a Dutch national, born in Somalia, was detained in consequence of a decision to deport him to Somalia. He was sentenced to six months imprisonment for common assault, but his release was ordered immediately due to time spent in prison on remand. However, before leaving the court he was asked to return to the cells, whereupon he was taken back to prison for “immigration”. At the time of making its decision, the UK Border Agency had his original Dutch passport. His deportation to Somalia was unlawful. Nonetheless, by reason of the deportation decision he was detained under immigration powers, ultimately for more than four months. Without pursuing the underlying immigration issue, that Mr Muuse was Dutch and could not lawfully be deported to Somalia, the basis for the challenge to detention would not have existed. 26. Detainees are significantly disadvantaged in trying to prepare and present their own cases, being isolated and ill-placed to gather evidence, including witness evidence. Accordingly the exclusion of the immigration cases of immigration detainees from scope offends the Government’s “four factors”-analysis. 27. If an individual is given legal aid to challenge detention but not to challenge the underlying immigration case then There would be perverse consequences if Legal Aid for the underlying immigration case is refused or withdrawn while someone is not yet detained or released from detention: (a) It would lead to situations in which a person is detained, despite the detention being unnecessary and unlawful in the light of the underlying case, because without Legal Aid the person has been unable to adequately present or evidence that case. (b) It would risk that individuals are caught in a cycle of repetitive periods of detention. An individual might secure release because the UK Border Agency could not demonstrate that the reasons for detention were made out but the individual would then, without Legal Aid, be unable adequately to pursue and present the case making a subsequent period of detention likely. (c) None of the above is in the interests of the UK Border Agency in its use or management of its detention estate.
30 Bill, Schedule 1, Part 1, paragraphs 22–24. These measures include the retention of Legal Aid for matters relating to alternatives to detention and the conditions that may be imposed in respect of these (eg residence and reporting conditions). 31 Consultation Response, op cit, paragraph 73, Annex A, page 100. 32 Consultation Response, op cit, page 100 (paragraph 71, Annex A). 33 Consultation Response, op cit, page 100 (paragraph 72, Annex A). 34 Muusev Secretary of State for the Home Department [2010] EWCA Civ 453. Legal Aid, Sentencing and Punishment of Offenders Bill
TheI mportance ofH ighQ ualityF reeL egalR epresentation 28. Detainees are significantly disadvantaged in trying to prepare and present their own cases, being isolated and ill-placed to gather evidence, including witness evidence. Accordingly the exclusion of the immigration cases of immigration detainees from scope offends the Government’s “four factors”-analysis. 29. We draw attention to the following view of the Judge’s Council (a view we share): “The recent withdrawal of a number of able representatives from legally aided asylum and immigration work illustrates the risk of excessive cut-backs and is viewed with alarm.”35 30. Where there is no free advice on offer, the individual has no money and so much is at stake, there is a grave risk that injustice will be done. These cases largely concern people’s private and family life36 in the UK. They involve complex questions of law and require the gathering and presentation of detailed and complex evidence (including witness statements and expert evidence).37 31. Persons seeking to raise the funds to pay for representation, however good that representation is, are vulnerable to exploitation by employers. But desperate people are also vulnerable to exploitation by those purporting to advise and assist them. The debates to date have drawn attention to the poor quality of advice and representation in this field and the venality of some advisors. The best protection against poor advice and representation is the availability of good advice and representation, and for those with no money this means free good advice and representation. 32. The relevant courts and tribunals are not inquisitorial and they are not equipped or resourced to gather evidence. Successive presidents of immigration tribunals have made this point. The late Mr Justice Hodge explained that he and his judges: “. . . want as many people to be legally represented as possible . . .”,38 saying: “It is a hugely different way of approaching cases if you become an inquisitor; you move away from sitting back and having both sides tell you what they think the right answer to the particular conundrum should be to you getting involved in it. The German judges who deal with asylum and immigration cases take far longer than we do, but they call for reports from doctors on medical issues, they ask for particular reports on country issues before they get anywhere near talking to person (sic) making the claim. They then tend to quiz the person making the claim, quite often more than once, and then they take the whole thing together and make a decision.”39 33. Mr Justice Collins (then Lead Judge of the Administrative Court and previously an immigration tribunal President) said: “. . . it makes it more difficult to give proper consideration when you do not have the evidence put before you in the form that it ought to be put and our system does not enable us to act as the inquisitor, or at least not to any great extent . . .”40 34. Mr Justice Blake, speaking, at the Annual Conference of the Office of the Immigration Services Commissioner on 6 December 2010, highlighting the importance of case management, observed that his judges need competent representatives for both parties to enable them to perform their role. 35. The points raised by the successive presidents are consistent with the findings of the Government’s literature review on litigants in person.41 July 2011
Memorandum submitted by Scope (LA 05) 1. AboutS cope 1.1 Scope supports and works with disabled people and their families at every stage of their life. We believe disabled people should have the same opportunities as everyone else. We run services and campaigns with disabled people to make this happen. As a charity with expertise in complex support needs and cerebral palsy we never set limits on potential.
35 Response of a subcommittee of the Judge’s Council to the Green Paper, paragraph 25. 36 Article 8, European Convention on Human Rights. 37 :“. . . the difficult evaluative exercise which article 8 requires.” EB (Kosovo)v Secretary of State for the Home Department [2008] UKHL 4 (per Lord Bingham of Cornhill; “I am left perplexed and concerned how any individual whom the Rules affect . . . can discover what the policy of the Secretary of State actually is at any particular time if it necessitates a trawl through Hansard or formal Home Office correspondence as well as through the comparatively complex Rules themselves. It seems that it is only with expensive legal assistance, funded by the taxpayer, that justice can be done.” AA (Nigeria)v Secretary of State for the Home Department [2010] EWCA Civ 773 (per Lord Justice Longmore). 38 Op cit, Q31. 39 Oral Evidence to the Constitutional Affairs Committee, 21 Mach 2006, Q39. 40 Op cit, Q35. 41 See page 5, Ministry of Justice, Litigants in person: a literature review, Research Summary 2/11, June 2011. Legal Aid, Sentencing and Punishment of Offenders Bill
2. Overview of ourC omments 2.1 The Government has published the Legal Aid, Sentencing and Punishment of Offenders Bill which sets out proposals to reform the legal aid system in England and Wales. The proposals within the Bill follow on from the Green Paper that the Government consulted on earlier this year and raise considerable concerns about their implications for access to justice for disabled people. 2.2 Scope is extremely concerned about the proposal to remove social welfare cases from the scope of legal aid, which will have an adverse and disproportional impact on disabled people. The legal aid system plays a crucial role in ensuring equal access to justice and the ability to access legal advice and representation is an important part of ensuring disabled people are able to hold public services and the Government to account. Furthermore, income-related benefits are designed to provide a welfare safety net for disabled people. Scope disagrees with the decision of affording welfare issues less importance in the allocation of legal aid funding, on the basis that these cases are essentially concerned with financial entitlement. 2.3 Scope is worried that if legal help on welfare benefits will no longer be available, this will leave many disabled people unable to challenge decisions when they are let down by the system. We believe that the assumptions set out in the Green Paper which preceded this Bill which underpin the proposal for removing welfare benefits law from the scope of legal aid are flawed and that there is a great need for the retention of legal help in this area. The key assumptions are as follows: — The tribunal system is designed to be “accessible” and “user-friendly”. — Appellants are only required to provide short reasons for disagreeing with the decision.
— Decisions are overturned on appeal “simply because the tribunal is able to elicit additional information which was not available to the Department”.42 2.4 Scope recognises the difficult economic background against which the proposals have to be considered and that reducing spend is one of the drivers for the reform of legal aid. However, this proposal will not deliver substantial savings in legal aid expenditure. According to the Government’s impact assessment, the savings derived from this are estimated at £22 million compared to a total legal aid budget of £2 billion, taking into account that this covers 113,000 cases per annum at an average cost of £200 per case.43 However, without early help, problems become more complex and can cost the public purse more.
3. KeyP rovisions of theB ill 3.1 Scope of legal aid: With only very minor exceptions, the Bill if enacted in its current form would implement the exclusions from scope of legal aid that were first put forward in the Green Paper. Clause 8, in conjunction with Schedule 1, establishes the discrete areas in which civil legal aid will remain. This briefing focuses on the substantive proposal to cut advice provision to disabled people seeking legal assistance on social welfare issues which will now fall outside the scope of legal aid. However, we have further concerns in relation to the broad-ranging powers conferred to the Lord Chancellor. In particular, Clause 8(2) paves the way for further changes to the legal aid scheme, by allowing the Lord Chancellor, by order, to øomit services’ from those areas of law that have been kept within scope. We believe that allowing changes in scope to be made through secondary legislation is neither appropriate, nor does it provide sufficient safeguards to ensure that access to justice is not arbitrarily interfered with. 3.2 Financial eligibility: Similar to the powers to further restrict the scope of legal aid, Clause 20 confers powers to the Lord Chancellor to make regulations relating to the financial eligibility of an individual to receive legal aid. The only indication of what reviewed financial eligibility for legal aid would be set is in the Government’s response to the consultation on the Green Paper. The absence of clear criteria for eligibility poses a serious concern. As disabled people are more likely to be living on a low income, a further reduction in eligibility for legal aid will create a significant barrier to access to justice.
4. RemovingW elfareB enefits andS ocialW elfareL aw moreG enerally from theS cope of LegalA id 4.1 Scope is aware of the many difficulties that disabled people face when trying to appeal against an unfavourable decision about their benefits. From having to deal with a complex area of law to navigating a tribunal system that is often inaccessible to disabled people, disabled people are at a particular disadvantage when seeking to secure their entitlements. Removing the limited support that disabled people currently receive, in the form of advice rather than representation, will make it harder for them to resolve issues related to their welfare benefits. Scope would therefore recommend that the Government revises its decision to remove welfare benefits from the scope of legal aid with consideration of the issues raised below, and amend the Bill as necessary.
42 Paragraph 4.217 of the Green Paper. 43 Impact Assessment—Scope changes: http://www.justice.gov.uk/consultations/docs/legalaidiascope.pdf Legal Aid, Sentencing and Punishment of Offenders Bill
4.2 The nature of welfare law and impact of removing legal help in the context of wider welfare reforms 4.2.1 The Bill provides for the continuing availability of legal aid in only a very limited number of areas of law. Legal aid would no longer be routinely available for welfare benefits, which would result in excluding 113,100 cases based on the statistics from 2008–09.44 We believe that the reforms should reflect the fact that the law in this area is of considerable complexity and disabled people need specialist legal assistance to pursue an appeal in the vast majority of cases. Scope recognises the Government’s intention to simplify the benefits system by introducing the Universal Credit and welcomes the intention to combine benefits that are currently separate.
4.2.2 Scope agrees that by improving the initial decision-making on welfare benefits the need for appeals may, to some extent, be reduced. However, the legal aid system provides an essential safeguard against poor quality of decision-making. Both the high volume of cases going to appeal and the high success rate for appeals, suggests a widespread failure of public authorities getting decisions right the first time; currently 40% of appeals against Work Capability Assessment (WCA) decisions are upheld.45 There can be significant consequences if disabled people do not receive the benefits to which they are entitled, causing considerable financial strain and pushing them into poverty.
4.2.3 The proposals should take into account the need to prevent disabled people falling through the net in the transition period. Recent reforms have altered the entitlements that disabled people can expect, and the need for advice will be even greater as the entire benefits system undergoes fundamental reform— particularly considering that two frameworks will be operating in parallel during the period that Universal Credit is phased in. There is a risk that the positive benefits of these reforms will be undermined if disabled people do not have access to adequate advice during this crucial transition period, when problems under the new system may occur, and instead disabled people will be left open to harsher sanctions.
4.2.4 Previous welfare reforms, including the introduction of the Employment and Support Allowance (ESA), have shown that the reshaping of welfare benefits system and making changes to entitlement to benefits significantly increases the need for legal advice. Removing legal advice in this area of law will fail to meet disabled people’s needs while the reforms to the welfare benefits system are implemented.
4.2.5 We are disappointed that in its response to the consultation on the reform of legal aid, the Government has excluded the possibility of considering the “polluter pays” principle. This was part of a package of alternative proposals for Government departments to meet the costs they generate for the legal aid budget, instead of reducing the scope of legal aid as the Bill proposes. In the case of welfare benefits, the system favours the decision-maker. The reconsideration process, which would become a mandatory tier before being able to pursue an appeal under the current welfare reform proposals, provides an additional opportunity to correct decisions prior to an appeal being heard by the tribunal. Applying the polluter pays principle would be essential for incentivising decision-makers to get decisions right the first time and reduce the need for legal aid in the first instance.
4.3 The nature of legal help 4.3.1 Scope believes that the current scheme for legal help is well-structured and uses public funds efficiently. The legal aid system does not fund representation in court with regard to social welfare law, and is currently restricted to legal help that can be used to prepare for appearances at court or tribunal. Specialist benefits advisers help obtain some form of resolution early on, without the further costs to the public purse of public officials preparing appeal papers and the Tribunal Service arranging and holding appeal hearings. The weight of evidence estimates that early intervention and legal help can stop situations escalating and avoid more costly problems at a later date, with Citizens Advice estimating that £8.80 is saved for every £1 invested in benefits advice.46
4.3.2 The Justice Minister has recently stated that “the Government does not dispute the value of early advice, and fully recognises the role it has to play in the early resolution of issues and the avoidance, in some cases, of the need to take matters further, in particular before the court or tribunal systems”.47 However, this is not projected in the Bill. Such early stage preventative interventions will no longer be funded if the provisions in the Bill are implemented and legal help for welfare benefits is removed. In the Green Paper, the Government has placed significant emphasis on discouraging unnecessary litigation. The proposed changes aimed at social welfare law will not assist in preventing unnecessary litigation, but instead remove the very scheme which provides early legal advice and assistance aimed at avoiding court action.
44 http://www.justice.gov.uk/consultations/docs/legalaidiascope.pdf 45 Department for Work and Pensions (2010), Employment Support Allowance: Work Capability Assessment Statistical Release: http://research.dwp.gov.uk/asd/workingage/esa wca/esa wca 26102010.pdf 46 Citizens Advice (2010), Towards a business case for legal aid: http://www.citizensadvice.org.uk/ towards a business case for legal aid.pdf 47 Justice Minister Jonathan Djanolgy address to the Legal Action Group Social Welfare Law Conference, 4 July 2011. Legal Aid, Sentencing and Punishment of Offenders Bill
4.4 Expectation that everyone is able to present own case 4.4.1 Scope is very concerned that if legal aid for welfare benefits cases is withdrawn, many disabled people will be unable to represent themselves without the prior preparation that legal help currently provides. Regardless of the benefits that might accrue from a simpler benefit system in the future, large area of complexity are likely to remain. Entitlement to benefits is often based on the correct interpretation of highly technical regulations and assessment criteria. 4.4.2 The Work and Pensions Committee has previously highlighted that “access to welfare rights advice can be a crucial resource” for those who require “support in preparation for an appeal”.48 In order to launch an appeal, an individual disabled person may need to read a very long submission from the DWP, in which it can be difficult to understand why a certain decision has been reached. Basic legal advice enables disabled people to recognise if they have a case to pursue as well as giving them the ability to present it themselves. Legal help also ensures that relevant evidence is obtained and provided to the tribunal, which saves judicial time and resources. 4.4.3 Scope does not agree with the Government’s statement that claimants are only expected to present the facts to the tribunal. An individual pursuing an appeal will have to relate medical evidence to conditions of entitlement, which is often not possible without legal advice. For instance, an individual appealing their decision on Disability Living Allowance would need to have an understanding of the difference between lower and higher rate eligibility as prescribed in detailed regulations, and be able to apply it to their case. It is on this basis that most appeals are allowed, and so without legal help prior to the tribunal, the prospect of an accurate outcome is significantly undermined.
4.4.4 Also, the proposed changes appear to be on the basis that where legal aid will no longer be available, individuals will still be able to represent themselves. Scope is concerned that in presenting the case for reform, the Government has over-stated self representation as a viable or desirable option. Evidence suggests that appeals against decisions on Attendance Allowance and Disability Living Allowance are much more likely to succeed if the individual is represented, suggesting that the tribunal system does not ensure unrepresented appellants fair access to justice. In 2009–10, there were 15,122 people who appeared at the tribunal with representation who were successful, in comparison to only 7,256 people winning their appeals without representation in the First-tier Tribunal (Social Security and Child Support).49
4.5 Need to find savings and impact on wider public finances 4.5.1 Scope is concerned that the Government’s proposals would change the stage at which public funding should be provided to crisis point situations only. Elsewhere, the Government has recognised the value of prevention services to prevent problems snowballing into a crisis, with all the associated costs for other public services. Failure to ensure that timely legal advice is available could see additional demands placed on services such as the NHS and other Government departments, undermining the purpose of reducing the legal aid budget.
4.5.2 In addition, the decision to retain discrete areas of law shows a lack of understanding of the reality of disabled people’s lives. Many disabled people experience a cluster of problems which compound one another across different social welfare scope areas, as this case illustrates:
“Some years ago I was claiming Job Seeker’s Allowance and the department officials made errors on three separate occasions stopped my benefit and it took up to eight weeks to get my payments restarted! During this time my Housing Benefit was also stopped. My landlord demanded rent and so I went overdrawn at the bank to keep up the rent. Naturally I accrued bank charges—large bank charges! In total I had £800 overdraft that took years to pay back on JSA and later IB”.50
4.5.3 If the proposals go ahead, most of these problems will relate to areas of advice to be excluded from the scope of legal aid, and a lack of advice in any one of these areas would have direct consequences for the individual concerned. The Government has argued that it “would be inappropriate to devote limited funds to a range of less important cases on the basis that they could, ultimately, lead to more serious consequences for the litigant”.51 This case is a good illustration of the fact that when welfare benefits are refused, disabled people move quickly into debt. Scope believes that the proposals show a narrow understanding of the benefits that timely legal advice provides in preventing a build up of unresolved problems. We are disappointed that the link between debt, welfare and employment matters and eventual homelessness is not acknowledged in the Bill. Restricting legal aid to discrete areas will make it impossible to deliver a comprehensive, sustainable solution to the legal problems that disabled people face, with most problems being left to exacerbate as a result of excluding large areas of law from scope.
48 Work and Pensions Committee (2010), Decision making and appeals in the benefits system, http:// www.publications.parliament.uk/pa/cm200910/cmselect/cmworpen/523/52302.htm 49 Written Answer to Parliamentary Question (22 December 2010), Slaughter—Appeals. 50 Scope, Money matters survey results. 51 Paragraph 4.79 of the Green Paper. Legal Aid, Sentencing and Punishment of Offenders Bill
4.6 The move to a single mandatory telephone gateway 4.6.1 Scope also has serious concerns about the plans to trial the mandatory single telephone scheme for those areas of law staying within the scope of legal aid, as is proposed in the Government’s response to the Green Paper consultation. We are concerned that introducing a single gateway would create a number of barriers for disabled people and could prevent them from accessing legal advice and assistance which they need and to which they are entitled. Also, a further concern is that the telephone service may artificially demarcate between areas of law remaining within scope and those than are excluded. As stated above, legal issues are often complex and in order to deal with their legal problems in a holistic way, disabled people will often require legal assistance that spans across a number of areas. 4.6.2 We disagree with the plan to trial the telephone gateway for four areas of law that have been kept within scope, namely discrimination, community care, special educational needs and debt (insofar as it remains in scope), as this fails to recognise the complexity of these cases. 4.6.3 Face to face contact is a critical component of good quality legal advice for cases involving either of these areas of law. We do not believe that these cases can be dealt with effectively through a telephone channel, as this would make it harder to process paperwork that is often required to provide adequate advice on such matters. Whilst we recognise that telephone advice may be a suitable alternative in some case, we would oppose the proposal that access to face to face legal advice will be regulated initially through a triage system of telephone advice. To ensure access to justice, a range of options for accessing advice should be available. 4.6.4 Scope notes that while the Bill provides no detail on how the telephone gateway would operate, the Bill poses significant challenges and would effectively remove the choice for disabled people seeking advice as to how they access it. Clause 26(1) provides that “the Lord Chancellor’s duty under section 1(1) does not include a duty to secure that, where services are made available to an individual under this Part, they are made available by the means selected by the individual”. Further, it is stated under Clause 26(2) that “the Lord Chancellor may discharge that duty, in particular, by arranging the services to be provided by telephone or by other electronic means”. This raises fundamental issues particularly if after receiving telephone advice, disabled people cannot be referred to a specialist of their choice, whom they have potentially used before and trust.
5. Scope’sR ecommendations 5.1 Scope strongly recommends that the Government makes amendments to the Bill in order to retain legal aid for welfare benefits within scope. Also, we would recommend that any transfer of powers to the Lord Chancellor, which would allow him to further exclude areas of law from the scope of legal aid or tighten financial eligibility criteria, are carefully scrutinised against their impact on access to justice for disabled people. July 2011
Memorandum submitted by Simon Green (LA 06) 1. I write to provide submissions on Sections 41 to 44 in Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Bill, the provisions that deal with payments for legal services in civil cases. 2. I am a Fellow of the Association of Costs Lawyers, a professional body for lawyers involved with three primary tasks: the drafting of legal bills, the defence of such bills and the dispute of such bills. Membership of the Association is attained through academic qualification and experience, and I have worked in legal costs for well over a decade. 3. I head the costs department in a firm of solicitors, and my primary role is the assessment of solicitors’ costs to determine their reasonableness, either through negotiation with opposing parties, or through a Court process for assessment of a bill known as Detailed Assessment and detailed in Part 47 of the Civil Procedure Rules 1998. I am also a tutor for the Association of Costs Lawyers. I may fairly be described as a salty veteran on civil costs, and I hope to offer some valuable and unbiased opinion in these submissions. 4. Prior to 1999, Legal Aid was regularly used to fund civil litigation. Plainly, its primary purpose was to give low income clients access to justice. In 1999 the Access to Justice Act extended the categories of claim which were ineligible for Legal Aid, including personal injury claims save for those relating to clinical negligence, claims for negligent property damage, boundary disputes, trust law, making of wills, company or partnership law matters, defamation claims and matters arising from the carrying on of a business (Part A, Schedule 2 of the Access to Justice Act 1999). Concurrently, Sections 27 and 28 of the Access to Justice Act permitted matters to be funded under a Conditional Fee Agreement, and permitted a “success fee” to be awarded as part of legal costs payable by an opponent, subject to the rules of the Court. Last, Sections 29 and 30 of the Access to Justice Act permitted a client to take out a policy of insurance or to use membership Legal Aid, Sentencing and Punishment of Offenders Bill
organisation (union) insurance to cover non-solicitor costs and opponent costs in the event a claim was not won. The sections of the Act also permitted the recovery of that insurance premium/union premium from opponents in addition to costs and success fee. 5. Section 58 of the Courts and Legal Services Act 1990 defines a Conditional Fee Agreement as, “an agreement with a person providing advocacy or litigation services which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances”. Following implementation of the Access to Justice Act, when a solicitor enters into a Conditional Fee Agreement and takes out a policy of insurance in order to offer a “no win, no fee” service, a solicitor does not get paid if a claim is not won, and the insurance premium (which is normally self-insured) gets written off. The client walks away without having to fund a penny of their litigation. 6. The Act proved to be a windfall for membership organisations such as trades unions, who previously funded their member’s claims without prospect of recovery of a pseudo insurance premium (a sum no more than the value of commercially available “after the event” legal expenses insurance). 7. If the claim is won, a client is liable to pay their solicitor’s normal basic costs, a success fee calculated as an extra percentage of costs and dependent upon the solicitor’s own assessment of difficulties in a claim, and the cost of any insurance premium taken out/Union premium. (They may also be liable for other costs, such as expert’s fees and barrister’s fees, though there is not need to consider this point here). If an Order for costs is made against an opponent, a client is normally entitled to be indemnified for the cost of “reasonable and proportionate” legal services, a “reasonable” success fee and the “reasonable” cost of insurance (Part 44.3(2)(a) of the Civil Procedure Rules 1998). 8. The fundamental problem with this current system is there is not sufficient control over the cost of “reasonable and proportionate” legal services, nor the calculation of a “reasonable” success fee, nor the commercial cost of insurance. Generally, a client has no liability for any costs if the claim is lost, and they receive a refund of costs from the opponent if the claim is won, walking away with 100% of their compensation. The solicitor is free to enter into a Conditional Fee Agreement with success fee up to 100% of costs incurred, and is free to “clock up” as many hours on a claim as he is able, knowing that their client will not dispute their bill, and the sole tool at the Defendant’s disposal to dispute costs incurred is Part 44.5(3) of the Civil Procedure Rules, which provides:
The court must also have regard to: (a) the conduct of all the parties, including in particular— (i) conduct before, as well as during, the proceedings; and (ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute; (b) the amount or value of any money or property involved; (c) the importance of the matter to all the parties; (d) the particular complexity of the matter or the difficulty or novelty of the questions raised; (e) the skill, effort, specialised knowledge and responsibility involved; (f) the time spent on the case; and (g) the place where and the circumstances in which work or any part of it was done.
9. Even if costs significantly exceed client damages, they may be justified on the basis of CPR 44.5(3) as costs “reasonably” incurred. I will come back to this point at paragraph 28, below, when I suggest alternative solutions to controlling costs. 10. There are three primary methods of funding costs in civil litigation cases: paying privately, using pre- existing legal expenses insurance to cover legal costs, and using a “no-win, no-fee” service. 11. It is fair to say that government departments are often paying parties in civil litigation cases, substantially as a result of claims against the NHS Litigation Authority or claims against local authorities following slips and trips. 12. From a paying party’s point of view, there is an inherent unfairness in the “no-win, no-fee” system. If a claim is lost, they must pay solicitors’ base costs, and solicitors’ success fee and the cost of an “after the event” insurance policy. If the claim was privately funded, or funded under the terms of a pre-existing legal expenses policy, the paying party would not be liable for a success fee nor “after the event” insurance policy. A “no win, no fee” funded case is, then, substantially more expensive to pay than a case funded by another method. In a calculation of every routine case I have dealt with for the last 4 months, I conclude that such a case is, on average, 33% more expensive than a case paid for privately or funded by pre-existing legal expenses insurance. 13. In 1999, “Access to Justice” meant that the extra burden of a success fee and insurance premium on the Defendant was a necessary evil. Plainly solicitors cannot be compelled to work for free. If a client cannot afford to pay privately and they do not have any legal expenses cover, then in the absence of legal aid, Legal Aid, Sentencing and Punishment of Offenders Bill
recovery of a success fee and insurance premium from opponents in addition to base costs was the only viable solution to protect vulnerable clients who, in the absence of financial means, would be denied access to justice. 14. The proposals in Sections 41 to 44 in Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Bill seek to fundamentally change this proposition. 15. In Section 41 of the Legal Aid, Sentencing and Punishment of Offenders Bill, Section 4 seeks to provide that a, “costs order made in proceedings may not [emphasis added] include provision requiring the payment by one part of all or part of a success fee payable by another party under a Conditional Fee Agreement”. Section 43 of the Act provides that a, “costs order made in favour of a party to proceedings who has taken out a costs insurance policy may not include provision requiring the payment of an amount in respect of all or part of the premium of that policy [save in clinical negligence matters, when an insurance policy is permitted to cover the cost of medical services]. 16. It is clear that these proposed changes to primary legislation are advanced in line with proposals made by Lord Justice Jackson in his Review of Civil Litigation Costs. The reason why these proposals were made are clearly set out in paragraph 2.3 of his report: Access to Justice entails that those with meritorious claims (whether or not ultimately successful) are able to bring those claims before the courts for judicial resolution or post-issue settlement, as the case may be. It also entails that those with meritorious defences (whether or not ultimately successful) are able to put those defences before the courts for judicial resolution or alternatively, settlement based upon the merits of the case. 17. Lord Justice Jackson fears that Defendants feel forced into settling unmeritorious claims in order to save costs, particularly when faced with a potential liability for “success fees” and “insurance premiums” in Conditional Fee Agreement funded cases. As noted above, I calculate these additional sums total an average 33% of a solicitors’ bill. He also fears that there is an unjustified advantage in Claimants being able to pursue their claim risk free: it can give rise to satellite litigation and can lead to unjust results. 18. I agree with these sentiments unreservedly. 19. Unfortunately, I do not agree that the proposals in Sections 41 to 44 in Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Bill will properly redress the position while protecting the needs of vulnerable clients. Since the protection of vulnerable clients is paramount, the proposals fail. Sections 41 to 44 must be struck from the bill. 20. I offer a worked example in support of this assertion. 21. While there are often ancillary issues involved, there are two key elements involved in any civil litigation case: liability and quantum. First, it must be decided whether the opponent has breached his duty to the client and is therefore liable for any losses. Second, a value must be placed on those losses. 22. A typical low-value claim concerns a man who relied upon a surveyor’s report when making a decision to purchase his first home for its full market value. That surveyor’s report negligently failed to identify obvious structural defects in the property. The property requires £10,000 of structural repairs, and the house was worth £10,000 less than the price paid as a result. In order to determine liability, the client needed to obtain expert evidence on the matters which a reasonable competent surveyor would have picked up. Next, he needed expert evidence on the value of those losses. Such experts’ reports themselves cost £1,500 in this case. The client had no pre-existing legal expenses insurance. The client could not afford to fund expert evidence himself. He needed insurance. The client could not afford legal costs. He entered into a Conditional Fee Agreement. 23. The surveyor admitted negligence and the claim settled for £10,000. The £10,000 was used to pay for structural repairs, and the client’s legal costs were paid by the opponent in addition. The client was in the position he should have been in had there been no negligence. Justice was done. 24. Under the proposals in the Legal Aid, Sentencing and Punishment of Offenders Bill, a client would have to pay for a policy of Legal Expenses insurance himself to cover the experts’ costs. Even assuming one way costs shifting is implemented in accordance with Lord Justice Jackson’s proposals and insurance is not needed for adverse costs, the cost of such insurance is never going to be £0. For that reason, a client of limited means with inability to secure credit may be unable to bring his claim at all. There would be no access to justice. 25. Under the proposals, if the client has sufficient means to continue, and the claim is won, that client will liable to pay the cost of insurance (say £300 in this case to cover £1,500 of expert’s report and having regard to prospects of success). He will also be liable to pay his solicitors’ success fee our of his damages. In this case, his solicitor’s base costs were £3,000, and the success fee was 25%, being £750. Under the new proposals then, the vulnerable client would pay £1,050 our of his £10,000 damages. His remaining damages will be insufficient to pay for repairs to the property. He will continue to live in a structurally defective house which cannot be re-mortgaged and which he cannot sell. Justice will not be done. Justice cannot be done unless the client is left in the same position he would have been in had the negligence not occurred: this is the whole basis of the law of negligence. Legal Aid, Sentencing and Punishment of Offenders Bill
26. If, on the other hand, the client had sufficient means to pay for his claim, or if he had the benefit of pre-existing legal expenses insurance, he would have the¨10,000 he needed to pay for repairs and his full legal base costs paid in addition. 27. Plainly we cannot have a system which may prevent a client of limited means from bringing a good claim, or which prevents a client of limited means from obtaining proper redress. 28. I now return to the primary objective of Sections 41 to 44 of the Legal Aid, Sentencing and Punishment of Offenders Bill: the control of legal costs. 29. I carried out an analysis of non-litigated, fast track, personal injury claims I worked on in the last 4 months. The average damages settlement achieved was 10% less than solicitors’ costs EXCLUDING success fee. Put another way, solicitors’ base costs were, on average, 10% higher than damages recovered. Clearly such costs are “disproportionate” in its ordinary literal meaning, but such costs are “reasonable” and permitted by the Civil Procedure Rules 1998. 30. Clearly solicitors’ bills must include a significant element of profit, since they are able to pay for, amongst other things, purchase of more claims from claims management companies who widely advertise “no win no fee” services and are clearly the prime motivator behind clients seeking a “no win no fee” service in respect of unmeritorious claims. 31. If solicitors cannot recover a success fee from their opponent, they will seek to maximise base costs in other ways: by increasing their hourly charging rate, by obtaining extra evidence, by using more experts and by uncovering every stone. The more costs solicitors incur, the more they can also potentially claim from their own client by way of success fee: of course, vulnerable clients are unlikely to oppose their solicitors’ success fee in the same manner as professional opponents. In reality, there is a significant danger that the proposals in Sections 41 to 44 of the Legal Aid, Sentencing and Punishment of Offenders Bill will do no more than penalise vulnerable clients. 32. There are better ways to control solicitors’ costs and prevent unmeritorious claims than to prevent vulnerable clients from recovering a success fee from their opponent. 33. First, pre-existing legal expenses insurance could be made more widely available and legislation could be enacted to ensure it is appropriate to use. At this time, many insurers refuse to indemnify clients in respect of costs incurred pre-proceedings despite the fact that evidence needs to be gathered pre-proceedings. I attach to this submission reasons why AA, Churchill, Co-Operative Insurance Services, Direct Line, RBS, Prudential, Norwich Union, Acromas, Sage, Allianz, Brit, DAS and MSL all offer policies of insurance which are not suitable for clients, such that they are better served by solicitors acting under Conditional Fee Agreements. If legislation forced the insurers to offer better terms, and forced insurers to indemnify their client’s entire reasonable claims, the policies would be used in favour of more expensive Conditional Fee Agreements. 34. Second, no thorough analysis of solicitors’ charging rates appears to have been carried out since 1999. Even in Band 3 deprived areas, the SCCO permit solicitors with 8 years’ experience to claim £20.10 plus VAT for dispatching a routine letter, and an office trainee with no legal experience to charge a client £111 per hour plus VAT for working on their file. 35. Third, steps need to be taken to prevent people bringing of certain types of unmeritorious claim, as proposed by Lord Young in his report titled, “Common Sense, Common Safety”. It would appear fairly simple to introduce legislation to protect good Samaritans, or to protect against claims for tripping on defects in pavements which are less than 1 inch. Legislation could also be introduced to ban referral fees and prevent “no win no fee” advertising, so that only meritorious clients will seek legal help. 36. Last but perhaps most importantly, the procedural steps contained within the Civil Procedure Rules themselves need significantly amending to reduce unnecessary costs. Under the current system in normal civil claims, if an opponent fails to comply with the pre-action protocol in even a routine matter, a solicitor is entitled to obtain liability evidence, to make an application to the Court for disclosure and to seek Counsel’s opinion on liability, all of which can likely be justified as ”reasonable” costs at conclusion, and all of which will be completely unnecessary if the opponent then admits liability out of time. 37. Low value road traffic accident cases are now governed by a separate procedure, detailed in Part 45 of the Civil Procedure Rules, which prescribes specific steps to be taken in cases, with specific fixed costs payable in respect of those steps. It is an extremely simplified procedure that stands on its own, and has significantly reduced costs in this area. 38. Clearly it would be impossible to formulate a fair system of fixed costs in all civil litigation matters in exactly the same way as Part 45 operates. Indeed any attempt to do so would prevent access to justice in cases which may demand a little more work than others, but may have a low value. Such cases such as occupational deafness claims, RSI claims or building disputes instantly spring to mind as low value claims which necessitate considerable work and involve vulnerable clients. 39. Nevertheless, amendment to the Civil Procedure Rules to significantly simplify the steps to be taken in a claim, to place more stringent time limits on matters, and to introduce specific prescribed steps which must be taken in default, will very significantly reduce solicitors’ costs. This has worked with low value RTA claims and there is no reason it cannot work on a larger scale. Legal Aid, Sentencing and Punishment of Offenders Bill
Summary Access to Justice for clients of limited means must always be a priority. The current system protects vulnerable clients, but it is not perfect. It encourages unmeritorious claims and it fails to control legal costs. Sections 41 to 44 of the Legal Aid, Sentencing and Punishment of Offenders Bill seek to reduce legal costs payable by opponents, but this is done at the expense of access to justice for vulnerable clients. If vulnerable clients cannot receive 100% of their compensation, they may not achieve a just remedy. Further, the proposals may fail to reduce solicitors’ costs at all. Solicitors’ costs can be much more rigorously controlled by alteration to the Civil Procedure Rules and review of Solicitors’ charging rates for different types of work. Unmeritorious claims can be better controlled by ”common sense” primary legislation such as that proposed by Lord Young, and also by legislation to control referral fees and claims management companies. Steps need to be taken to enable clients to benefit from pre-existing legal expenses insurance policies such that Conditional Fee Agreements will be far less prevalent. The proposals in Sections 41 to 44 of the Legal Aid, Sentencing and Punishment of Offenders Bill should be struck out. Reasons why BTE insurance is inappropriate with the following companies: AA — The terms of appointment permit AA Home Insurance Legal Services to pay you an amount equal to the value of the claim, and permit AA Home Insurance Legal Services to take over the claim in your name and settle any claim in your name. This potentially compromises your ability to bring a successful claim against your opponent. — The terms of appointment impose onerous reporting requirements, including a requirement to provide a monthly update on the progress of the claim. The cost of this cannot be recovered from your opponent on an inter partes basis. — The terms of appointment require a detailed report and an estimate of costs to be provided at various stages of the claim, the cost of which cannot be recovered from your opponent on an inter partes basis. — The terms of appointment require you to seek authorisation before incurring the cost of any disbursement over £250, which authorisation may not be granted. This potentially compromises our ability to act in your best interests. — Authorisation must be sought before incurring Counsel’s fees, which authorisation may not be granted. This potentially compromises our ability to act in your best interests. Churchill — Your legal expenses insurer reserves the right to apply a reserve on costs which is the maximum amount of indemnity that they will provide. Reserve increases must be expressly agreed in advance of incurring further costs, and the legal expenses insurer reserves the right to refuse to pay any costs over and above that reserve irrespective of any costs estimates provided. Such a restriction potentially compromises our ability to act in your best interests. — Your legal expenses insurers will not indemnify you in respect of disbursements over £500 without prior express authority, which authority is not guaranteed, and this potentially compromises our ability to act in your best interests. — The terms of appointment impose onerous reporting requirements, the cost of which cannot be recovered from the legal expenses insurers if the matter is lost, and the cost of which cannot be recovered from your opponent on an inter partes basis if the claim is won. Co-Operative Insurance Services — Your legal expense insurer has refused to allow us to act on your behalf in this matter until the issue of proceedings, and you wish to retain us as your solicitors. — Your legal expense insurer has confirmed that if you use the benefit of that legal expense insurance prior to the issue of proceedings, you will be referred to one of their panel solicitors outside the area who you have no guarantee of ever meeting to discuss your claim. — The terms of appointment impose restrictions upon the choice/use of experts who we will be allowed to use in the conduct of your claim, which potentially compromises our ability to act and advise you in accordance with your best interests in dealing with your claim. — The terms of appointment require the insurers’ direct access to solicitors, and they impose onerous reporting requirements, the cost of which will not be payable by your opponent, and will have to be met by you. — The terms of appointment impose restrictions upon the use of Counsel to provide opinion or advice, and require authority to be sought before incurring specified disbursements in excess of £250, which potentially compromises our ability to act and advise you in accordance with your best interests in dealing with your claim. Legal Aid, Sentencing and Punishment of Offenders Bill
— The terms of appointment do not allow for recovery of costs incurred in research or consideration of letters received despite the cost of these items, in certain circumstances, being recoverable from your opponent. The cost of this work, if incurred, will therefore fall to be payable by you in any event. — The terms of appointment impose a maximum charging rate of £120 per hour plus VAT, which is lower than the guideline hourly rates for work done by the conducting fee earner. The difference between indemnity provided by the insurers, and the retainer rate for work done, may therefore fall to be paid by you. Direct Line — Your legal expense insurer has refused to allow us to act on your behalf in this matter until the issue of proceedings, and you wish to retain us as your solicitors. — Your legal expense insurer has confirmed that if you use the benefit of that legal expense insurance prior to the issue of proceedings, you will be referred to one of their panel solicitors outside the area who you have no guarantee of ever meeting to discuss your claim. — The policy of legal expenses insurance only provides indemnity in respect of costs incurred on the standard basis, yet the terms of appointment impose onerous reporting requirements, the cost of which cannot be recovered on the standard basis. In the circumstances, the cost of complying with onerous reporting requirements will fall to be payable by you. — Your legal expenses insurer will not fund any disbursements which you may need to incur in excess of £500 without their prior express authority, which potentially compromises our ability to act and advise you in accordance with your best interests in dealing with your claim. — Your legal expenses insurers will not permit the issue of Court proceedings without their prior authority,which potentially compromises our ability to act and advise you in accordance with your best interests in dealing with your claim. RBS/NatWest — Your legal expense insurer will not indemnify you in respect of solicitor-own client costs. — Your legal expenses insurer will not indemnify you in respect of disbursements in excess of £500 without prior express authority, which may or may not be forthcoming. This potentially compromises our ability to act and advise you in accordance with your best interests in dealing with your claim. — The legal expenses insurers impose onerous reporting requirements. Costs we must incur in complying with onerous reporting requirements set out by your legal expenses insurers will not be paid by the insurers. — The legal expenses insurers will not be responsible for the cost of preparing a bill at conclusion of the claim. Prudential — Your legal expenses insurer reserves the right to apply a reserve on costs which is the maximum amount of indemnity that they will provide. Reserve increases must be expressly agreed in advance of incurring further costs, and the legal expenses insurer reserves the right to refuse to pay any costs over and above that reserve irrespective of any costs estimates provided. Such a restriction potentially compromises our ability to act in your best interests. — Your legal expenses insurers will not indemnify you in respect of disbursements over £500 without prior express authority, which authority is not guaranteed, and this potentially compromises our ability to act in your best interests. — The terms of appointment impose onerous reporting requirements, the cost of which cannot be recovered from the legal expenses insurers if the matter is lost, and the cost of which cannot be recovered from your opponent on an inter partes basis if the claim is won. ULR/Norwich Union — Your legal expense insurer has refused to allow us to act on your behalf in this matter until the issue of proceedings, and you wish to retain us as your solicitors. — Your legal expense insurer has confirmed that if you use the benefit of that legal expense insurance prior to the issue of proceedings, you will be referred to one of their panel solicitors outside the area who you have no guarantee of ever meeting to discuss your claim. — Your legal expenses insurer will not fund any disbursements which you may need to incur prior to the issue of Court proceedings nor the cost of issuing Court proceedings, and you will have to bear the cost of these disbursements yourself if your claim does not ultimately succeed. Legal Aid, Sentencing and Punishment of Offenders Bill
— The terms of appointment provide that ULR reserve the right, “to pay only such proportion of the profit costs or other costs as we consider to be reasonable in each particular case”, and therefore, if ULR themselves consider an item to be unreasonable, you will have the bear its cost if the claim does not ultimately succeed. — The terms of appointment by ULR limit recoverable costs to £125 per hour plus VAT, which is a lower hourly rate than the guideline rate prescribed by the SCCO for work done on the matter, and you will have to bear the cost of the difference if the claim does not ultimately succeed. — The terms of appointment by ULR limit travelling and waiting to 2/3 the hourly rate, and you will have to bear the cost of the difference if the claim does not ultimately succeed. — The terms of appointment by ULR place onerous requirements on conducting solicitors to, ”produce to us any documents, information, or papers in your possession” on request. The cost of complying with these requests will have to be met by you if the claim does not ultimately succeed. Acromas/Saga — The terms of appointment impose onerous reporting requirements. Inter alia, at issue stage, allocation stage, listing stage and pre-trial the legal expenses insurers require a “detailed report” to be produced, the cost of which cannot be recovered from your opponent nor the legal expenses insurers. — The terms of appointment impose restrictions upon the use of Counsel, such that prior to instructing Counsel, “you must contact us [the legal expenses insurer] with detailed reasons for your request and obtain our [the legal expenses insurer’s] prior authority”. Such conditions potentially compromise our ability to act and advise you in accordance with your best interests in dealing with your claim. The costs of complying with these conditions cannot be recovered from your opponent nor the legal expenses insurers. — The categories of work which the legal expenses insurers will not indemnify include, inter alia, the cost of preparing long letters, photocopying, research and preparing costs breakdowns, the cost of which may have been reasonably incurred in the course of the claim. Allianz — Your legal expense insurer has refused to allow us to act on your behalf in this matter until the issue of proceedings, and you wish to retain us as your solicitors. — Your legal expense insurer has confirmed that if you use the benefit of that legal expense insurance prior to the issue of proceedings, you will be referred to one of their panel solicitors outside the area who you have no guarantee of ever meeting to discuss your claim. — Your legal expenses insurer will not fund any disbursements which you may need to incur prior to the issue of Court proceedings nor the cost of issuing Court proceedings, and you will have to bear the cost of these disbursements yourself if your claim does not ultimately succeed. — The terms of appointment impose restrictions upon disbursements, for example Counsel’s fees, which cannot be incurred without prior authority from Allianz. The cost of seeking such authority cannot be recovered from your opponent. — Allianz will only indemnify “reasonable costs”, which are costs which were incurred in progressing the claim. Costs reporting to Allianz/seeking authority from Allianz must therefore be met by you. — The Allianz policy requires you to pay the first £250 of every claim where they agree to appoint a legal representative of your choosing, the cost of which must be met by you. Brit — Your legal expense insurer has refused to allow us to act on your behalf in this matter until the issue of proceedings, and you wish to retain us as your solicitors. — Your legal expense insurer has confirmed that if you use the benefit of that legal expense insurance prior to the issue of proceedings, you will be referred to one of their panel solicitors outside the area who you have no guarantee of ever meeting to discuss your claim. — Your legal expenses insurer will not fund any disbursements which you may need to incur prior to the issue of Court proceedings nor the cost of issuing Court proceedings, and you will have to bear the cost of these disbursements yourself if your claim does not ultimately succeed. — The policy of legal expenses insurance requires us to enter into a Conditional Fee Agreement to govern the financial arrangements between us and yourself and there is no benefit in terms of my liability for my own solicitors’ costs. — The policy allows the insurers to pay an amount equal to their reasonable estimate of the claim instead of providing cover for costs, and is therefore unsuitable in allowing you unfettered choice to proceed against your opponent. Legal Aid, Sentencing and Punishment of Offenders Bill
— The policy places onerous reporting burdens on the insured, including the requirement to keep the insurers fully updated on the progress of the claim, the cost of which will not be recoverable in proceedings.
DAS
— Your legal expense insurer has refused to allow us to act on your behalf in this matter until the issue of proceedings, and you wish to retain us as your solicitors.
— Your legal expense insurer has confirmed that if you use the benefit of that legal expense insurance prior to the issue of proceedings, you will be referred to one of their panel solicitors outside the area who you have no guarantee of ever meeting to discuss your claim.
— The policy of legal expenses insurance requires us to enter into a Conditional Fee Agreement to govern the financial arrangements between us and yourself and there is no benefit in terms of my liability for my own solicitors’ costs.
— Your legal expenses insurer will not fund any disbursements which you may need to incur prior to the issue of Court proceedings nor the cost of issuing Court proceedings, and you will have to bear the cost of these disbursements yourself if your claim does not ultimately succeed.
— The terms of appointment impose restrictions upon the choice/use of counsel and experts who we will be allowed to use in the conduct of your claim, which potentially compromises our ability to act and advise you in accordance with your best interests in dealing with your claim.
MSL
— Your legal expense insurer has refused to allow us to act on your behalf in this matter until the issue of proceedings, and you wish to retain us as your solicitors.
— Your legal expense insurer has confirmed that if you use the benefit of that legal expense insurance prior to the issue of proceedings, you will be referred to one of their panel solicitors outside the area who you have no guarantee of ever meeting to discuss your claim.
— Your legal expenses insurer will not fund any disbursements which you may need to incur prior to the issue of Court proceedings nor the cost of issuing Court proceedings, and you will have to bear the cost of these disbursements yourself if your claim does not ultimately succeed.
— The MSL policy only provides £25,000 of legal expenses cover, which may not be enough to cover potential liability in the event the matter proceeds to a contested trial.
— The MSL policy provides that the insured person is responsible for the first £75! VAT of every claim, such that the insured person will be out of pocket if the claim is not won.
— The MSL policy reserves the right to demand that the insured person, at their own expense, obtain an opinion from Counsel on the merits of legal proceedings, the cost of which may not be recoverable from any other party.
— The MSL policy places onerous reporting burdens on the insured, such as requirements to report on any offer to settle and requirements to deliver documents to MSL at their own expense, the cost of which will not be recoverable in proceedings.
July 2011
Memorandum submitted by the Zacchaeus 2000 Trust (LA 08) Introduction 1. The Z2k Trust works with the poorest citizens when they are tangled in the complexities of the UK benefit system and the enforcement of fines and debts against deeply inadequate unemployment benefits and the national minimum wage. For ten years the Paul Nicolson spent most Wednesday mornings in Wycombe Magistrates court helping fine defaulters fill in their means statements and supporting vulnerable debtors before the Magistrates. We now have an increasing number of active volunteers, currently about 32, servicing an increasing number of cases at any one time, currently about 90. We invite the Committee to watch our nine minute video on Google — Youtube — friends in need Z2K justice for vulnerable debtors.
We are not in receipt of LSC funding nor are we seeking any. Legal Aid, Sentencing and Punishment of Offenders Bill
2. We areA ddressing theF ollowingQ uestions andS ummarise ourA nswers asF ollows. a. What will be the impact on the payment of fines of the increasing prices of food, fuel and other necessities while the uprating of benefits has been moved from the RPI to the slower rising CPI? The JSA/ESA of single adults are £53.45 a week aged 18–25 and £67.50 aged 25 or over (April 2011); they are half the governmental poverty thresholds and 42% of the JRF minimum income standards. (both after rent and council tax). All fines against such incomes are becoming increasingly disproportionate as the minimum weekly price of a healthy diet of £46.31 (JRF April 2011) moves towards overtaking level JSA/ ESA for adults. b. What has been the impact of the power to break into domestic premise to enforce fines in the Domestic Violence Crime and Victims Act on the mental health and behaviour of benefit claimants receiving the JSA/ ESA of £53.45 a week aged 18–25 and £67.50 aged 25 or over (April 2011)? The offences of TV licence and fare evasion are often poverty related and will increase in quantity as the unemployment benefits become increasingly non-viable from the point of view of the claimant; when fines are imposed by the magistrates, court costs are added, and then the bailiffs fees. Many such fines!costs genuinely cannot be paid so adding to stress beyond the degree intended by the punishment and to the pressure to beg, borrow or steal to pay the fine. The power to break in to enforce fines should be abolished, c. What are the merits of introducing legally irreducible, attachment free limits for all debts the level of which is determined by reference to minimum income standards? Clause 102 71ZD (3) (e) of the Welfare Reform Bill introduces regulations “as to a level of earnings below which earnings must not be reduced” when enforcing blameless overpayments. This principle should be extended to all debts enforced by the courts, including those of the unemployed, following the practices in Europe, where the level is determined by reference to minimum income standards; and in Scotland where there is a Protected Minimum Balance in bank accounts when debts are being enforced. d. What improvements can be made to page 9 of The National Standards for Enforcement Agents covering vulnerable situations issued in April 2002 in the wake of the enforcement of the council tax by the imprisonment of very vulnerable and impoverished citzens? Mental and physical illness, disability, genuinely inability to pay fines in the context of multiple debts, inability to cope with the complexity welfare, always in the context of poverty incomes, are all vulnerable situations which the National Standards have failed to protect from excessive fines and excessive enforcement; because it is not enforceable. e. What impact will the proposed changes have on the number and quality of practitioners, in all areas of law, who offer services funded by legal aid? Without legal aid we are concerned that the important accumulation and source of knowledge and experience in the legal profession about social welfare law will wither on the vine. f. The Government predicts that there will be 500,000 fewer cases in the civil courts as a result of its proposed reforms. Which cases will these be and how will the issues they involve be resolved? At the point where vulnerable debtors, or volunteers helping them, need legal advice on complex welfare matters they will not be resolved. g. What are the implications of the Government’s proposals? We are concerned that the proposals in the Green Paper have ignored the relationship between debt and mental illness reported by the Government Office for Science and the consequential increase in the costs of mental illness in the health service and in the schools and homes of families, adults and pensioners in irreversible debt and stress.
3. FiningP overtyI ncomes For decades the Department of Work and Pensions has overemphasised to a dangerous degree the moral hazard that people will not seek work if benefits are too high and never considered the moral hazards if they are very far too low. Fining the current level of unemployment adult benefits is asking for trouble for local communities on top of trouble. The following letter from Professor Jonathan Bradshaw was published in The Guardian on the 15 May 2009. Benefit negligence The inadequacy of the £64.30 (Now £67.50) weekly jobseeker’s allowance (£50.95 for the under- 25s now £53.45), noted by Paul Nicolson (Letters, 11 May) is a modern phenomenon. When unemployment benefit started in 1912 it was 7 shillings a week—about 22% of average male earnings in manufacturing. The percentage fluctuated over the succeeding decades, but by 1979 the benefit rate was still about 21% of average earnings (manual and non-manual, male and female). By 2008, however, as a result of the policy of tying benefits to the price index while real earnings increased, the renamed jobseeker’s allowance had fallen to an all-time low of 10.5% of average earnings. And while, in the past, means-tested allowances raised unemployed income to a higher minimum level, the jobseeker’s allowance rates are now the same, whether means-tested or not. Legal Aid, Sentencing and Punishment of Offenders Bill
Of course, average earnings have grown but so has the relative deprivation of the unemployed. This is not a policy justified by the need to maintain work incentives. It is just a dreadful record of neglect by governments since 1979. 4. Donald Hirsch of the Centre for Research in Social Policy has calculated that sometime within the next ten years the increase in the weekly cost of a healthy diet will overtake the annual increase in the unemployment income of the under 25s. He calculates that in 2020 the weekly cost of a healthy diet will be £77 a week when the JSA for the under 25s will be £74 a week. The fuel costs will be £24 a week; the combined costs of food and fuel will be £101 when the JSA for over 25s will be £93 a week. (An Unpublished Letter to the Z2K Trust)
5. TheT hreat toB reak inA gainstV ulnerableP eople toE nforceF ines.CaseH istory. Three weeks after Jean Jones had been given a TV License the Enforcement Officer called; she signed up to pay the license by direct debit every quarter, while he told her the case would not go to court. But she was fined £200!£70 costs in her absence by the Magistrates. She borrowed £270 from Provident plc, doorstep lenders, in order to pay the fine and avoid the bailiffs; a loan that costs £150 interest. On the 19 January she paid £270 in an envelope into the safe at the Court. Her sister witnessed her putting £270 in the envelope. HM Courts Service has only recorded £170 paid. We have asked for an audited account of all the fines paid into the safe that day. The bailiffs enforced £100 the court says in missing. Z2K requested the hearing on behalf of Ms Jones because the fine is disproportionate for a lone mother receiving benefits. A means statement was presented and remission was requested. Z2K asks for the bailiffs to be withdrawn. The Clerks to the Buckinghamshire Magistrates’ Court and HMCS Bucks Central Payment Office say they have no power to withdraw the bailiffs; they citeR v Hereford and Worcester Magistrates’ Court ex p MacRae [1998] 163 JP 433. The HMCS/Ministry of Justice say the Magistrates, the Clerk and the Fines Officer have the power to withdraw the baillifs so the hearing may take place. It seems essential in the interests of justice that fine defaulters or their authorised representatives should be entitled to ask the court to withdraw the bailiffs to enable a case to reconsidered be put to reduce the fines when circumstances change or the defaulter was not present at the trail. This case was reheard by the court, bit many are not, and the fine reduced to £70!£70 costs and the bailiffs withdrawn without their fees, and £30 repaid. The power to break in to enforce fines should be abolished.
Legally enforceable, Irreducible, attachment free limits. 6. Although third-party debt orders are not frequently used in England and Wales, the equivalent power of bank arrestment is used in Scotland. This was held to cause hardship for the person in debt and their families. It includes a concept of the Protected Minimum Balance (PMB). The PMB protects debtors from undue hardship by providing a minimum balance which limits the amount that can be arrested from a personal account. There are principles in Scottish law about the ability of creditors to arrest benefit-only accounts. In the Scottish court system, there is a protected minimum balance of £415 (from 1st April 2010) that cannot be frozen as a result of a “bank arrestment”. Also, accounts solely comprising benefit income should not be arrested. Where an account contains a mixture of benefit and other income, a client has strong arguments against a creditor’s ability to freeze the benefit funds. There are disputes about the money in the account and whether it is susceptible to arrestment, eg where the funds belong to a third party, but these measures have improved the bank arrestment process and made it fairer for vulnerable people in debt. (Information provided by the Money Advice Trust). 7. These attachment free limits in the Welfare Reform Bill echo the practice in Sweden, Germany, the Netherlands, Norway, Scotland where there are legally enforceable, irreducible attachment free limits when all debts are being enforced; the level of the limits is related to national minimum income standards set by a variety of methods. The principle of should be extended to all debts and to the unemployed in the UK, in particular safeguarding children’s, disability and housing benefits. It prevents the damage done to mental and physical health by the enforcement of debts against poverty incomes and to the capacity of the poorest adults to find and keep work. 8. In Sweden52 the standards for a reasonable level of living are up-rated for price index changes every year and reset every five years by the National Board for Consumer Affairs. They are based on survey data on national household consumption patterns and current prices. These standards are used by the social service board for setting benefits and by the tax authority for setting the tax threshold. The tax threshold is also used by the court enforcement authority to set its attachment-free sum for debt enforcement. The sum consists of two parts —variable housing costs and a fixed standard “normal” sum for all other living expenses. The total sums of standard!rent are irreducible.
52 Unpublished letter to Z2K from Professor John Veit-Wilson. June 2010. Legal Aid, Sentencing and Punishment of Offenders Bill
Vulnerable Situations 9. The following sensible procedure arrived after a meeting between officials and Z2K at the then Lord Chancelllor’s Department in 2001 in the wake of the imprisonment of very vulnerable people for poll tax default by the Magistrates. A founder trustee barrister of Z2K had overturned over 1,000 of those decisions in the High Court. It is not effective because it is not enforceable.
National Standards for Enforcement Agents—Page 9 Published by the Lord Chancellor’s Department—April 2002.
Vulnerable Situations — Enforcement agents/agencies and creditors must recognise that they each have a role in ensuring that the vulnerable and socially excluded are protected and that the recovery process includes procedures agreed between the agent/agency and creditor about how such situations should be dealt with. The appropriate use of discretion is essential in every case and no amount of guidance could cover every situation, therefore the agent has a duty to contact the creditor and report the circumstances in situations where there is potential cause for concern. If necessary,the enforcement agent will advise the creditor if further action is appropriate. The exercise of appropriate discretion is needed, not only to protect the debtor, but also the enforcement agent who should avoid taking action which could lead to accusations of inappropriate behaviour. — Enforcement agents must withdraw without making enquiries if the only persons present are children who appear to be under the age of 12. — Wherever possible, enforcement agents should have arrangements in place for rapidly accessing translation services when these are needed, and provide on request information in large print or in Braille for debtors with impaired sight. — Those who might be potentially vulnerable include: the elderly; people with a disability; the seriously ill; the recently bereaved; single parent families; pregnant women; unemployed people; and, those who have obvious difficulty in understanding, speaking or reading English.
Legal Aid 10. The Magee Legal Aid Review commissioned in 2009 and published in March 2010 stated: Ministers have made it clear that they are concerned to ensure that there is an appropriate focus on social welfare. There is power in the Access to Justice Act to separate the (civil and criminal) funds, though it has never been exercised. The data provided to me suggests that in recent years, there has been no diminution of civil legal aid provision at the expense of criminal. This may largely be because the LSC has taken significant steps over that time to control criminal legal aid expenditure. The not-for-profit sector organisations whom I consulted were more in favour of separation, though by no means universally so, than either the Law Society or Bar Council. 11. There has been a clear change of emphasis with the change of Government in May 2010. It seems that civil legal aid provision has now succumbed to the demand for criminal legal aid. 12. An important democratic principle is being eroded. Equality of arms is a fundamental aspect of justice and there is none if the citizen is not entitled to advice and support when in dispute with the State over benefit payments, non payments and overpayments. It is said by ministers that help is available for people in debt from Jobcentreplus; but many are in debt or alleged to be in debt TO jobcentrePlus. Their staff are already overworked and suffering cuts. They are often confused by the same complexity as the claimant. 13. For example an unemployed former Sergeant in the Royal Signals desperate for work was required to supply 28 separate pieces of information (including details of his bathroom measurements) to calculate his housing costs, even though he had taken out his own mortgage protection insurance policy (which was paying the rent). He had to do this or his Job Seeker’s Allowance would have been cut off (which it then was in error which led to an appeal to the Social Security Lower Tier Tribunal which was successful). He also had to provide six pages of written information to the job centre. Not only was collecting this information a burden on him (it also detracted from his time searching for work) the luckless official who gathered it then failed to process it correctly, leading to a maladministration complaint and two lots of compensation being paid and an investigation by the Independent Case Examiner.
Housing debt 14. It is proposed in that Legal aid is to be retained in the highest priority cases-in debt and housing when someone’s home is at immediate risk, for homelessness, and in cases involving serious disrepair, and in community care cases. Under these proposals legal aid would no longer be routinely available in other social welfare law matters. 15. However, the fact remains that legal aid solicitors contracted for housing to the LSC are hard to find; the bureaucracy and expense of the LSC being blamed. Vulnerable and impoverished tenants often cannot find a housing lawyer. Legal Aid, Sentencing and Punishment of Offenders Bill
Case history. A single mother receiving welfare with five children was living in a damp two bedroomed flat in High Wycombe. The local authority refused to move her because she had rent arrears. There were no solicitors in High Wycombe with a Housing Contract; the nearest was in Reading. To pursue the matter with legal advice she would have had to travel to Reading because the solicitor was not willing to travel. Her welfare did not extend to covering the costs of her transport to Reading. Access to justice is currently denied to vulnerable unemployed households receiving benefits who have no landline, no computer and cannot afford transport. Not only are legal aid lawyers few and far between but also local courts are being shut in the interests of economy. The result is uncontested evictions when accessible legal aid might have prevented homelessness. We remind the committee of the depth of poverty among the unemployed with information from the House of Commons Library at the end of this submission. 16. Social welfare law advice already has withered to an unacceptable degree. In the case of Lloydv DWP before the Upper Tribunal Administrative Appeals Chamber (hearing date 26 October 2010). The appellant was able to obtain only one hour of advice with a solicitor which proved wholly insufficient in the circumstances. 17. Legal aid is to be retained in the highest priority cases—in debt when someone’s home is at immediate risk; that is too late. It is claimed there will be 500,000 fewer cases going to court. It is unclear how the figure of 500,000 has been calculated. In fact if early advice is not available there will be more cases going through courts, such as evictions and benefit overpayment claims. 18. The existing LSC £167 homelessness advice case fee can stop eviction proceedings and prevent homelessness if advice can be given before the home is seriously at risk. Law Centers estimate that 90% of eviction cases could be avoided if there had been good early advice on money problems. 19. An example of this can be seen with council tax proceedings. Currently there is no legal aid available at the liability order stage, and there number of liability orders rose to over 3 million in the period 2008–09, the last date we have figures for. 20. Until the introduction of legal aid for committal proceedings following the case of Benhamv UK [1996] 22 EHRR 293 over 5,000 people were to committed to prison for poll tax arrears in error. This resulted in over 1,000 appeals to the High Court and proceedings compensation claims in Strasbourg for people wrongly jailed. Many of these unfortunate consequences could have been avoided had safeguards and been in place. 21. We believe that removing the emphasis from routine social welfare law is a false economy when so much debt is generated by a welfare system which handles 19 million individual benefit claims for around 8 million households. The amounts owed last year by welfare claimants totalled around £3 billion due to the errors of claimants and officials in the delivery benefits, largely due to the complexity of the system. A further £2 billion is owed due to fraud. (See DWP white paper on welfare reform). Routine welfare is extremely complex and will remain so under the Universal Credit.
Possible human rights implications. 22. Under Art 6 of the ECHR a person is entitled to a fair hearing in proceedings which affect the rights of a person, including civil obligations (See Rommelfanger v Germany (1989) 62 DR 151 and Diennertv France (1996) 21 EHRR 554). As in Benhamv UK certain forms of civil judgment and enforcement may have a more serious effect on the citizen’s convention rights and liberties than criminal proceedings. (Ultimately, there can really be no abandonment of the Human Rights Act because its implementation in the UK was part of the Good Friday Agreement for peace in Ulster).
Debt and Mental Illness 23. No account has been taken in the Ministry of Justice of the poverty and debt related mental illness reported by in a Foresight Report for the Government Office for Science. (“Mental Capital and Wellbeing— making the most of ourselves in the 21st Century”.) 24. Professor Rachel Jenkins speaking at the launch of the Foresight report explained that scientists have known about a link between mental illness and low income, but more recent research has shown that the link is probably most accounted for by debt. Those in debt have two to three times the rate of depression, three times the rate of psychosis, double the rate of alcohol dependence, four times the rate of drug dependence compared to other members of the general public. 25. The cost of mental illness to the economy at large is £105 billion a year (NHS stats) including days lost at work, far more than cancer, heart disease or obesity. 26. It is routine assistance of vulnerable people when low income welfare leads to debt that relieves stress and depression which, in turn lead on to calls on the health service creating cost to the taxpayer. However, the green paper stated; Legal Aid, Sentencing and Punishment of Offenders Bill
The Government considers that, in general, cases which are primarily of a financial nature are less deserving of state intervention through legal aid than those involving fundamental rights. Individuals who have debt problems are able to get help and advice from a number of other sources, such as the National Debtline and the Money Advice Trust and it is right to expect individuals to take responsibility for their own financial affairs.
27. The Ministry of Justice has failed to appreciate the debilitating effect of being in debt to the state as a result welfare complexity and the lack of capacity among claimants to deal with the law involved or to take responsibility for their own finances when threatened by enforcement and bailiffs.
28. The Frank Field report The Foundation Years published on Friday 3 December states;
There is a complex relationship between parenting and poverty. Poor parenting exists across the income distribution, but tends to have less of an impact on better off children where other factors provide greater protection against poor outcomes. However, stress and conflict can disrupt parenting and a lack of money or debt is one of the major sources of stress for poorer families. Analysis using the Avon Longitudinal Study of Parents and Children study showed that a reduction in income and worsening mental health tend to lead to a reduction in parenting capacity.
29. The stress of debt is exacerbated by draconian enforcement of council tax against vulnerable debtors. The Ministry of Justice has persistently refused to provide a definition of vulnerability which could underpin the protection of such debtors from aggressive and excessive enforcement of debts against poverty incomes by bailiffs.
30. The introduction of the power to break in to people’s homes to enforce fines has led to panic borrowing from home credit companies at very high interest to pay fines by, for example, single mothers with small children defending their homes from unknown male bailiffs on their doorstep for a TV licence fine. Early intervention prevents costs, the debt and the consequent stress mounting up.
31. We take cases of stress related illness from GPs in Tottenham. Welfare claimants, and our volunteers supporting them, need to be able refer to legal aid solicitors in cases where social welfare laws apply. Without legal aid in this field we are concerned that the important source of knowledge and experience in the legal profession about social welfare law will wither on the vine. The number of specialist lawyers in the field is already low.
32. In the case of Gargetv London Borough of Lambeth [2008] December 20th Lord Justice Wall observed;
In my view it remains an apparently non-eradicable blemish on our operation of the rule of law that the poorest and most disadvantaged in our society remain subject to regulations which are complex, obscure and, too many, simply incomprehensible.
It will be many years before the delivery of welfare is so efficient that legal aid does not have to be used. Meanwhile failure to provide for its ironing out its legal complexities in the removal of legal aid from most social welfare law will result in increase costs to the taxpayer in the hospitals schools and the administration of justice.
Shortfall from 2020 target Unemployment benefits at APRIL 2009 and 60% median income.
£ per week. ALL AHC AHC Benefits Shortfall Shortfall Benefits from from April from target from target April Over 18 2009 actual less 2010 £ per week Threshold Actual threshold £ per annum
Childless couple 199 100.95 –98.05 –5099 102.75 Single individual 116 64.30 –51.70 –2688 65.45 Couple one child 239 174.36 –64.64 –3361 177.72 Couple two children 323 230.47 –92.53 –4812 235.29 Lone parent one child 155 137.71 –17.29 –899 140.42 Lone parent two children 239 193.82 –45.18 –2349 197.99 Single adult 18–25 116 50.95 –65.05 –3383 51.85 Source: House of Commons Library and DWP. July 2011 Legal Aid, Sentencing and Punishment of Offenders Bill
Memorandum submitted by the Consumer Justice Alliance (LA 10) 1. Introduction 1.1 This submission relates to Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Bill— Litigation Funding and Costs. 1.2 The proposals outlined in Part 2 of the Bill seek to fundamentally alter the way in which injured victims are able to access justice. We are extremely concerned that if this legislation is passed in its current form it will serve to place insurmountable legal and financial hurdles in the path of many legitimate claimants, curtailing broad access to justice, whilst also increasing the overall cost of civil litigation to the public purse. 1.3 The Consumer Justice Alliance is greatly concerned that controversial and insufficiently scrutinised proposals that will fundamentally reduce the ability of injured victims to access justice have been “buried” in four pages of a Bill extending to 196 pages.
2. What does theB ill mean forI njuredV ictims? 2.1 The Bill will make injured victims pay part of their legal costs from the damages which have been awarded to help them recover from their injuries. Awards of damages are based upon compensation for the injuries and losses sustained as a direct result of the accident caused by someone else and are awarded to put the victim back into the financial position in which he or she was prior to the accident. 2.2 By definition any deduction from compensation will mean the victim will be worse off than they would have been had they not been injured. Injured victims should not be denied rightful compensation, intended for their recovery, to help the defendant insurance companies to further increase their profits. 2.3 It is worth noting that in personal injury claims, nearly all claims are brought against a Defendant who is insured and it is the insurance company who pays the compensation. This has not led to a decline in insurance company profits contrary to the perception encouraged by the insurance industry that they are beleaguered and are “forced” to raise premiums to meet personal injury claims. 2.4 The Bill’s proposals will serve to significantly reduce the level at which defendant insurance companies are liable to pay claimant costs. As a result, many good and meritorious cases will no longer be commercially viable for law firms.
3. Omission ofQ ualifiedO neW ayC ostsS hifting and 10% Uplift onD amages 3.1 In the consultation that preceded the Bill, two measures were proposed to go some way toward mitigating the widely acknowledged damage the proposals above would do to innocent victims awarded rightful compensation. The Bill as presented to Parliament has no reference to either of these measures: a 10% uplift in general damages awarded to the injured victim; and Qualified One Way Costs Shifting, a mechanism for rebalancing the likely liability for costs away from the claimant. 3.2 Without these two elements, proposed by Lord Justice Jackson as an integral part of his reforms, the Bill will deny many of the most vulnerable in our society access to justice. 3.3 It is understood that these will be introduced via secondary legislation. However, as the Bill does not specify any detail on the Government’s future plans, it only serves to make all those in the industry additionally concerned about the government’s intentions and therefore less likely to take on complex no win no fee cases. As a result, access to justice will be restricted to those who can afford it.
4. Recoverability of ATE Premiums forE xpertR eports 4.1 The Government has conceded in one area from Lord Justice Jacksons’s recommendations by allowing recoverability of ATE premiums for expert reports in clinical negligence cases. 4.2 This is welcome but does not recognise that in the many other complex cases, including industrial deafness, RSI, and carbon monoxide poisoning, expensive expert reports are also required at an early stage the costs for which will not be recoverable. 4.3 As a result, After The Event (ATE) insurers are on record as saying that they do not consider there will be sufficient capacity in the market for clinical negligence policies alone.
5. TheC ompensationC ulture andM isleadingC riticism ofC onditionalF eeA greements 5.1 The Bill introduces sweeping, draconian changes which intend to significantly shift the financial burden of bringing a claim from the defendant insurance company to the claimant. While much of the attention has been focused on legal aid and sentencing, the impact of these other proposals cannot be underestimated. 5.2 The Bill is trying to answer criticisms that Conditional Fee Agreements lead to spurious cases, but that is simply not the case. Lawyers will only get paid if successful and do not invest time and money into spurious cases. If anything, Conditional Fee Agreements work as a very effective filter system to ensure that Legal Aid, Sentencing and Punishment of Offenders Bill
only the meritorious claims are actually brought, with unmeritorious ones being weeded out at a very early stage. There is simply no incentive for lawyers to take on claims where there is no merit and for which they will therefore not be paid. 5.3 The Government says that it aims to address the “compensation culture” in the UK as justification for the reforms. Yet Lord Young in a report commissioned by the Government, acknowledged that this is a myth. Crucially, the Government’s own figures fail to back up the very idea. 5.4 A good example of this is the personal injury statistics for the NHS—often cited as an example of a government department that will save money as a result of the Bill’s proposals. The NHS handles fewer personal injury cases now than when conditional fee agreements were introduced. In 1997–98 6,711 claims were brought and in 2009–10, that figure was 6,652. These figures do not demonstrate a litigation system that is out of control. 5.5 To justify the Bill’s proposals, the Government chooses to paint victims as spurious claimants, which drives the mythical compensation culture. It deliberately fails to acknowledge that the compensation these victims are awarded is used to rebuild their shattered lives and those of their families, as some will never earn a wage again and many will need special care for the rest of their lives. 5.6 As a result, victims will fundamentally pay the price for the Government’s cost-cutting agenda. They will have their hard-fought compensation slashed by the end to recoverability and many will find it difficult even to find a firm willing to take on their case under the new regime. 5.7 Claimant lawyers will be forced to fight for their clients with one arm tied behind their back, the odds stacked in favour of the other side, often in the form of well-resourced organisations and large insurance companies. 5.8 The NHS currently recovers, from Defendant Insurance companies, approximately £170 million per year in costs incurred by injured victims awarded compensation and state benefits are also recovered under the Compensation Recovery Unit Scheme, amounting to approximately £154 million per annum. 5.9 On the MoJ’s own admission they state that “there is a lack of consistent, routinely collected data covering private funding arrangements”, and they “are unable to assess how different aspects of the policy package may interact, and how different parties will respond to the behavioural responses of other parties”. More so, they have “limitations on what they are able to model, based on the data received over the consultation period”.
6. A denial ofA ccess toJ ustice 6.1 In essence the Bill proposes changes which will radically affect access to justice without any proper assessment of the impact this may have on the public purse. If the number of injured people who are prepared to take claims forward declines there is a very real risk that instead of seeing a reduction in public expenditure there will be an increase. 6.2 As we have made clear throughout the Consultation period and since, we are very concerned about the system that this Bill seeks to introduce. Fair access to justice and equality of arms are the cornerstones of a civilised society and the Public Bill Committee should be in no doubt that these will be severely impaired if the Bill is enacted in its current form. July 2011
Memorandum submitted by Barnardo’s (LA 12) 1. Barnardo’s understands that the Immigration Law Practitioners’ Association (IPLA) have made representations to the Public Bill Committee on a number of issues relating to the provision of Legal Aid to people at risk of deportation. 2. The Bill excludes all immigration cases from Legal Aid except for asylum cases, challenges to immigration detention (such as bail applications) and cases before the Special Immigration Appeals Commission. Barnardo’s agrees with the ILPA’s position that this general exclusion is in conflict with the Government’s “four factors” analysis and risks serious undesirable and perverse outcomes. 3. These “four factors” relevant to what should remain in scope for Legal Aid are:53 a. Importance of the issue; the following are of high priority: cases concerning life, liberty, physical safety, homelessness, intervention by the State and holding the State to account; b. Individual’s ability to present his/her own case, with consideration given to whether proceedings are adversarial or inquisitorial and whether litigants are “from a predominantly physically or emotionally vulnerable group”;
53 Proposals for the Reform of Legal Aid in England and Wales: Consultation Response Ministry of Justice, June 2011 paragraph 6 (page 11). Legal Aid, Sentencing and Punishment of Offenders Bill
c. Availability of alternative sources of funding, with Conditional Fee Agreements, legal insurance and trade unions identified; and d. Availability of alternative means of resolution, with alternative sources of advice, ombuds and complaints procedures identified. 4. Barnardo’s wishes to make clear that it supports the IMLA’s position that legal aid for children who are a party to immigration proceedings should be preserved.
Children 5. As the IMLA explains: The Government revised its original proposals concerning family law to take into account “that children are not able to represent themselves”.54 Children are no better placed to represent themselves in immigration proceedings. The exclusion for immigration cases in the Bill particularly affects children in the following situations: a. Separated (unaccompanied) children, other than those pursuing asylum claims. This will include children, some of whom will have been in the UK for several years, applying for an extension of discretionary leave and who are being cared for by a Local Authority. b. Children facing removal from the UK along with a parent, or separation from a parent by reason of that parent’s removal where their interests require separate representation. 6. Where a separated child with no Legal Aid and no income is in the care of a Local Authority,that Local Authority may be looked to for funding for representation.55 This would constitute a substantial (and unpredictable) transfer of cost from the Ministry of Justice to Local Authorities56 (something antithetical to the Government’s stated antipathy to public expenditure “cost shifting”);57 and would risk increasing costs because paying privately for representation will cost more than is paid under Legal Aid rates. This group may therefore, uniquely among the immigration cases, be able to find an alternative source of funding, but is this desired?
7. As to family removals, the Supreme Court and its predecessor have highlighted that there will be cases where the child needs separate representation. Two cases were, in the view of those courts, examples of this. In EM (Lebanon),58 removal of him and his mother to Lebanon would have resulted in his custody being given to his estranged and abusive father with permanent separation from his mother. In ZH (Tanzania),59 the effect of the children’s mother’s removal would either be to separate the British children from their mother or to remove them from their settled life in the UK and their father.
8. These cases involve international and domestic obligations concerning the best interests of the child60 and the safety and welfare of children.61 The State (the UK Border Agency, which has been found wanting in this regard)62 must be held to account. The Government is correct that children are not able to represent themselves. The exclusion of Legal Aid for children in immigration proceedings as intended by this Bill offends the Government’s “four factors”-analysis; and does so with additional undesirable and perverse risks. July 2011
Memorandum submitted by JustRights (LA 13) 1. AboutJ ustRights JustRights is a coalition of over 30 organisations, established by Youth Access, The Law Centres Federation, The Howard League for Penal Reform and the Children’s Rights Alliance for England. We campaign for the rights of children and young people within the legal system. Supporters of the campaign are listed at the end of this briefing.
54 Consultation Response, op.cit., paragraph 50, page 21; Bill Schedule 1, Part 1, paragraph 13. 55 Community Legal Service (Financial) Regulations 2000 SI 200/516, regulation 11, but see the Legal Service’s Commission’s Funding Code, Chapter 29 Immigration at paragraph 29.11.2. 56 With implications for the Home Office/UK Border Agency budget in view of the grant arrangements by which Local Authorities receive payment for care responsibilities toward separated children seeking asylum. 57 Hansard HC, 29 Jun 2011 : Column 1063 (per Jonathan Djanogly MP, Parliamentary Under Secretary of State for Justice). 58 EM (Lebanon)v Secretary of State for the Home Department [2008] UKHL 64. 59 ZH (Tanzania)v Secretary of State for the Home Department [2011] UKSC 4. 60 Article 3.1, 1989 UN Convention on the Rights of the Child. 61 Section 55, Borders, Citizenship and Immigration Act 2009. 62 On 18 March 2011, ILPA wrote to the UK Border Agency having reviewed the decisions of the higher courts in respect of the Agency’s duties under section 55 and the UN Convention on the Rights of the Child (op.cit.), which show serious failings in several parts of the Agency. Legal Aid, Sentencing and Punishment of Offenders Bill
2. Summary 2.1 The Legal Aid, Sentencing and Punishment of Offenders Bill will remove access to legal aid for clients in most private family law cases, for cases involving medical negligence, employment, immigration, most debt, some housing cases, most education cases, and those involving welfare benefits. 2.2 Among the many people who will lose access to legal aid will be children and young people, who will be expected, unacceptably,to represent themselves within an adult legal system. Cases where a child or young person will no longer be eligible for legal aid include: — Young people living independently after leaving the care system who will no longer be able to challenge decisions about their access to financial support. — Young people who have experienced criminal injuries, including abuse. — Young people left severely disabled by medical negligence. 2.3 The Government has taken some steps to protect children up to the age of 18 from the changes. They appear to have recognised that children and young people differ from adults—developmentally; in their legal status; and in their ability to navigate the legal system. Lord McNally stated in Lords questions on legal aid on 17 July: “As far as possible, our intention is that, where children are involved, legal aid will still be provided.” Minor concessions have been made, eg to protect children in some family cases and to exempt under-18s from the requirement to access legal advice via the single telephone gateway. 2.4 However, thousands of children and young people have not been protected and will be denied access to justice. JustRights wants to see a more consistent, logical approach that extends protection to all children and vulnerable young people (up to age 25) across the civil legal system.
3. HowC hanges toL egalA id will affectC hildren andY oungP eople 3.1 The Legal Aid, Sentencing, and Punishment of Offenders Bill removes a large number of areas of civil law from the scope of legal aid. Schedule 1 of the Bill lists those areas of civil law where legal aid will remain available. The response to the Government’s consultation on legal aid,63 published alongside the Bill, lists those areas which have been removed from “scope”. These include: clinical negligence; criminal injuries compensation; debt (except where there is an immediate risk to the home); employment cases; education cases (except those regarding Special Educational Needs); housing cases (except where the home is at immediate risk or the case regards homelessness); immigration cases; and welfare benefits. 3.2 JustRights is deeply concerned about how these changes will affect children and young people who are currently the direct recipients of legal aid in cases in these areas. The Government’s Equality Impact Assessments have barely considered the impact on children and young people. Yet these scope changes will have a huge impact on young people’s access to justice. 3.3 Cases in which children and young people will no longer be able to access legal aid include: — Employment: Children and Young people aged between 16 and 25 in employment who wish to challenge exploitative practices by their employers, for example, non payment of the National Minimum Wage. — Welfare benefits: Children and young people living independently, who experience problems with financial support, including Housing Benefit, Income Support, and Jobseeker’s Allowance, will no longer be able to seek advice. — Criminal injury: Children living independently who have experienced abuse, for example within the care system, will receive no help to gather evidence in order to present their case for compensation. — Immigration: Migrant children and young people facing deportation from the UK and many victims of trafficking will lose access to advice. — Debt: Research suggests that 77% of young people get into debt by age 21.64 The proposals would remove their right to legal assistance to regularise their situation.
4. Examples ofC ases which theseC hanges wouldA ffect The following cases, provided by Law Centres conducting targeted work with this client group, are examples of children and young people who have been helped through civil legal aid, but who would lose access to this help under the proposed changes: Terry, aged 17, got his first job as a trainee mechanic in a garage in London. He was keen to work and cheerfully worked overtime. Terry worked 50 hour weeks for the first four weeks of his new job and at the end of the month he was paid only £160. This is the equivalent of 70p per hour. Terry was very disappointed about the amount of money he received and asked his employer why his pay was so low. His employer told Terry that he would not be paid for the first week of his employment since he was “training” and was paid that much because he was a “trainee”. Terry’s Connexions adviser
63 Ministry of Justice (2011) Reform of Legal Aid in England and Wales: The Government Response at: http://www.justice.gov.uk/ downloads/consultations/legal-aid-reform-government-response.pdf 64 Rainer 2007. Legal Aid, Sentencing and Punishment of Offenders Bill
recommended the Law Centre, who advised Terry that he should have been paid the national minimum wage for all the hours he worked, including the week for which the employer alleged he was “training”. The Law Centre wrote to the employer pointing out the breaches of law and threatened to take a case to the Employment Tribunal. Terry was paid for all the hours he worked, including the overtime. Terry went on to find another job where he was not exploited.
John was 17 and living independently, having been thrown out of his mother’s home following repeated conflicts with his mother’s boyfriend. He has a learning disability and attended a special school. Having had no experience of managing money, he fell into arrears with his service charge and was threatened with eviction. Streetwise Law Centre supported him to apply for Disability Living Allowance. He was initially refused, and then won on review. He didn’t really understand that he had a learning disability, and would not have been able to explain his needs at review/appeal. Nor did he have anyone able to support him—the staff at his accommodation had no knowledge of DLA. The backdated benefit cleared his arrears and Streetwise helped him set up a standing order to pay his rent when the DLA came into his bank account.
5. WhyP rovideC hildren andY oungP eople withA ccess toL egalA id? 5.1 JustRights wants to ensure that children and young people aged up to 25 retain the right to legal help and civil representation across the current range of civil legal proceedings.
Children and young people are a vulnerable group who should not be expected to cope with the demands of an adult legal system. 5.2 Research suggests that 16–24 year olds experience at least 2.3 million rights-related problems requiring advice each year.65 Most are amongst the most disadvantaged young people, eg those who are leaving the care system. New research shows that 80% of 16–24 year olds with civil justice problems fall into at least one “vulnerable group”, eg they have mental health problems or are NEET.66
5.3 Research has also established that young people have the lowest levels of “legal capability”.67 Generally, it is understood that children are not always able to fully understand the consequences of their decisions. However, new evidence showing that the brain’s centre of reasoning and problem-solving is among the last to mature indicates a need to take an age-specific approach to service delivery even for young adults in their 20’s.68
5.4 The Government has recognised that children have different needs within the legal system, eg by retaining legal aid for children in some types of family case and excluding under 18 year olds from the requirement to access legal advice via the proposed single telephone gateway.We believe that this recognition should be extended to all vulnerable young people aged under 25, who should never be expected to navigate an adult legal system on their own.
Children and young people’s unresolved civil justice problems impact on their health and their employment prospects 5.5 Unresolved problems can have a significant negative impact on young people’s prospects. Research shows substantial evidence of an adverse impact on young people’s mental and emotional health, with 34% of NEET 18–24 year olds reporting stress-related illness as a result of civil justice problems, with more than a third going on to use NHS services.69 Housing, employment, debt and welfare benefits problems—which are largely being taken out of scope—were the problems most likely to bring this on.
5.6 Over 8% of young people with civil justice problems experience loss of employment as a result.70 70% of people who lose employment as a result of civil justice problems go on to experience a period of unemployment and, of these, 59% go on to claim unemployment-related benefits.71 Government departments have previously recognised that providing good, early advice to young people on issues such as benefits, housing and debt was “key in helping them to overcome barriers to participation in learning and make a smooth transition to adulthood and working life”.72
65 These figures have been calculated by Youth Access using data from the 2006–08 Civil and Social Justice Survey. The calculations have been checked by the Legal Services Research Centre and are deemed to under-estimate the extent of young people’s unmet needs for advice. 66 Civil Legal Problems: Young People, Social Exclusion and Crime, Pleasence, P, forthcoming. 67 Knowledge, capability and experience of rights problems, Balmer N J et al 2009. 68 www.nimh.nih.gov/publicat/teenbrain.cfm 69 With rights in mind, Sefton, M, Youth Access 2010. 70 Unpublished analysis of 2004 Civil and Social Justice Survey data by Legal Services Research Centre for Youth Access. 71 Causes of Action: Civil Law and Social Justice: Second edition, Pleasence, P, Legal Services Commission, 2006. 72 The Community Legal Service and Connexions—joint initiatives, Department for Constitutional Affairs, Legal Services Commission and Department for Education and Skills, 2003. Legal Aid, Sentencing and Punishment of Offenders Bill
Retaining legal aid for children and young people will save money 5.7 Based on calculations made by economists working for the Ministry of Justice,73 JustRights conservatively estimates that the cost of unresolved civil justice problems experienced by 16–24 year olds alone currently amounts to £1 billion per year. These costs will rise significantly if children and young people’s access to justice is further curtailed. 5.8 The cost of retaining legal aid for all children and young people would be modest. New MOJ data shows that only 6% of currently funded civil representation cases involving under 18 year old clients are due to fall out of scope. Protecting all these children and young people from the legal aid cuts would be affordable in the short term and will generate significant savings to the public purse in the long term. 5.9 Any savings made through denying children and young people civil legal aid are likely to be outweighed by increased costs in the criminal legal aid budget alone. 55% of 16–24 year olds who had recently been arrested reported experiencing at least one “difficult to solve” civil justice problem.74 This group was particularly likely to have problems concerning housing, benefits, debt and employment—which are all key factors influencing re-offending rates—and to have multiple problems.75 5.10 Legal advice can help vulnerable children and young people to resolve civil justice problems, and support them to achieve their potential: — 70% report improved levels of stress after getting legal advice. — Over a third report improvements in their ability to engage in education, employment and training. — 48% of disadvantaged young people report an improvement in their behaviour.76
Retaining legal aid for children and young people would cut bureaucracy and reduce delays in the system 5.11 In the absence of a blanket exemption for children and young people from the cuts to scope, it is likely that lawyers would apply for legal aid for most of these clients on a case-by-case basis under the Exceptional Funding Scheme, which provides for legal aid to be granted where it would not be reasonable or in the interests of justice for vulnerable clients to present their own case. Bureaucracy and administrative costs would increase substantially, leading to delays which could harm children and young people’s chances of obtaining timely justice.
The availability of advice from alternative sources for children and young people is being drastically reduced 5.12 The Government has suggested that clients faced with problems that have been removed from the scope of legal aid will be able to seek advice from voluntary sector providers. But local authority funding cuts mean that the availability of advice to young people from the voluntary sector is being drastically reduced. Youth Access surveyed youth advice providers earlier this year and found that a quarter will close this year, and a further half will operate at a reduced level.77 5.13 Other provision often caters poorly for the needs of young people; less than 1% of advisers and solicitors currently practising social welfare law report that they see young people as a target group.78 Young people are already the least likely of any age group to obtain advice.79
UK and International Law demand special protection for children 5.14 The Government is bound by UK and international law to make the welfare of the child the primary consideration in any legal proceedings involving children and to ensure children’s access to justice, including through the provision of advice and representation. “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 3 of the United Nations Convention on the Rights of the Child
“Children should have access to free legal aid, under the same or more lenient conditions as adults.” The Council of Europe guidelines on child-friendly justice80 5.15 The Bill does acknowledge the Government’s responsibilities to uphold children’s rights under international law (eg see Schedule 1, part 1, para 15, EU and international agreements concerning children). However, the Bill still leaves thousands of children’s cases outside scope, which is not acceptable.
73 Getting earlier, better advice to vulnerable people, Department for Constitutional Affairs, 2007. 74 Civil Legal Problems: Young People, Social Exclusion and Crime, Pleasence, P, forthcoming. 75 Criminal offending, social and financial exclusion, and civil legal aid: Factsheet, Legal Services Research Centre, 2010. 76 Youth Advice Outcomes Pilot Evaluation Trust, Youth Access 2010. 77 http://www.youthaccess.org.uk/news/Cuts-leave-young-people-without-vital-support.cfm 78 According to data analysed by Youth Access from the Workforce Survey conducted by the LSRC for the National Occupational Standards for the Legal Advice Sector project. 79 Young People’s Access to Advice—The Evidence, Kenrick, J, Youth Access, 2009. 80 Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice, adopted by the Committee of Ministers on 17 November 2010, at the 1098th meeting of the Ministers’ Deputies. Legal Aid, Sentencing and Punishment of Offenders Bill
6. WhatC hanges do we want to see to theB ill? 6.1 The Government has stated that it wishes to protect children and young people, and has done so in several ways, eg by exempting under 18s from accessing legal aid via the telephone gateway and keeping some types of family cases in scope for children. However, there is no consistency in the Bill, with many other types of case where children and young people can currently receive legal aid being removed from scope. 6.2 JustRights believes that the Bill should be amended to properly protect children and young people’s access to civil legal aid, eg by: (i) making children and young people aged under 25 a distinct category within the “included” cases in Schedule 1. (ii) ensuring that children and young people aged under 25 are always treated as “exceptional cases”. 6.3 We further believe that the exemption for under 18 year olds from having to access legal aid via the single telephone gateway should be extended to all children and young people aged under 25. This is based on the fact that the research evidence used by the MOJ in deciding to exempt under 18s actually relates to 18 to 24 year olds, who are half as likely to access legal advice by telephone as people aged 25 and over.81 6.4 We further request that an urgent Age Impact Assessment be conducted alongside the passage of the Bill in order to inform MPs’ final decisions on the Bill. The JustRights Campaign is supported by: — Catch 22. — Children’s Legal Centre. — Children’s Rights Alliance for England. — CHYPS (Confederation of Heads of Young People’s Services). — CROA (Children’s Rights Officers and Advocates). — Howard League for Penal Reform. — Just for Kids Law. — Kids Company. — Law Centres Federation. — National Youth Agency. — National Council for Voluntary Youth Services. — National Youth Advocacy Service. — Streetwise Community Law Centre. — Streetlegal. — The Cabin (the UK’s only CAB for young people). — Voice. — Youth Access. — Young Minds. July 2011
Memorandum submitted by the Public and Commercial Services union (PCS) (LA 14) Introduction 1. The Public and Commercial Services union (PCS) is the largest trade union in the civil service with over 290,000 members. This includes representing staff in the HM Court Service (HMCS) and wider Ministry of Justice (MoJ). 2. PCS represents over 15,000 members working in the Ministry of Justice (MoJ) as well as over 5,000 in the National Offender Management Service (NOMS) and 2,800 in the Crown Prosecution Service (CPS). Our members undertake a wide variety of jobs in courts, prison establishments, police stations and in headquarters. These range from legal advisers, instructional officers, associate prosecutors, prison governors, managerial, administrative and secretarial jobs to support tasks such as cleaners and office management. 3. We welcome the opportunity to submit written evidence to the Bill Committee and would be happy to supplement this with oral evidence or further written evidence.
81 Young people and civil justice, Balmer et al. (Legal Services Research Centre), Youth Access, 2007. Legal Aid, Sentencing and Punishment of Offenders Bill
LegalA id 4. PCS members include those who process legal aid applications and deal with queries from parties or their representatives. 5. PCS believe that access to reasonable legal advice is a cornerstone of the rights of the public and that the Bill is in danger of confining access to justice only to those that can afford it. 6. We are concerned that the removal of £350 million from the £914 million annual civil and family legal aid budget by 2014 will have an devastating impact as it will affect one in four of those seeking civil legal aid. The reality of hoping that parties can fend for themselves is not the mark of a caring society and neither will it provide a more efficient court service. 7. PCS is concerned that the future policy of legal aid is being led by cost rather than by fairness and justice. We believe that the specifications under Clause 10 (3) of the Bill illustrate this point. 8. The Bill provides minimal access to justice merely to comply with the European Convention of Human Rights as in Clause 9 (3). Just meeting statutory or international obligations especially overlooks the human rights of those that are poor and vulnerable. 9. The Bill aims to reduce the types of case currently in scope for legal aid funding. We are concerned that legal aid for the following has been taken out of scope: — Clinical negligence — Consumer and general contract — Help for issues in relation to the Criminal Injuries Compensation Board — Debt matters where the applicant’s home is not at immediate risk — Education other than special educational needs — Employment — Housing other then issues in relation to loss of home/homelessness and risk to health or safety in rented accommodation — Welfare benefits — Private family law matters without domestic violence 10. However small the number of some of these may be there will still be those who are vulnerable and unable to cope without legal advice, assistance and representation. 11. One of our greatest concerns has been regarding legal aid in private law proceedings in particular where domestic violence is an issue. PCS believe that victims of domestic abuse will be more at risk because of this legislation. The definitions in the Bill and in the explanatory notes of those that have “been abused” or “at risk of being abused” are not satisfactorily defined. This is something that should determined by parliamentarians rather than elsewhere. It is not clear whether there will be the need for proceedings to have been taken before a court to show abuse, whether there has been some report to the police and how the risk of abuse will be measured. 12. A key role of legal aid in family proceedings is to protect vulnerable individuals in the court process. While the state can prevent an individual taking a case to court it cannot prevent them being dragged to court by another wealthier, more controlling family member. The Bill seriously puts at risk vulnerable family members being at the mercy of those with wealth and control who will be given an unfair advantage. 13. We are concerned that cuts to legal aid will ultimately lead to an increase in unrepresented defendants which will be disruptive and cause delays to court proceedings.
Prisoners’Pay andE mployment 14. PCS had broadly welcomed moves to decrease the prisoner population as we believe that current numbers are unsustainable. We therefore would have welcomed proposals that genuinely supported rehabilitation work, alternatives to custody and improvements to how we deal with those with mental health problems, drug and alcohol issues. We view this Bill in its current form as a missed opportunity to deal with these points. 15. Clause 103 deals with introducing paid employment into prisons and allow deductions from prisoners’ earnings for reparations to victims. 16. We support the idea that prisoners should make reparation to victims. However, any deductions from prisoners’ wages must be supported by a process to ensure it is fairly adjudicated, taking into account the impact on the prisoner and any financial dependents. 17. PCS believes that work in prisons which has a vocational element and which equips prisoners with transferable skills has an important part to play in tackling re-offending. Having a job, both in prison and on release, can help the rehabilitation of an offender. Legal Aid, Sentencing and Punishment of Offenders Bill
18. Prison industries however, need to be run in conjunction with other rehabilitation measures rather than separate than and must properly integrated into the prison system. We recognise that there are practical difficulties within prisons such as expanding work spaces within individual prisons both because of the costs involved and the physical space and facilities. Regimes would need to be adjusted to accommodate work patterns of up to 40 hours and there would be significant operational pressures due to “churn” of prisoners (where inmates are frequently moved from prison to prison) and problems with overcrowding. 19. We believe that these difficulties can only be successfully addressed within establishments by utilising the experience of our Instructional Officer (IO) members who are uniquely placed as the key individuals within prisons who offer work experience in a custodial setting as a form of rehabilitation. They are central to achieving these aims, and could assist in delivering effective work in prisons, by investing, rewarding, motivating and recognising the skills, experience and expertise of IOs. 20. PCS are therefore concerned that the Bill will allow for more scope for private sector involvement in the employment of prisoners. Private companies could run businesses within the prison system and could be paid by results. 21. The experience of the private sector in prison workshops has been very poor to date. The majority of contract service workshops offer low skill labour which acts as a disincentive to steady future employment upon release. Little of this work can be classed as vocational or assisting the prisoner in acquiring practical skills for future employment after release. 22. We hold that any private profit derived from prisoners is morally wrong and indefensible. We know that criminal justice is complex and it is too simplistic to believe that the market can be used as a universal panacea to cure issues which are a reflection of wider problems in society such as lack of access to health, education, housing and employment, particularly as deep divisions have arisen and are exacerbated by the market itself. 23. PCS are concerned about what future job security our IOs would have if there was more private sector involvement. Companies are likely to employ their own staff and we could see a driving down of terms and conditions for staff employed in assisting prison rehabilitation.
Cautions andP enaltyN otice 24. PCS are concerned that there is too broad a provision included in the Bill such as Clause 106 and Schedule 14 to enable offences to be dealt with by fixed penalties. There is a new power for a court enforcing a fixed penalty to order the penalty to be set aside and the offender tried for the offence. We believe that if more offences are to be dealt with by fixed penalty rather than in the court, as this clearly suggests will be the case, that this will avoid the publicity and shame that comes from conviction and will therefore act as less of a deterrent. 25. It also raises concerns that these new powers for on-the-spot punishment could possibly undermine the judicial process.
Conclusions 26. PCS has always maintained that to have a world class criminal justice system requires proper resourcing including proper recognition, motivation and remuneration of the dedicated, skilled workers who deliver this public service. We are therefore unable to see how this can be reconciled with the comprehensive spending review (CSR) announcements of a 23% cut to the MoJ budget, not including money set aside for new prison capacity, and over the lifetime of CSR approximately £2 billion of cuts from the MoJ budget; £1 billion of which is to come from NOMS, coupled with a projected 15,000 job cuts and a three year public sector pay freeze. 27. We fear that too much of what is set out in the Legal Aid, Sentencing and Punishment of Offenders Bill, cannot be removed from the Government’s ideological drive to cut costs and introduce more scope for profit organisations involvement in our justice system. We are concerned that what the Bill effectively aims to do is deliver justice on the cheap. July 2011
Memorandum submitted by Sheffield Law Centre (LA 16) CivilL egalA id Introduction 1. I am submitting this response in my role as Equality Rights Worker at Sheffield Law Centre. This response refers to the areas of work I have direct experience of, to inform the Committee of issues relating to the clauses of the Bill under discussion. 2. The response therefore focusses on advice on discrimination law and the impact of Schedule 1 of the Bill, introduced by clause 8. Legal Aid, Sentencing and Punishment of Offenders Bill
About theL awC entre 3. Sheffield Law Centre is a registered charity run by a voluntary management committee. It has recently celebrated 25 years of providing legal advice, assistance and representation to the community. The Law Centre exists to: — provide an accessible legal service to people who live or work within Sheffield and who are oppressed, disadvantaged or living in poverty — challenge injustice through legal representation, education and training 4. The main areas of law we undertake are: — Housing — Employment — Immigration and asylum — Discrimination in all fields 5. We hold contracts with the Legal Services Commission in employment, housing, asylum, immigration, disability discrimination and public law. Along with our partner advice centres, we provide advice in welfare benefits and debt. In addition, we receive funding from the Equality and Human Rights Commission, to provide further advice in discrimination and human rights, as well as some support from the local authority, which allows us to provide a holistic service that our clients need. Each source of funding has an impact on the effectiveness of each other source. 6. All our advice is confidential, impartial and free at the point of delivery. Last year, we provided a full casework service to 1,356 people and advised a further 2,639 callers, mainly with telephone advice. We provided second-tier advice to 43 different organisations—this complements our service as well as reflecting or links in the community. On our feedback forms, 92% of clients said their life had improved because of our help.
AboutM yW ork 7. My role is to provide advice, casework and representation in unlawful discrimination cases, principally outside the employment field. Employment advice needs are met by our specialist employment advisers. 8. Cases of unlawful discrimination in employment are enforced in the employment tribunal—there were 65,710 discrimination cases brought in the employment tribunal in 2009–10.82 Complaints in some cases in the education field must be brought in the Special Educational Needs and Disability Tribunal (SENDIST) but all other complaints of unlawful discrimination must be brought in the county court. This includes cases in goods, facilities and services, housing and higher or further education. in contrast to the relatively ready access to employment tribunals, very few cases are ever brought in the county court because of the obstacles of high costs, upfront fees, formality, the adversarial nature of proceedings and the lack of guidance by the courts, the risk of significant costs awarded in the event the case is lost. Even where a viable case is identified with good prospects of success, there is often difficulty getting the backing of a legal aid certificate for full representation or funding under a conditional fee agreement. This is because the costs of bringing a case are high because of the uncertainty of litigation: discrimination cases are so rare they do not have a beaten track to the court’s door. In comparison, awards of damages are low, often considerably lower than the legal costs of the case. We have therefore previously supported proposals for a dedicated Discrimination Tribunal, along the lines of the employment tribunal, to provide ready access to a means of enforcing discrimination rights. This proposal was rejected in the drafting of the Equality Bill, in preference to maintaining an adversarial system. 9. In my experience, very few clients, if any, are motivated primarily by the prospect of compensation. Most are either defending legal action (actual or threatened) brought against them by another party or to put right a social injustice which will affect them and others again in the future if they do not take action. Taking action is often the only way to achieve a vital, non-money remedy. One of the difficulties with the present remedies available in the Equality Act is that the court’s powers are principally limited to awards of money and are not directed at achieving social change. 10. Some case studies of the anti-discrimination work are available at: www.slc.org.uk/ disability.htm David Allenv Royal Bank of Scotland A teenager using a wheelchair was forced to take legal action against the Royal Bank of Scotland when it was not prepared to allow him into his local branch. The bank had sufficient resources that it was able to take an appeal to the Court of Appeal and Supreme Court—our client was successful at each stage. http://www.slc.org.uk/userfiles/file/Press%20release%20Allen%20v%20RBS.pdf http://www.slc.org.uk/userfiles/file/press%20releases/PR%20-%20Supreme%20Court.pdf 82 Employment Tribunal and EAT statistics 2009–10, Ministry of Justice (3 September 2010) Legal Aid, Sentencing and Punishment of Offenders Bill Post Office accounts: A retired man with mental health problems had difficulty keeping track of his money because the Post Office refused to send account statements more frequently than once every three months—until we took action. http://www.slc.org.uk/userfiles/file/press%20releases/Press%20release%20- %20Sheffield%20Law%20Centre%20helps%20pensioner%20keep%20track%20of%20his%20money.pdf Discrimination by DWP One client, who is blind, brought a claim against the DWP after it persistently sent her letters in small print so she could not read them. She was successful at her benefits tribunal and also successful in court proceedings under the Disability Discrimination Act. http://www.slc.org.uk/userfiles/file/ press%20release %20DWP%20discriminates%20against%20blind%20woman.pdf Disabled drivers A disabled driver brought a successful complaint of disability discrimination against an insurance company who refused motor insurance because his car was adapted for his disability: http://www.slc.org.uk/userfiles/file/press%20releases/press%20release%20-%20Atkins.pdf Use of personal insolvency for council tax arrears A severely disabled man with a learning disability nearly lost his life-long home after the local authority wrongly brought insolvency proceedings for non-payment of council tax. We intervened—after the bankruptcy order had been made—and succeeded in getting it set aside so his home was saved. http://www.slc.org.uk/userfiles/file/ Novel%20use%20of%20DDA%20provides%20protection%20against%20bankruptcy(1).pdf Action on public transport A profoundly deaf woman took action about her treatment when using public transport: http://www.slc.org.uk/userfiles/file/press%20releases/Press%20release%20- %20Profoundly%20deaf%20woman%20win%20redress%20against%20a%20bus%20company.pdf 11. It is important to realise that these are only the few cases that were publicised. By far the majority of cases result in a positive outcome through advice, increased understanding and negotiation. The cases do show that discrimination law is different from other fields in that it cuts across them all. 12. 77% of my clients at the Law Centre have disabilities. 41% are BME. What is vital about our service is that people can contact me in a variety of ways, such as: — In-person (with or without appointment) — E-mail — Telephone — Fax — Typetalk/Text relay — Through a third party — By home visit — At a third party premises or appointment by arrangement with a third party — With interpreters (including BSL) if necessary. 13. Importantly, my casework usually involves a combination of these methods, depending on what is the most effective and efficient use of our resources. 14. The proposal for a mandatory telephone helpline for all advice on unlawful discrimination is of particular concern—this would rule out access to advice for most of my clients. It is not clear how the Government proposes that their advice needs would be met. 15. Members of the Committee may also be aware that the Government is requiring the Equality and Human Rights Commission to cut its grant funding to Law Centres such as ours. At present this provides for some of the advice and casework that is not met by the limited availability of legal aid. Whilst the Government has indicated there is to be an additional £20 million available to not-for-profit agencies, this should be seen in the context of the Government’s proposed cut of £60 million in legal aid funding for the NFP sector, plus £4.2 million in funding from the EHRC. We find it worrying that the voluntary sector is expected to bear most of the brunt of cuts to legal aid. Legal Aid, Sentencing and Punishment of Offenders Bill Impact of the current Bill on clients experiencing unlawful discrimination 16. It is pleasing the Government intends to recognise the social importance of clients being able to get advice and, where necessary, representation on tackling discrimination. As the judge in the case of Allen, above, said, “Disability discrimination is a social evil and is widespread and the legislation is there to outlaw it.” 17. It is important this commitment to access to advice is more than lip service. It is unclear at present how clients will be able to access advice if the only route is through a mandatory telephone line. The second concern is how providers—especially small providers and charities like ours—will be in a position to employ someone to provide advice. The problems of “advice deserts” are well documented in rural areas but even in Sheffield—the fourth largest city in the country—there is not a single provider offering advice in education law. The risk is that this will extend to other areas of law. For instance, who will provide advice to low-income families facing discrimination at work? 18. To achieve the Government’s aim of continuing advice on unlawful discrimination, I note that discrimination cases under the Equality Act remain in scope by virtue of Schedule 1, Part 1, paragraph 37. This is welcome. However, the present arrangement of the Bill will leave some uncomfortable boundaries between what is in scope and what is outside it. 19. In the case mentioned above of the man with learning disabilities facing insolvency for council tax arrears, although we advised of his rights under the Disability Discrimination Act 1995 (then in force), the proceedings brought were an application to annul the bankruptcy order. This application was therefore made under the Insolvency Regulations, with reference to the DDA, rather than under the DDA itself. It would be wrong if this type of case were excluded from the scope of legal aid, as appears to be proposed. 20. There is also the possibility of cases of unlawful discrimination brought under other statutes (whether current or future) such as the provisions in Schedule 5 of the Social Security Act 1989. In my view, the Bill should allow the possibility of legal aid covering any instances of unlawful discrimination falling outside Equality Act 2010 jurisdiction. 21. The effect of paragraph 37(2)(a) of Schedule 1 of the Bill is to allow cases in relation to welfare benefits to remain within scope where there is a case of unlawful discrimination under the Equality Act. However, there seems to be no reason to exclude other types of discrimination case, such as: — A profoundly deaf woman suffering discrimination by being locked in a room by in-store security staff who suspected her of shop-lifting and being separated from a friend who could interpret from British Sign Language. Because this is arguably a case of false imprisonment, the impact of Schedule 1, Part 2 paragraph 3 would appear to exclude her from bringing a claim of discrimination. That would be wrong. — Paragraph 8 of Schedule 2 would appear to exclude legal aid for advice on a breach of statutory duty even where the breach arises from an intentional discriminatory motive. — Paragraph 13 of Schedule 2 would appear to exclude legal aid to a person who has been harassed out of a position in a small charitable company because of his disability, although possibly not if it were an unincorporated association. It would be a strange anomaly if certain types of discrimination were excluded from a real remedy. 22. In terms of the scope for discrimination claims, I would recommend that (a) All the exclusions in Schedule 1 Part 1 paragraph 37 (2) are removed. (b) Paragraph 37(1) is amended to include “contravention of the Equality Act 2010 or any other prohibition of discrimination” WelfareB enefits 23. I should also draw attention to the proposals to exclude welfare benefits generally from the scope of legal aid. The Minister is wrong in thinking that benefits issues are primarily about low-level financial entitlement and that the tribunal will help unrepresented applicants through the process. Aside from the breath-taking thought that the whole of someone’s income might not be a significant matter, it is important to realise that the importance of many welfare benefits issues go beyond the financial issues. 24. For instance, I am currently representing a woman who faces an overpayment of housing benefit. The financial issue is not all that important in reality since she has no prospect of paying a sizeable debt if her appeal is unsuccessful. However, the long-term impact of being unsuccessful is that it will place her at risk of homelessness in the future because of the impact of any overpayment recovery on her current and future rent payments. It will also limit her options for rehousing by the local authority and other housing associations whilst she has an outstanding debt. 25. The case has been going on September 2010. There has been a stream of correspondence about the appeal, often with detailed analysis of the law on both our part and the officer of the local authority. Contrary to the Minister’s views, there has been no involvement from the tribunal service until recently when the tribunal judge has issued a number of written directions requiring “a submission setting out what are considered to be the issues in the appeal by reference to the relevant statutory provisions…” Legal Aid, Sentencing and Punishment of Offenders Bill 26. There is no possibility that this client, unrepresented, with her particular level of written English would be able to respond to this direction. More to the point, she would never have been able to submit an appropriate appeal without the advice needed to identify the decision to appeal, apply the relevant law and address the relevant issues. 27. Whilst there is merit in finding ways of restricting legal aid to cases where there is “sufficient benefit”, it is not going to be achieved by removing the entire area of welfare benefits from scope. 28. I trust these views will help inform the Committee. July 2011 Memorandum submitted by the Motor Accident Solicitors Society (LA 17) Introduction 1. This written evidence is submitted on behalf of the Motor Accident Solicitors Society (MASS). MASS would very much welcome the opportunity to provide oral evidence to the Public Bill Committee, believing that we have unique knowledge and experience of the personal injury (PI) civil litigation process. 2. MASS is a society of 180 solicitor firms throughout the UK acting for the victims of motor accidents, including those involving PI. It is estimated that member firms conduct upwards of 500,000 PI motor accident claims annually on behalf of the victims of those accidents. 3. The central objective of the Society is to promote the best interests of the motor accident victim. We seek to promote only those policy and other objectives which are consistent with the best interests of the accident victim. We seek to set aside any self interest in promoting these arguments, recognising that we are in a position of trust, and best placed to observe the best interests of motor accident PI victims first hand. 4. MASS is a not for profit organisation, which requires specialism in motor accident claimant work as a pre-requisite for membership. As a condition of membership, MASS member firms must abide by a Code of Conduct, which is directed to the best interests of the motor accident victim. GeneralC omments andO bservations 5. As a Society, MASS has always have been supportive of moving forward with efficiency and technology to make the compensation process in low value straightforward cases more proportionate and cost effective, without reducing access to justice. We have engaged fully and constructively in the development of the Road Traffic Accident (RTA) PI scheme and we continue to be engaged in ensuring that going forward the Portal works more effectively. 6. Whilst MASS shares the Governments dual objective of preserving and enhancing Access to Justice at proportionate cost, we have serious concerns about the “one size fits all” approach being suggested by the legislation before Parliament. We believe that proper care over evaluation and implementation are essential to avoid a variety of unintended consequences that would inevitably lead to further reviews and adjustments to the civil litigation environment in the near future. 7. MASS acknowledges that the current system is far from perfect. It is entirely understandable given the wider economic environment that the Government wishes to analyse ways of reducing cost in maintaining the court system. MASS is happy to work with the Government to help ensure that this process is conducted with carefully considered and evidence-based solutions. 8. We do, however, believe that the interpretation of Lord Justice Jackson’s recommendations represented in this Bill will have a number of detrimental consequences to the civil litigation process and will significantly impact on the ability of the majority of Road Traffic Accident (RTA) victims to access justice. 9. We believe that important principles of our justice system must be preserved: specifically Access to Justice and proper compensation to accident victims. Both of these key foundations of our legal process are threatened as the Bill is currently drafted. 10. MASS has always been extremely concerned about many of Lord Justice Jackson’s recommendations. This is exacerbated by the Governments subsequent piecemeal interpretation and implementation of some of Lord Justice Jackson’s recommendations in this Bill. 11. In its current form, the Bill does not address several fundamental issues at the heart of necessary reform to civil justice in the UK and ensure access to justice by; excluding the implementation of Qualified One-way Cost Shifting (QOCS) which was proposed to eradicate the need for After-The-Event (ATE) insurance or legal costs; making no provisions for an overall increase in general damages for Pain, Suffering and Loss of Amenity and considering further the complex and costly issue of referral fees. Legal Aid, Sentencing and Punishment of Offenders Bill 12. Qualified one-way cost shifting was an integral part of Jackson’s reforms, designed to eradicate the need for after-the-event (ATE) insurance or legal cost. Under this scenario, claimants would not be liable for defendant costs in civil claims and the insurer would pay in any case, as long as there was no unreasonable behaviour and the claimant was not “conspicuously” wealthy. Thus it was proposed that the need for ATE insurance was eliminated, effectively introducing a quid pro quo that balanced the impact on consumers. 13. As such, Lord Justice Jackson recommended that success fees and ATE premiums would be made irrecoverable in conditional fee arrangements, with the insurer costs coming out of any damages awarded to claimants. However the failure to implement the qualified one-way cost shifting recommendation and the non-recoverability of success fees and the ATE insurance premium has in short removed the “quid pro quo”; effectively saddling consumers with the same or increased costs and reducing their damages. 14. Removing recoverability of ATE Insurance premiums and success fees and the introduction of Damages-Based Agreements (DBAs) (Clauses 41-43) will lead to a huge reduction in the damages for the most seriously injured victims and will seriously threaten the important legal principle that damages are restorative (the accident victim should always be returned to the position they were in before being involved in an accident through no fault of their own). 15. The Bill does not address the very important issue of the levels of damages to be awarded to the accident victim. In order to go some way to counteract the non recoverability of ATE premiums and success fees (which will have to be paid out of damages received), Lord Justice Jackson recommended an overall 10% increase in general damages for Pain, Suffering and Loss of Amenity. The Governments decision not to include this within the Bill is condemned by MASS and the claimant community at large. MASS believes that an increase in general damages awards for personal injury is long overdue and would argue that the proposed 10% increase, whilst welcome, was still woefully inadequate, bearing in mind there has been little or no real increase for over 10 years. By proposing to increase the costs that accident victims will have to pay (ie ATE premium and Success fee) and not increasing damages levels to assist with this extra cost the Government has penalised the accident victim still further and reduced their right to fair and just compensation and ultimately access to justice as many will simply not be able to afford to make their claim. 16. MASS refers to the analysis of Stewarts Law data which found that all cases settled for damages of £25,000 or more concluded between May 2007 and 2009, and applying the proposed 10% increase along with the bulk of Jackson’s reforms, gave the following results: — Average general damages increase £11,532. — Average reduction of damages from success fees £58,664. — Average net loss to the Accident Victim £47,132. In one case involving a young tetraplegic man, this would have reduced his damages by £236,044. 17. It can therefore be seen that although there may be some benefit for a small number of claimants, even the Jackson proposed uplift of 10% would undoubtedly be insufficient to counteract the detriment to the majority of claimants, with the most seriously and tragically injured likely to see the largest reduction in the compensation they receive. This will make it increasingly difficult for a person who has been injured due to someone else’s negligence to find, or fund, a lawyer to represent them. To therefore bring in proposals to increase legal costs (payable by the accident victim), without any increase in the level of damages is nothing short of scandalous. 18. MASS challenges the view of successive Governments that the UK is gripped by a “compensation culture” and that legal costs are too high and unfair on the insurance industry. In 2004 the Cabinet Office’s Better Regulation TaskForce (“Better Routes to Redress the Compensation Culture; Exploding the Urban Myth”) demonstrated that the perception of a compensation culture is more a myth than reality. 19. From 2000–01 to 2009–10 employer’s liability claims fell from 219,183 to 78,744 and public liability claims fell from 95,883 to 91,025. But over the last five years, motor accident claims rose from 401,757 to 674,997, an increase of 47%. 20. MASS believes that there is increasing evidence that increased costs in civil litigation are primarily the result of insurer/defendant action, rather than those of claimants or their solicitors. 21. A major contributor to this increase in the number of motor claims has been insurer activity in the referral fee market, by leading price inflation; and in third party capture by promoting claims which would not otherwise be pursued—solicitors have to carry out strict risk assessments and MASS members estimate that up to 40% of claims received are not pursued. 22. According to ABI Annual Insurance Statistics, the costs that insurers have incurred over the last five years to 2009–10, for RTA PI have risen 15% from £8.2 billion to £9.4 billion However, with the number of motor accident claims also having risen steeply (see paragraph 20), the subsequent amount that each claim is costing has actually fallen by around 22%. 23. Consequently before fundamentally changing the procedure for the funding and costs of civil litigation, MASS strongly urges the Government to carry out further detailed research on the true and actual cost of claims, which must not only include the actual cost of claims but also the income derived from claims such a referral fees and commissions received from other parties in the claims process. Whilst referral fees Legal Aid, Sentencing and Punishment of Offenders Bill are currently a very controversial issue, it is important to establish full transparency on the income they generate as well as the amount of money that may be made available to serve the accident victim should they be removed from the system. 24. MASS believes it is important to emphasise that in order to provide true Access to Justice, the consumer must have access to professional and independent legal advice. If costs are driven down much further, legal representation for the accident victim will be inadequate, in an industry where there is such a clear need for independence and representation. This is exemplified with Third Party Capture which MASS has consistently campaigned against. MASS questions what justice the accident victim receives when the insurer acts as judge, jury and paymaster. Clause 41: ConditionalF eeA greements:SuccessF ees 25. Clause 41 will mean that a success fee under a Conditional Fee Agreement (CFA) will no longer be recovered from a losing party in any proceedings. A lawyer will still be able to recover a success fee from a client under a CFA, but how it is to be calculated in certain proceedings will now be subject to further regulation. 26. A cap on success fees might appear at face value to benefit consumers by reducing costs within the personal injury system by maximising compensation for victims; however the unattended consequence will undoubtedly be a limitation of access to justice. 27. Stewarts Law data, published in April 2011, and submitted to the Justice committee by the Motor Accident Solicitors Society (MASS), found that in the most seriously injured category of accident victims (with damages in excess of £250,000), around 44% of their claims may not be capable of being brought if there was a cap on success fees. 28. In short, the result of the cap will be that high risk cases, which would normally be economically viable due to a proportional success fee, will be highly unattractive to lawyers and claimants will have increasing difficulty finding representation to take their case, threatening justice for claimants. 29. For example, analysis of the same Stewarts Law data sample, applying the Jackson model, gave the following results: — An excess of 75% success probability required to make a case commercially viable. — Those at risk beyond 25% would be at risk of not being represented. — In 26% of cases, the Accident Victim would not have been represented post implementation. — A further 18% would have been borderline acceptance cases. 30. Virtually all complex or catastrophic injury claims would be borderline at best without the ability to recover a 100% success fee. 31. Changing the funding system to one that requires accident victims to pay for legal advice out of their damages, is, we believe, fundamentally wrong. Clause 42: Damages-basedA greements (DBAs) 32. Clause 42 enables the use of DBAs in most civil litigation by persons providing advocacy services, litigation services or claims management services. 33. MASS regard DBAs as a potential further erosion of the long established principal that an innocent party should be placed back in the position they would have been but for the accident. The legal system should protect the most vulnerable in society. DBAs would potentially significantly reduce damages recovered by those injured. 34. The suggestion of independent legal advice underlines the risk and potential conflict of interest that can occur in these agreements. These agreements could act against the interests of a claimant and have a serious detrimental impact on the ultimate damages recovered. 35. The current professional rules of conduct can be relied upon to ensure that a claimant is adequately advised as to the availability and impact of DBA (or other) funding agreements. However, the arrangements for, and cost of independent advice, would either increase the financial burden upon the claimant or (if recoverable from the responsible third party) increase the cost of claims for liability insurers. 36. MASS feels that DBA’s would not be attractive in lower value claims and in any event motor accidents are adequately covered by fixed recoverable costs and the new streamlining process. MASS therefore see’s no need to introduce DBA’s where costs are already fixed without the need for making deductions from the clients damages and thereby reducing their Access to Justice. 37. MASS is opposed to DBAs as they erode the client’s compensatory award and their Access to Justice. However, if DBAs are introduced and QOCS is introduced for claims under CFAs it should be extended to DBAs as well. 38. Should solicitors be permitted to maintain their client’s actions the percentage recovery from damages should not be increased. The risk being that this could encourage the less scrupulous lawyer to advise on such an arrangement so as to improve their potential share even where the risk was modest/low. Moreover, Legal Aid, Sentencing and Punishment of Offenders Bill building in such distinction only serves to complicate the arrangement which is already complicated for a consumer client. The additional explanation required (either independent or otherwise) only serves to make the provision of legal services less accessible. Clause 43: Recovery ofI nsuranceP remiums by way ofC osts 39. Clause 43 makes new provision relating to the recoverability of insurance premiums from a losing party. The effect of the new provision is to provide that the cost of any insurance policy taken out by a party to insure against the risk of having to pay their opponent’s costs and their own disbursements if they lose cannot be recovered from a losing party except in certain limited circumstances. 40. The view of MASS is that costs recovery from the opponent should be on the conventional basis but any additional liability should also be borne by the losing party. The additional liability should not be borne by the claimant as that only serves to erode the damages which are intended to place the claimant in the position they would have been but for the defendant’s negligence. 41. MASS is totally opposed to any deduction of the clients damages as these are to put the client back in their original position had the accident not occurred, pursuant to practice over the last decade but rooted in our legal system. MASS is also concerned about the impact 25% would have on preventing cases of maximum severity being pursued at all, unless the probability of success is in excess of 75%. 42. MASS disagrees that claimant’s solicitors should take the risk of paying disbursements. This is in effect maintenance of an action. Moreover, such a position could place a solicitor in a position of potential conflict where their consideration of the recovery of a disbursement is in actual or apparent conflict with the claimant’s desire for recovery of his or her losses. Whilst such a conflict will be much less likely in cases with strong prospects of success it will be much more common where there are moderate prospects of success (say 60–70%). It is this category of cases that consumers would be most vulnerable and Access to Justice might potentially be jeopardised. July 2011 Memorandum submitted by Southall Black Sisters (LA 18) Summary Southall Black Sisters is extremely concerned about and critical of the Government’s proposed withdrawal of legal aid in non-detention and non-asylum immigration cases. The proposals will have a highly detrimental and discriminatory impact on abused migrant women who have insecure immigration status and who need to make applications to remain indefinitely in the UK on the basis of their experiences of gender-related violence. If the proposals go ahead in their present form, abused migrant women and children will face life-threatening consequences and suffer serious violations of their fundamental human rights and freedoms. Elsewhere in the proposals, the protection principle underscores the Government’s decision to retain for the most part, legal aid for abused women and vulnerable people who cannot be expected to navigate their way through the law and legal processes but the same logic is absent in respect of abused women and children who have insecure immigration status. The proposals in this respect fail to meet equality and human rights standards for this category of vulnerable people as set out in domestic and international law. AboutS outhallB lackS isters 1. Southall Black Sisters (SBS) is one of the UK’s leading organisations for black and minority women. We have been in existence since 1979. In 1983, we set up a not for profit, advice, resource, campaigning and advocacy centre for black and minority women, with a particular focus on the needs of South Asian women. The bulk of our work is directed at assisting vulnerable women and children—the overwhelming victims of domestic and other forms of gender-related violence—obtain effective protection and assert their fundamental human rights.83 Loss of legal aid for victims of violence who need to make applications to remain in the UK indefinitely under the Domestic Violence Rule or some other category in immigration cases. 2. SBS is particularly concerned about the withdraw legal aid from non-detention immigration cases as set out in the government’s recent response to the consultation on proposals for legal aid reform—Legal Aid Reform in England and Wales: the Government Response June 2011.84 3. In this briefing paper we focus specifically on the potential loss of legal aid funding for all applicants who have experienced gender-related violence or abuse and who wish to apply to remain in the UK under the Domestic Violence Rule (DV Rule) or some other grounds in immigration law. This includes trafficked 83 For more information about our work see http://www.southallblacksisters.org.uk 84 We are concerned about many aspects of the proposed withdrawal of legal aid, but our main concern is with victims of abuse who need to apply to remain in the UK on the basis of such abuse. They are some of the most vulnerable users who use our services. Legal Aid, Sentencing and Punishment of Offenders Bill women and women who are brought to the UK to work as domestics in private households. Our concern is informed by 30 years of pioneering work on addressing the needs of abused black and minority women who are trapped in violent and abusive marriages as a result of the operation of immigration rules. 4. In 1992, SBS gave written and oral evidence on the impact of immigration rules and practice on migrant women experiencing domestic violence to the Home Affairs Select Committee on Domestic Violence.85 5. This evidence was well received and led to a series of successful meetings and negotiations between SBS and the Home Office from 1999 to 2002 which culminated in the introduction of the DV Rule in immigration law. The Rule enables spousal visa applicants to apply to remain in the UK indefinitely as victims of domestic abuse without fear of deportation. Under the Rule, an applicant has to provide evidence of domestic abuse to show that this caused the breakdown of their marriage. The Present position 6. At present, legal aid funding is available for persons seeking to make applications to remain in the UK indefinitely on the basis of their experiences of violence and abuse. Many women apply under the DV Rule and/or invoke the Human Rights Act or seek leave on some other, including compassionate grounds. As we demonstrate below, our concern is that if the proposed withdrawal of legal aid goes ahead,86 abused migrant women and children who have insecure immigration status will remain trapped in violence and face serious, life threatening consequences. Our view is that the proposed withdrawal of legal aid will defeat the purpose of the DV Rule.87 TheG overnment’sR esponse 7. At the consultation stage of the legal aid proposals, SBS made a detailed submission on the impact of the loss of legal aid for abused migrant women. (See Appendix 1) The Government responded with the following: DomesticV iolenceI mmigrationR ule cases Key issues raised 90. A number of respondents called for legal aid to be retained for these cases, citing both the complexity of the issues and that the victim of abuse will have been traumatised. They also refer to the Home Office project in this area (“Sojourner”) which they suggest will be undermined by the removal of legal aid. The Sojourner project provides four weeks (20 working days) of money to cover essential housing and living costs for victims of domestic violence. During this time, victims are encouraged to complete an application for indefinite leave to remain under the domestic violence immigration rule. Once this application is submitted to UKBA, money for essential living costs will be provided for a maximum of 4 additional weeks (20 working days) while UKBA considers the application. Respondents also pointed to a discrepancy between the proposed lack of legal aid for these cases and its availability in private family law cases where domestic violence is shown to be present. The Government response 91. The Government’s view is that these applications are comparable to other immigration applications, albeit that individuals need to obtain documentary evidence of their domestic violence. Whilst individuals may well find it difficult to fill in the forms, it is not specialist legal advice that is required. This is something that can be addressed through guidance or non-specialist help rather than legal aid. 92. In terms of the comparison with private family law, the Government is seeking to prevent a victim of domestic violence from facing their abuser in court without legal representation. In immigration cases, the victim is making a paper-based application to the Home Office, and the Government therefore considers the situations to be different. Legal aid will continue to be available for those seeking a civil injunction to prevent domestic violence irrespective of their nationality or immigration status.88 8. We set out below the highly detrimental impact that the proposals will have on abused women and children with insecure immigration status. 85 House of Commons Home Affairs Committee, 1993. Report of Inquiry into domestic violence HMSO, London. 86 See for example para 89. Under the Immigration Rules, someone on a spousal visa, which is valid for a limited period of time, and who finds themselves in an abusive relationship, can apply for indefinite leave to remain under the “domestic violence immigration rule”. Under the consultation proposals, such cases would be removed from scope. “Legal Aid Refore.gov.uk/ downloads/consultations/legal-aid-reform-government-response.pdfm in England and Wales: the Government Response June 2011. http://www.justice 87 On 26 July 1999, Margaret Moran MP raised a question in the House of Commons about the purpose of the (then) domestic violence concession. In reply the Home Office Minister—Mike O’Brien stated: “The domestic violence concession has been introduced for overseas spouses who wish to remain in the United Kingdom, but who wish to leave their partner because of domestic violence before completion of the 12 month probationary period. The concession allows them to settle in the United Kingdom even if they are no longer living with their sponsor provided they comply with the conditions set out in the concession” 88 See paras 89-92 “Legal Aid Refore.gov.uk/downloads/consultations/legal-aid-reform-government-response.pdfm in England and Wales: the Government Response June 2011. http://www.justic Legal Aid, Sentencing and Punishment of Offenders Bill The impact of the proposals on abused women who have insecure immigration status. 9. Domestic violence devastates the lives of victims, causing lasting damage to their physical and mental health. The impact is much greater for women who are particularly vulnerable due to factors such as age, disability or state of mental health and cultural and religious background. All women face considerable obstacles in leaving a violent relationship however, black and minority women face greater internal (cultural or religious pressures to tolerate abuse) and external (isolation and racism) obstacles. 10. In the vast majority of cases, abused migrant women find it difficult to report their experiences of physical, sexual and financial abuse for fear of further violence, deportation and destitution. Many echo similar stories of violence, domestic servitude, imprisonment, threats, acute isolation, rape, extreme cruelty abandonment and neglect. Their immigration and other essential documents are often taken away from them and many are reported to the immigration authorities in retaliation for leaving an abusive marriage or relationship. In almost all cases, the aim of the abusers is to humiliate and punish women knowing that they are unlikely to be accepted by their families and the wider society, due to powerful cultural, religious and social reasons. Mental health problems, depression and suicide attempts also feature strongly in such cases. South Asian women for instance, are up to three times more likely to commit suicide than women in the general population due to the additional pressures that they face.89 There have been cases where women with insecure status have either killed themselves or have been killed or seriously harmed. Many are also destitute because of the operation of the “no recourse to public funds” rule, are unfamiliar with the available systems of support and do not speak fluent English.90 Why DV Rule applications are not straightforward “paper” applications 11. The Government states that DV Rule applications are “comparable to other immigration applications” and that all that is required is guidance or non-specialist help rather than legal aid. This is simply not the case. 12. The precise numbers of women who have insecure status and are subject to domestic violence or abuse from their spouses and extended members of their families is not known. SBS and the UK Border Agency (UKBA) estimate that there are about 1,000 to 1,500 cases of mainly women caught in this predicament, although it is also recognised that there will also be significant under-reporting of such cases. 13. Between September 2009 and September 2010, SBS dealt with 46 cases and 982 enquiries from women across the UK who experienced violence and abuse and who needed to make applications to remain in the UK as victims of domestic violence. A significant proportion of these were “overstayers”, ie women whose status had never been regularised by their husbands. In all 46 cases, legal aid advice and representation was needed to make applications under the DV Rule and/or under some other grounds. In all but two cases where outcomes are known, the women obtained leave to remain either at the first instance or on appeal. Access to legal aid advice and representation was critical in making their applications or in their appeals, which in turn secured their protection. 14. We set out below why it is misleading for the government to argue that DV Rule and other leave to remain applications on the grounds of gender violence are straightforward applications: — In respect of domestic violence, a person has to satisfy the immigration rules and be mindful of the Immigration Directorate Instructions (See Appendix 2) which are complex since they require an evidential based approach which has to be satisfied to the balance of probabilities. — A typical application under the DV Rule, without complications, will involve gathering crucial evidence of domestic violence and assessing the evidence and the facts of a particular case against the legal requirements under the Rule. Formal requests for reports from the police, social services, health authorities and other agencies often need to be made and for this, fees are usually payable. More often than not, delays in providing such evidence can also compel legal practitioners to take further legal action to ensure that an application is not prejudiced. — Significantly, complex facts in a case can make the process of applying under the DV Rule far from straightforward. In many cases, out of malice, abusers will write to the UKBA seeking to curtail the leave of their partner, which usually results in mounting a challenge to the curtailment of leave at the same time as making a DV Rule application. Women sometimes have also been wrongfully arrested and charged for harassment and violence against their abusers which can also lead to further complications. In such cases, legal practitioners have to obtain further information from the police and CPS, or wait for the outcome of criminal proceedings since the outcome is highly relevant to DV Rule applications. Many women also become “overstayers” usually because they are unaware that their abusers have failed to regularise their stay and/or they are too frightened to report their experiences. In these and other complicated factual circumstances, legal practitioners have to prepare detailed submissions which address the myriad of problems encountered and assess the facts and evidence in line with the law. 89 Veena Soni Raleigh Suicide Patterns and Trends in People of Indian Sub-Continent and Caribbean Origin in England and Wales, Ethnicity and Health, Vol 1, No. 1, 1996. 90 A study of 60 Asian women in the UK found for instance that 73% were unaware of services available to support Asian women, 83% felt language barriers prevented Asian women from seeking help and immigration status and fear of deportation impacted upon seeking help (See Each 2009). Legal Aid, Sentencing and Punishment of Offenders Bill — Witness statements from the victim and any witnesses also need to be drafted and submitted as part of the application process and this requires great skill and care so that the case meets the legal requirements of the DV Rule. Lengthy representations are always necessary to explain the absence of stipulated evidence. The representations also have to raise any human rights implications on risk of return to countries of origin. Such arguments rely almost exclusively on reports from country, medical and cultural experts for which fees are payable. Without such expert evidence to substantiate a claim, a woman will not be able to have a fair hearing and her application is more likely than not to fail. — At the same time as making DV Rule applications, destitute applicants also need to make formal requests for the £972 application fee to be waived and this must be supported by evidence of destitution. — All DV Rule and related applications have to be mindful of evolving case law because complex facts and the nature of the evidence obtained can give rise to legal disputes as to the correct interpretation of the DV Rule.91 — Many DV Rule applications are refused at first instance but won on appeal, for which advice and representation is necessary for the purposes of obtaining a fair hearing. At this stage, further evidence from experts is always relied upon to substantiate a claim. In 2010, SBS’ statistics showed that the majority of our cases were refused at first instance but won on appeal. We have a 100% success rate at appeal. A recent survey by Rights of Women also showed that 60% of all domestic violence applications are won on appeal. — It is a criminal offence for a non-accredited person to give immigration advice. The majority of support services for victims of domestic violence do not have such accreditation which is why they refer to legal immigration practitioners and caseworkers. — Women’s organisations and other support services across the UK have varying degrees of quality, experience and capacity. Most do not have the training or skills necessary to assess the merits of a case or carry out complicated case or representation work which involves detailed knowledge of immigration law. The gap that will be left cannot be met by other support services. The lack of access to quality advice and representations will have a detrimental impact on how applications are prepared and represented at the initial or appeal stage. — High levels of vulnerability and lack of basic of knowledge and skills amongst migrant women will make it difficult if not impossible for them to represent themselves and to cross examine experienced UKBA officers on the interpretation of facts and evidence in the light of evolving case law. — Many support services for victims of domestic violence are closing due to lack of funding and this is especially true of specialist BME women’s organisations. Others have staff that are trained only to provide support and counselling to women. Many will refuse to assist women in making DV Rule or other related applications for fear of being found to be negligent and/or of exposing women to a potential risk of serious harm. — The proposals also defeat the purpose of the “Sojourner Project” pilot scheme, which the present government has pledged to continue until March 2011, pending a more permanent solution to ensure that abused women with insecure status can access emergency housing and funds for essential living costs from which they are currently barred due to the operation of the “no recourse to public funds” requirement in immigration law. Examples of typical SBS cases that required legal aid advice and representation 15. Case Example 1: Ms M was referred to Southall Black Sisters in 2010 for assistance because she had faced domestic violence from her husband and in-laws. On one occasion, Ms M was forced to resist her husband’s attempts to drag her out of the matrimonial home. In retaliation, her husband told the police that she had assaulted him and Ms M was cautioned. Ms M did not speak English and did not know how they worked; she therefore did not report the domestic violence she had faced to the police. She explained that the police interpreter had informed her that signing the police caution would not cause her any problems. She had signed the caution because she feared further violence from her husband who had threatened to kill her and that she was afraid of being homeless and destitute. Ms M’s initial application (made without the aid of reputable legal practitioners) was refused by the UKBA because she did not have strong evidence to support her allegations of domestic violence and because on the face of it, the police caution suggested that she was the perpetrator of violence. SBS referred Ms M to legal aid practitioners and assisted her with counselling and other practical support including finding accommodation. She was also referred to a qualified psychotherapist because her mental health had deteriorated. 91 See for example, the case of AI (Pakistan)v SSHD [2007] EWCA Civ 386 Legal Aid, Sentencing and Punishment of Offenders Bill In preparation for her appeal, her immigration lawyers instructed experts to provide reports on her mental health and cultural context which dictated how she had responded to the domestic violence; to explain why she had accepted the police caution and the likely impact on her if returned to India. She was represented at her appeal hearing by an immigration barrister and following the hearing, was granted Indefinite Leave to Remain on the basis that she was credible as a victim of domestic violence and needed protection. 16. Case Example 2: Ms S came to the UK in November 2008 on a 2 year spouse visa. She contacted SBS in 2010 for advice and support in respect of an application to remain in the UK as a victim of domestic violence. Ms S told us that she experienced physical, emotional, verbal and sexual abuse from her husband and her mother-in-law. On 18 January 2010, Ms S was tricked into returning to Pakistan on the pretext of a holiday and she was subsequently abandoned. She managed to return to the UK but at the airport, she discovered that her spouse visa had been curtailed and she was detained. She was eventually released following intervention by an immigration solicitor based in Cardiff who also submitted a DV Rule application on her behalf. In the meantime, Ms S went to stay with a family in Cardiff but was forced to leave after experiencing sexual harassment. Ms. S moved to Southall and transferred her case to a local Law Centre. In October 2010, Ms. S’ application was refused and her solicitor submitted an appeal. She had reported her experiences of domestic violence to the police in Cardiff but it was not recorded correctly and was therefore not accepted as evidence. Her new solicitors therefore had to obtain further evidence which included a report from a domestic violence expert, a medical expert report because a report from a local hospital that she had attended, lacked details and did not attribute her injuries to her experiences of domestic violence. For her appeal, Ms S’ solicitors also prepared a comprehensive and detailed statement from her which addressed all the points that had been raised in the UKBA’s refusal note. Ms S’ appeal was heard on 8 December 2010 and unusually for such cases, her appeal was allowed then and there. The judge based his decision on the consistency and credibility of evidence as provided by Ms S as well as the excellent way in which Ms S’ appeal was prepared by her legal team. 17. In view of the above, we are at a loss to see how the process of making DV Rule or other similar applications can be characterised as merely a “paper” exercise. A Discriminatory approach 18. Elsewhere in the proposals, the Government has recognised that legal aid should be retained where there is ongoing or risk of domestic violence or abuse92 and where vulnerable persons are unable to navigate their way around the law and legal processes.93 Yet the same recognition is not extended to victims of gender-related violence in immigration law. Such exclusion will be highly discriminatory on a number of grounds including race, gender, poverty and mental health. Equality Impact Assessments in removing non-detention immigration cases from the scope 19. We are of the view that there has been no proper equality impact assessment in respect of gender, race, disability or other forms of inequality. The Equality Impact Assessment (EIA) published by the Ministry of Justice94 does not engage at all with the group of women most likely to be affected by the proposed withdrawal of funding from DV Rule and related cases Breaching domestic and international discrimination and human rights standards 20. The Government proposals are potentially in breach of international human rights law, this includes the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention of the Rights of the Child (CRC) and the Universal Declaration of Human Rights. (UDHR). The proposals also breach domestic law in respect of human rights and discrimination law such as the Race Relations Act 1976, Sex Discrimination Act 1975, Public Sector Equality Act 2010 and the Human Rights Act 1998.95 In the case of women fleeing violence in the UK, acting with due diligence to protect their right to life and to be free from torture, cruel and inhuman and degrading treatment means that the government must ensure all women have access to legal and welfare services as well as protection and provide services which help them regain security and human dignity. July 2011 92 See for example The Proposals for the reform of Legal Aid in England and Wales’. In cases of domestic violence and forced marriage or those involving vulnerable adults, legal aid has been retained. 93 See paragraph 4.56 and paragraph 4.57. “The Proposals for the reform of Legal Aid in England and Wales” 94 See Paragraph 8.37 and 8.38 Legal Aid Reform: Scope Changes Equalities Impact Assessment (EIA) 95 For a full discussion of the human rights implications by withdrawing legal aid to vulnerable adults and children subject to abuse and violence and immigration control, see “No Recourse No Safety” by Amnesty International and Southall Black Sisters, March 2008 Legal Aid, Sentencing and Punishment of Offenders Bill Memorandum submitted by the National AIDS Trust (NAT) (LA 19) Summary NAT is the UK’s leading charity dedicated to transforming society’s response to HIV. We provide fresh thinking, expertise and practical resources. We champion the rights of people living with HIV and campaign for change. We would like to make comments around the proposed cuts to legal aid contained in the Bill. In particular, we have concerns around: — The disproportionate impact of the cuts on people living with HIV, and on disabled people and people from BME backgrounds more broadly. NAT does not believe that the Government has adequately considered these equalities impacts and wheather the proposed changed are consistent with its duty to promote race and disability equality. — The removal from scope of employment, welfare benefits, asylum support, immigration, housing and debt advice, which will increase hardship and social disadvantage among people living with HIV. — The way in which the mandatory telephone gateway will act as a barrier to access for people living with HIV. DisproportionateI mpact ofL egalA idC uts onP eopleL iving with HIV 1. Statistics about who is currently accessing legal aid show that people living with HIV will be disproportionately affected by the cuts. Legal aid is relied upon disproportionately by people with disabilities, people from black and minority ethnic backgrounds, and those on low incomes. HIV is a disability,and a significant proportion of people living with HIV are black African or black Caribbean.96, 97 2. Disabled and BME people represented 18% and 8% of the UK population respectively, but are 21% and 26% of civil legal aid clients. In the area of welfare benefits, which is especially relevant for people living with HIV, 85% of current legal aid clients are from a BME background.98 More than a quarter of housing claims on legal aid involve disabled people; this is also a major issue for people living with HIV. (Please see points 10–12 and 16 below for specific comments on these impacts). 3. Many people living with HIV are also affected by poverty. Between 2006 and 2009, one in six people receiving HIV treatment had to seek charity assistance in the form of cash payments.99 They are particularly likely to be disadvantaged by the loss of funding for legal help with housing, welfare advice and asylum support. 4. NAT is very concerned that these impacts were not adequately addressed by the Government in the original Equalities Impact Assessment for the reform proposals. This assessment failed to recognise that the importance of legal aid as a means of access to justice is different for different protected groups, merely stating that as the cuts applied across the board and have the aim of reducing Government spending, the impact was “proportionate”. 5. Moreover, there has been insufficient consideration given to the Government’s responsibility to promote equality between groups in society. As already noted, people living with HIV are particularly likely to be affected by poverty, and this applies especially to migrants and people from BME backgrounds. HIV is also a stigmatised condition and people living with HIV still experience discrimination and disadvantage connected to their disability. Recommendation 6. NAT recommends that the Committee: — Review the Equality Impact Assessment provided by the Government on the plans to cut legal and highlight areas where further consideration is needed. — Ask the Government how legal aid cuts can be considered proportionate if they will have a more severe impact on particular groups, including people living with HIV and other disabled people. — Seek further information on how the Government intends to align legal aid cuts with its responsibility to promote equality among different groups in society. 96 A third of heterosexuals accessing HIV care are Black African. HIV in the United Kingdom: 2010 Report. http:// www.nat.org.uk/Media%20library/Files/Policy/2010/NAT%20black%20Caribbean%20report%20July%202010.pdf 97 Black Caribbean people make up 1% of the UK population but account for 3% of people living with HIV. NAT. 2010. HIV and black Caribbean communities in the UK. http://www.nat.org.uk/Media%20library/Files/Policy/2010/ NAT%20black%20Caribbean%20report%20July%202010.pdf 98 Percentages from the Government’s Equality Impact Assessment. 99 NAT and THT. 2010. Poverty and HIV: 2006 to 2009. http://www.nat.org.uk/Media%20library/Files/Policy/2011/ HIV&Poverty.pdf Legal Aid, Sentencing and Punishment of Offenders Bill Limiting theS cope ofC ivilL egalA id 7. NAT is particularly concerned about the removal from scope of the following areas of civil legal aid: employment, welfare benefits, immigration, asylum support, and housing. These areas represent some of the main dimensions of social disadvantage experienced by people living with HIV. Employment 8. People living with HIV still experience discrimination in the workplace due to their disability.100 NAT strongly supported the introduction of the Equality Act 2010 and increased protections for disabled people, including people living with HIV. However, we are concerned that now that these protections are in place, cuts to legal aid will prevent individuals from accessing these rights. 9. Although discrimination cases will still be eligible for legal aid, these cases will often arise alongside another employment claim, which will no longer be in scope under these proposals. This will create a practical barrier to pursuing the discrimination claim. The loss of legal aid in these areas will lead to a reduction in the number of providers who advise on combined claims. WelfareB enefits 10. The system of welfare benefits is complex, and becoming more so. There is particularly rapid change around disability-related benefits, which are a crucial source of income for many people living with HIV. 11. Research by NAT has found that people living with HIV face particular barriers in accessing Employment and Support Allowance (ESA), the benefit for people who cannot work due to illness or disability.101 However, those who receive expert advice are much more likely to succeed. This is illustrated by the appeals statistics for ESA: 40% of appeals are successful, but this figure is as high as 70% when the applicant has representation.102 We also know that now that Incapacity Benefit claimants are being moved across to ESA, HIV-specific welfare rights advisors are facing increasing demand for their services, which they may not be able to meet. 12. With a raft of further reforms to welfare benefits planned between now and 2014, including the abolition of Disability Living Allowance (DLA) and introduction of Personal Indepedence Payment (PIP), changes to housing benefit and the introduction of the Universal Credit, it is even more essential that people living with HIV have access to independent, high quality advice about their entitlement to welfare benefits. Immigration 13. Immigration is a key dimension of the HIV epidemic in the UK. Of those newly diagnosed in 2009, the vast majority had contracted HIV overseas.103 Immigration law is complex, and the provision of reliable advice early on in the process reduces the likelihood that migrants will end up staying in the UK illegally. For migrants living with HIV, residential status is crucial for accessing essential NHS care. Providing early immigration advice under legal aid is invaluable for helping migrants remain and settle in the UK in accordance with all relevant laws. AsylumS upport 14. People living with HIV are also overrepresented in the asylum system. For this reason NAT is very concerned that legal aid will not be available to provide advice to asylum seekers about receiving support under Section 95 or Section 4. As asylum seekers are generally not allowed to work in the UK, and have no recourse to public funds, this assistance is the only income available to them. Research by NAT has found that involvement in the asylum and immigration systems is the main driver of poverty for people living with HIV.104 15. It is inconsistent to allow legal aid for advice for asylum cases, while not allowing help with advice that will ensure that these individuals do not experience destitution while awaiting the outcome of this case. Housing 16. Some people living with HIV have special housing needs. For example, damp accommodation with inadequate heating creates an unhealthy and potentially dangerous environment for people with respiratory infections and tuberculosis.105 A tenant living with HIV may wish to enforce their landlord’s obligation to make repairs to reduce serious damp problems. Under the new proposals, they would not be able to access 100 40% of people living with HIV who had experienced discrimination in their current or previous job believed that they had lost their job as a result of their HIV status. NAT. 2009. Working with HIV. http://www.nat.org.uk/Media%20library/Files/ Policy/Our%20thinking/Employment%20summary%20report%20-%20FINAL%20August%202009.pdf 101 NAT. 2010. “Unseen disability,unmet needs: A review of the impact of the WCA on people living with HIV”. www.nat.org.uk 102 Analysis by Citizens Advice Scotland of ESA. 103 Of those where the place of infection was known. Health Protection Agency, 2010. “New diagnoses”. http://www.hpa.org.uk/ Topics/InfectiousDiseases/InfectionsAZ/HIV/NewHIVDiagnoses/ 104 NAT and THT. 2010. Poverty and HIV: 2006 to 2009. 105 NAT. 2009. Housing and HIV. http://www.nat.org.uk/Media%20library/Files/Policy/2009/Housing%20and%20HIV%20updated.pdf Legal Aid, Sentencing and Punishment of Offenders Bill legal aid for this case, even though their health is at risk. They would only be able to do so if the were at immediate risk of losing their home—for example, if they had withheld rent from their landlord and were threatened with eviction. Recommendation 17. NAT recommends that the Committee consider how cuts to legal aid will increase the experience of social disadvantage among people living with HIV by: — Reducing the likelihood that they will pursue claims of disability discrimination at work, even though they are entitled to such support. — Leaving them without advice and support to navigate complicated welfare changes and challenge unfair decisions—and in some cases, without access to the benefits to which they are entitled. — Increasing the number of people living with HIV who fail to understand and meet the requirements of the immigration system—which will in turn increase the number of people living with HIV with an irregular migration status who do not access essential treatment from the NHS. — Reducing the access destitute asylum seekers with HIV have to the only financial support available to them. — Leaving people living with HIV in unsuitable housing situations completely unsupported, even if their health is at risk. MandatoryT elephoneG ateway 18. NAT is concerned that introduction of a Community Legal Advice telephone as the single gateway to access civil legal aid advice will act as a barrier to access to justice for people living with HIV. Having access to a telephone advice line will no doubt be preferable for some people, and should be available as an option. However, a phone line where claims are assessed by a generalist adviser should not be the only point of access for legal aid. 19. People living with HIV who may have faced discrimination related to their disability will not always be comfortable disclosing the nature of their claim to a telephone adviser. This will deter them from accessing legal advice for their claim. They should be able to approach a legal aid provider, who is experienced in the sensitivity of disability discrimination cases, directly. 20. Migrants with HIV who have English as a second language may not be able to access the phone line. Those who are currently experiencing problems with their immigration status may also be too distressed or frightened to accurately describe their problem on the phone. 21. Individuals will not always have detailed knowledge of what legal protections apply in their situation, and therefore what sort of case they have. For example, many individuals who in fact have a discrimination claim may not immediately raise this aspect but would call up with an “employment” problem and may be wrongly told they are not eligible for support. 22. Research has shown that knowledge of discrimination law among employees with HIV can be patchy, especially protections against disability discrimination. In 2009, two-thirds of gay men with HIV who were in work were aware of their rights under the Disability Discrimination Act, compared to 84% who knew they were protected against discrimination based on their sexuality.106 NAT and others in the HIV sector are working to ensure that people with HIV are now aware of their Equality Act rights, but many people will have no reason to consider their protections against disability discrimination until they already have a problem at work. 23. Those who currently provide advice under legal aid have observed that sometimes it is necessary to view documentation before the true nature of a client’s problem can be identified. Individuals will not be able to communicate the relevant aspects of this documentation over the phone, so may miss out of the assistance they are entitled to when they do have a claim for discrimination or another area in scope. Recommendations 24. The Committee should ask the Government to explain: — How it will ensure that people with HIV and others who are less able to use the telephone gateway are not excluded from access to justice. 106 NAT. 2009. Working with HIV. Legal Aid, Sentencing and Punishment of Offenders Bill — What measures will be in place to ensure that the confidentiality of people who access the gateway is upheld, especially in respect of queries around discrimination complaints and disability- related queries. July 2011 Memorandum submitted by the Family Law Bar Association (LA 20) Introduction—LegalA id inF amilyC ases 1. In the Legal Aid, Sentencing and Punishment of Offenders Bill (“the Legal Aid Bill”) proposals for the reform of Legal Aid in family cases are principally to be found in (a) Clause 8; (b) Clause 9 (exceptional cases).107 (c) Clauses 45-50 (interim lump sums in financial remedy cases); (d) Schedule 1 (what is in scope). 2. It is apparent that much of the detail will be contained in regulations.108 Timing ofR eform: theF amilyJ usticeR eview 3. Proposals for the reform of Legal Aid in Family Justice should await the final report of the Family Justice Review: The Government rightly acknowledges the valuable work of the Family Justice Review running in parallel with the legal aid consultation; it recognises that the Family Justice review is considering options for a quicker, simpler, more cost-effective and fairer system, whilst continuing to protect children and vulnerable adults from risk of harm.109 4. The FLBA maintains that while proposals for the reform of the justice system are ongoing, the Government is wrong to be forging ahead with its reform plans for legal aid. The two are inextricably bound together, though the work of the FJR is more profound and far-reaching. 5. For instance, the removal of large numbers of people from the scope of legal aid will inevitably bring many more litigants in person into the family courts; this will have the inevitable and serious consequence that the courts will become “clogged” with unrepresented parties. The Family Justice Review is concentrating on addressing (and removing) the weaknesses from the system, and building on its strengths; in this respect, the Family Justice Review (in its interim report) observes: Proposed changes to legal aid, should they go ahead, will mean more people choosing to represent themselves as litigants in person. This complexity will, as a result, become an increasingly important weakness110 6. More surprisingly, the Government maintains that the proposals for the reform of Legal Aid “complement the aims” of the Family Justice Review. In significant respects this is simply not right. 7. How can it be said that the Legal Aid proposals “complement” the aims of the Family Justice Review? In the first instance, the Family Justice Review has proposed111 a radical re-organisation of legal aid— namely that it be part of the overall budget of the Family Justice Service; Family legal aid is a major part of the Government spend on family justice. Were it managed as part of the overall family justice budget there would be opportunities to shift money between activities, from court work to mediation for example. The Family Justice Service should manage relationships with mediators, legal providers and experts. In time, with responsibility for the legal aid budget, it could procure their services. These proposals pre-empt the implications of the new budget structure. 8. Furthermore, the Family Justice Review has expressed its profound concern about the “significant” number of private law cases in which there is identifiable risk of abuse; the FJR report that: “Serious child protection concerns are raised, or come to light, in a significant proportion of private law cases. Where there are concerns for the child’s safety or for a vulnerable adult swift and decisive action must be taken to protect them”. 107 It is feared unlikely that the Director could assess a family case exceptionally to be caught under Clause 9 ie where the absence of legal aid in a given case would be a breach (or there would be a risk of a breach) of the individual’s convention rights under the HRA 1998; will depend on evaluation of Airey principles. The possibility for the Director to exercise discretion in this way is discussed atH 47 of the Government’s Response CM8702, page 20 108 See for example para.619 of the Explanatory Notes, in which it is said that funding entitlement under clause 10 and 11 to schedule 1 of the Bill, for example, will be made by regulation and will be “limited to cases where there is appropriately clear evidence of the need for protection”. 109 Page 20,H 46: The Government Response: CM8072 110 Family Justice Review Interim Report,H 2.47 111 Family Justice Review Interim ReportH 3.88 Legal Aid, Sentencing and Punishment of Offenders Bill The Government’s proposals do not capture all, or even very many of, these cases. 9. Further, the FJR is still investigating the “overlap between public and private law”;112 it is therefore quite wrong for the Government to press ahead with proposals in relation to legal aid for cases involving suspected child abuse until this research is concluded. 10. Moreover, the FJR contemplate that a number of cases will require court intervention (and that “the judiciary remain central to the successful management of cases”)113 namely: “those with significant complexity, a point of law or pivotal point of fact to be considered, or where there are serious welfare concerns”—this covers a wider range of cases than those contemplated by the Legal Aid Bill and Response to consultation.114 The cases will not be captured by the modest revisions to the legal aid proposals. Scope:Generally: 11. Proposals for the removal of large numbers of cases from the scope of Legal Aid remain largely unchanged, even though there is virtually no support for the proposed reforms. The proposal to remove from “scope” large numbers of private law cases has serious implications for the public, and for the courts. Significant numbers of parents facing the turmoil and stress of family breakdown will not be entitled to legal advice or assistance; this has fundamental implications for their access to justice, and serious implications for the children caught in the midst of their disputes. 12. Abolishing legal aid for those seeking legal advice and representation in private law family cases is manifestly wrong; this is underlined by the almost unanimous response of the respondents to the consultation. A paltry 3%115 of the respondents to the consultation supported the Government’s proposal to remove large numbers of cases from scope. The Government appears to ignore that overwhelming reaction by declaring itself satisfied that: Although a significant majority of responses disagreed with the proposals, the Government remains convinced that reform is necessary to avoid unnecessary litigation, reduce the cost of legal aid and deliver better overall value for money.116 13. The Legal Aid Reforms pursue this policy on “scope” disproportionately, by effectively barring litigation in excluded areas, taking an irrationally narrow view (which is not supported by the extensive empirical evidence) of when litigation might remain “necessary”. 14. The Government responds117 to this vital issue with some very general comments about three “factors” which “will help to mitigate” the impact of removing legal aid from private family proceedings; it is our view that these factors (ie mediation and interim lump sums) will in fact apply to relatively few of the cases. It surely cannot be expected that the unspecified “other avenues of support and advice to the extent they remain available” are likely to have much, if any, impact (whatever they are). 15. In short, we believe that the Government is not listening to the views of those who have an interest in protecting access to justice by the most vulnerable. Scope:Litigants inP erson 16. Litigants in Person: The Government has failed to acknowledge the serious impact on the court system of the increased numbers of Litigants in Person by reason of its “scope” proposals. The Government’s own literature research (commissioned alongside its response) reveals that the public will face: (a) poorer case outcomes, (b) longer delays in resolution of cases, (c) lower prospects of settlement, and (d) vulnerable people forced to present their own cases. The Government’s “literature research” on the impact of litigants in person on family cases confirms the representations of the many respondents to the consultation, who spoke of the harmful effect on the court system of the inevitable increase in the number of Litigants in Person in the family courts. Notably, reference to the LIP review in the Response is rather patchy. While reference is made to delay, the finding of “poorer outcomes” is not mentioned in several locations where the LIP issue is addressed. 17. The research118 (published alongside the Response) was, as we predicted, of limited value, but nevertheless does nothing to support the Government’s proposals and goes some way to corroborate the fears expressed by consultees about the impact of the reform proposals. It was, as the authors of the research admit “not a fully systematic review”. The research revealed (it is acknowledged) “limited” good quality evidence on which the Government could base its proposals. It is conceded that there was little “robust” 112 Family Justice Review Interim Report,H 5.61 113 Family Justice Review Interim ReportH 74 (p.15) 114 Family Justice Review Interim ReportH 5.125 115 Annexe B, para.2: The Government Response: CM8072 116 Annex B, para.3: The Government Response: CM8072 117 The Government Response: CM8702,H 45 page 20 118 http://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/litigants-in-person-literature- review.pdf Legal Aid, Sentencing and Punishment of Offenders Bill evidence for the research questions (comment: while ostensibly ignoring the clear evidence from the judiciary in their response to the consultation, for example—see below). The relevance of international comparative studies was shown (as we predicted) to be “problematic” given the different eligibility criteria, cultural differences, and legal context. In the final analysis, it shows that there are “gaps” in the Government’s “understanding” of the impact of litigants in person in the courts (described as “limited”). 18. Nevertheless, what does the research tell us about Litigants in Person? Profile of LIPs (a) Litigants in person tended to be younger, with lower income, and educational levels than those who obtained representation; (b) In family cases, the one study to examine the issue revealed that a significant minority of unrepresented litigants (20% of injunction cases, and 15% of children cases) had a “specific indication of vulnerability (such as being victims of violence, having depression, a problem with alcohol/drug use, having a mental illness or being extremely young parents)”; (comment: raising serious questions about their ability effectively to access the courts/justice). Effect on the cases and on the courts (c) Family cases where one or both parties were unrepresented tended not to settle, increasing case duration (comment: and therefore cost); (d) “The weight of the evidence indicated that lack of representation generally had a negative effect on case outcomes”; (e) LIPs tended to experience “a number of problems” in presenting their cases “which in turn impact on the court”—LIPs were (according to a number of sources) “overwhelmed by the procedural and oral demands of the courtroom”; (f) A number of sources noted the extra burden that unrepresented litigants create for court staff and judges. (g) Where active unrepresented litigants were involved, cases were seen to take longer. This was particularly so for family cases, where the absence of a representative was linked to longer case duration as they were less likely to settle than cases involving a representative (Dewar et al., 2000; Hunter, 2003; Moorhead and Sefton, 2005; Rosenbloom, 2003), Failure to pursue claims as a result of lack of advice / representation (h) The Government concedes that there is a gap in the research, in that it did not examine the potential impact of changes to access to legal funding on i) whether people with problems amenable to resolution in the justice system would be reluctant or unwilling to participate in the justice system if they did not have legal advice; ii) what they do instead, and the effectiveness of the alternatives they may turn to. 19. In contrast with this literature research, it is appropriate to note what the Judge’s Council119 said in its response to the Consultation Paper on Legal Aid. There is a highly relevant, detailed, discussion of the impact of litigants in person on the management and outcome of cases, from an informed and experienced perspective. In summary, the Council reports (H6): One of the major concerns running through our comments is that the proposals would lead to a huge increase in the incidence of unrepresented litigants, with serious implications for the quality of justice and for the administration of the justice system in terms of additional costs and delays— at a time when courts are having to cope in any event with closures, budgetary cut-backs and reductions in staff numbers. The consultation paper shows an awareness of the issue but fails to recognise the depth of the problem. Even if one focuses on cost alone, there is a real question whether the cost savings arising from the proposed cutbacks in the scope of civil and family legal aid would be offset by the additional costs imposed on the system by dealing with the increase in litigants in person. 20. And alongside the Judge’s Council, it is further revealing to note what the Interim Report of the Family Justice Review said (H5.55-5.57) on this topic: “Should the proposals go ahead as set out in the Green Paper, the reduction in the scope of legal aid may result in greater numbers of people representing themselves, or litigants in person. Such people often have limited legal expertise and need greater support from the court during their proceedings, which may lead to longer cases. Litigants in person may also be disadvantaged by not knowing their entitlements. 119 http://www.judiciary.gov.uk/Resources/JCO/Documents/Consultations/response-judges-council-legal-aid-reform- consultation.pdf Legal Aid, Sentencing and Punishment of Offenders Bill There should be much more readily-available information for litigants in person. People should not have to fork out huge legal fees, go on benefits or be disadvantaged by a lack of information on appearing as a litigant-in-person—just so that they can put forward their case regarding the most important things in their lives ie their children. [Parent, call for evidence submission] We share these concerns, both as to the ability of litigants in person to conduct their case effectively and as to the inevitable increased burden in terms of time and resources this will place on the court. We are also concerned that some parents will simply not pursue their dispute leading to some children losing contact with a parent. We await the Government’s conclusions, following the consultation and their response to these concerns.” 21. The Government’s summary of the research120 reads as follows: “In the consultation paper we undertook to review the research available on litigants-in-person, and their impact on the conduct and outcome of proceedings. The Government has completed its review, which it has published separately today. Overall the review found that the evidence available on litigants-in-person tends to suggest a mixed impact in length of proceedings. This was affected by case type and how active the litigants were. It was suggested that cases took longer when the unrepresented litigant was active but could take less time when the litigant was inactive.”121 The “mixed impact” should not be misunderstood: this includes cases where the litigant was “inactive”— that is to say, took no part in the proceedings at all. 22. Finally, it is noted that the “Government will examine the system to support litigants-in-person as part of the post-implementation review and will report the findings to Parliament”.122 We regret that this will be a case of examining the state of the stable door, long after the horse has bolted… Clause 1: LordC hancellor’sF unctions 23. Clause 1 presently reads: The Lord Chancellor must secure that legal aid is made available in accordance with this Part. 24. The FLBA proposes that Clause 1 should be amended to read: The Lord Chancellor must secure that legal aid is made available in order to ensure practical and effective access to justice. 25. Under schedule 5, para.49 of the Legal Aid Bill, it is proposed that sections 1-26 (and schedules 1- 3A) of the Access to Justice Act 1999 (which deal with legal aid) are repealed. The actual effect is to substitute a narrower “access to justice” provision here than previously existed. Under Section 4 of the 1999 Act, the LSC was established in order to develop the Community Legal Service: for the purpose of promoting the availability to individuals of services of the descriptions specified in subsection (2) and, in particular, for securing (within the resources made available, and priorities set, in accordance with this Part) that individuals have access to services that effectively meet their needs. This crucial provision has gone. Clause 2(3): Regulations forF unding 26. This clause reads: The Lord Chancellor may by regulations make provision about the payment of remuneration by the Lord Chancellor to persons who provide services under arrangements made for the purposes of this Part. 27. We propose that the clause should be amended to read: The Lord Chancellor may by regulations make provision about the payment of remuneration by the Lord Chancellor to persons who provide services under arrangements made for the purposes of this Part having regard to— a) the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies, b) the cost to public funds, and c) the need to secure value for money. 28. In this respect, note that the Government proposes to abolish section 25 of the Access to Justice Act 1999. 120 The Government ResponseH 138, page 40 121 Note that the “poorer outcomes” finding was NOT mentioned in this section of the Response paper. 122 The Government Response Chapter 4,H 16, page 115 Legal Aid, Sentencing and Punishment of Offenders Bill 29. This provided that When making any remuneration order the Lord Chancellor shall have regard to— a) the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies, b) the cost to public funds, and c) the need to secure value for money. 30. We submit that there ought to be a similar provision in order to emphasise the importance of ensuring that fee levels do not drop to such a level that a “sufficient number of competent persons and bodies” are no longer secured. In short, there needs to be some protection against the emergence of advice deserts. 31. We further support a provision which imposes a “floor” below which such rates do not fall (such as the rates prescribed by the 2001 funding order). 32. 10% cuts in fees for family lawyers:123 The proposed cuts in fees will inevitably cause many solicitors firms to fold, as publicly funded work becomes wholly uneconomic; advice deserts will emerge; access to justice for the public will become harder. It is no wonder that 88%124 of the respondents to the consultation opposed the cuts. That 88% figure is not likely, we suggest, to represent simply those whose livelihoods depend on public funding. 33. At the Bar, women and B&ME practitioners will be the hardest hit by these fee proposals.125 Overall, the legal profession (and in due course the judiciary) will become less representative of the public it serves. 34. This is not, as has been said already, mere self-interested lawyers complaining about the cuts to its fees; this is the view of the senior Judiciary (ˇ10: Judge’s Council response): There is a real concern, especially in relation to family and criminal work, that the pool of skilled advocates willing to undertake the work will diminish, to the disadvantage of litigants and to the detriment of the efficient running of cases. Moreover, there are likely to be longer term adverse consequences for the recruitment of able advocates into these fields of work and, at the other end of the spectrum, for the existence of a sufficiently large and diverse pool of able advocates suitable for appointment as judges in such cases. Clause 8: ShrinkingC ategories ofL egalA id… amend“ by inclusion or” omission… 35. Clause 8(2) reads The Lord Chancellor may by order modify Schedule 1 by omitting services from Part 1 of the Schedule (whether by modifying that Part or Part 2, 3 or 4 of the Schedule). 36. We submit that the clause should read The Lord Chancellor may by order modify Schedule 1 by including or omitting services from Part 1 of the Schedule (whether by modifying that Part or Part 2, 3 or 4 of the Schedule). 37. The Bill allows only for “shrinkage” of the services supported by legal aid. We do not believe that this is right. The Bill should permit the Lord Chancellor hereafter to include legally aided services not just omit them. 38. Note (small comfort)—for information—that such an “order” can only be made by positive resolution (Clause 38(6)). Clause 9: ExceptionalC ases126 39. The exclusion of important cases from the scope of legal aid is not remedied by the incorporation into the Bill of Clause 9. We contend that—having regard to the decision of Airey v Ireland 32 Eur Ct HR Ser A (1979): [1979] 2 E.H.R.R. 305—the lack of legal aid in the majority of private law family cases raises serious ECHR issues. 40. In Airey, the Court held that a right of access to a court for the determination of the applicant’s civil rights (recognised by Golderv UK [1975] 1EHRR 524 could be violated by lack of legal aid for legal representation in those proceedings. The fact that the litigant was free to act as a LIP not conclusive of the 123 Government’s Response to Consultation: CM8702, Chapter 4, page 84,H 11 124 Annex H of the Government’s response to the ConsultationH 4, page 227 125 Kings College Survey: 2008: This is a quantitative study of the work of the family bar in 2008, and the current functioning of the legal aid graduated fee system for barristers in family law cases. The study was commissioned in June 2008 by the Family Law Bar Association (FLBA), and was undertaken by researchers in the King’s Institute for the Study of Public Policy (KISPP) at King’s College London, from July 2008 to December 2008. Data was gathered through surveys of (i) chambers where any family work is undertaken, (ii) barristers who undertook any family work (whether publicly funded or privately paid) in the year to 30 August 2008 and (iii) all family work completed by barristers in England and Wales in a random week, known as the “Week-At-A-Glance” 126 With particular thanks to Jo Miles, University Lecturer, Director of Studies and Fellow in Law, Trinity College, Cambridge, for her assistance on this narrative on clause 9. Legal Aid, Sentencing and Punishment of Offenders Bill matter, as ECHR guarantees practical and effective, not theoretical and illusory rights [24]. In some cases, acting as a LIP would not breach article 6 rights, but “much must depend on the particular circumstances” [26]. 41. So in Airey the question was whether Mrs Airey’s theoretical ability to represent herself would be effective, ie whether she would be able to present her case properly and satisfactorily. [24] 42. It was noted that the fact that her husband would be represented by a lawyer would put her at a disadvantage. But even putting that aside, Mrs Airey could not effectively conduct her own case in litigation of this nature, despite the assistance that judge would afford to her as a LIP because: (a) Of the complex procedure of High Court (comment: how would it compare by reference to the Family Procedure Rules)? (b) Of the complex points of law; (c) There would be requirement to prove grounds for judicial separation, possibly with expert evidence and other witnesses; (d) “What is more, marital disputes often entail an emotional involvement that is scarcely compatible with the degree of objectivity required by advocacy in court” 43. When the issue was looked at again in McVicarv UK Application no. 46311/99; (2002) 35 EHRR 21 (a case concerning the lack of legal aid in defamation actions) it was held that one of the important features of the decision in Airey was that there was an inevitable emotional involvement—this was a particular feature of family cases which “regulate the legal relationship between two individuals and may have serious consequences for any children of the family” [61]. 44. It is appropriate also to look atR v Legal Services Commission ex parte Jarrett [2001] EWHC Admin 389; the current exceptional funding criteria were amended following the domestic decision in Jarrett where it was held that the then criteria (overwhelming importance to client or significant public interest) failed to capture all issues pertinent to Article 6. This led to the addition of the clause that reads: “there is convincing evidence that there are exceptional circumstances such that without public funding for representation it would be practically impossible for the client to bring or defend proceedings, or the lack of public funding would lead to obvious unfairness in the proceedings”. 45. An oddity immediately arises from the prima facie exclusion of private family law from legal aid, given the apparent Strasbourg view that at least some non-DV private family cases (note: there was some history of domestic violence in Airey, but that played no part in the Court’s decision that legal aid was required for Mrs Airey’s judicial separation petition) can be sufficiently important to require legal aid given the importance of the issues to the lives of the parties, especially the children. 46. So we contend that the exclusion of private family cases has been drawn too tightly, such that we contend that the blanket rule may well be unlawful in terms of Art 6. There is clearly room for challenge on this point, given the Government’s complete inattention to the ample evidence of lawyers’ role in settling cases, and the available evidence (summarised above) about the experience of litigants in person in family cases. 47. If the blanket rule is not itself a breach, that conclusion will have to be in part on the basis that the exceptional funding provision will be applied in such a way to ensure Art 6 compliance. What proportion of cases might be expected to require legal aid? NB the Government view that mediation is all that is needed in these cases (with supporting legal work) and the expectation that, domestic violence and child abuse- related cases remaining in scope, only a further 5% of private family cases will find their way back into legal aid via exceptional funding [impact assessment Annex A, table 3]. 48. It is also relevant to consider P, C and Sv UK (ECHR) 56547/00, in which it was said that while there is no automatic right under the Convention for legal aid or legal representation to be available for an applicant who is involved in proceedings which determine his or her civil rights, nonetheless, Article 6 may be engaged under two interrelated aspects: (a) assistance is indispensable for effective access to court, either because legal representation is rendered compulsory as is the case in certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or the type of case (see Aireyv Ireland, judgment of 9 October 1979, Series A no. 32, pp. 14-16,HH 26-28, where the applicant was unable to obtain the assistance of a lawyer in judicial separation proceedings). Factors identified as relevant in Airey in determining whether the applicant would have been able to present her case properly and satisfactorily without the assistance of a lawyer included the complexity of the procedure, the necessity to address complicated points of law or to establish facts, involving expert evidence and the examination of witnesses, and the fact that the subject matter of the marital dispute entailed an emotional involvement that was scarcely compatible with the degree of objectivity required by advocacy in court. In such circumstances, the Court found it unrealistic to suppose that the applicant could effectively conduct her own case, despite the assistance afforded by the judge to parties acting in person; (b) the key principle governing the application of Article 6 is fairness. In cases where an applicant appears in court notwithstanding lack of assistance by a lawyer and manages to conduct his or her Legal Aid, Sentencing and Punishment of Offenders Bill case in the teeth of all the difficulties, the question may nonetheless arise as to whether this procedure was fair (see, for example, McVicar v. the United Kingdom, no. 46311/99,HH 50-51, ECHR 2002-III). There is the importance of ensuring the appearance of the fair administration of justice and a party in civil proceedings must be able to participate effectively, inter alia, by being able to put forward the matters in support of his or her claims. Here, as in other aspects of Article 6, the seriousness of what is at stake for the applicant will be of relevance to assessing the adequacy and fairness of the procedures 49. In short, the Bill raises legitimate article 6 issues in light of Airey; we suggest that it is wrong to apply an additional hurdle of ‘exceptionality’ in order to satisfy Article 6 rights. We suggest that Clause 9 does not go far enough to ensure that there is provision for funding in appropriate cases. The proposed scheme for funding exceptional (excluded) cases where it is shown to be necessary in order for the United Kingdom to meet its legal obligations is unduly narrow and would not be sufficient to counter the adverse effects of litigants being forced to pursue litigation in person, in areas of civil and family law where legal representation is important for the proper conduct of the case (see on this issueH 9 of the response of the Judge’s Council to the Consultation Paper). 50. We are far from confident, without more information, how the Director will exercise discretion in the individual case; this may become clearer when the Guidance is published. However, it seems extremely unlikely that this discretion will be invoked in the many cases in which we consider the vulnerable will encounter difficulties in accessing justice. Clause 45: FinancialR emedies: theU nrepresentedL itigant 51. CLAUSE 45: Orders for payment in financial remedies consequent on divorce. We propose that this provision should be extended to schedule 1 claims and ToLATA claims. 52. However, we contend that the application for such an order should be included in ‘scope’ in Schedule 1. 53. The Government has rejected calls to include provision for applicants for legal services provision to obtain legal advice and representation in making that application (unless she/he falls into the “domestic violence” category (see below)). The proposed payer is likely to oppose such an application on the basis that there are insufficient matrimonial assets to make such a distribution; accordingly, the application for the order may involve a detailed study of bank accounts and company accounts to establish whether money can be released for an interim lump sum; this is expert work. This is no task for a wife struggling to cope with the ordeal of relationship breakdown, coping with the new demands of child-care as a single parent, having to take on the role of forensic sleuth. 54. Consequently, an application for such interim lump sum provision should remain in scope if the power is to be an effective tool in reducing the time and money expended in family court on litigating financial issues. If such an application is conducted professionally, it is far more likely to be successful in establishing the ability of the Respondent to make the lump sum payment that would fund the litigation, and consequently enable both sides to be properly privately funded. Schedule 1, Para. 8: UnlawfulR emoval from theU nitedK ingdom 55. Para.8 of Schedule 1 leaves in scope legal aid for the applicant, where that individual is “seeking to prevent the unlawful removal of a related child from the United Kingdom”. 56. There is no reference in Schedule 1 of the Bill to civil legal services being provided in relation to abduction of children within the United Kingdom. This is a much greater problem, in terms of numbers, to the problem of unlawful removal from the United Kingdom (which remain in scope by virtue of paragraph 8 of Schedule 1). Where a parent, who thinks they have agreed a pattern with contact with their former partner, hands over the child only to find that the child is not returned, but taken to a secret address, perhaps in another part of the country, are they to be expected to apply for an order without legal assistance in these circumstances? How are they to trace the whereabouts of the child, and serve court process on the former partner? Are they to do this as a litigant in person? 57. The FLBA proposes two amendments: (a) that the ambit of this provision should be expanded to include threatened domestic child abduction ie the “summary removal of a child from its main home, whether that should be to a destination within or outside the United Kingdom”. The effect on the child (and of the main carer) of a summary removal of the child is essentially the same whether the destination is in the UK or abroad. (b) That the respondent should also be entitled to legal aid. What if the application is applied for as a means of harassment? These orders are often obtained in the first instance ‘without notice’ to the respondent; the respondent has to appear to an order already made. Legal Aid, Sentencing and Punishment of Offenders Bill Schedule 1, Para.9: FamilyH omes andD omesticV iolence 58. We consider that it ought to be made clearer on the face of the paragraph that legal aid is available for both the applicant and the respondent. Schedule 1, Para 10: Victims ofD omesticV iolence andF amilyM atters 59. Much of the relevant argument will fall for discussion in relation to the regulations; though it is necessary to raise the arguments now. There is much to debate in this area. 60. Specifically, in the definition section (para.10(9)), we would want to probe why the ACPO definition for domestic violence has not been used: any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults, aged 18 and over, who are or have been intimate partners or family members, regardless of gender and sexuality.’ (Family members are defined as mother, father, son, daughter, brother, sister and grandparents, whether directly related, in-laws or step-family.) 61. In any event, we would want to see the inclusion of “economic abuse” in the definition section too. 62. In domestic violence cases, the Government proposes to widen the definition of domestic abuse to capture more victims. However, it is predicted that over 40% of victims of domestic violence who currently receive legal aid will still fail to obtain legal aid under the revised proposals. 63. It is estimated that over 40% of those who receive legal aid today to pursue domestic violence injunctions would no longer be eligible under the Government’s new proposals, of whom half are at risk of serious harm (psychological and physical). The true number of people who need injunctions from the family courts is likely to be many times the number who actually receive them today owing to the difficulties which many victims experience in making disclosures.127 Even if the Government simply ensured that high risk victims had access to legal aid (let alone the wider group of DV victims) the figure could be more than double the current number of injunctions (ie of the estimated 100,000 high risk victims we could assume that currently a third to a half would access MARAC, and thus be eligible). 64. The Government has properly conceded that its previous definition of domestic violence needed to be revised and widened, yet the definitions still do not go far enough. There is no specific reference (as had been urged on the Government) to the ACPO128 definition of domestic violence, to the victims of psychological abuse (Yemshaw129), nor to those women who seek the assistance of women’s refuges. The new criteria are: (a) There are ongoing criminal proceedings for domestic violence offence by the other party towards the applicant for funding; (b) The victim has been referred to a Multi-Agency Risk Assessment Conference (as a high risk victim of domestic violence) and a plan has been put in place to protect them from violence by the other party; and (c) There has been a finding of fact in the family courts of domestic violence by the other party giving rise to the risk of harm. 65. As to (a), the data provided by the Government is not clear as to the percentage of additional victims of domestic violence which would be captured by this further category being brought within “scope”. Given that the criminal process is likely (through bail conditions, and through restraining orders) to regulate contact between alleged victim and alleged offender, this is an important gap in the relevant information. 66. As to (b), in a review of a sample of data undertaken by CAADA130 (following the publication of the Bill)131, it appeared that (in a sample of 1,000 cases) of 147 victims who qualified for legal aid 43% did not meet the MARAC threshold and would therefore potentially no longer qualify for legal aid. Within this group of 63 cases, almost half (48%) were described as high risk ie were experiencing 14 or more of the risk factors identified on the CAADA risk identification checklist,132 56% experienced physical abuse, 21% sexual abuse, 59% jealous and controlling behaviour (ie emotional abuse) and 67% stalking and/or harassment. They were more likely to come from B&ME communities (17% vs 14% for the average) and almost a quarter (24%) had mental health issues. 67. As to (c), this contemplates that the victim of domestic abuse has already been through the ordeal of a court process, possibly unrepresented, in which she/he has had to face the perpetrator of abuse, in a contested trial (hence “findings of fact”) before being eligible for legal aid. 127 See Annexe A attached. 128 Guidance on Investigating domestic abuse: ACPO (2008) 129 Yemshawv London Borough of Hounslow [2011] UKSC 3 130 Co-ordinated Action Against Domestic Abuse (CAADA) is a national charity supporting a strong multi-agency response to domestic abuse. Its work focuses on saving lives and saving public money. For more information on this issue go to http:// www.caada.org.uk/Research/Insights.htm. 131 This is relying on a number of domestic violence services whose data is collected and analysed by CAADA. The data comes from a range of practitioners—Independent Domestic Violence Advisors who work with the highest risk victims of abuse, outreach workers who support victims of less severe abuse, refuge staff and some children’s workers. http:// www.caada.org.uk/Research/Insights.htm 132 http://www.caada.org.uk/practitioner resources/riskresources.htm Legal Aid, Sentencing and Punishment of Offenders Bill 68. Generally, it should be noted that it is not at all clear how the Government has calculated the percentages of cases that it expects to remain in the system. 69. Given the high number of domestic violence incidents which go unreported, we consider that there should be consideration given to further routes for legal aid from those proposed including: (a) admission to a Women’s Refuge; (b) accessing Domestic Violence Services (c) accessing medical professional services (general practitioner / health visitor); (d) the Mediation assessment concludes that because of domestic abuse, the couple are not required to mediate; and add a catch-all (e) any other category of case in which the Director of Legal Aid Casework is satisfied that it would be right to make available legal aid. 70. The FLBA does not consider that the 12-month time limit (the qualifying period of the protective relief) referred to in the White Paper is appropriate.133 Domestic violence is ingrained behaviour. 71. Domestic violence, and protection from harassment: the respondents (the alleged perpetrators)? The Government has not made any revisions to its proposals for providing legal aid in family cases for the perpetrator of domestic violence or in protection from harassment cases. It should do so. 72. There are serious inequality of arms issues created by the lack of representation for the alleged perpetrator against the represented complainant. In cases of this kind, issues around third-party disclosure often arise requiring expertise which an unrepresented respondent is unlikely to have, and the corresponding greater risk of a miscarriage of justice. The stress of the process for the victim will be significantly heightened by being confronted directly in court by the unrepresented abuser. The legal process contemplated by these proposals will position the victim facing direct questioning by the unrepresented abuser. Far from protecting the victim from the abuse, this will only serve to perpetuate (and increase) the experience of abuse. It will not be for the Judge to mitigate this. 73. The Government should be very concerned that these provisions may deter vulnerable victims from pursuing court protection if they know that they will have to face direct cross-examination from the person who has abused them. Schedule 1, Para 11: Protection ofC hildren andF amilyM atters 74. Child protection cases: Unrepresented parties to appear in significant numbers of child harm cases: children left unprotected: While the Government has introduced proposals for legal aid in some cases involving child “abuse” (as defined in the paragraph) (where there is objective evidence of the risk of abuse), its proposals are not likely to cover the “significant” number of private law cases where “serious child protection concerns are raised” (per the Interim Report of the Family Justice Review (30 March 2011)). 75. We make four proposals for change. 76. (1) Respondent to the allegations… It is proposed that Legal aid will only be available under this clause for Adult “A” (the protecting adult). The FLBA contends that legal aid should also be available for the “individual other than A” who is said to be placing the child at risk of abuse. It is vital (in order to comply with Article 6 obligations) that the respondent to allegations of child abuse should be represented. 77. (2) Schedule 1 / ToLATA: The FLBA contends that the categories of case in Schedule 1 para 11 should include financial remedy cases, Schedule 1 CA 1989 cases, and ToLATA cases. 78. (3) Expansion of the criteria: section 37: The Government’s criteria, (see the Government’s Response CM872) suggests the following: (a) there are ongoing criminal proceedings for a child abuse offence against the person from whom the protective party is seeking to protect the child; or (b) a local authority has put a Child Protection Plan in place to protect the child who is the subject of the proceedings from abuse by or including abuse by the person from whom the protective party is seeking to protect the child; or (c) there is a relevant finding of fact by the courts that child abuse on the part of the person from whom the protective party is seeking to protect the child has occurred. 79. As to (a), while this may capture additional serious cases, there is no assessment of how many and in what circumstances. 80. As to (b) the concession does not go far enough. As the FJR indicates, there will be many cases which: 133 Para.25 on page 16 of the Government’s response Legal Aid, Sentencing and Punishment of Offenders Bill “involve substance abuse and violence, which present real safety issues. A judge at the Principal Registry of the Family Division (PRFD) undertook for us a three-day snapshot of cases. Many were straightforward, and the court was focused on seeking to support the parties in coming to an agreement. But there were also many that showed high levels of risk”134 81. There will be many private law cases (such as intractable contact disputes) which would not readily attract local authority attention, but which nonetheless require representation if they are not to spiral out of management control in court. 82. As to (c), this contemplates that the parties have already been through the ordeal of a court process, possibly unrepresented, in which she/he has had to face the perpetrator of abuse to the child, in a contested trial (hence ‘findings of fact’) before being eligible for legal aid. 83. The FLBA would like to suggest that parties to family proceedings would automatically fall within scope if the court makes a section 37 order under the Children Act 1989—viz: Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child’s circumstances 84. At the very least, this should trigger an application to the DLAC for consideration of making legal aid available. 85. (4) Witnessing domestic abuse: Given that section 31(2)/(9) of the CA 1989 contemplates that children who witness domestic abuse can be said to have suffered significant harm, then this also ought to represent a passport for all parties to be represented (section 31(9)) “harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another 86. Moreover, it is not understood why this provision is limited to the provision of legal aid in proceedings relating to the children, and not the associated financial remedy proceedings? The child’s economic welfare is important in abuse cases, particularly given the incidence of abuse in low-income households. Schedule 1: Para. 12: Mediation 87. Mediation: needs to be supported by legal advice and representation to be effective: The Government’s own research135 conducted alongside the preparation of its Bill and Response reveal that parties experienced “problems” in mediation if they did not have the benefit of legal representation; the research is said to demonstrate (unsurprisingly in our view) that: …parties in mixed representation cases (where one party was represented and the other was not) were more likely, than cases where both or neither parties were represented, to report feeling unprepared to mediate, and concerns and fears about mediation 88. The Government continues to place excessive reliance on the likely impact of mediation on diverting cases away from the family court system. In its Response to the Legal Aid consultation, the Government maintains that it has considered (private law) family court diversion proposals, and relies on the fact that the Family Justice Review interim report outlined the benefits of mediation in supporting parties to resolve their disputes. The need to make savings in the legal aid budget takes these initiatives into account. It should be noted however that the Family Justice review recognises that mediation is not a panacea, and that there should not be over-emphasis on the prospects of mediation; they say explicitly: “Where possible disputes should be resolved independently or using Dispute Resolution Services such as mediation, when it is safe to do so. Parents who choose to use the court system must understand it will not be a panacea”.136 (emphasis added) 89. We are conscious that many mediators are not satisfied with these proposals, and would refer to the article in Family Law Journal from Mike Stepan (NFM Mediator (MiD Mediation and Counselling), in which he refers to mediation being seen as a “political cheap deal”. He also refers to the fact that mediation “depends” in a number of ways on the clients having access to legal advice. It is perverse that lawyers will be paid only if there is parallel mediation, but not if there is no mediation. Schedule 1, para.13: Children who areP arties toF amilyP roceedings 90. The FLBA contends that legal aid should be available for all parties in which an order under Rule 16.2 is made, where the child is to participate in proceedings without a guardian under rule 16.6 or where the child is to be the applicant or respondent to the application 91. These cases are by definition extremely complex and sensitive (in accordance with the Airey criteria); they include cases:137 — Where there are serious allegations of physical, sexual or other abuse in relation to the child; 134 Family Justice Review, Interim Report,H 5.46 135 Research Summary 2/11: Litigants in Person: a literature review (Kim Williams: MoJ) 136 Family Justice Review Interim Report,H 5.60 page 155 137 See President’s Practice Direction: Representation of Children in Family Proceedings (2004) reported at [2004] 1 FLR 1188 Legal Aid, Sentencing and Punishment of Offenders Bill — Where there are complex medical or mental health issues to be determined or there are other unusually complex issues; — Where there is an intractable dispute over residence or contact, including where all contact has ceased, or where there is irrational but implacable hostility to contact or where the child may be suffering harm associated with the contact dispute (see above); — Where there are international complications outside child abduction, in particular where it may be necessary for there to be discussions with overseas authorities or a foreign court; Where there is a contested issue about blood testing. 92. These cases are invariably not suitable for mediation. 93. The Courts will therefore have unrepresented litigants before them: (a) Being required to marshal the relevant evidence in a case concerning physical or sexual abuse of a child, where there may be, for example, concurrent police involvement / investigations; (b) Having to deal with (and cross-examine on) expert evidence relevant to serious allegations of physical or sexual harm of a child, (c) Having to consider and deal with expert evidence relevant to the court practice of a foreign jurisdiction; (d) With “mental health issues”, who will be expected to represent themselves even though the “significant difficulty” envisaged in the case is precisely the fact that the parent has such a condition. AnnexeA 94. According to research commissioned by the Home Office in 2004,138 the following was recorded in relation to non-reported domestic abuse: Seeking help — Thirty-one per cent of female victims and 63% of male victims had not told anyone other than the survey about the worst incident of domestic violence that they had suffered during the last year. — Forty per cent of women told no one about their worst experience of rape suffered since the age of 16. — Twenty-five per cent of those women that were raped in their worst incident (since age 16) and classified it as such, told no one about this incident. — Among victims of stalking last year, nine per cent of women and 17 per cent of men had told no one. — In less than one in four (23% women; 8% men) of the worst cases of domestic violence in the last year did the police come to know. — In cases of sexual assault the police came to know in less than one in seven of the worst cases (15% completed rape; 12% any serious sexual assault; 13% less serious sexual assault). — Stalking was the most likely to be reported of these forms of inter- personal violence, but even for this, in only one in three (31% women last year; 30% men) cases did the police come to know. Asked why they did not report the worst incident of domestic violence in the last year, 41% of women and 68% of men replied they thought that it was too trivial, 38% of women and 39 per cent of men that it was a private family matter, seven per cent of women and 5% of men that they did not want any more humiliation, and 13% of women, but no discernible percentage of men, that they feared more violence or that the situation would get worse as a result of police involvement. 95. The same research provides the following shocking figures: “There were an estimated 12.9 million incidents of domestic violence acts (nonsexual threats or force) against women and 2.5 million against men in England and Wales in the year prior to interview.” 96. Only a fraction are ever reported. It has long been known that a high proportion of abuse goes unreported. According to the domestic violence statistics, the police receive over 570,000 calls each year in relation to domestic violence.139 Furthermore, only a minority of domestically abusive incidents are reported to the police: between 23%140 and 35%.141 97. Women’s Aid report the following: “During 2006–07, the National Helpline answered an average of 387 calls per day: 500 a day on weekdays, 250 on Saturdays and 200 on Sundays. 138 http://rds.homeoffice.gov.uk/rds/pdfs04/hors276.pdf 139 Stanko (2000) 140 Walby and Allen, 2004 141 Home Office, British Crime Survey 2002 Legal Aid, Sentencing and Punishment of Offenders Bill The Freephone 24-Hour National Domestic Violence Helpline (run in partnership between Women’s Aid and Refuge) received just over a quarter of million calls during its first 12 months.”142 98. According to the Ministry of Justice court statistics143 published from 2008, the number of applications for non molestation and occupation order injunctions issued in the County Court between 2004 and 2008 was as follows: Year Total Applications 2004 27,813 2005 27,374 2006 26,269 2007 24,222 2008 24,879 99. Although domestic abuse can occur in any domestic environment irrespective of class, sexuality or ethnicity it is wrong to assume that the problem is evenly distributed. It is already obvious from the statistics quoted above that a far greater proportion of women fall victim to domestic violence than men, but crucially, those women on a low income are at a significantly greater risk of abuse than their more affluent contempories. “During the last year women in households with an income of less than £10,000 were three and a half times more likely to suffer domestic violence than those living in households with an income of over £20,000, while men were one and a half times more likely. The nature of the links between poverty and risk of interpersonal violence is unclear. It may be that poverty is associated with the onset of domestic violence, or it may be that in fleeing domestic violence women are reduced to poverty.”144 100. Therefore, those that are most likely to be affected by the Green Paper proposals (and left unrepresented in court) will be women on a low income who have been abused and bullied by the very partners against whom they will have to appear in court. July 2011 Memorandum submitted by Refugee Action (LA 22) AboutR efugeeA ction Refugee Action is an independent, national charity working to enable refugees to build new lives in the UK. We provide practical support for newly arrived asylum seekers as well as a long-term commitment to their settlement. Through our “One Stop Service” (OSS), “Gateway Protection Programme”, “Refugee Integration and Employment Service” (RIES) and “Choices” voluntary return service, we give independent, confidential advice and information to asylum seekers and refugees on a breadth of topics. These range from UKBA asylum support, integration and employment following a successful decision, education, health, voluntary return and complex issues such as domestic violence, racial harassment and trafficking. We do not provide legal advice ourselves, but refer asylum seekers to legal advisors for assistance with their asylum claim. Sadly, in many regions in which we work there is a marked lack of solicitors able to offer legally funded advice to asylum seekers, particularly at appeal stage and beyond. 1. Introduction 1.1 Refugee Action understands the current economic climate in which decisions about the future funding of legal aid are being determined, and that a reduction in the legal aid budget could play a significant role in allowing the Department to reach its target of a 23% overall reduction. With this in mind, we agree that some areas of legal aid funding should continue without question, that legal aid should be subject to people’s means, and should be fair, balanced and sustainable. 1.2 Refugee Action agrees with the Department’s analysis that asylum determination matters rate highly on a spectrum of objective importance and therefore that legal aid should remain available for legal help and representation on issues relating to asylum claims. We further agree that asylum seekers are one of the most vulnerable groups in society and are particularly disadvantaged with regard to their ability to engage in the litigation process. Many are unable to represent themselves during hearings as, despite the availability of free interpreters, they may be suffering from trauma and post-traumatic stress, often the result of having 142 www.womensaid.org.uk 143 http://www.justice.gov.uk/about/docs/judicial-court-statistics-2008-05-chapt5.pdf 144 38 http://rds.homeoffice.gov.uk/rds/pdfs04/hors276.pdf Legal Aid, Sentencing and Punishment of Offenders Bill been treated unjustly by authorities in their countries of origin. They are also unlikely to be familiar with the workings of the UK justice system, and less likely to be able to access other sources of funding, such as friends or family, if legal aid were not to be available. 2. The withdrawal of legal aid funding for immigration, with particular mention of Article 8145 cases Amendment suggested to the Committee: Page 109, line 10, (Schedule 1) after “3” insert “or Article 8” 2.1 Refugee Action recognises that, in the current economic climate, the Government considers the area of immigration to be less of a priority than asylum, and thus lower on the spectrum of objective importance. However, it is the case that some immigrants are particularly vulnerable (for example trafficked people, victims of domestic violence, family reunion applicants). For this reason, we would advise against removal of legal aid for all immigrants. However, with regard to Refugee Action clients, the withdrawal of legal aid funding for Article 8 cases is of particular concern, dealing as it does with a very complex area of law in which it is unreasonable to expect individuals to be able to represent themselves. In general, individuals and families who have lived and established themselves for a significant number of years in the UK may have the right to remain under Article 8 and would likely require legal aid to secure this. 2.2 For instance, Refugee Action has particular concern for those in the UK with a grant of Humanitarian Protection (under provisions laid out in the 1971 Immigration Act), who have established families in the UK and who may rely on Article 8 arguments to avoid removal if protection is no longer required. Refugee Action believes that such cases should be treated as asylum cases in terms of eligibility for legal aid, taking into account the circumstances under which the original immigration status was decided. Furthermore, for applicants who have not been able to access adequate evidence to successfully pursue a claim for asylum or Humanitarian Protection but who nevertheless have a well-founded fear of return to the country of origin, an Article 8 application may be their only option. However, they could not be expected to progress this without legal expertise. As such, it is imperative free legal advice should be available. Cases which in the past might have invoked Article 8 arguments might in future be treated as asylum applications in order for legal aid to be accessed, thus increasing costs by increasing asylum applications. 2.3 Another important legal area likely to be affected will be advice on nationality law, in which foreign nationals could be removed or advised to return voluntarily in ignorance of the fact that their children are British citizens. 2.4 In addition, the removal of legal advice for immigration cases could conceivably lead to an increase in the number of asylum applications and subsequent costs. A lack of legal advice, compounded by the reduction in voluntary sector assistance, will exacerbate existing confusion with regard to the immigration and asylum systems and the different categories and criteria within them. Our Area Managers report seeing clients who had previously entered the regular immigration system, despite having a viable claim for asylum, who may understandably exercise their right to asylum if unable to access legal aid for immigration purposes. There may be another group of people who in contrast have no protection need but, if unable to access legal aid for immigration advice, may mistakenly consider themselves eligible for asylum and make a claim. Both instances would result in an increase in the number of recorded asylum applications, which for the last year available (2010) was relatively low, at just under 18,000.146 2.5 On the removal of legal aid funding for immigration matters more generally, Refugee Action notes that many solicitors offer both asylum and immigration advice, yet rely strongly on immigration cases, for which they may currently be able to reclaim additional fees. The removal of legal aid from this area of work may result in solicitors choosing to withdraw from providing immigration advice and also asylum advice; this would have the effect of reducing the availability of legal advice to asylum seekers which is, of course, not the Department’s intention. 3. The withdrawal of legal aid funding for family reunion Amendment suggested to the Committee: Page 109, line 28, (Schedule 1), at end insert— and includes the Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons done at Geneva on 25 July 1951 3.1 Refugee Action is further concerned about the withdrawal of legal aid funding for family reunion matters. The Government’s response to its consultation147 claims that these applications are “generally straightforward” and that it is a viable alternative for family members to claim asylum in their own right. However, such cases are not straightforward for the following reasons: (a) Family members are outside of the UK and hence cannot claim asylum. To deny family reunion increases the risk they will make hazardous journeys to the UK. 145 Article 8 of the European Convention on Human Rights—the right to respect for private and family life 146 Home Office (2011) Control of Immigration: Quarterly Statistical Summary, Quarter 1 2011 147 Ministry of Justice (2011) Reform of Legal Aid in England and Wales: the Government Response Legal Aid, Sentencing and Punishment of Offenders Bill (b) The UK Border Agency routinely requires DNA testing to be able to establish family relationship, yet it does not provide or pay for testing. Without legal aid to pay for tests, many applications will fail unfairly. 3.2 Refugee Action believes that applications for family reunion for refugees should be treated as asylum matters, rather than as immigration matters, and that the Bill should be amended as such. In cases in which an individual has been granted refugee status in the UK, the right to family reunion is based on that individual’s need for protection, which falls at the high end of the spectrum of objective importance. In such cases, dependents who remain in the country of origin may be at a high risk of persecution, compounded by their relative’s application for asylum. This is particularly relevant to women and children, whose husband/father has left the country, and who are especially vulnerable. In asylum cases, it is simply not possible, for fear of persecution, for that individual to return to his family in the country of origin, and therefore refugee reunion applications should not be treated in the same way as other family immigration cases. Furthermore, the entitlement is restricted to spouses and dependent children, which will by definition limit the number of applications. 3.3 The above amendment preserves legal aid for family reunion applications by applying Recommendation B of the Final Act of the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons.148 Recommendation B of this document emphasises the right of refugees to family life and recommends that: “Governments to take the necessary measures for the protection of the refugee’s family, especially with a view to: (1) ensuring that the unity of the refugee’s family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country An alternative amendment with the same intention would be: Page 109, line 11, (Schedule1) after sub-paragraph 1 insert new subparagraph— ( ) Civil Legal Services provided to an individual for a matter arising out of any rule laid down under section 1(4) of the Immigration Act 1971 making provision for family members to join a recognised refugee in the UK 4. Provision of advice and information services by Amendment suggested to the Committee: Clause 26, page 20, leave out lines 37 to 38 4.1 Refugee Action is concerned that the department has chosen to retain the proposal to work towards a mandatory single gateway by telephone for legal aid, despite the majority of consultation respondents being opposed, and would appreciate further clarification with regard to how the service will be provided and how its impact will be monitored, either by way of the above probing amendment or during the clause stand part debate on Clause 26. 4.2 We are encouraged to read in the Government Response that the use of the helpline will not be mandatory for individuals in detention, for those in an emergency or for those who have already established a face-to-face relationship with a legal provider.149 We are also encouraged that the approach taken applies the telephone service to four areas of law initially, not including immigration/asylum, with the intention to monitor the impact of the change. 4.3 Refugee Action is however concerned that much of this detail has been deferred to secondary legislation. We have the following reservations about the potential roll-out of the service: — The majority of individuals accessing the service will be British nationals, and no clarification has been given with regard to how the service will cater for people with little or no English, nor knowledge of the legal system in England and Wales. — With regard to asylum seekers, it is inappropriate for telephone helpline staff to be expected to ascertain whether an individual is eligible for legal aid. It is quite likely that asylum seekers will not wish to give details of their situation and reason for leaving their country of origin, which may be highly sensitive, to a stranger over the telephone, and as a result may be inaccurately considered to be in the immigration category and therefore not entitled to legal aid to further their asylum claim. This would be in direct contradiction to the principle that the Department has identified, that asylum claims rank highly on the spectrum of objective importance and therefore are 148 United Nations (1951) Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons 149 Ministry of Justice (2011) Reform of Legal Aid in England and Wales: Government Response, p. 166 Legal Aid, Sentencing and Punishment of Offenders Bill deserving of legal aid. If the telephone service goes ahead, we would be interested to input into the development of telephone scripts and training of helpline staff to ensure asylum seekers are correctly identified. — For those asylum seekers who are placed in the correct category and therefore provided with access to legal aid over the telephone, there are further concerns. If Language Line is to be used, as well as proving inefficient during previous uses, we would have concerns with regard to how well a one- to-one relationship can be developed, over the telephone, between an asylum seeker and their legal adviser. In its work with clients, Refugee Action is aware that a certain level of trust between client and adviser enables more effective communication; research evidence exists to supports this.150 For example, victims of rape or torture often take several months to disclose their experiences because it takes this length of time for them to feel safe enough with their legal advisor to do so. The same level of trust is unlikely to be built up by telephone. July 2011 Memorandum submitted by the Institute of Chartered Accountants in England and Wales (ICAEW) (LA 25) Summary Legal Aid, Sentencing and Punishment of Offenders Bill Clauses 41 and 43 1. Part 2 of this Bill includes provisions intended to limit unfairness and occasional abuses in the “no win no fee” system in personal injury cases, by preventing the recovery of success fees for claimants lawyers under Conditional Fee Agreements (CFAs). ICAEW welcomes the Government’s commitment to tackle this problem, which can unfairly push up costs for businesses, and also for local councils (and ultimately the Government and taxpayers as a whole). 2. However we are deeply concerned that the legislation in its current form could have a harmful impact on the insolvency process. Unless claims brought by insolvency practitioners are exempted, this legislation would prevent potential recovery from incompetent or fraudulent directors or bankrupts, which will result in greater losses being borne by innocent creditors when a business is made insolvent. 3. Those creditors are usually small businesses or HMRC, who would lose potential tax receipts, a cost ultimately to the taxpayer. Furthermore, fraudulent directors and bankrupt sole traders would keep the gains they made from irresponsible management of their business. 4. To prevent these issues for insolvency litigation, and ultimately for creditors and taxpayers, ICAEW is recommending that the Bill should be amended to exempt insolvency litigation from the restrictions in clauses 41 and 43. These are, respectively, the restrictions on recovery from defendants of the successful claimant’s CFA success fees and of after-the-event insurance premiums. 5. If these exemptions are not included, we believe the Government should quantify the impact that these restrictions will have on creditors (including small businesses and HMRC) before the policy is implemented. WhoW eA re 6. ICAEW (the Institute of Chartered Accountants in England and Wales) is the largest of the Recognised Professional Bodies under the Insolvency Act, currently licensing around 700 practitioners. Representing over 136,000 Chartered Accountants in over 160 countries, ICAEW operates under a Royal Charter and works in the public interest. ICAEW’s regulation of its members and affiliates in insolvency is overseen by the Insolvency Service. MajorP oints Policy background to Conditional Fee Agreements (CFAs) 7. CFAs were introduced in 1995 under the Courts and Legal Services Act 1990, to counter the impact of reductions to the public funding (legal aid) budget. One of the main aims was to facilitate access to justice for claimants who do not have sufficient funds to bring an action, and would otherwise have to abandon a potentially good claim. 8. In a typical CFA arrangement, solicitors do not charge fees if the claim fails, but add on success fees of up to 100% in the event they win the case—with the costs and the success fee being paid by the unsuccessful defendant. 9. Claimants also usually take out after-the-event (ATE) insurance, which covers them for the other side’s costs should their claim be unsuccessful, although premiums are often staged and become significantly more expensive the nearer you get to trial. 150 ICAR (2010) “Justice at Risk: Quality and value for money in asylum legal aid—Interim Report” Legal Aid, Sentencing and Punishment of Offenders Bill The intended purpose of the Bill 10. The Legal Aid, Sentencing and Punishment of Offenders Bill contains provisions primarily intended to prevent unfairness in the system of Conditional Fee Agreements in personal injury cases (so called “no- win, no-fee”). 11. Currently, claims (often personal injury claims) are made against larger businesses or local councils, with little or no cost risk to the claimant, which effectively means the claimant has no incentive to minimise the costs they incur in pursuing the claim. As you get nearer to trial, the costs build up and can often in themselves act as an incentive to settle (even where the company or council do not think the claim has merit) to avoid the risk of having to pay exorbitant success fees and ATE premium in the (perhaps unlikely) event that they are unsuccessful in court. 12. The Bill will restrict the recovery from defendants of CFA success fees and of after-the-event (ATE) insurance premiums (which will instead be payable from the damages awarded), to protect businesses and councils from disproportionate levels of costs over which they have no control. How CFAs and ATE insurance are used in insolvency litigation 13. Insolvency practitioners often bring cases to recover funds or assets from the directors of insolvent companies (or from bankrupt traders), and from any other people holding assets or funds that would otherwise be available for the creditors of the business (for example, a bankrupt’s spouse who has been transferred money belonging to the bankrupt’s estate). 14. When a business becomes insolvent and there are no funds in the insolvency estate to pay for legal action, these claims are often brought under a CFA arrangement. If the insolvency practitioner (acting on behalf of the insolvency estate) is successful, they can claim their costs, the success fee and after-the-event insurance premiums from the losing defendants (usually, the errant directors or bankrupt traders). The “recoverability” of success fees prevents fraudulent managers of a business from absconding with funds that belong to innocent creditors—often small businesses—or to HMRC, and ultimately the taxpayer. 15. These costs do not escalate unreasonably or disproportionately because insolvency practitioners are under a duty to minimise their costs. There is also no risk that claims made by insolvency practitioners on behalf of an insolvent estate would be inappropriate—or worse, “manufactured”—in the way that some personal injury claims have been, because insolvency practitioners are professionals who are appointed to administer insolvent estates and, in cases where a company is in liquidation (this would be likely if a claim is made against the former directors) then creditor approval would be needed before the claim could be brought. Likely impact of the Bill on insolvency litigation 16. The Bill’s provisions are more wide-ranging than personal injury cases, and extend to all civil litigation practitioners who undertake work on a CFA basis. Unless claims brought by insolvency practitioners are exempted from the recoverability restrictions in the Bill, success fees and after-the-event insurance expenses would need to be paid out of any damages awarded, meaning a smaller return to creditors (usually including HMRC). 17. Insolvency practitioners have an overarching legal duty to maximise returns for creditors, but this Bill may limit their ability to fulfill it. This legal duty requires the insolvency practitioners to pursue, through the courts if necessary, directors/managers or third parties that have harmed a business and possibly committed fraud, using either the funds in the insolvent estate, or contributions from creditors, or by using CFA or ATE arrangements. 18. However, if the Bill proposals go ahead, solicitors and barristers may not be prepared to agree to acting on behalf of the insolvency practitioners on CFA terms. This would mean that, in cases where there are no available estate funds, insolvency practitioners would be unable to bring legal proceedings unless either the creditors are willing to fund the action (unlikely, as they would see it as “throwing good money after bad”, especially if not all creditors contribute), or unless the insolvency practitioner is able to obtain funding from third-party funders, such as insurance companies or investment funds. These parties currently take a percentage of any damages that are awarded. In our view these percentages claimed by third party funders are likely to increase if insolvency practitioners have nowhere else to turn. 19. If solicitors do continue to agree to CFA terms, in cases where creditor approval is required in order to commence legal proceedings (for example in liquidations), the costs of bringing the claim would reduce the level of potential recoveries, and so it may be more difficult to convince creditors to agree the pursuit of a court action, meaning funds would go unrecovered, creditors would not be reimbursed, and HMRC would recoup less unpaid tax. 20. Furthermore, as Insolvency practitioners pursue cases in their own name, they may become less willing to commence cases, especially if there is a risk that the success fees and ATE costs might exceed the damages award (there is no cap on these costs outside personal injury claims, where they will be limited to 25% of damages), as any shortfall would fall to be paid by the Insolvency practitioner out of their own pocket. Legal Aid, Sentencing and Punishment of Offenders Bill 21. Another likely consequence is that insolvency practitioners will be less likely to take on appointments where there are no estate funds, which is likely to significantly increase the workload of the Official Receiver and the Department for Business, Innovation and Skills legal departments, at taxpayers’ expense, but with no benefit of recovery for the creditors. 22. The proposals in the Bill will therefore essentially change the risk/reward balance for bringing claims on behalf of an insolvent estate. Many cases that would have been brought on behalf of creditors under the old rules would not be brought under the new system. More money will remain in the pockets of errant and possibly fraudulent directors and bankrupts, rather than passing to the creditors of the business including HMRC. Example to illustrate likely impact of the Bill on insolvency litigation 23. The following is a real life example of a recent case brought by one of our members, who was appointed as liquidator of a property development company by HMRC (who were the major creditor, being due well over 80% of the company’s debts). 24. On behalf of the creditors, the liquidator successfully pursued the directors for monies the directors owed to the company and was awarded £250,000 plus interest plus costs. 25. The costs were approximately £95k, plus a CFA success fee of £75k, plus ATE insurance premium of £85k. 26. Under the current system, the full £250K is payable to the estate and ultimately creditors, with costs payable by the defendants. However, under the proposals in the Bill, the success fee (£75k) and ATE insurance premium (£85k) would be payable out of the damages, reducing damages to £90,000 (compared with the £250,000 under the old system). 27. The IP concerned has informed us that this case would almost certainly not have been brought if the proposed recoverability restrictions had been in place, meaning the creditors would not have received any of the monies owed by the directors, and the errant directors would have kept such funds that were owed to the insolvent company. OurR ecommendations 28. ICAEW therefore believes that insolvency litigation should be exempted from the recoverability restrictions in clauses 41 and 43 of the Bill, as we believe it is more equitable if these additional costs continue to be payable by the defaulting managers, and not payable out of the settlement (and ultimately creditors). 29. We understand that the Ministry of Justice is aware of the concerns that insolvency practitioners have regarding the potential impact of the reforms for insolvency litigation, and is in dialogue with HMRC and others. It would be helpful if the Minister could confirm whether any progress has been made. 30. If these exemptions are not included, we believe the Government should quantify the impact that these restrictions will have on creditors (including small businesses and HMRC) before the policy is implemented. July 2011 Memorandum submitted by the Community Law Partnership (LA 27) Summary Some of the essential advice and representation provided by Community Law Partnership will be removed by the Legal Aid Bill—Welfare Rights, most of Debt and most of Gypsy and Traveller law. For the reasons given below we feel that these exclusions will have disastrous consequences. 1. Community Law Partnership is a legal aid firm in Birmingham. We have taken some of the leading cases in homelessness and Gypsy and Traveller Law. We have a three year Social Welfare Law Contract. We were shortlisted this year for the award of Legal Aid Firm of the Year. As explained below we are relying on the submissions from other national organisations on some of the vital issues such as Welfare Rights and Debt. 2. If brought into force as it stands now this Bill will have disastrous effects on the provision of advice and representation to Gypsies and Travellers on accommodation issues (to say nothing of the disastrous effects on many other areas of the law such as welfare rights, debt and education to name but a few). 3. Clause 8 of the Bill states that civil legal services will only be available in those areas detailed in Schedule 1 Part 1 of the Bill. Legal Aid, Sentencing and Punishment of Offenders Bill 4. Clause 26 provides that the Lord Chancellor may provide services by means of telephone advice. On the same date as the publication of the Bill the response to the consultation on Legal Aid has been published.151 There had been a proposal that telephone advice should be the “mandatory single gateway” to Legal Aid assistance (which would mean that only those providers who had telephone advice contracts would be able to deal with that initial stage). At para 146 of the consultation response the Government has stated that, initially, they will confine this proposal to four areas of law: debt; special educational needs; discrimination cases; and community care. At paragraph 153 they confirm that the Community Legal Advice Helpline will continue in the following areas: debt; special educational needs; discrimination; community care; family; housing. 5. Schedule 1 Part 1 of the Bill contains those services which remain in the scope of Legal Aid (by this is meant all forms of advice, assistance and representation). At paragraph 17(1) “Judicial Review” is kept within scope. However paragraph 17(2) makes 17(1) subject to the exclusions in Schedule 1 Part 2. Part 2 paragraph 5 excludes “trespass to land”. 6. At paragraph 27 onwards “loss of home” is kept within scope but the following should be noted: (8) In this paragraph “home”, in relation to an individual, means the house, caravan, houseboat or other vehicle or structure that is the individual’s only or main residence, subject to sub- paragraph (9); (9) References in this paragraph to an individual’s home do not include a vehicle or structure occupied by the individual if there are no grounds on which it can be argued— (a) that the individual is occupying the vehicle or structure otherwise than as a trespasser; and (b) that the individual’s occupation of the vehicle or structure began otherwise than as a trespasser. (10) In sub-paragraphs (8) and (9), the references to a caravan, houseboat or other vehicle include the land on which it is located or to which it is moored. 7. Excluded services are listed at Schedule 1 Part 2. Gypsy and Traveller planning work (in other words High Court planning appeals, planning injunction actions, challenges to Stop Notices and direct action etc) are not mentioned but (subject to what we say later) must be taken to be excluded by not being included in Schedule 1 Part 1. 8. In its consultation response the Government accepts that the majority of the over 5,000 responses they received were against the reforms. Nevertheless they are willing to fly in the face of those responses. For example at paragraph 41 of the consultation response they state: Over 90% of Respondents to the consultation disagreed with the proposals to remove from the scope of Legal Aid those cases and proceedings set out in the consultation. 9. At paragraph 234 of the consultation response the Government conclude that they will proceed with a 10% reduction to all fees paid under the Civil and Family Legal Aid Schemes. 10. At Annex B paragraph 74, the Government relate the key issues raised in the consultation on Housing cases (which incorporates Gypsy and Traveller accommodation cases). They state that one of the key points raised by Respondents was: Funding should be provided for planning appeals and eviction cases involving Gypsies and Travellers because this group was one of the most vulnerable in society. 11. However, in their response to the consultation from paragraph 75, they fail to actually respond to that point. Submissions Debt 12. We and others have just been through an immensely traumatic (and we would say botched) tendering process for Social Welfare Law. Social Welfare Law has been set up to include housing, debt and welfare rights on the basis that more than one of these issues are often relevant to our clients and it is better to have a “joined up service”. We have accepted this logic only to find out that the Government now propose a U- turn by taking most of debt advice and all of welfare rights advice out of scope. It is self-evident that at a time of recession, debt advice is absolutely essential. Individuals often get into serious debt because they have grave difficulties managing their affairs. In reality there is little debt advice available outside of agencies and firms that are funded by Legal Aid. WelfareR ights 13. As we have already said above about debt matters, we have accepted the logic of a “joined up service” only to find out that the Government now propose a U-turn by taking welfare rights out of scope. It is self- evident that, at a time of recession, welfare rights advice is absolutely essential. Individuals who lose their jobs, or have even greater difficulty than normal in finding employment, need accurate advice on welfare 151 The Reform of Legal Aid in England and Wales: the Government Response Legal Aid, Sentencing and Punishment of Offenders Bill rights issues. In reality there is little welfare rights advice available outside of agencies and firms that are funded by Legal Aid. In addition welfare rights is one of the most complex areas of the law. Moreover a failure to provide proper advice and assistance to people concerning welfare rights can directly lead on to possession actions and homelessness. For example, if housing benefit is not paid when it should be paid, a tenant may get into rent arrears and then may end up being evicted. They will then be homeless. If proper advice and assistance concerning the housing benefit problems had been provided at the initial stage, then those consequences could have been avoided. Additionally by the time it comes to possession action being taken or by the time it comes to the person being homeless, it may be even more difficult to defend the possession action or to pursue the homelessness case if early and proper welfare rights advice has not been provided. The statistics show that you are at least five times as likely to succeed before a tribunal in welfare benefits if you have legal assistance. The DWP has recently engaged in lengthy litigation in the higher courts over the entitlement to benefits and the right to reside. These cases have been referred to the European Court of Human Rights. This would simply not have happened had welfare benefits not been within the scope of the Legal Aid Scheme. 14. We join with the submissions from the Legal Aid Practitioners Group, the Housing Law Practitioners Association and the Legal Action Group. We go into detail below on Gypsy and Traveller cases since, whilst the above groups cover in full detail the other issues we are concerned with (especially the 10% cut, telephone advice as an initial gateway, Welfare Rights and Debt), Gypsy and Traveller work is a highly specialised area which will not be covered by the organisations mentioned above and we are one of the few firms specialising in this area (indeed we have run, since 2002, the Community Legal Service funded advice line for Gypsies and Travellers). Gypsy andT ravellerC ases 15. The main types of Gypsy and Traveller cases that come under the housing umbrella are: evictions from unauthorised encampments; evictions from rented sites; other issues relating to rented sites; High Court planning cases (injunctions, planning appeals, challenges to Stop Notices and direct action etc), and homelessness cases. 16. Under the Government Bill all unauthorised encampment eviction cases will go out of scope. A very large number of planning matters will go out of scope (any argument that “loss of home” is involved would seem to be precluded by the use of the word “eviction” under “loss of home” in the Bill. Stop Notice and direct action cases will normally involve Judicial Review and will therefore be within scope). Ironically,since, after an enormous struggle, the Mobile Homes Act 1983 has finally been applied to local authority Gypsy and Traveller sites since 30 April 2011, all aspects of the Mobile Homes Act 1983 apart from possession actions will go out of scope. 17. Some 25% of the Gypsy and Traveller population who live in caravans in England and Wales are either on unauthorised encampments or unauthorised developments and, therefore, many of those people will be directly affected by these proposals. At CLP we estimate that at least 75% of our “accommodation cases” for our Gypsy and Traveller clients would no longer be within scope. 18. As is, of course, well known, the Gypsy and Traveller community are one of the most vulnerable and disadvantaged communities in England and Wales in terms of health, education and discrimination and it is almost universally accepted that these disadvantages and problems would be addressed if there was adequate site provision. 19. Up to 25% of this population are homeless compared with 0.1% of the settled population. 20. Those advising and representing Gypsies and Travellers on eviction cases know that many local authorities fail to follow the Government guidance on unauthorised encampments, fail to take into account Human Rights considerations, fail to address relevant caselaw, and fail to follow a proper and reasonable process. If Gypsies and Travellers involved in High Court planning cases are unsuccessful, then that will result in loss of their home and homelessness. 21. There has been some publicity surrounding the Bill stating that Legal Aid will be refused to “squatters”. This publicity refers to a few high profile cases where expensive properties have been squatted. It is rather ironic, therefore, that the exclusion in the Bill does not seem to necessarily cover “housing”! It would appear, therefore, that squatters in houses could potentially obtain Legal Aid. However, it should also be pointed out that it would be extremely rare for squatters in houses to obtain Legal Aid. The Explanatory Notes to the Bill state (at para 671): Sub-paragraphs (9) to (11) ensure that paragraph 27 does not bring within scope services provided to persons who unarguably are occupying premises as a trespasser and entered the premises as such. This ensures that legal aid is not available to people who are squatting and face proceedings for eviction (our emphasis). It seems possible from this that the Government have accidentally caught up Gypsies and Travellers in a measure aimed at “squatters” of residential premises. If this is the case this error needs to be addressed urgently. This may also explain the failure to refer to Gypsies and Travellers at all in the Equality Impact Assessment (see further below). Legal Aid, Sentencing and Punishment of Offenders Bill 22. Some of the leading Supreme Court and Court of Appeal cases in the areas of evictions and homelessness have involved Gypsy and Traveller cases. Additionally the recent Supreme Court judgments in Manchester City Councilv Pinnock and London Borough of Hounslowv Powell and Others made it clear that, in unauthorised encampment cases, Article 8 of the European Convention on Human Rights (the right to respect for private and family life and home) would be engaged. However, the Bill will ensure that Romani Gypsies and Irish Travellers (ethnic groups under the Equality Act 2010) will be excluded from raising these Human Rights issues in any defence to an eviction action. History of theP rovision ofG ypsy andT ravellerC aravanS ites 23. Following on from the Caravan Sites and Control of Development Act 1960, when the commons were closed down to Gypsies and Travellers and there was an increasing loss of traditional stopping places, the power to supply sites between 1960 and 1970 led to only 12 local authorities acting on that power (see Clark and Greenfields, Here to Stay, University of Hertfordshire Press, 2006 p 72). Between 1970 (when the duty to provide sites contained in the Caravan Sites Act 1968 was brought into force) and 1994 (when that duty was repealed), some 350 sites were built in England and it is fair to say that, despite the fact that there was still completely inadequate provision, those sites would not have been built without that duty being in place. Between 1994 and 2006, the Government put emphasis on the private provision of sites by Gypsies and Travellers themselves (see Department of the Environment Circular 01/94). Not surprisingly the provision of sites virtually ground to a halt and it became much more difficult to obtain planning permission (see Friends, Families and Travellers Report Confined, Constrained and Condemned (1996)). Between the introduction of the ODPM Circular 01/2006 in February 2006 and the present time, there has been a slow but sure increase in the provision of sites (see research by Dr Jo Richardson and Ros Lishman of the De Montfort University for Lord Avebury Impact of Circular 01/2006: Supply of New Gypsy/Traveller Sites 29 March 2007). On 13 April 2011 the Coalition Government published Planning for traveller sites, the draft guidance that is designed to replace ODPM Circular 01/2006. This draft guidance relates to England only. The consultation deadline on this guidance has just been extended to 3rd August 2011. At CLP we are aware that a large number of Gypsy and Traveller support groups are opposed to this guidance because they feel it will loosen the control over local authorities and simply lead to a stagnation, once again, in the provision of sites. 24. What is clear from the history of this matter is that a series of failures, both by central and local governments, has led to a position where there is an inadequate provision of sites. Therefore in many ways it can be said that those Gypsies and Travellers who remain on unauthorised encampments and unauthorised developments are there through no fault of their own. It is clear that the majority of those Gypsies and Travellers who are on unauthorised encampments and unauthorised developments wish to obtain either permanent or temporary stopping places but have been unable to do so. This is a failure of Government, and not a failure by the Gypsies and Travellers themselves. 25. The recent report produced by the Travellers Aid Trust following on from a Panel Review which took evidence from some of the leading experts in this area, A Big or Divided Society?, referred to the disadvantage and prejudice experienced by Gypsies and Travellers in this country. With regard to education, the report stated: Travellers of Irish Heritage and Gypsy and Roma pupils are nearly three times more likely than White British pupils to be identified as having special educational needs. Fewer than 10% of Gypsy/Roma/ Traveller pupils are among the top 50% of achievers at Key Stage 4. 26. With regard to health, the report stated: It was in response to the research findings on their health status . . . that the Department of Health targeted health improvement of Gypsies, Roma and Travellers in a policy initiative aimed at reducing health inequalities, the Pacesetters Programme. The results showed striking inequalities in the health of Gypsies and Travellers, even when compared with people from other ethnic minorities or from socio- economically deprived white UK groups and demonstrated the long-term health impact associated with a history of persecution, social pathologisation and social exclusion of Gypsies and Travellers. Poor accommodation and a lack of sites are often major variables that impact on the health of Gypsies and Travellers (page 54). UnauthorisedE ncampments 27. In order to provide proper legal advice and assistance to a Gypsy or Traveller on an unauthorised encampment, specialist knowledge is inevitably required. Currently there are only four solicitors firms who can provide this specialist knowledge in England.152 28. Many of the eviction procedures that can be used by landowners are specific to this area of the law, eg Criminal Justice and Public Order Act 1994 Section 61, Section 62 (A) to (E), and Section 77. 29. There is specific Government guidance that needs to be taken into account. In England, this consists of: Department of the Environment Circular 18/94; 152 The same applies to planning matters. Legal Aid, Sentencing and Punishment of Offenders Bill ODPM Guidance on Managing Unauthorised Camping [2004]; and ODPM Home Office Guide to Effective Use of Enforcement Powers—Part 1: Unauthorised Encampments [2006]. 30. There is important caselaw that needs consideration, egR v Lincolnshire County Council Ex Parte Atkinson [1997] JPL 65; R (Casey and Others)v Crawley Borough Council [2006] EWHC 301 Admin. 31. Under Housing Act 1996 Section 175 (2): A person is . . . homeless if he has accommodation but– . . . (b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and reside in it. 32. Evictions from an unauthorised encampment may amount to a breach of Article 8 of the European Convention on Human Rights (see Manchester City Councilv Pinnock [2010] UKSC45, 3 November 2010, and London Borough of Hounslowv Powell and Others [2011] UKSC8, 23 February 2011). 33. Unauthorised encampments are, therefore, intricately linked in with homelessness. Most Gypsies and Travellers on unauthorised encampments are seeking an authorised stopping place (permanent or transit). 34. The following types of “trespasser” will (it seems from the wording of the Bill) be able to access legal aid if required: a family member living in a local authority house or flat when the tenant dies where there has already been one succession to the tenancy; a person in homeless persons’ accommodation after a Notice to Quit has expired; a joint tenant of a local authority house or flat after the other joint tenant has terminated the joint tenancy (this is not an exhaustive list). The Government have realised (correctly we would say) that someone facing eviction from their home requires legal advice and assistance. It is not clear in those circumstances why Gypsies and Travellers facing eviction from their homes will not be provided with such advice and assistance. Planning 35. Whilst many of the types of planning enforcement action that a Gypsy or Traveller on their own land might experience can also be applied to other breaches of planning control, once again specialist provision will be required. Legal aid housing lawyers who advise non-Gypsies and Travellers do not have to refer to planning law and are thus extremely unlikely to have the detailed knowledge required. 36. Planning enforcement is often, effectively, also a method of eviction. If an Injunction is granted or a Stop Notice comes into effect or direct action under the Town and Country Planning Act 1990 Section 178 is taken, the Gypsy and Traveller concerned may have to leave the land. 37. The failure to mention planning cases in Schedule 1 Part 1 combined with both the failure to mention them in Part 2 and the failure to mention Gypsies and Travellers at all in the Equality Impact Assessment raises the possibility that the Government has simply overlooked these types of case. If this is the case then this needs to be addressed urgently. 38. Once again, it is unclear why there has been a deliberate targeting of Gypsies and Travellers in terms of removing them from the scope of legal aid. EqualityI mpactA ssessment (EIA) 39. Romani Gypsies and Irish Travellers are ethnic groups protected under the Equality Act 2010. Given what we have detailed above, it is remarkable that they are not mentioned at all in the EIA. 40. As stated before, at CLP we estimate that at least 75% of our cases for our Gypsy and Traveller clients would no longer be in scope if the provisions in the Legal Aid Bill are brought into effect as they stand. Conclusion 41. Romani Gypsies and Irish Travellers are amongst the most disadvantaged groups in the United Kingdom and subject to some of the worst incidences of prejudice and discrimination. Legal advice to Gypsies and Travellers on unauthorised encampments can lead to the provision of at least temporary, tolerated sites if not permanent pitches. Legal advice to Gypsies and Travellers on planning matters can enable them to ultimately obtain planning permission. It is extremely difficult to understand the motivation for the apparently deliberate exclusion of the vast majority of Gypsies and Travellers who need assistance on “accommodation issues” from the scope of legal aid. 42. Additionally the 10% cut in fees could in itself decimate the legal aid sector which has for years existed on a cashflow knife edge. 43. The introduction of telephone advice as the initial gateway may also cause the collapse of legal aid firms and Law Centres. Telephone advice should be a complement to face to face advice—it cannot be a substitute. Legal Aid, Sentencing and Punishment of Offenders Bill 44. Welfare rights and debt advice are a crucial part of our service. Their removal will have disastrous consequences for the rest of our service. July 2011 Memorandum submitted by John Eekelaar, FBA (LA 29) I am a retired Academic Lawyer, who has written and researched in family law for over 40 years. I am Emeritus Fellow of Pembroke College, Oxford, Co-Director of the Oxford Centre for Family Law and Policy and Co-editor of the International Journal of Law, Policy and the Family. Summary I wish to make three points with regard to the Bill. The first concerns the unreliability of international comparisons about legal aid expenditure. The second points out that the specific provisions in the Bill concerning legal aid in support of mediation ignores the evidence presented in the Consultation Paper itself on the character of the vast bulk of family law practice and could be wasteful of time and money. The third expresses fear that the proposals concerning domestic violence could lead to the problem either being hidden or unnecessarily aggravated. 1. InternationalC omparisons onL egalA idE xpenditure 1.1 The Secretary of State for Justice has frequently claimed that expenditure on legal aid in England and Wales is probably the highest in the world (excluding Northern Ireland). Paragraph 3 of the White Paper, Reform of Legal Aid in England and Wales: The Government Response (June 2011) states the following of the current legal aid scheme: It is by far one of the most comprehensive, and expensive, legal aid provisions in the world, second only to Northern Ireland. We spent around £39 a head on legal aid in 2009–10, compared to around £5 a head in Spain (2008), France (2008) and Germany (2006). Countries with similar legal systems to ours also spend a lot less on legal aid: in New Zealand, the average cost per head was £8 (2004). 1.2 The European figures are calculated from the data provided by the European Commission for the Efficiency of Justice (CEPEJ). The same data, however, also show that, where the total spends on the judiciary and courts (including legal aid) are compared, the per capita spends are: England and Wales £75; Spain £86; France £57; Germany (2006) £106. We could add: Netherlands £114; Belgium £79; Sweden £73. Figures calculated from data provided by CEPEJ: http://www.coe.int/t/dghl/cooperation/cepej/evaluation/default en.asp 1.3 So the different allocations of expenditure between legal aid and other aspects of the justice system may only reflect institutional differences over access to justice. Perhaps recognising this, the Secretary of States, in the Today programme, stated that the relevant comparison was with New Zealand, and not the European countries. If that is the case, one has to ask why comparison with European countries is made in paragraph 3. 1.4 Furthermore, investigation of the comparison with New Zealand shows that the cost of legal aid per head in 2009 (which is the year given for England and Wales) was £19 (information supplied by Professor Mark Henaghan, University of Otago). The figure of £8, for 2004, is therefore misleading. Furthermore, the total spend per capita in New Zealand on the Ministry of Justice, courts and judiciary in the year ended June 2009 was £109. This puts New Zealand in a similar position to the European countries. http://www.treasury.govt.nz/government/longterm/fiscalposition/2009/15.htm 1.5 Research by Roger Bowles and Amanda Perry of the University of York published by the Ministry of Justice (Research Series 14/09) into international comparisons between countries on expenditure on publicly funded legal services and justice systems concludes with these warnings: Making comparisons of international justice systems was complex due to significant differences in the methodology and reporting of data associated with justice systems. Therefore all comparisons in this report should be treated with care as to their interpretation. Additional analysis of data collection methodologies might have revealed alternative explanations for some of the differences found. However, this additional work was beyond the study remit. Legal Aid, Sentencing and Punishment of Offenders Bill And Although legal aid costs were unusually high in England & Wales the same did not apply to the overall costs of the Justice System. The CEPEJ Report data reported in table 7.2 suggested that spending on courts and public prosecution were comparatively low in England & Wales. This would imply that looking at legal aid expenditure in isolation risked missing important structural differences between justice systems. But it could also be the case that this was an artefact of technical issues related to data collection. 1.6 Parliament should be aware that simply comparing the figures ascribed to legal aid expenditure proves nothing, could be very misleading, and should not be made without significant qualification. 2. Funding inS upport ofM ediation 2.1 While mediation undoubtedly has merits and has an important part to play in bringing parties to agreement, the Government has persistently failed to recognise that by far the largest volume of settlements in family cases is brought about by lawyer-negotiation. This is so despite the evidence presented in its own Consultation Paper, which states, in paragraph 4.157 that, in 2008, 73% of ancillary relief orders were not contested. This level of settlement has prevailed for many years. Since mediation take-up is currently extremely low, almost all of these settlements will have been achieved through negotiation by lawyers. In fact, the actual settlement rate of all issues by lawyer-led negotiation will be much higher than 73% because many agreements will not result in any order at all. This must be compared with “the full and partial success rate” of publicly funded mediation of 70% mentioned in para 4.71. The contrast with mediation is the more striking when it is remembered that lawyer-negotiated outcomes include resolutions to all disputes, even the most highly conflicted, whereas mediation cases undergo preliminary screening and are likely to be used only by parties who have some disposition to agree. 2.2 The culture among family lawyers of seeking settlement has been amply demonstrated by research evidence. Some of this evidence is presented in John Eekelaar and Mavis Maclean, Family Lawyers: the Divorce Work of Solicitors (2000). Despite this evidence, the Bill provides that legal aid in ancillary matters may only be provided for legal work in support of mediation (£150), including an additional £200 for drawing up agreed orders after successful mediation. Yet if lawyers reach settlement and draw up agreed orders, no such payments are permitted. Lawyers would be bound to advise clients whom they have brought to agreement to go through the motions of mediation simply in order to attract public funding. This is nonsensical. It adds the cost of an unnecessary mediation and introduces delay. 2.3 If public funding is available for legal work leading to and consequential on achieving agreement through mediation, it should also be available where agreement has been reached without going to mediation just as it would be when reached after mediation. This will further incentivise attainment of settlements. The Bill should be amended accordingly. 3. DomesticV iolence 3.1 The Committee is sure to receive many submissions expressing proper concern about the proposals in the Bill concerning domestic violence. I wish to make only one observation. This is that, in its concern to ensure that public funding is provided only in cases where there is “objective evidence” that there has been, or is a serious risk of, such violence, the government will create a situation where many victims of violence will either be discouraged from raising the issue for fear of aggravating the conflict by pressing charges, seeking a court finding, or bringing in social services; or, if they overcome that fear, end up by bring about such aggravation, possibly endangering themselves and the children. 3.2 This could be avoided by allowing the Director of Legal Aid Casework to be satisfied of the presence or risk of violence by considering submitted evidence, for example, from medical practitioners, without requiring formal proceedings to be brought, or the involvement of social services. The Bill should be amended accordingly. July 2011 Memorandum submitted by Paul Rumley, Partner, WithyKing (LA 31) LegalA idS entencing andP unishingO ffendersB ill I am writing to you as a member of the above Bill’s scrutiny committee, and in my capacity as a nationally recognised specialist in the field of clinical negligence law who acts on behalf of severely disabled children. The only wrong these children have committed, is to be born extremely severely disabled as a result of negligence in the National Health Service. They have been injured through no fault of their own, and in fact the fault of someone else, and what they require is the necessary compensation to help them make the most of their lives within the limitations of their disabilities. Legal Aid, Sentencing and Punishment of Offenders Bill The legal aid cuts, will deny access to justice to these clients. This is because the current proposals do not understand the business of the law—in no win no fee funding situations, whilst the expenses of the claims such as experts’ fees which can be considerable may be paid by the Defendant at the end of the case, or by an insurance policy if the claim is unsuccessful, someone has to pay those fees as the case progresses. These can amount to £50,000. Law firms cannot afford to fund those disbursements under a no win no fee arrangement, and therefore without legal aid, these clients will not be able to bring claims in the future and therefore will be completely denied access to justice. Justice does not only need to be done it needs to be seen to be done. This principle applies to the recent indications from the Ministry of Justice that they may try to get around this issue, by getting the NHS Litigation Authority (NHSLA) to commission and presumably pay for joint reports in these cases. There are two fundamental problems with that: 1. It is firmly established in case law, in the Court of Appeal, since 2000 that in clinical negligence cases in order for justice to be seen to be done, there has to be an independent investigation into the patient’s medical treatment, which means there is no room for joint reports in looking at whether or not there has been negligence in the medical treatment; and 2. Joint reports will increase legal costs for the State. This is either because patients will not accept reports commissioned by the Defendant, ie the NHSLA, which might tell them they do not have a claim and will seek their own reports which if they result in a successful claim will mean the NHSLA has to pay those extra costs, or alternatively this is going to be involve a lot of extra costs for the NHSLA in paying for these reports in any event. NB as per calculations carried out by the independent medical charity, Action against Medical Accidents (AvMa) the current proposals to save £17 million in legal aid on clinical negligence, will in fact not save a penny but will increase the legal costs of the NHS to £18.8 million, or in other words will actually cost £1.8 million and joint reports in these cases will only increase that bill further. Clinical negligence claims on behalf of severely disabled children remaining in scope for legal funding has the potential to reduce the Government’s costs. As above, if taking all clinical negligence cases out of legal aid funding and making them run under no win no fee funding arrangements will overall increase the bill for the Government by £1.8 million, by putting the most expensive cases to run, ie those on behalf of severely disabled children injured at birth, back into the scope of legal aid that has to reduce some of that extra costs burden. To assist the members of the committee, we attach a draft proposed amendment to Schedule 1, Part 1 of the Bill in the hope that it can form the basis for discussions about retaining access to justice for severely disabled children. Thank you for taking the time to read this correspondence, and for thinking about helping to continue to protect some of the most vulnerable in our society. Clinical Negligence 39 (1) Civil legal services provided in relation to— A claim on behalf of a child against any Hospital, NHS Trust or individual clinician for alleged negligence in the treatment of the child and/or his or her mother causing serious and ongoing disability to the child; Definitions (1) In this paragraph “child” means any person under the age of 18; (2) In this paragraph “Hospital” means any medical premises providing medical treatment or services to a pregnant mother and her baby, including NHS and private hospitals and maternity-led units; (3) In this paragraph “NHS Trust” means any Trust or similar body forming part of the NHS including Foundation Trusts, Hospital Trusts, Primary Care Trusts, Local Health Authorities and Strategic Health Authorities; (4) In this paragraph “individual clinician” means any doctor, nurse, midwife or other similar medical professional who is or who holds themselves out as being appropriately qualified and/or regulated to provide medical treatment and services to patients whether for profit or as part of their employment by a Hospital or NHS Trust; (5) In this paragraph “alleged negligence” is a concept as per the common law including case law definition of negligence as pertaining at the time of the alleged negligence or proposed claim; (6) In this paragraph “serious and ongoing disability” means brain damage including cerebral palsy, and any other physical and/or mental disability including erb’s palsy, epilepsy and any other disability which as per the child’s medical records has a significant and adverse impact upon their everyday life including upon their mental capacity. This list is not intended to be exhaustive as to what would constitute a serious and ongoing disability. Legal Aid, Sentencing and Punishment of Offenders Bill Connected matters 40 (1) Prescribed civil legal services provided, in prescribed circumstances, in connection with the provision of services described in a preceding paragraph of this Part of this Schedule. Exclusions (2) Sub-paragraph (1) is subject to— (a) the exclusions in Part 2 of this Schedule, with the exception of prescribed paragraphs of that Part, and (b) the exclusion in Part 3 of this Schedule, subject to any additional exceptions from that exclusion that are prescribed for the purposes of this paragraph. July 2011 Memorandum submitted by Linskill Solicitors (LA 33) Reform ofC ivilL egalA id We are a Legal Firm located in Liverpool City Centre. We have for many years been dealing with high profile Criminal matters and presently hold Contracts with the Legal Services Commission dealing with Criminal and Civil matters. We understand that the Ministry of Justice intends to bring forward legislation shortly which would decimate access to free legal advice. We are exceptionally concerned that this proposal will have a direct impact on our human rights and we do ask that our concerns about the devastating affect that these changes will have on Liverpool/Merseyside with the Secretary of State for Justice Kenneth Clarke MP and Minister Jonathon Djanogly. We have been subject to extremely difficult bidding process for many years in order for our highly qualified team of Specialists in Social Welfare Law to be accredited with a Unified Civil Contract for many years. We were also successful in being allowed a further LSC contract Social Welfare Law and formed a consortium with a Firm of Quality Solicitors and two not for profit organisations in Merseyside. Therefore, we strongly oppose the suggested reform to Legal Aid. We have been advised that Liverpool is one of the biggest areas that will be hit by the Legal Aid reforms which will decimate the capacity of Legal Aid Practitioners or other community Advice Agencies to help the most vulnerable people who experience serious everyday problems with issues like welfare benefits, debt, employment, Housing Benefit, immigration, clinical negligence, and family matters. We are advised that two million pounds would be removed from Legal Aid within the Merseyside area obviously affecting that thousands of vulnerable, poorest and disabled people who would require legal help and have no other source of help available to them. We are also advised that the changes are really a false economy because the right advice early on can save the public purse up to £10 for every £1 invested which, is ludicrous, as this would have a further substantial impact on Government spending, clearly this is wrong. We do hope you will support our concerns to ensure that the public are treated fairly under the law, no matter who they are or where they live in order to continue to have the option of free, independent advice and representation when necessary on legal matters. We do request that you acknowledge this letter and confirm your opinion and intentions in relation to the Legal Aid Reforms. We are aware that the Government are at a crisis level and it is quite obvious that some changes need to be made however, it would seem that the two biggest institutions in this county are being destroyed ie National Health Service and Legal Aid System. We are also aware that that Law Society has made a report for alternative savings in order for Legal Help in Social Welfare Law to continue. The Government are ignoring the Law Societies proposals. That is an outrage. The Coalition since being elected have done nothing to help the residents of the United Kingdom other than the removal of essential services for children, unemployed, elderly and disabled this is contrary to the Human Rights Act and Disability Discrimination Act. The fact that the Government are continuing to ignore the responses to the consultation and other Submissions that this will lead to this Government being removed from Office and destroy the Country to which we live and love which is disgraceful. July 2011 Legal Aid, Sentencing and Punishment of Offenders Bill Memorandum submitted by the Refugee Children’s Consortium (LA 37) Introduction The Refugee Children’s Consortium153 (RCC) is extremely concerned that the Bill as it is currently devised would generally remove all immigration cases, except asylum cases and challenges to immigration detention, from the scope of Legal Aid. We would like to see the Bill amended to ensure that children and vulnerable young people involved in immigration cases are able to access legal aid in order to protect their rights to enter and remain in the UK. The regulation-making powers would permit the Secretary of State to add other categories of person so as to include victims of domestic violence, victims of human trafficking and exploitation, and former unaccompanied migrant children. This would apply to all non-asylum cases without distinction, including cases of children and families, even though the Government recognised in its consultation paper that immigration cases involve human rights, especially the right to family and private life (Article 8 of the European Convention on Human Rights). Suggested amendment: Amendment to Part 1 Schedule 1 Paragraph 25 (Immigration: rights to enter and remain) Page 109, line 11 insert at end— () Civil legal services provided in relation to rights to enter and to remain in the United Kingdom to a specified person Page 109, after line 33 insert– “specified person” means a person– (i) under the age of 18; or (ii) another other class of person as may be specified by the Secretary of State in regulations. The Justice Secretary has made clear the importance of support for children who are party to proceedings.154 Yet, while in the Bill there is provision for “children who are parties to family proceedings”, and “unlawful removal of children from the United Kingdom”, legal aid is not to be provided if they are party to immigration proceedings, including where as a consequence of those proceedings they face unlawful removal from the United Kingdom by the State. This exclusion would have several detrimental effects for the children and families with whom RCC’s members work. Furthermore, the Government has clearly not considered the specific impact on children and young people,155 including the impact on children’s rights under the UN Convention on the Rights of the Child, which the Government earlier this year stated its commitment to considering in full when making new policy and legislation.156 Our key concerns are set out below: SeparatedC hildrenA pplying toE xtend theirL eave toR emain in theUK Most separated (or unaccompanied) children in the UK asylum system come from countries experiencing armed conflict or serious repression, including Afghanistan, Iraq, Iran, Eritrea and Somalia. Many are granted discretionary leave to remain for a period of up to three years (so a child aged 13 years will be granted leave until the age of 16 ), after which it is generally necessary for the child to make an application to extend their leave to remain. The Bill would only permit Legal Aid if their application to extend their leave is a claim for asylum. However, the safety or welfare of the child if returned may or may not raise Article 3 (the prohibition of torture and inhuman or degrading treatment or punishment), but will be likely to raise issues under Article 8 (the child’s private and/or family life) including the UK Border Agency’s obligations under the 1989 UN Convention on the Rights of Child and its statutory duty under section 55 of the Borders, Citizenship and Immigration Act 2009. Some children will have formed relationships over the time they have been in the UK 153 Members of the Refugee Children’s Consortium are: Action for Children, Asphaleia Action, Asylum Aid, AVID(Association of Visitors to Immigration Detainees), Bail for Immigration Detainees, BASW—The College of Social Work, BAAF (British Association for Adoption and Fostering), Catch 22, Children’s Legal Centre, Child Poverty Action Group, Children’s Rights Alliance for England, The Children’s Society, DOST, Family Rights Group, The Fostering Network, The Immigration Law Practitioners’ Association (ILPA), JCORE, Medical Justice, The Medical Foundation for the Care of Victims of Torture, National Care Advisory Service, NCB, NSPCC, The Prince’s Trust, RAMFEL, Refugee Council, Refugee Support Network, Scottish Refugee Council, Student Action for Refugees (STAR), Voice, The Who Cares Trust, Welsh Refugee Council. The British Red Cross, Barnardo’s, Office of the Children’s Commissioner (England), UNICEF UK and UNHCR all have observer status. 154 Parliamentary Question on 21 June 2011: http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110621/debtext/110621-0001.htm 155 Parliamentary Question on 7 June 2011: http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110607/text/110607w0006.htm<11060826003959 156 Written Ministerial Statement from the Department for Education in response to the independent review of the Children’s Commissioner: http://media.education.gov.uk/assets/files/pdf/w/written%20ministerial%20statement%20%20%20office%20of%20the%20 childrens%20commissioner.pdf Legal Aid, Sentencing and Punishment of Offenders Bill and their family, friendships and identity will be firmly based here. Many have no significant or lasting connection to their home country. Some may have no connection to their country of origin whatsoever. Several recent cases have highlighted the failings of the UK Border Agency in applying their legislative duties to protect children’s rights, safety and welfare. It is completely unreasonable to expect children, or young people who have been in the UK since they were a child, to navigate these complex legal issues without professional representation. Victims ofH umanT rafficking andE xploitation The Bill excludes immigration cases brought by victims of trafficking and exploitation, unless the victim also makes an asylum claim. However, not all trafficking cases involve an application for asylum and victims of trafficking are often children or young people who are extremely vulnerable, and may face an increased risk of exploitation as a result. Someone’s immigration case may also involve additional procedural, legal and evidential complexity because of the need to establish that he or she is a victim of trafficking. The exploitation to which a victim will have been subjected often means that the impediments to pursuing a case without legal advice and assistance are exacerbated by mental illness or trauma. JudicialR eview andH olding theUKB orderA gency toA ccount Having robustly defended the preservation of Legal Aid for judicial review in the Legal Aid Green Paper as necessary to hold the state to account and ensure that state power is exercised responsibly, the Government now proposes specific exclusions in immigration cases where there have been previous proceedings or decisions in the preceding year. These affect all immigration cases, including those involving children and will result in the UK Border Agency, which is frequently found by the Court to have made unreasonable or unlawful decisions, being relieved of the scrutiny the Government has generally acknowledged to be vital. Conclusion At the heart of the RCC’s concerns is the well-being of some of the most vulnerable children in the UK. Our consultation response set these out in detail, and we are dismayed to see that the Bill has not been amended to address them. It is vital that all children and young people are guaranteed the protection and support to which they are entitled. July 2011 Additional Memorandum submitted by the Refugee Children’s Consortium (LA 38) Introduction andK eyC oncerns 1. The Refugee Children’s Consortium (RCC) is a group of NGOs working collaboratively to ensure that the rights and needs of refugee children are promoted, respected and met in accordance with the relevant domestic, regional and international human rights and welfare standards. Our membership includes leading children’s and refugee NGOs, bringing together a significant body of expertise in dealing directly with asylum seeking children and safeguarding and promoting children’s welfare. 2. Children in the immigration and asylum processes are particularly vulnerable, and in need of specific protection and assistance not only because of the uncertainties and experiences associated with their status. They also face further difficulties, such as language barriers, inconsistent education experiences, and a lack of consistent support. It is for these reasons that the RCC is especially concerned about the impact of proposed cuts to legal aid. There has been recognition within the Bill that children have different needs from adults within the legal system, recognising in relation to family law, “that children are not able to represent themselves”.157 The Justice Secretary has made clear the importance of support for children who are party to proceedings.158 While in the Bill there is provision for “children who are parties to family proceedings”, and “unlawful removal of children from the United Kingdom”, legal aid is not to be provided if they are party to immigration proceedings. Certain limited changes have been made, but this recognition has not been applied consistently. However children are no better placed to represent themselves in immigration proceedings. The exclusions from legal aid particularly affect children in the following situations: — Separated (unaccompanied) children, other than those pursuing asylum claims. This will include children, some of whom will have been in the UK for several years, applying for an extension of discretionary leave and who are being cared for by a Local Authority. — Children facing removal from the UK along with a parent, or separation from a parent by reason of that parent’s removal where their interests require separate representation. 157 Consultation Response, op cit, paragraph 50, page 21; Bill Schedule 1, Part 1, paragraph 13. 158 Parliamentary Question on 21 June 2011: http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110621/ debtext/110621-0001.htm Legal Aid, Sentencing and Punishment of Offenders Bill — Victims of trafficking who have an immigration case, but do not make an asylum claim — Children involved in refugee family reunion cases. 3. The Government has clearly not considered the specific impact of the Bill on children and young people,159 including the impact on children’s rights under the UN Convention on the Rights of the Child, which the Government earlier this year stated its commitment to considering in full when making new policy and legislation.160 UK Domestic andI nternationalC ommitments toP rotectingC hildren 4. The Government is bound by UK and international law to make the welfare of the child the primary consideration in any legal proceedings involving children and to ensure children’s access to justice, including through the provision of advice and representation: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 3 of the United Nations Convention on the Rights of the Child “Children should have access to free legal aid, under the same or more lenient conditions as adults.” The Council of Europe guidelines on child-friendly justice161 While this is acknowledged in the Bill (eg see Schedule 1, part 1, para 15, EU and international agreements concerning children), in practice it is being proposed that thousands of children’s cases are taken out of scope. 5. The Supreme Court and its predecessor have highlighted that there will be family removals cases where the child needs separate representation. Two recent cases were, in the view of those courts, examples of this. In EM (Lebanon),162 removal of the child and his mother to Lebanon would have resulted in his custody being given to his estranged and abusive father with permanent separation from his mother. InZH (Tanzania),163 the effect of the children’s mother’s removal would either be to separate the British children from their mother or to remove them from their settled life in the UK and their father. These cases involve international and domestic obligations concerning the best interests of the child164 and the safety and welfare of children.165 The State (the UK Border Agency) must be held to account. TheU niqueC hallenges ofI mmigrationL aw 6. In immigration cases, there are no alternative means of resolution. Neither an ombuds nor complaints process can address the question of a person’s entitlement to continue to reside in the UK. Immigration is peculiar in that advice and representation in this area are heavily regulated, with criminal sanctions for non- compliance.166 Charities and other advice organisations, if unable to meet the requirements of the regulatory scheme, are thus prohibited from filling any gap that may be left by the removal of Legal Aid. 7. Yet the Government has suggested that clients faced with problems that have been removed from the scope of legal aid will be able to seek advice from voluntary sector providers. Young people are particularly vulnerable, as local authority funding cuts mean that the availability of targeted advice from the voluntary sector is being drastically reduced. Research suggests that a quarter will close this year, and a further half will operate at a reduced level.167 8. Without legal aid, individuals will be unable to raise funds themselves, and some may take the risk of exposing themselves to serious exploitation. Where a separated child with no Legal Aid and no income is in the care of a Local Authority, that Local Authority may be looked to for funding for representation.168 This would constitute a substantial (and unpredictable) transfer of cost from the Ministry of Justice to Local Authorities169 (something antithetical to the Government’s stated antipathy to public expenditure “cost shifting”);170 and would risk increasing costs because paying privately for representation will cost more than Legal Aid rates. 159 Parliamentary Question on 7 June 2011: http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110607/text/ 110607w0006.htm£11060826003959 160 http://media.education.gov.uk/assets/files/pdf/w/ written%20ministerial%20statement%20%20%20office%20of%20the%20childrens%20commissioner.pdf 161 Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice, adopted by the Committee of Ministers on 17 November 2010, at the 1098th meeting of the Ministers’ Deputies. 162 EM (Lebanon)v Secretary of State for the Home Department [2008] UKHL 64. 163 ZH (Tanzania)v Secretary of State for the Home Department [2011] UKSC 4. 164 Article 3.1, 1989 UN Convention on the Rights of the Child. 165 Section 55, Borders, Citizenship and Immigration Act 2009. 166 Immigration and Asylum Act 1999, Part V: the Office of the Immigration Services Commissioner. 167 http://www.youthaccess.org.uk/news/Cuts-leave-young-people-without-vital-support.cfm 168 Community Legal Service (Financial) Regulations 2000 SI 200/516, regulation 11, but see the Legal Service’s Commission’s Funding Code, Chapter 29 Immigration at paragraph 29.11.2. 169 With implications for the Home Office/UK Border Agency budget in view of the grant arrangements by which Local Authorities receive payment for care responsibilities toward separated children seeking asylum. 170 Hansard HC, 29 June 2011: Column 1063 (per Jonathan Djanogly MP, Parliamentary Under Secretary of State for Justice). Legal Aid, Sentencing and Punishment of Offenders Bill 9. Retaining legal aid for children and young people would cut bureaucracy and reduce delays in the system. In the absence of a blanket exemption for children and young people from the cuts to scope, it is likely that lawyers would apply for legal aid for most of these clients on a case-by-case basis under the Exceptional Funding Scheme, which provides for legal aid to be granted where it would not be reasonable or in the interests of justice for vulnerable clients to present their own case. Bureaucracy and administrative costs would increase substantially, leading to delays which could harm children and young people’s chances of obtaining timely justice. Situations in whichC hildren will beP articularlyV ulnerable Separated children applying to extend their leave to remain in the UK 10. Most separated (or unaccompanied) in the UK asylum system come from countries experiencing armed conflict or serious repression, including Afghanistan, Iraq, Iran, Eritrea and Somalia. Many are granted discretionary leave to remain for a period of up to three years (so a child aged 13 years will be granted until 16 years), after which it is generally necessary for the child to make an application to extend their leave to remain. 11. The Bill would only permit Legal Aid if their application to extend their leave is a claim for asylum. This is not always the case. Many such applications are founded upon the child’s private or family life, and made under Article 8 of the European Convention on Human Rights. Some children will have formed relationships over the time they have been in the UK and their family, friendships and identity will be firmly based here. Many have no significant or lasting connection to their home country. Some may have no connection to the country whatsoever. Several recent cases have highlighted the failings of the UK Border Agency in applying their legislative duties to protect children’s rights, safety and welfare. It is completely unreasonable to expect children, or young people who have been in the UK since they were a child, to navigate these complex legal issues without professional representation. RefugeeF amilyR eunion 12. The Bill excludes refugee family reunion cases from Legal Aid. In the Government’s response to its Legal Aid consultation, the Government said that these cases are “generally straightforward” and suggested that where there are concerns about the safety of family members then these may claim asylum in their own right (para 90). However, not only can a family member not make an asylum claim while he or she is not in the UK, there are also a range of further obstacles: (i) the UK Border Agency (UKBA) routinely requires DNA evidence to establish relationships for which without Legal Aid many will simply not be able to pay; (ii) refugees making these applications are often particularly vulnerable to mental illness because the trauma of that which caused them to flee their home country may be exacerbated by their ongoing family separation; and (iii) in some cases, in particular for refugee children, the individual can not make these claims under the ordinary Immigration Rules and procedures. Living with one’s partner, parents and children is a fundamental human right, not a matter of choice. TraffickingV ictims 13. The Bill excludes immigration cases brought by victims of trafficking unless the victim also makes an asylum claim. However, not all trafficking cases involve an application for asylum and victims of trafficking are often children or young adults who may face an increased risk of exploitation due to their minority. Someone’s immigration case may also involve additional procedural, legal and evidential complexity because of the need to establish that he or she is a victim of trafficking. The exploitation to which a victim will have been subjected often means that the impediments to pursuing a case without legal advice and assistance are exacerbated by mental illness or trauma. 14. Trafficking cases often require expert evidence (including medico-legal reports, country expert evidence and evidence on the modus operandi of traffickers) for which, without Legal Aid, they will be unable to pay. Additionally,the Bill may have the effect of increasing the number of cases in which an asylum claim is made. WelfareB enefits,Employment,Housing andE ducation 15. Refugee families with children may be disproportionately affected by the proposals to remove these areas from the scope of Legal Aid. While those granted refugee status may be eligible for social welfare, the system in the UK will be unfamiliar to them. Further, they may be especially vulnerable to the risk of exploitation, for example at work and from private landlords. With funding being reduced for English language classes, refugee employment and integration services, the prospects of refugees becoming isolated and marginalised will increase. Refugee children, particularly those in refugee families as opposed to supported by a local authority, risk being unable to secure proper access to education by the exclusion by the Bill of Legal Aid in this area. Legal Aid, Sentencing and Punishment of Offenders Bill JudicialR eview 16. Having robustly defended the preservation of Legal Aid for judicial review in the Legal Aid Green Paper as necessary to hold the state to account and ensure that state power is exercised responsibly, the Government now proposes specific exclusions in immigration cases where there have been previous proceedings or decisions in the preceding year. The provisions on judicial review raise the risk of certain undesirable and perverse effects. The immigration exclusions apply where there have been previous court or tribunal proceedings (on the same or a similar issue), even when the individual succeeded in those proceedings. 17. Thus, if the UK Border Agency fails to act on the decision of a court or tribunal, or acts in disregard of that decision, the individual will be excluded from Legal Aid in seeking to hold the state to account. These would include litigants in person and cases where family or friends have paid for the lodging of a judicial review application but there are no funds for continued legal representation. The exclusion of Legal Aid may increase the number of judicial reviews brought without any or competent advice and representation, without decreasing the total number brought. In addition, individuals may be discouraged from exercising appeal rights (for which Legal Aid is excluded) to preserve their entitlement to Legal Aid on judicial review. Recommendations 18. The RCC recommends that the Bill should be amended to properly protect children and young people’s access to civil legal aid. This should include: — Ensuring that children and vulnerable young people involved in immigration cases are able to access legal aid in order to protect their rights to enter and remain in the UK — Conducting an Age Impact Assessment alongside the passage of the Bill in order to inform MPs’ final decisions 19. At the heart of the RCC’s concerns is the well-being of some of the most vulnerable children in the UK. Our response to the consultation and submission at second reading set these out in detail, and we are dismayed to see that the Bill has not been amended to address them. It is vital that all children and young people are guaranteed the protection and support to which they are entitled. We urge Parliament to make these changes to safeguard the rights and welfare of these children. 20. The following documents relating to the Bill further expand on these issues, with case studies: RCC Response to proposals for the Reform of Legal Aid in England and Wales, February 2011— www.childrenslegalcentre.com/Resources/CLC/Documents/PDF%20A-M/RCC legal aid consultation response 2011.pdf RCC Legal Aid Sentencing and Punishment of Offenders Bill Second Reading Briefing, June 2011— http://www.childrenslegalcentre.com/Resources/CLC/Documents/PDF%20N-Z/RCC%20LASPO%20Bill %20Second%20Reading%20Briefing%20June%202011.pdf July 2011 Memorandum submitted by Robert Morfee, Partner, Clarke Willmott LLP (LA 39) 1 MyC lients and thisF irm 1.1 I am a partner in a large firm, with a turnover of about £35-40 million. About 40% of our workload is litigation. Virtually none of it is legal aid based. We are not a welfare practice—we aim at the SME and private client as our main market. 1.2 Although I have been in practice now for nearly 40 years, my practice for the last 12 years has been concerned exclusively with litigation in the fields of pensions, financial services, savings and investments. My clients are typically successful entrepreneurs, professional men and women and the retired. I have some pension fund and charity trustees as clients as well. I lead a team of 8, and we have recovered about £30 million over the last 10 years, mostly from life assurance companies and banks, which are my typical opponents. My biggest single case so far was for over 400 Equitable Life annuitants, whose claim was funded with a series of CFAs, a mutual costs sharing agreement and limited BTE and ATE cover. 1.3 As a firm we use CFAs and ATE insurance extensively, mainly for claimant work but also for defence work. The costs of litigation are so high that even wealthy people and small businesses find it imprudent not to hedge against disastrous results. For example, my property litigation colleagues used a CFA to defend an unfounded dilapidations claim for a well known health charity. Legal Aid, Sentencing and Punishment of Offenders Bill 2 ThisJ urisdiction 2.1 This jurisdiction is an extraordinarily expensive place to litigate compared with other European countries. 2.2 Lord Justice Jackson does not satisfactorily explain why costs are so high here. In his preliminary report he summarises his ”whistle stop” tour of various other countries looking at their systems. The countries he refers to mostly have the following characteristics which ours does not. 2.2.1 Scales of Costs We use to have scales of costs which prescribe what steps are to be taken in a lawsuit and what charges could be made for each of those steps. These have been abolished and in their place we have judicial case management. The Judges of course love the freedom that this gives them to, as they say, manage the case in the interest of efficiency etc. What in practice happens is they manage the case so as to minimise the embarrassment to them of an appeal to the Court of Appeal. This results in cases being hopelessly over engineered. 2.2.2 A unified legal profession for litigation We still have solicitors and barristers performing their separate functions in litigation. The opportunity was not taken which was presented by Lord Mackay when he was Lord Chancellor of fusing the two professions. This means that there is repetitious traffic between the solicitor and the barrister and back again which does not occur elsewhere. All of this adds to cost. 2.3 There are powerful interests which would resist changes in these areas. Probably we are stuck for the time being with an unnecessarily expensive system. The task for the Government is surely to mitigate the effect of that cost for the average client. What it proposes will, on the contrary, exaggerate it. 3 TheI mpact ofC osts on theO rdinaryC lient 3.1 The impact assessments which I have read are plainly not based on any empirical evidence or any experience of what actually goes on. For civil litigation to take place at all claimants must go to Court. The impact assessments suggest there will be a slight falling off of civil litigation; my experience shows that there will be a massive reduction in justified non personal injury litigation. 3.2 The maths should be obvious, even using the (limited) data in the appendices to the Jackson report. If the average wage is about £26,000 before tax, how can a lawsuit be affordable without hedging the risk of losing? As the cost of hedging is itself unaffordable, the clients must hedge that also. Hence the need for the deferred and contingent ATE premium. Take away recoverability, and insurance is impossible. Take away insurance, and the claim is imprudent or impossible to pursue, no matter how strong the merits. 3.3 The abolition of the recoverable CFA uplift can be accommodated. It will push overheads up, and thus charges for other clients. But it is not a disaster. The abolition of recoverable ATE premiums will however be a very significant deterrent to the prudent person or small business, with a good claim for an important sum. 4 IrresponsibleN oC ostL itigation 4.1 There are, I am told, claimants who make unjustified claims with the benefit of ATE policies which insurers find it uneconomic to defend. As this is not the sort of client I have, I cannot speak from experience. I view such reports with cynicism however, because the presence of ATE cover means a defendant can get his costs of defeating an unjustified claim; Jackson’s Qualified One way Costs Shifting will remove that comfort, and make dishonest claims much easier. 4.2 I can say that in my experience dishonest claims are much rarer than dishonest defences. Human nature demands that it is so. Few people will lie willingly to manufacture a claim, but faced with a justified claim many will lie to escape the consequences of their folly. 5 TheI mpact ofL itigation on theE xchequer 5.1 Non legal aid civil litigation should be recognised as a huge source of tax revenue. By way of example let me say that my firm’s VAT payments to HMRC alone are about £8 million per annum and about 40% of our work is litigation. If you also take into account that about 40% of our staff are engaged on litigation, and the consequential payments of National Insurance Contributions and Income Tax, then you can see that litigation is in fact extremely good for the Crown and the economy generally.It serves the public purpose of enforcing the law, maintaining a level playing field for commerce and helping us comply with our international obligations. And it produces revenue. Legal Aid, Sentencing and Punishment of Offenders Bill 5.2 I remind the Committee that damages are untaxed. If the Treasury is looking for Revenue, it could do worse than consider the taxation of damages (as they are in Ireland) and ensuring that the Ministry of Justice provides a legal system which serves the public better and encourages justified litigation. 6 TheI mpact onC ommercialL ife. 6.1 It is far too often forgotten that the purpose of litigation is to enforce the law. It does so by shifting assets from those not entitled to them to those that are, with costs penalties having the effect of discouraging unjustified claims and unjustified defences. 6.2 Of the clients who approach me with good cases for considerable sums, well over half refuse to take their cases further, even when offered CFAs and ATE cover. They see it as too risky. Already big business, by threatening high costs, can defeat meritorious claims by deserving people. I have seen recently costs estimates from banks of over £500,000 for a single case. This is really scary for the average client, and even for the rich. The proposed reforms will heighten that risk enormously, and will deter even more deserving people. 6.3 If big business can afford to ignore the law, and small business cannot afford to, it makes for an unlevel playing field. I see this in my specialised field of financial services. The banks seem to get away with ignoring the FSA’s Conduct of Business Rules, and generate most of the complaints to the FOS. The small IFA observes them scrupulously as a rule, and is placed at a disadvantage thereby as the banks get business in ways an IFA dare not. 6.4 If Parliament wishes its laws to be enforced, it must make it attractive for the responsible citizen to go to court to enforce them. Part 2 of the Bill will have the opposite effect. July 2011 Memorandum submitted by Caroline Sergeant, Solicitor (LA 40) I have been following the progress of this Bill and have considered its contents, the evidence given on 12 July 2011 and the memoranda submitted by a number of interested parties. As a Personal Injury solicitor endeavouring to act in the best interests of my claimant clients I agree with a lot of the concerns raised but there is one omission which I am eager to have addressed. At present claims involving children and patients cannot be compromised without approval of the Court. The compensation is then invested by the Court Funds Office. If the payment of success fees and ATE policies shifts from defendants to claimants am I expected to ask for an Order for payment to me of the success fee (up to 25% of the damages) and the cost of the ATE policy out of the child’s damages or am I supposed to ask the parents to pay? July 2011 Memorandum submitted by Resolution (LA 41) Summary 1. The Legal Aid, Sentencing and Punishment of Offenders Bill will drastically reduce the scope of civil legal aid. Legal aid will no longer be available for many areas of law including the majority of private family law, which is the focus of this paper. 2. We are not opposed to reform of legal aid. However, we have serious concerns about the Bill in its present form. In summary: — We are opposed in principle to the Bill’s approach to the availability of civil legal aid. Access to justice is a basic human right and a mark of a civilised society. — The cuts are draconian. In their current form, the changes amount to an attack on childhood and the family. They will strip away access to affordable justice to huge numbers of vulnerable families, depriving and penalising the poorest and most vulnerable. The Government’s own estimate is that approximately 600,000 people (compared to 2009–10) will be impacted by the changes in scope across family and civil legal aid. 210,000 and 45,000 fewer private family cases will qualify for Legal Help and Legal Representation respectively. — Many victims of domestic violence will be denied legal help because the circumstances proposed by the Government as evidence of domestic abuse are too narrow and will only be satisfied once there has been a fully contested court hearing and resulting injunction. — Mediation will continue to receive funding. This is welcome, but mediation is not suitable for all cases. Other valuable non-court options appear to be ignored. There needs to be funding provision for cases where mediation is unsuitable or fails, eg where one party refuses to take part. Legal Aid, Sentencing and Punishment of Offenders Bill — Cutting legal aid for family law ignores the Statutory Charge, through which the state can recover legal aid funding in financial cases. 3. We are further concerned that the changes, which will have long-term and lasting costs and consequences, are ill-considered and rushed. — The consultation that followed the launch of the Green Paper (November 2010) and the proposal to cut £350 million from the legal aid budget received an unprecedented 5,000 responses. 90% of these disagreed with the proposals. Yet the changes outlined in the Bill remain virtually unaltered. — The volume of responses to the consultation is not the only indicator that the proposals are flawed. The Justice Select Committee and the Family Justice Review have expressed concerns. Who will beA ffected? 4. Groups in need of legal aid, often from the poorest and most vulnerable sectors of society, will no longer be eligible. These include: — Parents who need legal help in tracing or arranging contact with their children. — Parents worried that the other will abduct their child to an unknown destination in the UK. — Many victims of domestic abuse, forced to mediate with violent ex-partners or represent themselves in court. — Cohabitants where one partner needs help to claim a share of the family home for themselves and their children. — Parents in private children cases where the court considers the case has an element justifying separate representation of their child. — People who need legal help to sort out their finances when divorcing, even on an emergency basis unsuitable for mediation. — People wanting to divorce or whose partner wants to divorce them. Impact onF amilies andC hildren 5. The Government is underestimating the vulnerability of separating couples and their children. Under the changes, huge numbers of people will find it practically impossible to gain access to justice and legal help during one of the most difficult and stressful times of their lives, with devastating consequences on families and children. For many, losing family legal aid will be a cruel and unaffordable blow. (NB 95% of civil and family legal help recipients in 2009–10 were in the bottom two income quintiles.) 6. Legal aid will be available for representation in 34,000 fewer private law Children Act cases (75% of the proportion of existing cases). This will affect at least 34,000 cases involving children. As many cases will involve more than one child, far more than 34,000 children will be affected. 7. Children should see both parents where safe to do so. But under the changes, thousands of vulnerable parents going through the trauma of divorce and separation will be forced to struggle by without legal help— creating a serious risk that many children will lose contact with one of their parents or be subjected to unfair financial arrangements that harm their upbringing and wellbeing. 8. It is unacceptable to force families into situations where children lose contact with one of their parents. Yet this is what may happen in serious, hard-to-resolve situations such as those involving obstruction and implacable hostility between separated parents. 9. When mediation fails a parent will be expected to conduct their own application for contact with their child. This will include situations when a parent has no contact with their child but their ex-partner refuses to attend mediation or cooperate in mediation; or where there are significant compliance and enforceability issues relating to a court order. Enforcement of contact orders can raise very difficult issues for applicant parents and stark choices for courts, particularly around committal of a parent with care of the child to prison or a change of whom the child will live with. 10. Additionally, separated parents with primary responsibility for caring for children may not be able to obtain a fair financial agreement from their ex-partner. 11. The Bill fails to ensure adequate provision for dealing with financial matters on divorce where mediation is unsuitable or unsuccessful, including over urgent finance issues. Eg there will be no legal aid available for advice or action to prevent dissipation of assets, despite potentially serious consequences such as loss of the matrimonial home and dependence on public housing. Women, who in the majority of separation cases take the lead role in protecting the child’s interests, will be particularly affected. 12. Emergency situations concerning children are often too complex and emotionally traumatic for people to negotiate and resolve without legal advice and representation, eg where a parent keeps a child after a contact visit. In such cases, people need advice and representation on rapid action, such as prohibited steps orders to prevent a child being removed from their primary carer. Early advice and representation can avoid a problem escalating to the stage of abduction (which would still be covered by legal aid but only for cases of international abduction, and not for abduction within the UK). Legal Aid, Sentencing and Punishment of Offenders Bill 13. A new Director of Legal Aid Casework will have the power to allow legal aid for other services to avoid a breach of an individual’s rights to legal aid under the Human Rights Act 1998 or European Union law. The Committee may wish to probe the exact meaning of exceptional cases. The Bill makes no specific provision for exceptional access to legal advice and representation for the vulnerable with, for example, mental capacity, learning difficulties or language issues who cannot represent themselves. DomesticV iolence 14. Domestic violence will be the main gateway to legal aid in private children cases, and the only gateway in financial matters. 15. In order to satisfy the circumstances required by the Government as evidence of domestic abuse, all domestic violence related applications will have to go to a fully-contested hearing, increasing delay in resolving issues, expenditure from the legal aid and Court Service budgets, as well as the emotional trauma for the victim and their family. 16. In addition, it is unclear from the Bill whether there is provision for legal aid for victims to obtain initial legal advice and have a “warning letter” written and sent to their abuser. This step is a pre-requisite for victims to qualify for legal aid in order to obtain a domestic abuse injunction. This will need to be clarified in the Bill, otherwise only those cases where the risk of violence poses an immediate danger necessitating a “same-day” application to court for an injunction will receive legal aid. 17. The Committee will note that the circumstances proposed by the Government as evidence of domestic violence to justify the granting of legal aid will be set out in secondary legislation. Resolution and many others are concerned that the approach proposed does not provide adequate protection for those issuing private family law proceedings after separation or reflect family situations where domestic violence is a real and ongoing issue. 18. Domestic violence is under-reported to the authorities and often undisclosed in proceedings. Many victims will not be able to receive legal aid unless they feel able to press for a finding of fact and obtain an injunction. 19. It cannot be assumed that the risk of domestic violence to and its impact on both vulnerable adults and children is gone after a period of twelve months. 20. Legal aid will not be available where domestic violence undertakings have been given under the Family Law Act 1996. 21. The greatest risk of domestic violence is at the point of separation. 22. It is possible that a mediator may assess a case as unsuitable for mediation due to domestic abuse issues that fall outside the narrow circumstances seen by the government as evidence justifying legal aid. 23. Victims of domestic abuse will be forced to cross-examine or be cross-examined by perpetrators in substantive children and finance matters. They should not have to represent themselves if mediation is unsuitable or unavailable. Mediation andI gnoring otherA lternatives toC ourt 24. Mediation will be the only option available to families who qualify for legal aid. Continued funding for this highly valuable non-court option is welcome. But, although mediation will help some couples, it is not suitable for all. It requires both parties to voluntarily agree to take part. 25. The proposals fail to recognise the important role tailored legal advice plays in helping couples reach agreement. In order to negotiate sensibly and reach fair agreements, couples need a proper understanding of their legal rights. Family law is complicated and the provision of general information is not enough. Families need tailored legal advice specific to their particular circumstances, alongside any dispute resolution process. Yet under these proposals, funding for legal advice alongside mediation is limited to £150 per person with an additional one-off fee of £200 for the drafting of a court order setting out the terms of settlement in finance cases. 26. Where a matter is mediated, legal advice supports the parties. It assists and focuses the mediation process and safeguards against unfairness. It is worth noting that in Australia, family relationship centres were initially established and designed to actively discourage legal advice and input from lawyers—but this policy has now been reversed and increasingly lawyers attend dispute resolution sessions with their clients. 27. The proposals appear to ignore other solutions, including solicitor negotiation and collaborative law. If all cases are pushed into mediation, the success rate will worsen and the process will be undermined. 28. Legal aid should be available for family law cases where mediation fails or is deemed unsuitable by a mediator. Otherwise parents will have to leave issues unresolved, which is often not in the best interests of themselves or their children, or use the courts without legal representation. Legal Aid, Sentencing and Punishment of Offenders Bill Ignoring theS tatutoryC harge 29. Where money (other than maintenance) or property is recovered or preserved, the state recovers its legal aid funding through the Statutory Charge. The Government seeks to save about £19 million in finance cases, but the Bill takes no account of the Statutory Charge’s contribution to off-setting family legal aid expenditure. 30. The Government is failing to take the opportunity to extend the Statutory Charge to cover cases referred to mediation as a contribution to the cost of mediation; or to extend the Statutory Charge to cover other family cases, whether or not they relate to assets, including for example injunction and private law children matters, where the legally aided person has assets such as a property with equity. Costs to theT axpayer andC haos in theC ourts 31. The proposals risk endangering access to justice and creating a costly administrative burden whilst not making the savings sought by the Government. 32. Government figures suggest that 10% of those removed from the scope of private family law are then expected to secure funding under the new scheme for excluded cases. 33. Reducing family legal aid cases by about 50% will lead to more people representing themselves in family courts (litigants in person). Lawyers and judiciary members fear that courts will grind to a halt and the administrative costs of the court service will inevitably increase. 34. The Ministry of Justice acknowledges the lack of evidence on the impact of litigants in person on the justice system and the impact on litigants themselves. It is simply not known whether more couples will leave issues unresolved, make agreements between themselves or will represent themselves in court. Research into the costs and consequences of litigants in person is urgently needed. 35. The cuts risk a long-term impact on wider society. Research is required to identify costs that will transfer to other state-funded services as people forced to work through the difficulties of separation on their own develop other difficulties such as mental health issues. TelephoneG ateway—Impact onE thnicM inorities,YoungP eople,Women 36. The Government is still considering whether remaining family legal aid will only be accessed through a mandatory single telephone gateway. If this is implemented, an operator will decide whether to refer the client to a second-tier specialist service or whether the client needs face-to-face advice. Otherwise, clients will not be able to approach a face-to-face service directly. 37. This change could have a disproportionate impact on ethnic minorities, young people and women. More research and consultation is needed. 38. Research shows that social groups D and E are the least likely to access telephone advice. Many people who are eligible for legal aid are socially excluded and on low incomes, and cannot afford 0845 lines. 39. Many legal advice providers are well integrated with their local communities, resulting in complimentary referral systems. The telephone gateway may remove incentives for local commitment. 40. The Government is suggesting that the telephone gateway operator will decide on suitability for mediation. This is inappropriate; trained professionals should carry out mediation assessments. Lack ofA ccess toF amilyL egalA idP roviders 41. Currently 90% of family law cases are resolved out of court. Family lawyers play a key role in this. 42. Some people need information and advice to persuade them that litigation is not the answer for them. Many of those who make more formal arrangements do so through the help of family lawyers who are skilled in guiding couples through separation and often help them seek alternatives to court. 43. Yet this successful approach is under threat. With legal aid work increasingly uneconomical, the changes in the Bill could be the final nail in the coffin for many legal aid providers, leaving too few to help the small number of people still eligible. Payments forL egalS ervices inD ivorceP roceedings 44. The Bill amends the law to give the court powers to make orders in divorce and civil partnership proceedings for payments to be made by one party to another for the purposes of paying for legal services. This provision is welcome but is not a suitable alternative to family legal aid, especially in cases where both parties are economically deprived or there is no liquid asset. 45. Furthermore, there will be no funding for the financially vulnerable party to obtain advice on how to make an application for a payment in addition to paying for the court fee. Legal Aid, Sentencing and Punishment of Offenders Bill OurR ecommendations 46. Make legal aid available for representation in private family law proceedings where a competent mediator determines that mediation is unsuitable or mediation is unsuccessful, including so that an individual at risk of abuse is not refused both mediation and legal aid for representation. 47. Make legal aid available for collaborative family law (as well as for mediation) to help couples to resolve their family matters on divorce or separation without recourse to the family courts, recognising the range of dispute resolution which can help parents and couples. 48. Revisit the domestic abuse proposals, ensure that they do not increase the obstacles faced by victims of domestic abuse seeking help and ensure that victims are able to obtain legal aid for early advice and intervention. 49. Make legal aid available to obtain an emergency order to prevent the abduction of a child within the United Kingdom as well as international abductions. 50. Make legal aid available so people can make an application for the new interim lump sum, or periodical payments, from the other party for securing legal representation in finance proceedings on divorce or dissolution of a civil partnership. AboutR esolution 51. Resolution is an association of 6,000 family lawyer and associate members abide by a Code of Practice that emphasises a constructive approach to family problems and encourages solutions that take into account the needs of the whole family, and in particular, the best interests of children. Resolution also works for improvements to the family justice system. 52. Around two thirds of our members undertake legal aid work. Our members work in around 1,500 firms who form the bulk of family legal aid contract holders in England and Wales. 53. We fully support mediation and all other out-of-court methods of resolving family disputes. Alternative dispute resolution is a key pillar of our beliefs. We offer training and expert accreditation in both mediation and collaborative law. July 2011 Memorandum submitted by Cris McCurley, Partner Ben Hoare Bell LLP (LA 42) 1. I am gravely concerned about the provisions in the bill which concern domestic abuse. Her Honour Baroness Hale in the case of full citation (Yemshawv London Borough of Hounslow [2009] EWCA CIV 1543; [2010 8LR23]) quoted the United Nations CEDAW convention in terms of the definition of domestic violence. It is quite clear that the Green Paper on Legal Aid, relying so heavily as it did on domestic violence in terms of actual physical violence was not compliant with the United Kingdom’s duties and responsibilities as signatories to the CEDAW convention. 2. Many of those giving evidence have been challenged by members of the Public Bill Committee (particularly members from the Conservative Party) and it has been repeated many times that the bill has widened the definition from purely physical violence which was the requirement under the Green Paper. This either betrays an ignorance of the law or at worst, dishonesty on the part of those members. Under the Bill, three forms of evidence are required in the alternative as proof that there has been domestic abuse: (a) A criminal conviction within the last 12 months. (b) A finding of fact hearing against the perpetrator within civil or family proceedings within the last 12 months. (c) The victim of abuse has had their case taken up by MARAC and a plan instituted within the last 12 months. 3. What is the point of extending the definition of domestic abuse to include the non physical when all three types of proof required in order to trigger the granting of legal aid are entirely and completely reliant on physical violence? They render redundant the gesture, and it can only be called a gesture made by this “concession” as mere lip service without substance. 4. Women’s Aid have done some truly excellent research on domestic violence over the last 20 years. Without exception, this research shows that women can be completely crushed emotionally just as capably by emotional cruelty as by physical. This renders them unable to fight their own corner. As a minimum, the means of proving domestic abuse should be extended to those required to prove domestic abuse for the satisfaction of the UK Border Agency in immigration “two year domestic violence concession” rules namely a report from a doctor or a report from an IDVA or refuge worker, even a retrospective report. Legal Aid, Sentencing and Punishment of Offenders Bill 5. In my experience, women do not make up allegations of abuse. They find the whole issue of going to court highly traumatic and no-one has ever entered into lightly. My own experience of over 23 years as a domestic violence specialist is that it is extremely traumatic for women to talk about the abuse and having to give evidence in court amounts to re-living it. It is consequently difficulty to get some of the worst aspects of abuse out into the open because of women’s reluctance to discuss it. 6. Possibly the most vulnerable of all women are the women who come into the country as spouses. They are deprived of contact with the outside world in many cases, often suffering abuse from extended family members. Many do not speak English and are refused permission to learn. Their ability to access professionals to report abuse to, is incredibly limited. Many would not know about police assistance, and would not trust it because of what the police are like in their home jurisdictions, many are escorted and monitored so that they are never able to speak openly to a helping professional such as a police officer or a doctor. How are these extremely vulnerable women, often the most abused victims that I deal with, to be expected to make their own application for a two year domestic violence visa concession? My practice does not deal with immigration work but this is probably one of the most concerning aspects of the proposed legislation as far as I am concerned. I would urge a re-think on removing legal aid for this one aspect of immigration law if nothing else. 7. Lastly, the bill itself begins with a statement by Ken Clark that there is nothing incompatible with UK equality legislation on international legislation. I would like to ask him in what sense he means that because as far as I can see, it discriminates against women, black and minority ethnic people, people with disabilities and the LGBT communities: in other words the most vulnerable members of our community. It was recently pointed out to me at the Family Justice Council Diversity Committee of which I am a member, that the percentage of the BME population when taken as a part of the whole of the UK population is approximately 8%. Statistically therefore anything that impacts the BME community over and above 8% is a disproportionate impact. The Government’s equality impact assessment makes it clear on that basis that the Bill is discriminatory and one can only draw the conclusion that the declaration in the Green Paper and in the Bill that the intention is to preserve legal aid for the most vulnerable is a knowingly dishonest statement. July 2011 Memorandum submitted by Mencap (LA 43) Contents — People with a learning disability in the criminal justice system — Accessible information: – Duty to give reasons for and to explain effect of sentence – Sentencing of offenders: programme requirement — Employment in prisons: deductions etc from payments to prisoners — Conditional Cautions: involvement of prosecutors — Youth Cautions — Attorney General’s References: “Unduly lenient” sentencing — Appendix A: Mencap’s interest in criminal justice—Raising Your Game programme delivery and Stand by me hate crime campaigning AboutM encap Mencap supports the 1.5 million people with a learning disability in the UK and their families and carers. A learning disability is caused by the way the brain develops before, during or shortly after birth. It is always life-long and affects someone’s intellectual and social development. Mencap fights to change laws and improve services and access to education, employment and leisure facilities, supporting thousands of people with a learning disability to live their lives the way they want. Mencap is also one of the largest providers of services, information and advice for people with a learning disability across England, Northern Ireland and Wales. See www.mencap.org.uk for more information. AboutL earningD isability A learning disability is caused by the way the brain develops before, during or shortly after birth. It is always lifelong and affects someone’s intellectual and social development. It used to be called mental handicap but this term is outdated and offensive. Learning disability is NOT a mental illness. The term learning difficulty is often incorrectly used interchangeably with learning disability. Legal Aid, Sentencing and Punishment of Offenders Bill People with aL earningD isability and theC riminalJ usticeS ystem As both victims and perpetrators of crime, people with a learning disability experience a justice system that is often confusing, complicated and unable to support their needs. As a victim they may lack the confidence to report crime or be unable, through a lack of support, to give evidence that can help to secure convictions. Where convictions are secured, the victim may have difficulty in understanding the purpose or type of sentence, leaving them dissatisfied with the outcome. As perpetrators, people with a learning disability are often directed into inappropriate sentences, into prisons that are unable to provide the health and social care support required. The current systems of probation and community sentences also lack the required support or reasonable adjustments that can increase both the speed and effectiveness of rehabilitation programmes. Almost a quarter of prisoners under 18 years old have a learning disability or difficulty, with a 78% re-offence rate among those at risk.171 We believe this shows how a better understanding of how to work with offenders who have a learning disability would be help to reduce rates of offending overall. The effect of this is a system that fails to engage offenders in punitive or rehabilitative structures whilst also diminishing the confidence victims have in the system. Mencap believes therefore that there is a need to examine the treatment of offenders in the context of wider shortcomings in the justice system in the way it identifies and supports people with a learning disability. AccessibleI nformation Suggested Amendment—Duty to give reasons for and to explain effect of sentence — Clause 54 (3): delete “ordinary language” and insert “in an accessible way that may include, but will not be limited to simple use of language, Braille and Easy read” Between 20–30% of offenders have a learning disability,yet the 1.5 million people with a learning disability make up just 2.5% of the UK’s overall population. As well as causing problems with communication and learning, a learning disability will affect offenders’ ability to cope with the criminal justice system.172 Someone with a learning disability may find it difficult to understand not only the sentence they receive but the purpose of the court or why they are appearing in court in the first place. That is not to say that people lack capacity but merely that they will require additional support to stand trial. Case Study—In one example, one young person understood that he was to be sentenced but did not understand the implications of this in terms of him not being able to see his parents following the trial. Situations like this add to the distress of the court proceedings and make the sentencing process more difficult to understand. Making sentencing easier to understand for people with a learning disability This requires judges, court staff, prosecutors and defending counsel to be aware of and make use of support both to ensure a defendant can understand the process and procedures of the court as well as the sentence being passed down. The appropriate reasonable adjustments should therefore be applied, particularly around the language that is used to describe a sentence so that individuals with a learning disability in the court are fully aware of the implications of their sentence. Clause 54 makes reference to the need to use¸ordinary language¸ in the court when explaining details of a sentence, but Mencap would like to see this extended to include all forms of accessible communication so that the individual is fully aware of the nature and detail of what has been said. Suggested Amendment—Sentencing of offenders: programme requirement — Before Clause 59 (1): insert new clause¸A public body imposing an order as laid out in this section shall have a duty to take all reasonable steps to ensure that the terms and requirements of the order are understood by the recipient of that order¸ This use of accessible communication also applies to requirements under community orders and suspended sentence orders. It is essential that the expectation of someone to fulfil any programme requirements should be contingent on reasonable steps being taken to ensure that any individuals undertaking the programme understand what is being required of them. 171 ICAN report (2007) 172 Prison reform trust (2007) : No one knows: The prevalence and associated needs of offenders with learning difficulties and learning disabilities Legal Aid, Sentencing and Punishment of Offenders Bill People with a learning disability may require increased support to enable them to meet the terms of any order. For example, young people accessing Mencap’s Raising Your Game project have said that they have difficulty understanding where they had to be at which times. This corroborates the findings of the British Institute for Brain injured Children—that people with a learning disability or autistic spectrum disorders do not always understand the terms of their order.173 Case Study—Good practice Mencap is pleased that the Government is exploring options such as text message reminders about curfews. However, welcome innovations such as this do need to be considered alongside the accessibility of the technology. Many people with a learning disability do not use mobile phones, especially for SMS messaging as the keyboard is too small to be useful or due to poor literacy skills.174 Mencap does support innovations to assist people to adhere to community orders or suspended sentence orders, but to work effectively this must be undertaken in consultation with people with a learning disability to ensure accessibility. Importance ofA dditionalS upportP rovision forP eople with aL earningD isability in theC riminal JusticeS ystem Mencap would like to emphasise that the additional support required for people with a learning disability should not exclude them from being given sentences that include adherence to community orders. The focus should instead be on ensuring that the additional support is available. These orders should therefore be designed around the support available to an individual. Additional support should be provided if necessary and consultation held to ensure that the terms of the order are appropriate to the level of support. Failure to do this may result in the individual failing to meet the requirements of the programme not because they are deliberately disobeying the conditions set out, but because they are not aware of what conditions they are supposed to be obeying. If reasonable adjustments are not taken to increase comprehension of people with a learning disability, there is a risk that these individuals will be disproportionately affected by any sanctions that result from not adhering to the specific conditions. Employment inP risons Suggested Amendments—Employment in prisons: deductions etc from payments to prisoners — After Clause 103 (2) (b) insert: “(c) the availability of support to both carry out employment” “(d) to understand the terms of employment in prison” — After Article 103 (4) (b) insert: “(c) the availability of support to both carry out employment” “(d) to understand the terms of employment in prison” In principle Mencap agrees that one function of prison must be to rehabilitate offenders, therefore reducing the likelihood of them returning to crime upon their release. Helping people to develop skills they can use outside of prison seems like a logical step to achieving this. However, Mencap has concerns around the implementation of plans to turn prison into a hard work and meaningful activity. Barriers toE mployment forP eople with aL earningD isability Only 6.4% of people with a learning disability known to social services are in any form of paid employment. This is due to a number of factors such as employer prejudice, lack of accessible workplaces and flexible working hours and increased support needs. Many people with a learning disability undertaking employment in prisons will need support and reasonable adjustments to enable them to do certain work. If people with a learning disability are to be integrated into work inside prisons then appropriate support must be made available. This support must be assessed on an individual basis. Mencap is concerned that, in the absence of this support, many people with a learning disability will be unable to participate in the working ethos of prisons the government seeks to implement. This may leave them isolated and unable to integrate into prison life, making them more vulnerable to targeted harassment and abuse. Furthermore, where such programmes are a condition for early release and parole, the lack of support will exclude people with a learning disability from such opportunities and therefore punish them more severely than other offenders. In addition to this, with the potential for financial penalties to be associated with failure to carry out the necessary employment activities, people with a learning disability stand to be disproportionately affected. 173 British Institute for Brain Injured Children (2005) “Ain’t Misbehavin’: Young People with Learning and Communication Difficulties and Anti-Social Behaviour.” BIBIC Campaign Update. 174 Ofcom/IPSOS-Mori (2008). Communication services and people with learning difficulties. http://www.ipsos-mori.com/ Assets/Docs/Publications/sri-ofcom-communication-services-and-people-with-learning-difficulties-full.pdf Legal Aid, Sentencing and Punishment of Offenders Bill The correct provision of support is therefore necessary to ensure that people are both able to carry out the terms of their employment in prison as well as to ensure that these terms are properly understood so that the individual is aware of what is required of them. ConditionalC autions Suggested Amendment—Cautions: conditional cautions: involvement of prosecutors — After Clause 107 (3) inset new subsection: “In Section 23(4) (requirement to explain the effect of the caution), for ”explains the effect of the conditional caution to the offender” substitute “takes all reasonable steps to ensure the conditions of and effects of the conditional caution are understood by the offender” As is the case in a court setting, people with a learning disability may require additional support to understand the conditions and the consequences of conditional cautions so that they are able to adhere to them. The key to ensuring people with a learning disability are treated appropriately at all stages of the criminal justice system is identifying them as requiring additional support at the earliest opportunity. EarlyI dentification toM eet theN eeds ofP eople with aL earningD isability One route for achieving this could be the use of a learning disability screening tool that is being developed and trialled by the Department of Health. This consists of a short series of questions that can be asked when a person is first taken into custody. The questions will identify if someone is likely to have a learning disability and officers will be able to ensure that appropriate support is available. This will mean that if someone is identified as having a learning disability in police custody,the knowledge will be retained and communicated to the courts and ultimately to the prison and probation services. The government can help to remove barriers to sharing this information by making the screening of offenders for learning disability a mandatory part of the custody and subsequent transfer process. Such a move would force recipient agencies to consider not just whether someone has a learning disability but also ensure that policies and procedures around reasonable adjustments are in place. By identifying and meeting the additional needs of people with a learning disability at an early stage in the process, there is a greater chance of these individuals receiving the support they require to reduce the risk of re-offending or of meeting the conditions resulting from their current sentence. YouthC autions Suggested Amendments— — Clause 109, Amendment 66ZA “Youth Cautions” (3) delete “ordinary language” and insert “in an accessible way that may include, but will not be limited to simple use of language, Braille and Easy read” — Clause 109, Amendment to 66ZA “Youth Cautions” (3): after “(b) where that person is under the age of 17, the appropriate adult” insert “(c) where a person requires support to communicate or understand the process” 23% of young offenders have a learning disability which is a clear indicator that current approaches to tackling youth offending amongst young people with a learning disability are not working. As mentioned above, early intervention is the key to overcoming this, but it is also necessary to ensure that people with a learning disability understand the full implications of their actions from an early age. The British Institute of Learning Disabilities (BILD) estimates that up to 90% of people with a learning disability have communication difficulties.175 Therefore a focus on the ways in which to overcome these potential barriers could help to improve the articulation of any wrongdoing, thus avoiding misunderstanding and increasing the awareness of the individual as to the consequences of their actions from an early age. Clause 109 Amendment 66ZA “Youth Cautions” (3) again refers to a need to provide information—this time in the context of youth cautions—in “ordinary language” but, in order to overcome the communication barriers that often exist between young people with a learning disability and law enforcers, this must go further to include the most appropriate and accessible forms of communication, such as easy read. 175 http://www.bild.org.uk/docs/05faqs/communication.doc Legal Aid, Sentencing and Punishment of Offenders Bill AttorneyG eneral’sR eferences:Reference of sentence ofC rownC ourtA ppearing to beU nduly Lenient Mencap is concerned about inconsistent approaches to sentencing. In terms of disability hate crime, we see strong but appropriate sentences as an effective deterrent for crimes and a way of reducing offending rates. Robust sentences send a message to the perpetrators of crime and to people with similar attitudes that society will not tolerate their behaviour. We do not intend to call for custodial sentences in all cases but feel that sentences should be robust enough to act as a deterrent. Case Study—In October last year, three men who brutally attacked and tortured a young man with Asperger’s syndrome (a form of autism) were prosecuted for actual bodily harm. Over a three day period, they kicked and stamped on his head, repeatedly punched him in the chest, beat him with a tennis racket and then threw him down a steep embankment. He was also pelted with dog faeces, had his limbs scratched with sandpaper and was forced to drink vodka and gin until he passed out. His assailants—Messrs Bolton, Marshall and Griffin—received just 80 hours of community service for these crimes. Mencap considers this and other sentences of this type insufficient and “Unduly Lenient”. AddingD isability as aP rotectedC haracteristic inR elation to“U ndulyL enient”Sentencing The Attorney General has the power under the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006, to review the sentences of crimes which he considers “Unduly Lenient”. This only applies to particular types of offences, including those crimes against the person that are racially or religiously aggravated. The Criminal Justice Act 2003 provides for increased sentences when crimes are racially aggravated (section 145) or motivated by hostility towards disability or sexual orientation (section 146). We therefore feel that the lack of provision to review sentences in disability (or, indeed, sexual-orientation) motivated offences as set out for racially aggravated offences in the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006 is inconsistent and discriminatory. We believe there is a very strong case, both morally and legally, for the powers to amend the 2006 Order to extend the power of the Attorney General to review cases that are aggravated by hostility towards disability. These steps would also make the sentencing procedure more transparent as the public could see potential safeguards against unduly lenient sentences and feel confident that sentencing is working more effectively to protect the public. AppendixA— aboutM encap’sI nterest inC riminalJ ustice Raising Your Game—Raising Your Game is a Mencap delivered project for young people aged between 14 and 25 with a learning disability or communication difficulty. Some have been in trouble with the police and some are at risk of getting in trouble. Young people with a learning disability or communication difficulty are at a higher risk of offending because they are not getting the right support in life. With Raising Your Game we are helping them to get their voices heard by big organisations. We want all young people with a learning disability to get the support they need. Raising Your Game is funded by the Big Lottery Fund and will be delivered by Mencap in partnership with I CAN and Nacro. The project launched in 2009 with six pilots in Avon and Somerset, East Kent, Greater Manchester, Hertfordshire, Leeds and the West Midlands. For more information visit: http://raisingyourgame.mencap.org.uk/ Stand by me—Crime where the victim is targeted because of their disability leaves victims afraid to engage in everyday activity. The crime can range from bullying and harassment, through assault, kidnap, rape and murder. A disability hate crime, as outlined in c146. Criminal Justice Act 2003, is a criminal offence motivated by hatred or prejudice towards a person either before or after the offence has occurred because of their actual or perceived disability. In all cases evidence shows that crimes motivated by hostility have a greater psychological impact on the victim than other sorts of crime. Mencap has concerns regarding the response by the Police and other statutory agencies to recognise bullying and harassment as serious incidents. Such incidents are frequently treated as anti social behaviour or¸low level¸¸hate incidents.¸ Mencap is concerned this approach does not always recognise the severe impact on victims of such incidents or the evidential progression of harassment to more serious forms of targeted crime and violence. This has been a feature of several cases such as the Fiona Pilkington case (2007). — In the three years ending March 2010, 1,200 defendants were prosecuted for disability hate crime. This compares to almost 50,000 for racist crimes. (CPS, October 2010, Hate crime and crimes against older people report.) Legal Aid, Sentencing and Punishment of Offenders Bill — 9 out of 10 people with a learning disability have experienced bullying/crime. — 32% of people with learning disabilities experienced this on a daily or weekly basis (Mencap, 200, Living in Fear) July 2011 Memorandum submitted by the Equality and Diversity Forum (LA 44) Introduction The Equality and Diversity Forum (EDF) is a network of national organisations committed to equal opportunities, social justice, good community relations, respect for human rights and an end to discrimination based on age, disability, gender and gender identity, race, religion or belief, and sexual orientation.176 Our members represent some of the most disadvantaged groups throughout the UK and so we will comment on how the proposed changes may well affect those who must not be forgotten if the Government’s commitment to a big society is to have meaning. Lady Brenda Hale in her Henry Hodge Memorial Lecture observed that: Courts are, and should be, a last resort, but they should be a last resort which is accessible to all, rich and poor alike. The big society will be the loser if everyone does not believe that the law is there for them. Members of the EDF are particularly concerned about the total removal from the scope of free or low cost legal advice or assistance on most types of cases which we believe will impact disproportionately on people within certain protected categories ı women, people from ethnic minorities and people with disabilities or mental health problems in particular. Moreover we note that although the annual legal aid budget rose from¨1.5 billion in 1997 to 2.1 billion, spending on civil legal aid fell by 24%.177 Thus the spending on civil legal aid has already been substantially reduced. The EDF Opposes theP roposedC hanges toL egalA id because weB elieve that: — they are discriminatory and will entrench inequality as women, people from minority ethnic groups, disabled people and other groups facing discrimination will be disproportionately affected; — they will not promote equality of opportunity as required by the race, sex and disability equality duties; and — they will remove an important check to abuses of power and incompetence (legal aid is necessary to ensure equality of arms and to enable individuals to challenge decisions taken by those in positions of power). The EDF is concerned about the equality impact of the removal of legal aid from claims in relation to welfare benefits, clinical negligence, criminal injuries, debt, employment, immigration (excluding asylum), many planning and eviction cases for Gypsies and Travellers, housing (unless a person is facing homelessness) and divorce. We consider that inadequate consideration has been given to the difficulty posed by the complexity of some cases. These provisions neglect to take account of the fact that the protection of rights which require detailed argument and expert evidence will become illusory if legal aid is removed. The figures given in the Equality Impact Assessment attached to the consultation prior to the Bill show, for example, that a much larger proportion of BAME people are legal aid users. Using the figures given for all categories in Table 2 of the Scope Changes Equality Impact Assessment legal aid is nearly five times more important to the BAME community compared to the white community as a means of achieving access to justice.178 The effect on the BAME community in terms of access to justice will be devastating. The Equality Impact Assessment demonstrated the comparative disadvantage that would be created by the proposed provisions. Even though it is based on inadequate data,179 it clearly shows that in the majority of categories of existing civil law provision women, ethnic minority people and those with disabilities are over represented compared to the national population. The rights with which they are engaged apply to everyone. The figures show that they are rights which have to be enforced through legal process disproportionately by these groups. 176 A list of EDF members is attached as annex 1 (not printed here) 177 Department of Constitutional Affairs, A Fairer Deal for Legal Aid, July 2005. 178 Nationally the chance of being a BAME person is 8%, the proportion of BAME people compared to non-BAME people is therefore 8/92% .0869. The EIA shows that overall users are 27% BAME and 63% white British. Thus the proportion of legal aid users who are BAME 27/63% .4285. Consequently the chance of a BAME person being a legal aid user is 4.9 times that of a white British person. 179 See MoJ, Legal Aid Reform: Scope Changes, EIA, November 2010, para 18, “this source is the most robust record of client characteristics available, it is subject to a number of limitations.” Legal Aid, Sentencing and Punishment of Offenders Bill For example, in employment cases clients are 24% ethnic minorities, in non-homeless housing they are 60% women, 31% ethnic minorities and 27% disabled and in welfare benefits they are 27% ethnic minorities and 63% disabled. This compares to a national population of 51% women, 8% ethnic minorities and 18% disabled people.180 These figures show a significant adverse impact for ethnic minority people across all these categories and for disabled people in relation to non-homeless housing and welfare benefits.181 EDF does not agree, as asserted by the Ministry of Justice, that “any such disadvantage would be a proportionate means of achieving a legitimate aim and therefore justified”. We note the four policy factors that the Ministry of Justice considered in their proposals for reform at paras 4.13–4.29,182 however, we consider that in effect these provide inadequate justification. While we welcome the fact that legal help is being retained in discrimination cases, we are concerned that removing legal aid for other linked housing, employment or welfare rights cases will effectively result in a substantial decrease in the number of advice providers and consequently potential clients being unable to find information and advice on their rights. Many discrimination cases arise out of or in connection with other legal claims—housing, employment or welfare benefits, for example. If it is not possible to obtain funding for these parts of the claim it will be very difficult to take action to pursue the discrimination claim. In any event it is not proposed that legal help will be available for representation in tribunals where the majority of first instance discrimination cases are heard. We therefore support amendment nos 79, 80, 82, 83, 84, 85, 89 and 95. Proceedings in theH igherC ourts We strongly disagree with the removal of proceedings in the higher courts from the scope of legal aid for the following reasons: — It is difficult to envisage a case that went to this level that did not involve a complex legal issue (it is only possible to go to the Court of Appeal were the appeal raises an important point of principal or law, or there is some other compelling reason for it to be heard). By definition cases that go to the Court of Appeal are extremely complex; it is not feasible to expect people to represent themselves at this level of hearing even if they face no other barriers resulting from the impact of discrimination or disadvantage. — To access the Court of Appeal or higher courts you have to go through permission proceedings and meet specific legal tests. What litigant in person without legal expertise could do this? The answer is obvious: very few indeed! — Increased numbers of applications and cases involving litigants in person will lengthen the time taken to hear cases and increase the financial burden on the higher courts. Proceedings in the courts and tribunals of England and Wales are adversarial consequently the intelligence, knowledge of the law and analytical and communication skills of a litigant in person will determine the outcome of the case in many circumstances. None of the courts have an investigative function. This is highly significant because the deficiencies of a litigant in person in presenting his or her case cannot be addressed by the judge. This point was made very clearly by the Court of Appeal:183 . . . It is for the litigant himself to decide what case to make and how to make it, and what evidence to adduce and how to adduce it. It is not for the judge to give directions or advice on such matters. It is not his function to step into the arena on the litigant’s side and to help him make his case . . . It is not their role to engage in the sort of inquisitorial function that [counsel for the appellant] suggests or, therefore, to engage in an investigation as to what further evidence might be available to one of the parties which, if adduced, might enable him to make a better case. Their function is to hear the case the parties choose to put before them, make findings as to the facts and to decide the case in accordance with the law. In 2008–09, 98% of legal aid recipients were in the bottom two income quintiles.184 86% of the full representation cases and 80% of Legal Help cases which would be removed from scope would affect people in the bottom income quintile. The removal of legal aid will mean that people with fewer resources will simply not be able to win even if they have real grievances. Moreover, disabled people often struggle to get justice in courts and tribunals as information is not provided in an accessible format and reasonable adjustments are not offered. Many disabled people cannot represent themselves for impairment-related reasons and the features of the court environment and justice process can be triggers for distress and exacerbate symptoms of mental health problems or learning disabilities. Removing legal representation 180 All these figures are taken from the MoJ Equality Impact Assessment. 181 It is perhaps not surprising that disabled people are underrepresented in employment cases since one of the particular problems frequently experienced by disabled people is difficulty in getting a job. 182 MoJ, Proposals for the Reform of Legal Aid in England and Wales, November 2010, p 33–36. 183 In Muschettv HM Prison Service [2010] EWCA Civ 25, [2010] IRLR 451 by Rimer L J repeating what he had said in a case concerning the duty of circuit judges towards such litigants Lemasv Williams [2009] EWCA Civ 360, at [57]. 184 See MoJ, Impact Assessment, Cumulative Legal Aid Reform Proposals, November 2010, p 11, para 40. Legal Aid, Sentencing and Punishment of Offenders Bill would therefore deny a range of groups equal access to justice. This is not consistent with the equal protection under the law that is the birthright of all who live under the rule of law as expressly stated in the Universal Declaration on Human Rights 1948.185 We therefore support amendment no 81. CommunityL egalA dviceT elephoneH elpline The Government proposes that a Community Legal Advice helpline should be established as the single gateway to access civil legal advice and this will be initially available only in relation to debt (insofar as it remains in scope), community care, discrimination (claims relating to a contravention of the Equality Act 2010) and Special Educational Needs. Members of the EDF are extremely concerned about this proposal which we believe has a number of problems and limitations which will have a particularly adverse effect on minority groups. We accept that there may be some advantages to having a telephone advice line, however, these advantages will mainly apply to those who are better off, reasonably articulate, and who have ready access to cheap telephone services. Most of these will have access to resources and thus will be outside the scope of legal aid. If the Government genuinely wishes to øre-design the system so that it caters much better for the needs of its clients’ a single entry point telephone advice service is not the way to achieve this. Some of the people who will be adversely affected by a telephone advice service include: — ethnic minority clients who have difficulty in understanding or speaking in English or reading documents in English; — clients with a physical or mental health impairment affecting their ability to communicate by telephone or more generally, including people with hearing loss (one in seven of the population) and those who use sign language; as well as — those who are very distressed or frightened. They are unlikely to be able to make effective use of a telephone helpline. Consequently we consider that whilst a telephone helpline may be useful to some people, it should not be the sole access point to legal help. Additionally a number of clients are likely to have a problem which they find difficult to explain, or understand, which can be or often needs to be identified from documentation—this will not be available to a telephone adviser. Those of our members that have experience in direct advice giving to the public will attest that when a client is very distressed, frightened, confused or upset it can take time for them to explain the salient details of their problems. Many may misidentify their problems. For example, many discrimination problems may be presented by the client as an “employment” problem or a “housing” problem—it will only be after some probing by a well informed advisor that the discrimination element is revealed. Clearly if the potential client on the telephone identifies their problem as employment or housing they will be told that legal advice or help is not available to them, whereas if they had identified their problem as discrimination they may have been referred for further second tier advice. We therefore support amendment nos 87 and 88. July 2011 Memorandum submitted by Joanna Miles (LA 45) 1. I am a University Lecturer and Fellow in Law of Trinity College in the University of Cambridge. I am also an academic door tenant at One Hare Court and Assistant Editor of the Child and Family Law Quarterly. The following remarks—all on family law matters—are my personal views, and should not be taken to reflect the views of any institution to which I am affiliated. 2. It is important that academic lawyers’ views about legal aid reforms are heard. They underline that opposition to the Bill stems not from self-interested concerns of practitioners worried about balance sheets, but from deep concerns—shared by all professionals familiar with the family justice system — about the impact that the Bill will have on families, their children, and wider society. Summary The aspects the Bill concerning legal aid in family matters suffer from several defects, many of which are cogently outlined in the FLBA’s written evidence to the Committee. I focus here on the criticisms that they: — are not grounded in the empirical evidence 185 See Article 7 which says “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” Legal Aid, Sentencing and Punishment of Offenders Bill — underplay the problem of litigants in person — raise issues under Article 6 ECHR — afford inadequate protection to victims of domestic and child abuse — provide inadequate support for litigants in financial cases — create perverse incentives by neglecting lawyers’ key role in settling cases and drafting consent orders. The need for evidence-based policy: lawyers and mediators 3. The Government claims that its proposals will yield improved delivery of justice and quality of family resolutions. There is scant evidence for this view. Indeed, the empirical literature—mostly not referred to in the Government’s documents—offers no support for Government policy.Above all, we must have evidence- based policy. 4. The Government, whose spokesmen persist in describing lawyers as “adversarial”, has been extraordinarily inattentive to the extensive literature describing the essential role of family law practitioners in managing client expectation and helping parties to reach a settlement out of court: see Davis, Partisans and Mediators (Oxford. Clarendon Press, 1988), Ingleby, Solicitors and Divorce (Oxford University Press, 1992); Davis, Cretney and Collins, Simple Quarrels (Oxford, Clarendon Press, 1994); Eekelaar, Maclean and Beinart, Family Lawyers: the divorce work of solicitors (Hart Publishing, 2000); Maclean and Eekelaar, Family Advocacy: how barristers help the victims of family failure (Hart Publishing, 2009). 5. Meanwhile, the claimed benefits of mediation have been described by Professor Dame Hazel Genn as “empirically unverified” (2010) Journal of Social Welfare and Family Law 195 (see also Dingwall in that volume). Mediation depends for its successes on the voluntary commitment of parties to the process and the provision of full legal advice for the parties throughout mediation. There is no evidence that it will work satisfactorily for parties pressured into it for want of a realistic alternative and who have received only a bare minimum of legal advice going into the process. Moreover, one reason why mediation may currently work where it is used successfully may be because it is conducted “in the shadow of the law”: the possibility of litigation to secure an outcome that reflects the parties’ legal entitlements encourages the stronger party to mediate reasonably. With legal aid for full legal advice and for legal representation gone, the position of the weaker party will be substantially reduced and the stronger party will feel rather less reason to participate in mediation at all, let alone to make a reasonable offer. It is telling that mediators are concerned about the Government’s proposals: eg Stepan “Slashing Legal Aid: Ironic Implications for Mediation” (2011) Family Law 305 and the powerful oral evidence of Deborah Turner of the Family Mediation Council to the Committee on 12 July. The litigant in person problem 6. The Government commissioned a useful literature review of the existing domestic and international research on the experiences of litigants in person (Williams, MOJ Research Summary 2/11). The author of that report carefully explains the limitations of the data. I would add the caution that research conducted in the UK has necessarily examined the experiences of LiPs in the current regime, under which private law family matters are fully within scope. The pool of LiPs currently before the family courts is therefore smaller than can be anticipated once such matters are taken out of scope; and current LiPs may (as a class) have rather different characteristics from the new constituency of LiPs that will appear in future. 7. However, subject to all those caveats, nothing in the literature review augurs well for the Government’s policy. I would urge Committee members to read the Justice Select Committee’s report on the Operation of the Family Courts (HC518-I) from para 220, for their powerful criticism of the Government’s handling of data on this issue. Reference to the literature review in the White Paper and accompanying documents is less than thorough: in at least two places the documents (eg para 2.138, White Paper) mention only the issue of the length of proceedings involving a LiP (sometimes longer, sometimes shorter), without commenting that the inactivity of litigants whose cases are shorter might indicate a problem with that mode of representation: ie that inactivity very probably means that no proper case is being made for that party or, by extension, for the child at the heart of the case. No mention is made (in that part of the document) of the indications that LiPs tend to have lower educational attainment and that a significant minority in the family courts have specific vulnerability indicators, such that (unsurprisingly) LiPs often encounter serious problems in court, and the weight of evidence indicates that lack of representation negatively affects case outcomes (Williams, op cit). To remark, as the Government does at para 2.140 (White Paper), that “it is not the case that everyone is entitled to a particular outcome in litigation” fails to grasp the elementary feature of the rule of law, namely,that, where the law prescribes particular rights and responsibilities, that is precisely what people are entitled to. Legal Aid, Sentencing and Punishment of Offenders Bill Article 6 ECHR and clause 9 of the Bill 8. Indeed, we may have real problems in terms of compliance with the demands of Article 6 of the European Convention on Human Rights. I develop the arguments in an article to be published in Family Law in September. The Government will contend that Article 6 compliance is assured by the availability of “exceptional funding” under clause 9, to be dispensed where necessary (or appropriate) to avoid a breach (or risk of breach) of the UK’s Convention obligations. However, it seems at best inefficient to depend on individual determinations that legal aid is required for compliance with Article 6 when it is possible to identify whole classes of case likely to require legal representation and so which should be brought within scope by amendment of Schedule 1 to the Bill. 9. Following Airey v Ireland (6289/73) (1979–80) 2 EHRR 305, the basic question is whether the individual would be able to represent his or her case “properly and satisfactorily” — if not, legal aid for legal representation will be required under Article 6(1). Airey and related case law sets out a series of factors to be weighed in answering that question, including: a. whether this particular individual, given his or her educational attainment, intellectual capacity, knowledge and experience, would be able to cope as a LiP with: i. the procedural rules and substantive law applicable to the case ii. if necessary, examining and cross-examining witnesses iii. if necessary, handling expert evidence b. the issues at stake in the case, bearing in mind that i. “marital disputes often entail an emotional involvement that is scarcely compatible with the degree of objectivity required by advocacy in court” (Airey, para 26), thus diminishing the individual’s ability to cope with the issues listed immediately above, and that ii. the issues in a family case, which “regulates the legal relationship between two individuals and may have serious consequences for any children of the family” (McVicar v UK (46311/99) (2002) 35 EHRR 22, para 61), are regarded by the Strasbourg Court as more important than issues at stake in some other types of case (in that context, the protection of reputation in defamation actions) The research on LiPs discussed above usefully highlights the difficulties that many individuals experience in representing themselves; those difficulties are only likely to worsen as the new influx of family court LiPs arrives. I shall highlight two particular categories of case which might be said, as a class, to qualify under Article 6 for legal aid such that appropriate amendment should be made to Schedule 1. 10. First, cases where children are parties to family proceedings under rule 16.2 of the Family Procedure Rules. Sched 1 para 13 of the Bill ensures that legal aid will be available for the child’s representation, yet no provision is made for the parents. These cases are necessarily highly complex and sensitive, featuring for example: serious allegations of abuse of the child (now covered to some extent by clause 11—though see further below); complex medical or mental health issues or other unusually complex issues requiring determination; intractable disputes over residence or contact, including cases of irrational but implacable hostility to contact; international complications not involving child abduction; contested DNA-testing issues. These sorts of cases bring special and difficult procedural and logistic demands, in terms of marshalling evidence, examining and cross-examining expert witnesses, and so on. Indeed, in some cases the relevant complexity will be the parent’s own mental health. It will be immediately apparent that any or all of these factors quickly bring a case within the scope of Airey. It is therefore highly arguable that Article 6 demands that legal aid should be straightforwardly available for all parties to rule 16.2 cases, not just the child, and that this paragraph of the Bill should be amended accordingly. Parents and other adult parties in these cases should not be put to the—possibly unrepresented—burden of having to argue the case for exceptional funding in such situations. Nor should the vulnerable children involved in such cases have their welfare potentially prejudiced by the delay that may result from one parent representing him/herself in the case. 11. Second, cases falling under Sched 1 para 10-11 of the Bill, where (alleged) domestic or child abuse has triggered legal aid for the (alleged) victim/person seeking to protect the child in relation to family matters not directly concerned with that abuse (cf Sched 1, para 9 of the Bill). Crucially, no provision is made for the other party to be represented. Article 6 requires that each side must be “afforded a reasonable opportunity to present his or her case under conditions that do not place him or he at a substantial disadvantage vis a` vis the adversary” (Steel and Morrisv UK (68416/01) (2005) 41 EHRR 22, para 62). Although not a criminal charge, a finding of domestic or child abuse can have devastating effects on an individual and the case for support for legal representation for eligible individuals is as strong as it is for serious criminal cases. It is not yet clear what cases will fall within para 10-11: regulations will presumably prescribe the “triggers” that will provide sufficient evidence of relevant abuse to qualify cases for legal aid; see comments at para 13-14 below. But however defined, cases falling within these categories will commonly be very difficult emotionally; may require the examination and cross-examination of witnesses, including expert witnesses; and may call for important findings of fact to be made about detailed aspects of (alleged) perpetrators’ behaviour going beyond matters already determined in any prior criminal or injunctive proceedings. Even putting aside the Legal Aid, Sentencing and Punishment of Offenders Bill deeply undesirable prospect of unrepresented (alleged) perpetrators cross-examining their own (alleged) victims (a practice specifically barred in the criminal context), this would appear to be another class of case in which legal representation for all parties to the case is called for under Article 6. AbuseC ases 12. Having discussed the question of legal aid for (alleged) perpetrators at para 11 above, I shall touch briefly on: a. the definitions of abuse b. the triggers for evidencing abuse. 13. Definition of abuse: It is surprising that the definition of domestic violence in Schedule 1 para 10 of the Bill, and of child abuse in para 11, do not correspond with those widely used elsewhere. In its recent decision in Yemshaw [2011] UKSC 3, the Supreme Court noted that the ACPO defintion has been used “to support delivery across government and its agencies through a common understanding of domestic violence” (para 24, quoting Home Office documentation). There seems no reason not to adopt that definition here, not least given that the “triggers” for evidencing domestic violence (not set out in the Bill) are likely to derive in part from the activities of agencies that use the ACPO test: the test in the Bill itself must be no narrower, or cases which it is intended to cover will be excluded from scope. Similarly,it is curious that para 11 does not mirror the concept of “significant harm” in s 31 Children Act 1989, which importantly includes the risk of harm arising from seeing or hearing the ill-treatment of another. A proliferation of legal definitions of the same concept is unhelpful, and these paragraphs of the Bill should be amended accordingly. 14. Evidential triggers: Key to the operation of these paragraphs will be the “triggers” by which abuse will exclusively be evidenced, presumably to be set out in regulations. The Government’s suggested list of triggers, amended from Green Paper to White Paper (Cm 7967, from para 4.64; Cm 8072, Annex A from para 34) are insufficiently wide-ranging. Evidence from the British Crime Survey about the various sources of help to which victims turn is crucial here. Very many victims approach neither the criminal nor civil justice system, so triggers based exclusively on these will not cover a huge proportion of victims. Inclusion of the MARAC is welcome, but will not catch a large additional number. Consideration should be given to additional ways of evidencing abuse, including evidence from health visitors, GPs, refuges, a mediation assessment, etc. It would also be advisable for the Director of Legal Aid Casework to have a sweep-up category: “any other circumstances in which the Director is satisfied that…”. Where criminal convictions are used as the trigger, a spent conviction should still count: the spent conviction regime does not apply in relation to certain applications to work with children, and similarly should have no application here. As to civil orders, it should be enough that a civil order has been in force at any point in the last n months, not simply put in place in that time. Moreover, the current suggestion of 12 months is too short a period: the need to bring further legal proceedings in relation to the family may well trigger post-separation violence, even some years since the last injunction expired. FinancialR emedyC ases 15. It is not clear why Schedule 1 para 11 provides no legal aid for proceedings in relation to financial remedies, in particular for the benefit of the child (under s 15/Sched 1 Children Act 1989 or equivalent provisions of the matrimonial/civil partnership legislation), but also for the direct benefit of the child’s primary carer under the matrimonial/CP legislation. Financial security, particularly in the matter of accommodation, is essential to the child’s welfare in abuse cases. The Bill should be amended accordingly. 16. The creation of “orders for payment in respect of legal services” in matrimonial and civil partnership proceedings is welcome: clauses 45 et seq. However: a. this should extend to financial proceedings for the benefit of children (esp under s 15 / Sched 1 Children Act 1989), and b. legal aid should be available to make the application for this order. Ancillary relief is far from straightforward. The Government “accepts that certain features of private family law, and particularly ancillary relief cases, may be complex in some instances. However, we do not consider that these issues are routinely as complex as other areas, and legal aid will remain available for exceptional cases where it is required [under article 6]” (Cm 8072, Annex B, para 15). But these cases need to be viewed from the perspective of the individual litigant who has no familiarity with ancillary relief cases, or even with basic financial management. Many cases are not especially complex as ancillary relief cases go, but it may nevertheless be impenetrable by someone who has never had to deal with anything like this before (potentially raising Airey issues, see para 9 above). This is also, of course, an argument for legal aid to be made available for ancillary relief cases as a whole, not just for these orders to cover the costs of legal services. Legal Aid, Sentencing and Punishment of Offenders Bill Lawyers as negotiators and drafters, not just litigators 17. Indeed, as noted at para 4 above, empirical evidence shows that lawyers play a central role in settling cases. Note also the substantial majority of ancillary relief orders made by consent, ie based on the parties’ agreement, not the product of contested litigation.186 Given the relatively limited capacity of the mediation sector, the vast bulk of these will be the product of lawyer-led settlement. The summary removal of lawyers from the system will have highly negative effects. Many of the cases that lawyers currently handle either are not suitable for mediation or will attempt mediation unsuccessfully, as the Government accepted in its evidence to the Justice Select Committee’s recent inquiry into the Operation of the Family Courts (quoted at HC 518-I, para 155). Yet the Government makes no provision for such clients, save to offer the uncertain possibility of exceptional funding on a case by case basis under clause 9—or to let them act as litigants in person. It may be that a large number of cases will be found to qualify for exceptional funding—in which case the new Director will find that he has an onerous caseload of exceptional funding applications. Meanwhile, as the Bill stands, eligible clients capable of settling quickly with lawyers’ assistance will — quite artificially—have to be sent off at the taxpayer’s expense for mediation that they do not need, simply in order to release a small amount of funding towards very basic legal advice and assistance to prepare the consent order necessary to achieve finality of outcome (particularly in financial cases). It would be far more sensible to cater for all of these eventualities by funding lawyers’ out-of-court services, with or without mediation, directly from the outset. The Bill should be amended accordingly. July 2011 Memorandum submitted by Legal Services Commission (LA 46) At my appearance before the Legal Aid, Sentencing and Punishment of Offenders Bill Committee on Tuesday 12 July 2011, I committed to provided further information covering: 1. the percentage of positive outcomes for legal aid Social Welfare Law (SWL) cases, and, 2. the proportion of people receiving legal aid funding for SWL cases who are female, or have a disability. Please find attached, under cover of this letter, two spreadsheets containing this information. For 2. I have also provided details of the proportion of people receiving legal aid who are BAME. The Legal Services Commission (LSC) defines SWL as cases in the: Community Care, Debt, Employment, Housing and Welfare Benefits categories of law. The information provided is based on legal aid provider billing to the LSC in the 2009–10 financial year. There are a number of footnotes provided with the data, to aid understanding. There are a number of small differences between the information provided for civil representation at 1. and those previously published by the LSC in our 2009–10 Statistical Information Pack. This is due to the different times of data extraction from our systems. As well as an overall total for each category, I have also provided a breakdown to show: — Legal Help—advice and assistance about a legal problem, not including representation or advocacy in proceedings. — Civil Representation—legal aid that pays for a solicitor or barrister to speak on behalf of a client in court, if they are taking or defending court proceedings. This can be provided in a number of different ways. — Community Legal Advice (CLA)—a service established, maintained and developed by the LSC for the purpose of promoting the availability to individuals of (legal) services and in particular, for securing that individuals have access to services that effectively meet their needs, excluding services required to be funded by the Criminal Defence Service. I am copying this letter and attachments to Yvonne Fovargue MP, the member of the Committee who requested the information. July 2011 186 http://www.justice.gov.uk/publications/docs/family-matters-jcs-2009-chp2.xls, table 2.6 (tab 6). Legal Aid, Sentencing and Punishment of Offenders Bill Memorandum submitted by the Association of British Insurers (LA 47) The ABI’sO verarchingM essage We like what we have seen so far in the Legal Aid, Sentencing and Punishment of Offenders Bill but you need to go further and ban referral fees, bearing the following points in mind: 1. Fixed fees and hourly rates must be reduced accordingly in order for a ban to have any benefit for claimants and consumers. 2. A ban must be implemented properly to ensure that the problem doesn’t emerge elsewhere (bearing in mind the impending introduction of ABS’). 3. A ban is necessary to stamp down on fraudulent whiplash claims, which are becoming increasingly problematic. We also want to ensure that the detail of secondary legislation is carefully considered and that the timetables for implementation are realistic and aligned so that the “Jackson package” is implemented as Jackson LJ intended. KeyP oints — The ABI supports the Legal Aid, Sentencing and Punishment of Offenders Bill and is keen to engage and provide support to the Government, MPs and Lords as the Bill goes through Parliament. — The ABI does however want the Jackson reforms implemented in full and as a comprehensive package. The danger of not implementing all elements of Jackson is that a piecemeal approach could lead to unforeseen consequences. The most undesirable of these would be increased costs for insurers and claimants and increased premiums for consumers. — In particular the ABI want the Government to take action on referral fees which fuel the compensation culture and create unnecessary costs. A ban on referral fees is necessary to strike at the tactics of predatory CMCs and to reduce costs in line with the objectives of the Jackson Report. — The ban on referral fees should be introduced alongside a corresponding reduction in the level of fixed costs and guideline hourly rates. Fixed costs and solicitors’ guideline hourly rates currently take into account the costs of these referral fees and so if referral fees are banned there will be no need to have costs set artificially high as they are now. Removing referral fees and reducing solicitors’ costs will help to achieve the Government’s objective to reduce the costs of civil litigation. — The ABI has submitted its response to the consultation on ‘Solving Disputes in the County Court’ which again is broadly supportive of the Government’s proposals and particularly the expansion of the RTA Portal to a wider class of claims. The ABI is supportive of fixed costs regimes but these costs must be set at reasonable and sustainable levels. Why shouldR eferralF ees beB anned? — Referral fees should be banned as they contribute to disproportionately high legal costs without adding value to the service provided to the claimant. The current fixed costs in the RTA Portal (not including success fees) are £1200—with some referral fees reaching £900 the claimant lawyer is still making a net income of £300. If claimants are able to run claims at £300 for a profit the fixed costs already in place need to be reduced. — Removing the referral fees and lowering the current fixed costs and hourly rates will more accurately reflect the activity required to run these claims. Acquisition costs of 75% (in the above example) cannot be tolerated. — Fixed costs should be set to reflect the volume of work required when processing a claim. In general terms, the work required by a claimant solicitor for straightforward liability-accepted claims is the same for claims with a value of £5k or £25k. — Similarly, the guideline hourly rates recommended by the Advisory Committee on Civil Costs (ACCC) are fixed to include the “marketing costs” of claimant lawyers—ie referral fees. If referral fees are removed from the system then these guideline hourly rates can be reduced. As the ACCC acknowledges, defendant solicitors’ rates are typically 20-35% below those charged by claimant solicitors—enabling the payment of hugely disproportionate referral fees. — It is no secret that insurers accept referral fees. Competition law, however, prevents insurers from collectively agreeing not to receive referral fees—even if insurers did collectively stop receiving them this would not stop others, including claims management companies, police and trade unions, from doing so, continuing to inflate solicitors’ fixed costs and hourly rates. — Insurers have been accused of misusing their customers’ data—this is simply not true. Customer data is shared so that the insurer can assist claimants get the advice that they need. Legal Aid, Sentencing and Punishment of Offenders Bill — The LSB report on referral fees did not look at the issue of referral fees in the wider context. The scope of the LSB report was too narrow and the pool of 25 PI claimants interviewed by Vanilla Research (10 of which by telephone) far too small. The report disregarded the views of almost all of the respondents (including insurers and the Law Society) who disagreed with the analysis of the referral fee market by the LSB, even if they had differing opinions on referral fees in general. — Transparency does not solve the problem—if anything, the costs of regulating it will mean that additional costs are layered into the system. The LSB’s decision to pass the buck to individual regulators means that referral fees can continue to drive up costs elsewhere in the claims process even if, for instance, the SRA were to take steps to ban the payment of referral fees by and between solicitors. — Even the lawyers—who have very different priorities to insurers, eg the Law Society and the Bar Council—agree that referral fees should be banned. — The recent media coverage has framed the issue as the “uncovering of a scandal”, but this issue has been a concern of the ABI’s for a long time. We have been calling for a ban for months—our response to the LSB consultation submitted in December 2010 was clear in this respect. July 2011 Memorandum submitted by Andy Brodie, Solicitor (LA 48) 1. I am a solicitor acting for housing associations (HAs) in possession and disrepair cases. My legal experience is below: (a) 1997–01 Welfare Rights Adviser in Citizens Advice Bureaux. (b) 2001–04 Welfare Rights Adviser at regional advice centre. (c) 2004–05 Trainee Solicitor advising tenants on housing law at regional advice centre. (d) 2005 Qualified as Solicitor. (e) 2006–07 Solicitor at national housing advice charity. (f) 2007– Solicitor acting for landlords in Legal 500 firm. 2. This is a personal submission based on my experience in social security and housing law representing or opposing citizens receiving legal aid. It is not on behalf of any employer or client. It concerns legal aid scope for social security/ housing and the single telephone gateway. 3. Both social security and housing law concern redress for citizens against public authorities. In social security, this is challenging decisions by the DWP, HMRC or Local Authority (LA). In nearly all housing cases it concerns LAs or HAs. Few cases arise against private landlords as nearly all such tenancies are Assured Shortholds. These can be ended automatically under the accelerated possession procedure if court paperwork is completed correctly. 4. The main avenue of redress is litigation through social security tribunals or the county court. Providing legal aid to enable such redress will be even more important if proposals in the Localism Bill to remove direct access to the Local government Ombudsman (LGO) become law. The LGO provides an alternative to litigation in challenging bad practice or decisions in Housing benefit/ Council Tax Benefit decisions, LA housing disrepair and homelessness. Scope—SocialS ecurity 5. I oppose the removal of social security cases from scope as their cost is modest and claimants will be denied justice. 6. Social security litigation takes place in an inquisitional environment. Time spent representing claimants there is already unpaid by legal aid. Under the current system, most appeals succeed and cost legal aid a fixed fee of about £170. This seems remarkable value. 7. Most cases concern illness/disability, DLA/ESA and how much personal care claimants need or what work-related activities they can perform. The usual appeal ground is that the official medical assessment has underestimated the claimant’s problems, and reason for success medical evidence obtained by the claimant tailored to the legal assessment criteria. 8. Unrepresented claimants are likely to be denied justice. They will not appreciate the highly technical award criteria, and be unable to obtain and bring tailored expert evidence to the tribunal. The tribunal will be deprived of such evidence. The inquisitional nature of the tribunal will not be able to overcome this, as it will have to weigh the expert evidence of the official medical assessment against the claimant’s non-expert evidence. Legal Aid, Sentencing and Punishment of Offenders Bill 9. Many appeals concern mental health alone or in combination with physical illness/disability when the effect of physical problems has created mental ones. One reason is that mental health issues are less unmistakable than say, a broken leg, and disputes and appeals more likely to arise. There is a contradiction in denying help for such appeals, as the ability to run one successfully denies the severity of the problem. 10. Removal from scope will also severely impact on CABx etc, who rely on such funding for much of their income. At worst this will lead to closure, and at best lead to dilution of supervision of volunteers by professional expert staff. It goes against aspirations to increase the involvement of local community organisations in service delivery. Scope—Housing 11. I oppose removal of Illegal eviction damages actions. These are unusual, but provide a deterrent to criminal acts by landlords. The alternative deterrent is prosecution by LAs. extremely rare in my experience and often requiring cajoling and threats of a complaint to the LGO. With restrictions on LA spending, this will not improve. In any case the cost to public funds is likely to be small, as most such actions will succeed and include award of legal costs. 12. I support the restriction of disrepair cases to the most severe, if this is linked to availability of alternative redress via an effective complaints procedure concluding with an ombudsman. This would prevent abuses I currently see, where low value disrepair cases are pursued via litigation even though a complaints/independent ombudsman procedure is available. This results in unnecessary legal costs claims against HAs. I think the restriction in scope should apply to cases where there is direct access to an independent ombudsman. 13. I support the continuing of legal aid for most possession cases, as tenants’ homes are at stake. There is scope for considerable savings if straightforward cases were moved to an inquisitional tribunal similar to social security tribunals. This would also be more suited to the usual participants—housing officers and tenants. Other cases that remain in the adversarial process of the county court should have simpler pre-trial directions. MandatoryS ingleT elephoneG ateway 14. This is potentially the most worrying proposal. If citizens cannot navigate this, then effectively everything is out of scope. Difficulties in tenants accessing representation delay court hearings and increase expense for HAs. There were considerable difficulties and hardship to claimants over several years, when the DWP introduced similar arrangements for new claims and Social Fund applications, as documented in reports produced by the CAB. It also contradicts LSC’s concerns about “referral fatigue” that led to the requirement for providers to provide multiple areas of social welfare law. July 2011 Memorandum submitted by the Mayor of London (LA 49) Introduction 1. The Mayor of London welcomes the opportunity to present written evidence on the Legal Aid, Sentencing and Punishment of Offenders Bill and fully supports the Bill’s objectives to reduce offending and repeat offending and increase the benefits which will flow to victims. 2. The Mayor recognises the need to balance a range of interests to ensure the safety and security of law- abiding citizens. He has made clear his determination to reduce youth offending and prevent reoffending by those convicted of crime. In addition the Mayor is taking action to tackle and reduce violence against women and girls. 3. The Mayor fully supports the proposals to improve transparency, remove centralised targets and enable local areas to establish effective local partnerships which cover both criminal justice agencies and other statutory and voluntary agencies to deliver effective solutions. 4. He does however, have some concerns about the Bill which are given below. Summary 5. The Mayor is in general supportive of the proposals within the Bill and the principles set out including: — Intervening early in the lives of children at risk and their families. — Developing parenting skills. — Avoiding needless escalation of young offenders within the criminal justice system. — Providing local agencies greater powers to respond to offending to avoid needless escalation within the criminal justice system. — Reducing the use of remands. Legal Aid, Sentencing and Punishment of Offenders Bill — Payment by results and providing local agencies greater incentives to reduce the demand on the criminal justice system. — The greater focus on victims needs is welcome along with proposals to increase funding to victims services from prisoners’ earnings. 6. The Mayor would however, wish to see additional provisions within the Bill: — Tougher punishments for using a dangerous dog as a weapon, in line with the sentences on knife crime. — Tougher penalties for those who are convicted for kerb-crawling offences such as higher monetary fines and amendments to legislation to facilitate prosecution. — The introduction of a court power to enforce sobriety for an offender who has been convicted of alcohol-related crime and violence. — The Mayor considers that all forms of hate crime are extremely serious and have a divisive effect on communities. He would welcome further consideration of measures to ensure that hate crime and incitement to hatred is treated with appropriate seriousness. In particular, that protection is afforded to homophobic crime; especially due to the recent fly-posting incidents in Tower Hamlets. Legal Aid 7. The Mayor is concerned that despite recognition in the Bill of the need to ensure that victims of domestic violence are eligible for legal aid in private family law matters, the majority of women who have experienced domestic violence will be ineligible due to the restrictive evidence that they will be required to present. 8. Research tells us that as with all forms of violence against women, there is significant under-reporting of domestic violence by victims, therefore, the requirements for ongoing criminal proceedings or evidence of a referral to a Multi-Agency Risk Assessment Conference as criteria for eligibility will make it impossible for the majority of women experiencing domestic violence to access legal aid.187 To ensure that all victims of domestic violence are eligible for legal aid, the evidential criteria should be widened to include evidence from specialist domestic violence services, health, housing and social services. Sentencing and Punishment 9. The Mayor has concerns over the proposed extension of the use of out of court disposals especially the conditional caution. This is only suitable for the police to use for low-level offences. In addition the Mayor is concerned to ensure that the potential reductions to court cases does not lead to further red tape for the police. If a conditional caution requires a return to court, the police will be responsible for establishing the necessary evidence. There is no reduction of the burden on the police—in fact there will almost certainly be an increase in the burden on police resources under this proposal, with little benefit. 10. The Mayor welcomes the Government’s proposals to amend the legislation so that Penalty Notices for Disorder can be alternatively used to pay for an educational course such as alcohol brief interventions. Sentencing and Punishment of Young Offenders 11. Restorative justice has shown it can have a powerful reforming effect on young offenders, but evidence shows this is particularly the case where victims are involved in the restorative process. Given the need for consistency in the justice system and the understandably inconsistent nature of victims of crime, the Mayor envisages fundamental problems in increasing the use of restorative justice without further explanation of what this means in practice. Currently most victims do not want to be involved at all. The Mayor understands that victim attendance at Referral Order Panels (that were created with victim involvement in mind) is staggeringly under 10%. He would welcome further detail on the Government’s proposals to increase restorative justice, especially in relation to referral orders. 12. The Mayor welcomes the introduction of a more rigorous test before under 18 year olds can be remanded to youth detention accommodation. It is important that the new arrangements make sure the option of remand for young people who are unlikely to receive a custodial sentence is only used in exceptional circumstances. 13. The Mayor also welcomes the intention to simplify out of court disposals and to prevent the needless escalation of young people in the criminal justice system. However, if there is greater discretion provided to front line staff to deal with youth crime, then that needs to be matched by the right support and knowledge to confidently make those decisions. This is especially relevant for conditional cautioning which has a low level of current use in London. 187 The 2008–09 British Crime Survey, 42% of victims of all violent offences reported the incident to police, compared with 16% of domestic violence victims. [Home Office Crime in England and Wales 2008–09, Table 2.09; Homicides, Firearm Offences and Intimate Violence 2008–09, Table 3.18]. Legal Aid, Sentencing and Punishment of Offenders Bill Recommendations for improved outcomes for young people 14. Education for young offenders should be prioritised as an effective intervention in its own right. Better, formalised partnership working between local authorities, the courts, education providers and the secure estate will ensure the attendance and educational attainment of young offenders is central to all sentences. 15. Commitment should be made to continue and improve resettlement support for all young people leaving custody.The Chief Inspector of Prisons reported recently that only one in three young offenders were given suitable accommodation, training or employment placement on their release thereby reducing their chances of successful rehabilitation. 16. The Mayor recommends a more developed process for feedback to sentencers from Youth Offending Teams on what happened to the young offender, as this in turn is likely to provide them with greater confidence—especially in giving out more intensive community sentences in place of custody. 17. In order to ensure that young people in custody get the best chances of successful rehabilitation, the Mayor strongly believes that more must be done to separate those who are motivated to change from more entrenched young offenders (as in Project Daedalus, which provides a separate unit at Feltham Young Offenders Institute). 18. For the same reasons, he also wants to see 15-year-olds placed on different wings to older boys in custody and those remanded in custody placed elsewhere to those serving custodial sentences. MayoralP riorities Tackling serious youth violence 19. The Mayor has made tackling serious youth violence the number one priority of his administration. In November 2008 he launched “Time for Action”, which aims to address the complex long-term root causes of teenage violence by improving the opportunities available for young Londoners. 20. Time for Action is now well established and includes a number of targeted projects such as Project Daedalus (a separate specialist unit at Feltham YOI with enhanced resettlement for boys identified willing to change and resettlement support available to all young offenders), Project Titan (increasing the number of volunteers and community involvement in tackling serious youth crime), and Project Oracle (providing the tools for practitioners and commissioners to identify and understand what really works). 21. The Mayor sees the advent of the Mayor’s Office for Policing and Crime as an opportunity to build on the success of Time for Action, as this office, together with the London Crime Reduction Board, offers an even more effective and joined up approach to Youth Justice within London than ever before. Violence Against Women 22. The Mayor has developed an integrated approach to tackling violence against women and girls (VAWG). He launched his VAWG strategy “The Way Forward” in March 2010 with the over-arching focus being to reduce and prevent violence. 23. The Mayor believes that getting tougher with perpetrators will not only offer the necessary protection and support to victims, but will also stop violence from occurring in the first place. Tough action with perpetrators sends a clear message that there is no place for such heinous crimes in our society and will deter perpetrators from re-offending Clamping down on those who pay for sexual services with exploited persons 24. Research suggests that interventions and penalties that are more punitive are most likely to deter men from paying for sex. The Mayor would recommend tougher penalties for those who are convicted for kerb- crawling offences such as higher monetary fines which could then go towards support and exiting programmes for women involved in prostitution; Anti-Social Behaviour Orders (or the proposed new measures such as criminal behaviour orders and crime prevention injunctions) and; publication of names upon conviction. Currently, in some areas, those convicted for kerb-crawling offences are given the option of paying to participate in an educational programme as an alternative to court. However, research shows that educative approaches to kerb-crawling have demonstrated attitude change but not changed behaviour. Research also shows that educational programmes do not serve to deter men from paying for sex/kerb- crawling. Whilst the Mayor recognises that there may be some value in educational programmes, these should not be used instead of, but in conjunction with other, more punitive sanctions. 25. On 1 April 2010, section 14 of the Policing and Crime Act 2009 came into force. Section 14 introduces section 53A of the Sexual Offences Act 2003 creating a new strict liability offence of paying for sexual services with a woman in prostitution who is subject to exploitative conduct. Since its inception, there have been no prosecutions and few arrests. One of the difficulties in enforcing the legislation is that it relies on gathering adequate evidence to prove that there has been exploitation, force or coercion of the person selling sex. It can take longer than six months to gather this evidence, particularly where it may rely upon the prosecution of offenders first for other more serious offences relating to trafficking or the control of prostitution for gain. However, as the offence of paying for sex is a summary offence only, the case must be Legal Aid, Sentencing and Punishment of Offenders Bill taken to court within six months. This makes it extremely difficult for the appropriate evidence to be gathered in time. The Mayor would urge amendments to this legislation to facilitate enforcement. For instance, it would help to extend the deadline for the case to be taken to court from six months to one year or to increase the severity of the offence so that it is not a summary offence. Dangerous dogs legislation 26. Addressing the proliferation of weapon dogs in London is a key priority for the Mayor as part of his pledge to reduce crime and make London safer for all. 27. Tougher punishment is needed for: using a dog as a weapon; having a dog that is out of control; or owning a banned breed. The use of a dog as a weapon should bear the same sentence as a knife and be covered by the new provisions in the Bill. 28. Penalties should relate to owning an illegal breed and the circumstances of the incident. Where the dog is not illegal but is considered dangerously out of control, the penalty should relate to the extent of the incident. 29. The provisions in the government’s Gang Injunctions policy which were introduced in the Policing and Crime Act 2009 and launched in England and Wales in January 2011 is not a bigger enough deterrent for using dogs as weapons, particularly in a gang setting. Compulsory Alcohol Sobriety Scheme 30. London has the highest rate of alcohol-related crime in England. The Mayor believes that more needs to be done to tackle alcohol related violent crime and anti-social behaviour using interventions which influence behaviour change and reduce the culture of binge–drinking. 31. The Mayor wishes to introduce a compulsory alcohol sobriety scheme to tackle the culture of binge- drinking and other crimes that have strong links to alcohol such as domestic violence. The scheme would be provided as an option for the courts in the form of suspended sentences, community sentences or part of a release license. Compliance would be achieved through daily testing and non-compliance could lead to a swift arrest, return to court and imposition of sanctions. July 2011 Memorandum submitted by Paul Fulcher (LA 50) The present proposals by the Ministry of Justice to abolish the recovery by successful claimants of the success fees on “no win no fee” libel and privacy cases and the recovery of “after the event” (ATE) insurance premiums represents a damaging and dangerous attack on access to justice for ordinary citizens of modest means. Inevitably these reforms will irrevocably shift the balance of power to an even greater extent in favour of large media corporations (often foreign owned) as against the individual. Fewer lawyers will be able to take the risk of acting on “no win no fee” agreements. The ATE insurance market in this area of the law will disappear. These reforms are contained in the Legal Aid, Sentencing and Punishment of Offenders Bill 2011, which has already had a second reading in the House of Commons and is in danger of being passed without proper scrutiny or debate. MPs may not fully appreciate the implications of these changes for their constituents, conditioned as they are by the incessant media contention that the libel and privacy laws are the plaything of undeserving celebrities and footballers. Instead of the loser paying as now, the successful claimant will have to fund a significant proportion of his or her own costs out of any damages—and contrary to common perception damages in libel and privacy cases are generally very modest. The absence of ATE insurance will prevent most claimants from taking action against the media, unless they are willing to risk their home and face bankruptcy, in the event the case is lost. That suits the tabloid press, because there will be no remedy for the ordinary individual—a great saving to media corporations but at great cost and a terrible injustice to the public. Libel and privacy claims will once again become the preserve of the very rich. These changes are being pushed through at a time when the behaviour of the tabloid press is under unprecedented scrutiny focusing on allegations of phone-hacking and the devastation caused to many individuals’ lives by privacy invasions and fabricated stories. Many are concerned that what is presented as a battle for freedom of speech is really about preserving the profits of large media organisations. The events of the last few days have changed the landscape and matters have been reported which parts of the press would prefer to have remained buried. With all the furore generated, parliament will be debating a number of issues in the near future, including: — The phone hacking scandal. — Libel law reform. Legal Aid, Sentencing and Punishment of Offenders Bill — Privacy law reform. — The use of so-called super injunctions. — Civil court funding and conditional fee agreements. Of all these issues, the last (which looks the most dull) is in fact the most urgent and serious and reforms will have the most dramatic effect if parliament gets things wrong—by taking the media campaign line— and following the Jackson proposals. For many years now, ordinary individuals have had access to the courts (free of charge, and at no cost to the state) in publication proceedings, through the use of conditional fee agreements (CFAs). There are many examples of individuals who have benefited from using CFAs. These include: — The parents of murdered schoolgirl Milly Dowler. — Most of the claimants in the phone-hacking litigation. — Kate and Gerry McCann. — A Muslim bus driver, falsely accused by The Sun of forcing his passengers off his bus so that he could pray and which implied that he might be a terrorist. Included grossly intrusive photographs and (online) video footage of him at prayer. — The senior social worker in the Baby P case falsely accused in The Sun newspaper in 80 articles of being “criminally negligent” with regard to her care for Baby P. — A Danish radiologist sued by US conglomerate GE Healthcare over allegations concerning one of its products. — A comprehensive school teacher, falsely accused in an internal memorandum of inappropriate contact with female pupils. — A taxi driver whose photograph appeared in The Sun newspaper, falsely depicting him as a convicted paedophile. — A charity falsely accused by The Daily Express of improper use of charitable donations. — An unemployed woman falsely accused by a regional newspaper of attempted murder. — A local councillor (disabled and on incapacity benefits) who suffered serial libel and harassment over several years by a multi-millionaire businessman who accused her of theft and corruption. — A management consultant whom a local newspaper falsely alleged had been accused of raping a child. — A junior PR worker whose privacy was grossly infringed when the Evening Standard published a photograph of and named her, wrongly stating that she had been raped. — An unemployed man who was the subject of false statements on ITV concerning a medical condition. — An army officer falsely accused by The Guardian of being responsible for the abuse of prisoners. — Elaine Chase, a community nurse falsely accused by The Sun of hastening the deaths of 17 terminally ill children by over-administering morphine. — A family whose son’s suicide was invasively reported in a national tabloid. — Families of soldiers killed on active service, whose phones may have been hacked at a time when they were grieving for their loss. None of these individuals would have had access to the courts before the reforms of the Access to Justice Act 1999 which encouraged the use of CFAs to relieve the state of the burden of providing legal aid funding. Until the last week or so, the press has been getting away with claims that our privacy laws are simply made up by judges against the will of parliament and our libel laws are a joke. Recent developments mean that few now hold those views or at any rate are prepared to print them. Recently, three costs judges in the senior court costs office commented: “. . . The CFA has undergone many changes and improvements since implementation. Having taken a decade for these to have been achieved, now is not the time to make radical changes which give no guarantee that access to justice at reduced cost will be delivered” and said many of Jackson’s proposals—most of which have been adopted by the MoJ were “inappropriate”. Other opposition from the Law Society and Bar Council has been ignored by the MoJ. CFA costs have, of course, been a big press target. A CFA enables a lawyer to conduct a case without charging their client any fees, recovering their costs from the losing party only if they are successful. According to the usual rule the loser pays, and must pay the success fee. The lawyer takes the risk (which can be substantial) that if his or her client does not win, then he or she will not be paid. This imposes a natural filter on the claims which are pursued. They tend to be cases with good merits and prospects of success. Legal Aid, Sentencing and Punishment of Offenders Bill But for CFAs many cases of media abuse (the recent phone-hacking scandal being the major and current example) would not have been exposed. Some newspapers have a habit of dragging out cases for years to deter individuals from pursuing claims, taking advantage of the vast disparity in resources between the press and the claimant. In the phone-hacking scandal it took the News of the World four years to admit the scandal was not limited to just one rogue reporter. It did so only when it was faced with overwhelming evidence obtained through civil court action largely funded by lawyers acting for clients under CFAs. There are already strict controls on costs through the courts (as the costs judges have rightly said) and there is no justification for implementing the government’s interpretation of the Jackson costs proposals in publication cases, as these will have devastating impact on access to justice. There is now common agreement that the Press Complaints Commission in its present form has failed, some regard it as a “toothless poodle”. It will be some time before the PCC is replaced with a body which can address any of these issues. Lawyers acting under CFAs currently provide the only effective form of regulation against press abuses for the individual of modest means, ie for holding to account serious abuses by the press of their considerable power. Unless and until there is proper independent press regulation in place, CFAs and the availability of ATE insurance must be preserved and the legal aid bill must be amended. July 2011 Memorandum submitted by the Children’s Legal Centre (LA 51) A. About theC hildren’sL egalC entre 1. The Children’s Legal Centre (CLC) is a unique, independent national charity staffed with experts on law and policy relating to children and young people. The Centre works in the UK and abroad to promote the implementation of children’s rights through the provision of direct legal services, the publication of free legal information online and in legal guides, research and policy development, law reform and training and consultancy. Founded in 1981, the CLC has almost 30 years experience in providing legal advice and representation to children, their parents and carers and professionals throughout the UK. The CLC is funded by grants from central government, UNICEF, charitable trusts, and LSC contracts. B. Summary ofS ubmission 2. The Children’s Legal Centre (CLC) is extremely concerned that the Legal Aid, Sentencing and Punishment of Offenders Bill, if passed in its current form, would leave many vulnerable children and young people unable to access legal services to enforce their rights and gain access to services and support that they need and to which they are legally entitled. 3. We have endorsed the submissions to the Public Bill Committee by Just Rights (the campaign for legal services for children and young people) and the Refugee Children’s Consortium (which the Children’s Legal Centre currently chairs). It is our view that children and young people should not be denied access to legal services in any area of scope, and we support the submission by Just Rights that children and young people aged under 25 should be a distinct category within the “included” cases in Schedule 1; and that children and young people under 25 should always be treated as “exceptional cases”. 4. One of our main areas of work is the provision of legal services on education and in private family law matters, and we feel it is necessary to submit evidence specifically on these issues. Currently, children must rely on parents or carers to enforce their rights or protect their interests in these areas. Where parents are denied access to legal services, therefore, children may be unable to ensure that their rights are protected. 5. We therefore believe that legal services for education matters should not be restricted to matters concerning special educational need and that section 2 of Schedule 1 should be amended to include “civil legal services provided in relation to matters concerning special educational needs; school exclusions; school admissions; bullying in the field of education; refusal to provide education; and claims for negligence in the provision of education.” 6. It is also our view that Schedule 1 of the Bill should be amended to include legal services for parties in private family law matters in cases which relate to the care of children by adults. C. Removal ofL egalA id forE ducationM atters( exceptS pecialE ducationalN eeds) 7. The CLC is extremely concerned about the proposal in the Bill to remove access to services funded by legal aid for education matters (except for special educational needs). We agree that legal services for special educational needs (SEN) matters should remain in scope. The SEN system is complex and difficult to negotiate, and many parents or carers will require access to legal services that they may not be to afford without legal aid funding, to secure their child’s rights to a suitable education. Legal Aid, Sentencing and Punishment of Offenders Bill Proposed amendment to the Bill 8. In our view, Schedule 1, section 2 should be amended accordingly: Schedule 1 Education matters 2(1) Civil legal services provided in relation to the following matters: special educational needs; school exclusions; school admissions; bullying in the field of education; refusal to provide education; and claims for negligence in the provision of education. Arguments in favour of this proposed amendment Objective importance of legal services for educational matters 9. The Bill currently excludes legal services for all education matters, with the exception of SEN, from legal aid funding. This works on the presumption, as set out in the Government’s Green Paper, Proposals for Reform of Legal Aid in England and Wales, that education matters are not sufficiently objectively important to attract legal aid funding. We disagree with this proposition. The removal of legal aid funding for legal services in all education matters, with the exception of special educational needs, will have an extremely detrimental impact on children, young people and families and will mean that many children will be unable to enforce their right to a suitable and appropriate education. Lack of access to education can have a very damaging impact on children and young people, impairing their ability to develop, achieve, and gain important life skills and will increase “downstream” government costs in other areas, such as welfare benefits, community care and criminal justice. 10. For example, legal aid is currently available for legal services in appealing school exclusions. The decision to permanently exclude a pupil can have both immediate and longer-term damaging consequences to the lives and future opportunities of the child who is excluded. Exclusions are regarded as a significant blemish on a child’s school record, and can impair their future educational achievement.188 Children who have been permanently excluded from school may experience significant gaps in their education, may receive only part-time education for a significant length of time,189 or may stay long-term in a Pupil Referral Unit (many of which are under resourced),190 upon being unable to secure an alternative placement expediently.191 In the longer-term, school exclusions can negatively impact on a child’s educational attainment and future aspirations, and result in social exclusion and disengagement. Exclusions can also cause significant costs to society—excluding a pupil may shift the problem of the child’s misbehaviour without confronting or addressing its causes, allowing for problems to persist rather than be resolved. Some students who are excluded never return to fulltime education and are more likely to come into conflict with the law. A report from Crisis stated that children who had been excluded from school were 90 times more likely to end up living on the streets than those who stayed in fulltime education and passed exams.192 Other research has found that prisoners were 20 times more likely to have been excluded from school.193 Owing to the serious consequences that permanent exclusions can have on children, their parents and society as a whole, it is highly important for a Head Teacher’s decision to exclude a pupil to be subjected to rigorous and independent review, and for a parent or carer to access legal services to ensure access to justice in this review process. 11. Removing access to legal aid for legal services concerning school admissions will have a disproportionate impact on particular groups of children, including, for instance, refugee and asylum- seeking children. Many refugee and asylum-seeking children find it difficult to secure school places, and in attain a high level of education, despite there being a clear statutory duty to provide suitable full-time education for all children of compulsory school age. This is due to a number of reasons, including: children arriving in the middle of the school year; schools’ reluctance to admit pupils who may have had little or no prior educational experience (and may have a detrimental effect on league performance); local authority reluctance to provide education when there are outstanding age assessment issues or immigration matters; bullying and racism; experiences of trauma and flight; high pupil mobility; and lack of language proficiency.194 It is essential that legal aid is available to ensure that local authorities meet their obligations and guarantee a suitable school place for all children in their area. 12. Bullying is very common in many schools across England. Research undertaken by Bullying UK in 2006, for instance, found that that, out of a sample of over 2,100 parents, 87% reported that their child had been bullied in the past 12 months, and 77% reported that their child had been bullied more than five 188 Angela Jackman, “Exclusions: Keeping the Balance” (2003) 153 New Law Journal 46. 189 Neville Harris, “Education law: Excluding the Child” (2000) 12 (1) Education and the Law 31, at p 37. 190 Ibid, at p 38. 191 Angela Jackman, “Exclusions: Keeping the Balance” (2003) 153 New Law Journal 46. 192 Crisis, Prevention is Better than Cure (1999). 193 Social Exclusion Unit, Reducing Offending by Reoffenders (2002). 194 See for example, Jones, C and Rutter, J (1998) “Mapping the field: current issues in refugee education” in Rutter, J and Jones, C (Eds). Refugee education: mapping the field, Stoke-on-Trent: Trentham; Refugee Council (2005). Daring to dream: Raising the achievement of 14 to 16 old asylum-seeking and refugee children and young people, available at: http:// www.refugeecouncil.org.uk/policy/position/2005/children.htm; and Doyle, L and McCorriston, M (2008). Beyond the school gates: supporting refugees and asylum seekers in secondary school. Refugee Council, Greater London. Available at http:// www.refugeecouncil.org.uk/policy/position/2008/inclusiveschools.htm Legal Aid, Sentencing and Punishment of Offenders Bill times.195 It is important that children and parents or carers have access to legal services at an early stage on legal avenues of redress for bullying. Bullying can cause many children to miss school for significant periods of time, or to withdraw from attending school completely. 13. It is also important that persons have access to legal services for claims involving school negligence. This is essential for ensuring that local authorities are held to account for failing to meet their duty of care to pupils. Difficulties for parents and carers in seeking redress without assistance 14. The Bill works on the assumption that parents/casers will be able either to represent themselves in education matters, unassisted, or pay for legal advice or representation. Research and our own experience with parents, shows that parents of children who require legal assistance in relation to education matters will not always have the capacity to represent themselves. Nor will they be able to afford legal advice and representation. For example, presenting a case to an Independent Appeal Panel (IAP) following a school exclusion can also be very difficult for some parents. IAP hearings are generally quite rigid, formal and adversarial in nature. The Council on Tribunal’s (now the Administrative Justice and Tribunals Council) 2003 report on exclusions and admissions appeal panels found that exclusions appeals are “akin to penal proceedings. Hearings are likely to be more adversarial in nature, and involve emotive issues.”196 Given the penal nature of these hearings, it is particularly important “for parents to have access to good quality specialist advice and representation, both in preparation for the hearing and on the day of the hearing to assist with the presentation of their case.”197 Anecdotal evidence collected through the involvement of the CLC in IAP hearings suggests that having access to quality legal advice in preparing for these hearings, given their adversarial nature, can help to ensure a parent’s access to justice in these hearings by enhancing their ability to present a case properly before the Panel. Legal advisors can assist in gathering evidence, preparing submissions and advising parents on relevant laws and guidance. Education cases are multi-faceted and interrelated 15. Restricting access to legal services in the field of education to special educational needs does not recognise that legal matters in educational provision are inter-related. For instance, children with special educational needs are over eight times more likely to be permanently excluded,198 and far more likely to be bullied199 than other students. At the Children’s Legal Centre, for instance, many of our clients who have legal issues in the area of special educational needs (under Part 4 of the Education Act 1996) also require legal services concerning school exclusions. Often, a school exclusion will be related to the school failing to fulfil its statutory obligations and provide adequate support to address a child’s special educational needs. Our educational negligence cases also often concern a school’s failure to meet their duty of care to children with special educational needs. Without amendment, the Bill will result in legal service providers being unable to address a child’s legal problems comprehensively and may lead to problems only being partially solved or going unaddressed. It may ultimately lead to vulnerable children being unable to claim their legal rights to an in education, and to missing the opportunity to develop to their full potential or on missing out on suitable education all together. Disproportionate impact compared to financial gain in excluding educational matters 16. The negative impact of the removal of legal aid from education matters—an inability for parents to secure the right to suitable and appropriate education for their children—is grossly disproportionate to the gain achieved in removing education from scope—a saving of less than £1 million (a very small proportion of the overall budget).200 Lack of access to education can have a very damaging impact on children and young people, impairing their ability to develop, achieve, and gain important life skills and will increase government costs in other areas, such as welfare benefits, community care and criminal justice. Access to legal services for enforcing education rights is required for the government to meet its international obligations 17. Access to legal advice and representation in education matters is essential for the Government to fulfil its obligation in international law to ensure that every child has access to quality education.201 The right to education must not only be available in legislation; children and parents must be able to access this right, and where it is being denied, they must be able to take legal action to enforce this fundamental right. It is unacceptable for the Government to propose leaving people who are without the independent means to pay for legal services in a position where they will be unable to enforce their child’s right to be educated. 195 Bullying UK, Adult Survey Results, available at: tp://www.bullying.co.uk/adults/National Bullying Survey 2006/ Adults.aspx 196 The Council on Tribunals, School Admission and Exclusion Appeal Panels: Special Report (2003), para 3.11. 197 Ibid, para 3.16. 198 DfE, Statistical First Release: Permanent and Fixed-Period Exclusions from Schools and Exclusion Appeals in England, 2008–09, 29 July 2010. 199 See: Bullying Today (2006). Report for the office of The Children’s Commissioner (now known as 11 million); B is for Bullied (2006), National Autistic Society. 200 Legal Aid Reform: Scope Changes Impact Assessment, p 17. This figure includes the cost of legal aid funding for special educational needs matters. 201 UN Convention on the Rights of the Child (Articles 28 and 29); International Covenant on Economic, Social and Cultural Rights (Article 13). Legal Aid, Sentencing and Punishment of Offenders Bill D. Removal ofL egalA idF unding forL egalS ervices in mostP rivateF amilyL awM atters Proposed amendment to the bill: private family law matters 18. Schedule 1 of the Bill should be amended to include legal services for parties in private family law matters in cases which relate to the care of children by adults. Arguments in support of this proposal 19. It is vital that parents and carers have access to legal advice and representation by in private family law matters relating to children. Disputes invariably arise during a time of relationship breakdown. An effective system for legal advice and, if agreement cannot be reached, an effective and efficient court resolution is in the best interest of families and children. The Bill proposes that funding for legal services in private law family disputes where there are issues of domestic violence, will remain. The Government suggests that by expanding the definition of domestic violence they have made a major concession. In reality, however it is estimated that by widening the definition of domestic violence this will only bring an estimated further 1,000 cases within scope. 20. Parents struggling to cope with the effect of relationship breakdown are often unaware of the effect of the breakdown on children, and are unaware of their rights and responsibilities in law and need firm, timely and common sense legal advice. Without access to this advice, the impact of family breakdown on children will be increased and exacerbated. 21. Also, without legal representation for the parties, Court proceedings will be more acrimonious, take longer and the court system and CAFCASS will be overburdened. The opportunity for negotiation within proceedings will be impaired as feuding parents are unlikely to communicate effectively with one another. Outcomes for children will be worse and it is likely that more children will lose contact with the non- resident parent. July 2011 Memorandum submitted by Chesterfield Law Centre (LA 52) Who willS tandU p for ourR ights? Summary 1. This report has been prepared for the Committee by Chesterfield Law Centre. It expresses our serious concerns about the proposals about legal aid for social welfare law set out in the Justice Bill—Legal Aid, Sentencing and Punishment of Offenders Bill. 2. The report contains three case studies illustrating typical cases of clients who would no longer be entitled to legal aid under the proposals and the likely socio-economic costs to the individual and the state. 3. This is followed by an explanation of our concerns about the proposals. There are two appendices, Appendix A which shows how the impact of the changes has been calculated, and Appendix B which gives information about Chesterfield Law Centre and the services provided by us. Who willS tandU p for ourR ights? Mr A’s story . . . 4. Mr A was illegally evicted by his landlord without notice. “I returned home from work after doing a night shift. I found I was locked out and could not get into my home. My landlord had changed the locks without warning. I felt sick and apprehensive because I could not get to my belongings. There were a lot of sentimental items in there.” Mr A had to sleep in his car for a week before staying with his friends. It wasn’t until three weeks later that Mr A felt able to contact his landlord after the Police were informed. “The Police helped me to retrieve some of my belongings and advised me to contact the Law Centre.” 5. Mr A contacted the Law Centre.“The Law Centre told me what my landlord had done was illegal. The adviser told me what would happen next and that everything would be sorted out for me. I felt relieved and reassured.” Mr A’s confidence had been badly affected by the experience. “I lost my job as an engineer a week after being evicted as I was too stressed to cope with it all. It took me six months to rebuild my confidence as I lost my trust in people. I was quite depressed.” 6. The Law Centre informed the Landlord that the eviction was illegal and that they were looking at seeking damages for Mr A. The Law Centre commenced legal proceedings on Mr A’s behalf. “I was advised that I could get £5,000 for damages caused by illegal eviction if the case went to court. In the end I settled for £1,300 as I wanted to access this money quickly.” Mr A was in debt and wanted the money to pay for a bond on a house. “Thanks to the Law Centre, I paid back the money that I owed to my family and friends. I placed a deposit for another house and bought some furniture. The compensation cannot replace sentimental items that I have lost but I feel relieved it’s over and I can put it behind me now. The advice I received has improved my confidence as I know what landlords should and should not do.” Legal Aid, Sentencing and Punishment of Offenders Bill Who willS tandU p for ourR ights? Assessing the socio-economic impact of the specialist legal advice provided to Mr A 7. The outcome of the case. — Mr A did not seek advice until several weeks after he had been locked out of his home. He had not realised that what the Landlord had done was a civil and criminal offence. Once he received advice from the specialist housing lawyer at the Law Centre, he realised that he did have legal rights and could enforce them. — The Law Centre issued court proceedings against the Landlord with a view to securing substantial damages for Mr A for the loss of his home and his belongings. This involved complex legal work, including advice from Counsel which legal aid initially paid for but the landlord eventually had to pay all of the costs. — Mr A was initially advised through a type of legal aid called legal help. At a later stage, Mr A was granted Legal Representation to enable court proceedings to be commenced. — The outcome of the legal case was that the Landlord, through their solicitors, accepted that an illegal eviction had occurred and agreed to pay Mr A compensation and settle all the legal fees for the case (resulting in no cost to legal aid fund which is a typical outcome). — If legal aid was not available for this type of work, the Law Centre would not have been able to pursue this case for Mr A. Mr A is quite clear that he would not have pursued his claim without the service provided by the Law Centre “I would not have pursued this further had legal aid not been available. The Landlord would have got away with it as I would not have been able to pay for legal advice or take action on my own”. 8. The socio-economic impact on Mr A and the state. — Losing his home and belongings in this way had a very detrimental effect on Mr A’s health and well-being. It also had a direct impact on him losing his job. Mr A reports that, even in the short term, just having a legal adviser tell him that what had happened to him was against the law made him feel confident. — By the time Mr A sought advice it was too late to get his home back. However, the client went on to receive financial compensation which had a direct impact on his ability to move forward. He was able to use this compensation to pay off debts accumulated during this difficult time and fund a deposit on a private rented property. This helped to stabilise his home life and had a direct impact on him being able to secure employment again. — We believe that there is enough evidence to show that, through the provision of legal advice (funded through legal aid); the overall cost to the state was substantially lower than if legal aid had not been provided in the first place. The estimate is that, following the illegal eviction, Mr A’s cost the state just £174.00 as compared to over £47,000 if legal advice had not been available. Breakdown of the impact of the Legal Aid Reforms is found in appendix A. Advice given fits within HM Government’s current priorities: — Department for Communities and Local Government Business plan 2011–15—Meet people’s housing aspirations and promoting social mobility. — HM Government: Opening Doors, Breaking Barriers: A Social Strategy for Social Mobility. — DWP’s Business Plan 2011–15 vision: “to transform the opportunity for people without jobs. 9. The advice and assistance given in this housing matter has contributed towards improving his social mobility. The advice has: — Enabled social mobility in supporting Mr A to achieve his ambitions, for example, getting another job, eradicating debt and securing housing aspirations. — Improved his well-being and mental and physical health. Who willS tandU p for ourR ights? Mr B’s story . . . 10. Mr B had worked for his employer for over nine years when he was sacked without notice. “I had to leave work straightaway—I was travelling home on the bus thinking how I was going to tell my family— It’s a real bad thing, being sacked particularly without any notice. I am 59 years old and have worked all my life and I have never had this sort of trouble with an employer”. Mr B now had no income and no way of meeting all his living costs. “It put a great pressure on me both financially and within the family. I had no idea how we were going to cope”. 11. Fortunately Mr B decided that he should get some advice because he was convinced that he had been treated unfairly. He had heard about Citizens Advice Bureaux and decided to visit the local office in Chesterfield. On hearing his story, the adviser there recognised that Mr B needed specialist legal advice and made an appointment for him at Chesterfield Law Centre. Legal Aid, Sentencing and Punishment of Offenders Bill 12. The legal adviser at the Law Centre agreed with Mr B that he had a case for unfair dismissal and Mr B started proceedings against his ex employer. Sadly the employer would not get involved in any negotiation so a claim was lodged with the Employment Tribunal. Almost a year after his dismissal, Mr B’s case was heard. “I can’t praise the Law Centre enough—the legal adviser gave me really expert help. She sorted everything out for me, kept me in touch with what was happening and helped me prepare for the hearing. It was a fantastic feeling when I heard the Employment Tribunal Judge say that I had won my case but I know I could not have done this without the help of the Law Centre”. 13. The Employment Tribunal decided that Mr B had been unfairly dismissed and that his ex employer should pay him a substantial sum of money to compensate Mr B for loss of income. “This is the result I had been hoping for—I feel like I can hold my head up high again and me and my family can have a new start. While I was unemployed my wife and I had to use all our savings to keep on top of mortgage payments and a roof over our heads. During the four months being out of work I applied for 25 jobs and had one interview.” Who willS tandU p for ourR ights? Assessing the socio-economic impact of the specialist legal advice provided to Mr B 14. The outcome of the case. — Mr B was referred to the Law Centre by Chesterfield Citizens Advice Bureau for specialist employment advice and assistance. The Law Centre identified that Mr B had a case for unfair dismissal and started proceedings against Mr B’s ex-employer under the legal aid system. — The advice given gave Mr B immediate positive effects on his health, confidence and his sense of self worth. — The Employment Tribunal decided that Mr B had been unfairly dismissed and that his ex employer should pay him a substantial sum of money to compensate him for the loss of his job. — If legal aid was not available for this type of work, the Law Centre would not have been able to pursue this case for Mr B. — The Government is planning to remove legal aid from employment cases. In the future, legal aid centres like Chesterfield Law Centre will not have sufficient funding to provide any specialist help in employment. — Mr B said he would not have been able to afford to pay for advice. 15. The socio-economic impact on Mr B and the state. — Losing his job had a detrimental impact on Mr B’s health and well-being. — Without the Law Centre, he would not have been able to enforce his legal rights which would have impacted on his ability to pay his mortgage and debts which would have destabilised his home and family life. — Mr B received financial compensation which stabilised his home life, replaced the savings they had spent and protected their mortgage payments in the future. The advice gave him confidence to secure employment again. — Because of the provision of legal advice funded through legal aid, the overall cost to the state was substantially lower than if legal aid had not been provided in the first place. The estimate is that, the legal aid funded advice for Mr B cost £1,300 as compared to around £10,500 to the state if legal aid funded advice had not been available. Details on the wider socio-economic impact of the Legal Aid Reform applied to this case study is found in appendix A. Advice given fits within HM Government’s current priorities: — HM Government: Opening Doors, Breaking Barriers: A Social Strategy for Social Mobility. — DWP’s Business Plan 2011–15 vision: “to transform the opportunity for people without jobs to find work and support themselves and their families.” 16. The advice and assistance given in this employment matter has improved social mobility. The advice has: — Given Mr B confidence to progress in the labour market by securing another job. — Enabled social mobility in supporting his family to achieve their ambitions, for example getting another job, eradicating debt and keeping a roof over their heads. — Improved his family’s well-being and mental and physical health. Legal Aid, Sentencing and Punishment of Offenders Bill Who willS tandU p for ourR ights? Ms C’s story . . . 17. Ms C came to the Law Centre after she found that she was dismissed from her employment as a cafe´ assistant in a restaurant. She said “I felt upset by the way I was treated by my employer. It really knocked my confidence as I kept doubting myself if my employer was correct in the way he behaved towards me.” 18. When her line manager took a day off, she left Ms C instructions on the amount of food to prepare for Sunday roast dinners as she was cooking alone in the kitchen with the support of her manager’s two daughters, aged 17 and 14. Until this day she had received no complaints about her work and felt that her contribution was always appreciated. Ms C said: “I always looked forward to working at the restaurant.” 19. At 12.30, one of the Directors came in and was abusive towards her and humiliated her in front of customers by complaining loudly about the amount of vegetables left. He also shouted at the two young assistants for not providing clean crockery and cutlery quickly enough. Later that day the same Director came back for a tea break and started shouting at Ms C for the few minutes delay in providing a dinner for four. 20. After she finished work, Ms C’s manager contacted Ms C. The manager’s daughters had told her what had happened. Subsequently a meeting was arranged for the following day. The meeting quickly became an abusive one where the same Director carried on being abusive towards Ms C and accused her of lying. Ms C went home in tears “I felt I could not return to work as I was scared of going back to work due to his behaviour.” 21. Eventually Ms C went back to work but she was given her P45. “I felt so betrayed by my employer when I found out I was dismissed.” 22. Ms C said “As a single parent I was worried about how I was going to afford to pay the bills and school trips for my daughter. I did not want it to affect my child’s life. I had been bringing home £200 a week wages which reduced to £80 a week on benefits including housing benefit. I changed from working 30 hours a week to no hours at all. I quickly became depressed and my confidence sank further. The advice from the Law Centre gave me my confidence back as I was advised that I was not in the wrong in the first place. I was then able to get another job in November. If the advice had not been available I know I would have been out of work for at least a year because I felt it was my fault when it was not. I certainly would have not been able to afford to pay for the advice nor pay off my debts.” 23. The Law Centre prepared Ms C’s case to be heard at the Employment Tribunal where she had to represent herself as there is no legal aid available to fund representation work. “I received a lot of support from my employment caseworker who gave me the confidence to attend the hearing by myself.” The case was decided in Ms C’s favour—that there was a constructive unfair dismissal. Ms C said “I was over the moon when I received the good news. I felt vindicated. The compensation helped me to clear my overdraft and debts caused by the dismissal last year.” Who willS tandU p for ourR ights? Assessing the socio-economic impact of the specialist legal advice provided to Ms C 24. The Outcome of the case. — The Law Centre identified that Ms C had a case for constructive dismissal and started proceedings against her ex-employer. — The advice gave Ms C her confidence back so she felt able to look for another job. It took the stress away from Ms C in trying to resolve the problem herself which calmed her and stabilised her household. — The Employment Tribunal decided that Ms C had been constructively unfairly dismissed and ordered that her ex-employer pay her a substantial sum of money to compensate her loss of income. — If legal aid had not been available for this type of work, the Law Centre would not have been able to pursue this case for Ms C. — Should the Reforms go ahead, Chesterfield Law Centre will not have sufficient funding to provide specialist help in employment law. — Ms C said she would not have been able to afford to pay for advice. 25. The socio-economic impact on Ms C and the state. — The compensation paid off debts that were caused by the shortfall in income between July and November. — She has confidence to resolve any difficulties in the future and to seek advice earlier if there are free specialist advice agencies left to get advice from. — The advice has reduced the state’s expenditure by nearly £8,000.00 a year as it enabled Ms C to be more confident in securing another job. Legal Aid, Sentencing and Punishment of Offenders Bill — We believe that there is enough evidence to show that, through the provision of legal advice funded through legal aid, the overall cost to the state was substantially lower than if legal aid had not been provided in the first place. The estimate is that the legal aid funded advice to Ms C cost £1,433 as compared to over £14,000 if legal aid funded advice had not been available. Details on the wider socio-economic impact of the Legal Aid Reform applied to this case study is found in appendix A. Advice given fits within HM Government’s current priorities: — HM Government: A New Approach to Child Poverty: Tackling the Causes of Disadvantage and Transform Families’ Lives. — DWP’s Business Plan 2011–15 vision: “to transform the opportunity for people without jobs to find work and support themselves and their families.” 26. The long term effects on the advice given for the State contributes towards Government’s vision in transforming lives. The advice has: — Removed barriers to her daughter’s future. — Enabled social mobility in supporting this family to achieve their ambitions, for example getting another job and eradicating child poverty. — Improved Ms C’s well-being and mental and physical health, with positive long term implications for her child. Who willS tandU p for ourR ights? Concerns about the Legal Aid Reform 27. We are concerned that there has not been sufficient scrutiny of the consequences—short/long term socio-economic impact—on the state and on individuals. 28. In an attempt to save £350 million, the Ministry of Justice intends to make £279 million of those savings from civil legal aid by cutting access to the services that help the most vulnerable people cope with problems that arise in their everyday lives, such as employment, housing, family breakdown, education and debt. If these problems are left unsolved they escalate and result in far greater costs elsewhere in the system. It is estimated that 60% of the reduction in legal aid funding will be taken from not-for-profit legal advice providers. 29. We have given case examples showing the wider socio-economic impact that Legal Aid Reforms would have for the state and our clients. 30. Chesterfield Law Centre estimates that 55% of its core income comes from legal aid each year. If the Bill is passed this is likely to reduce to 34% giving an overall reduction in core funds of 32%. Along with many other legal advice agencies, a loss of funding of this magnitude may result in the organisation no longer being financially viable and forced to close. This will deprive some of the most vulnerable people in society access to advice and representation. 31. Legal Action Group research July 2011 confirmed the cuts in Legal Aid in North Derbyshire: Area of law Current procurement Number of cases cut Loss of funding to plans—2010 tender Legal Aid providers Debt 500 375 (reduced by 75%) £75,000.00 Employment 330 330 (100% withdrawal) £75,900.00 Housing 540 194 (reduced by 36%) £33,825.60 Welfare benefits 420 420 (reduced by 100%) £70,140.00 Total 1,790 1,319 (74% reduction) £254,865.60 total loss to North Derbyshire If the proposals are implemented only 471 people in North Derbyshire will be helped through legal aid with these sorts of problems. 32. We have close working relationships with 54 Surestarts and Children’s centres, 11 advice agencies, VCS organisations and private practice solicitors in Derbyshire who refer their service users to the Law Centre for legally aided advice. These organisations require legal aid centres such as Chesterfield Law Centre to provide specialist advice to remove barriers for disadvantaged clients by meeting their basic needs in securing their wages, keeping a roof over their families—all of which falls within meeting the Government’s employment, housing and educational aspirations. (The Coalition: our programme for government 2010). 33. Chesterfield Law Centre and our umbrella organisation—the Law Centres Federation—believe that these proposals will: — lead to significant additional costs to the Ministry of Justice, and other central and local government departments such as Social Services, Police, Health; Legal Aid, Sentencing and Punishment of Offenders Bill — deny the most vulnerable in society access to justice; and — do nothing to tackle the root causes of the need for legal advice in social welfare law. 34. It seems that the Coalition’s Business plans do not acknowledge the role or the value of advice. Through legal aid, the not-for-profit advice agencies can, in partnership with the government, improve social mobility, increase people’s housing aspirations and help disadvantaged people progress into the labour market. 35. The Legal Services Commission does not collect information on the wider socio-economic impact of the cases they fund. The MoJ’s business plan 2011–15 (page 30) says that “The Legal Services Commission will publish the average cost per case of legal aid”. If wider social and economic impact data were collected, this would show value for money, a better understanding of the value of advice and the wider implications of this work. APPENDIX A Who willS tandU p for ourR ights? MrA. Socio-economic impact to the state. Outcomes Cost to the state with Cost to state without legal aided advice legal aided advice 36. Health Negligible. The increase in £3,336.80 for health care – Increased stress and depression smoking and drinking has been services for a year.202 caused by illegal eviction. Increase in for a month. drinking and smoking from 105 to 280 cigarettes a week. 37. Accommodation £910 for three months to the £3,640 Housing Benefit a – Claiming Housing benefit. state. year. Possible homelessness. £29,000203 38. Job and benefits £7,722 loss of tax and – Loss of job within a week due to loss £845 for three months. national insurance for a of home. year. – Claiming JSA due to loss of job. £3,380 JSA a year. 39. Rights and justice £2,587.00 legal costs settled by third party. £174.00 legal help cost to state. Total: £1,929.00 Up to £47,078.80 40. Net gain for the state: Having spent £174.00 on legal aid, the state has saved £46,904.80. Who willS tandU p for ourR ights? MrB. Socio-economic impact to the state. Outcomes Cost to the state with Cost to state without legal aided advice legal aided advice 41. Health – Stress and depression caused by Negligible. £1,864.80 for health care losing his job. services for a year.1 42. Accommodation – Income-related JSA and housing £1,455.37 to the state for a costs year. – Claiming Council Tax Benefit £274.03—secured a job within £822.09 council tax a year. four months of losing his job. 202 Unit Costs of Health and Social Care 2010, PSSRU. 203 Crisis, National Charity for Homeless People 2008. Legal Aid, Sentencing and Punishment of Offenders Bill 43. Job and benefits – Loss of job. £301.53 tax and NI to the state £852.24 loss of tax and for four months. national insurance for a year. – Claiming JSA due to loss of job. £1,400.00—secured a job £4,200.00 a year within four months of losing his job. 44. Rights and justice £1,327.88 cost to state. £1,433.00 if client had to self represent at tribunal without advice. Total: £3,303.44 Up to £10,627.50 45. Net gain for the state: Having spent £1,327.88 on legal aid, the state has saved £9,299.62. Who willS tandU p for ourR ights? MsC. Socio-economic impact to the state Outcomes Cost to the state with Cost to state without legal aided advice legal aided advice 46. Health – Stress and depression caused by the Negligible. £2,304.80 for health care dismissal. services for a year.1 47. Accommodation – Claimed Housing benefit due to loss £1,040.00—secured a job £3,120.00 a year housing of job. within four months of seeking benefit cost to the state. advice from the Law Centre. 48. Job and benefits – Loss of tax and national insurance to £1,144.00 loss of tax and £3,432 loss of tax and state. national insurance for four national insurance for a months until she secured a job. year. – Claimed JSA due to loss of job. £1,386.66—secured a job £4,159.98 a year without within four months of seeking legal aid funded advice. advice from the Law Centre. 49. Rights and justice £1,433.35 cost to state. £1,433.00 if client had to self represent at tribunal without advice. Total: £5,004.01 Up to £14,449.78 50. Net gain for the state: Having spent £1,433.35 on legal aid, the state has saved £13,016.43. APPENDIX B Who willS tandU p for ourR ights? About Chesterfield Law Centre 51. Chesterfield Law Centre is asking the Government to reconsider their decision to restrict Legal Aid in Social Welfare law. 52. Chesterfield Law Centre, a civil society organisation, is a registered charity and has been delivering free legal services in social welfare law since 1989. The Law Centre specialises in debt, housing and homelessness, employment, discrimination and tackling hate and harassment. 53. Chesterfield Law Centre is an independent organisation run by a management committee of local people. 54. The Law Centre employs four solicitors, nine legal advisers and nine support staff. The Law Centre is also supported by 24 volunteers that provide reception, administrative and signposting support. The volunteers provide at least 4,531 hours a year. 55. Last year we advised and assisted 6,824 callers, most of whom were vulnerable. Over 55% are women and 44% are men—all on low incomes or sometimes no income. Over 20% of our clients are over 50 years of age. Over 15% are between 16 and 25 years of age. 10% of our clients defined themselves as Black or from Legal Aid, Sentencing and Punishment of Offenders Bill another ethnic minority group; 25% class themselves as disabled including having a long term health condition. 51.7% are on means tested benefits such as guarantee pension credit, job seekers allowance, carers allowance and employment support allowance. 56. 99% of our clients have reported that they are satisfied with the services they have received from us. 90% have said that our advice had a positive impact on their lives. 57. We hold legal help contracts with the Legal Services Commission in employment, consumer discrimination, debt and housing. 58. We are a member of Advice Derbyshire, an umbrella organisation comprising of five Citizens Advice Bureaux, Derbyshire Unemployed Workers Centres and the Law Centre. Two of the CABx hold LSC contracts in welfare benefits and debt through consortia arrangements with the Law Centre. We work closely with voluntary sector organisations and other advice partners in meeting service users’ legal needs and meeting their targets to improve social mobility. July 2011 Memorandum submitted by Rene´ Cassin (LA 53) Submission toP ublicB illC ommittee 1. Rene´ Cassin is a human rights Non-Governmental Organisation (NGO) that uses the experience of the Jewish people, and positive Jewish values, to campaign and educate on universal human rights issues such as discrimination, asylum seekers and refugees, and genocide. 2. This submission covers general issues with the reform of the legal aid system, and in particular, issues relating to asylum and immigration. GeneralI ssues 3. The Legal Aid, Sentencing and Punishment of Offenders Bill offers a drastic overhaul of the UK legal aid system, including heavy cuts and substantial restrictions on areas which come into scope for funding. 4. As an organisation which campaigns on universal human rights issues, we would like to highlight a few general concerns about the changes in the provision of legal aid in this Bill. For example, there have been concerns voiced over the potential conflict of interest in replacing the Legal Services Commission with an in-house service by the Ministry of Justice.204 It has been suggested that control over legal aid services should be exercised by an outside agency. We would like to see that mechanisms will be put in place to ensure that independence and impartiality is exercised in the system. 5. There are also general concerns that funding cuts will affect those who are most vulnerable. Some lawyers and firms who currently offer legal aid services to the most vulnerable people in society will struggle to survive the cuts; indeed, the Immigration Advisory Service went into administration on 8 July, and issued a statement on its website suggesting that the cuts to legal aid provision played a part in their demise.205 We are concerned that the proposed reforms will result in legal aid services suffering in terms of accessibility and quality. This in turn will have the greatest impact upon those who are most in need of legal assistance. 6. For example, after the legal aid provider Refugee and Migrant Justice (RMJ) went into administration last July, a client took his own life.206 He had been living in the UK for nine years with uncertainty surrounding his immigration status, in a state of destitution as he was not allowed to work.207 Following the closure of RMJ, he found that he could not access information about his case.208 In despair, he took his own life shortly afterwards.209 Cases such as this demonstrate the importance of providing accessible legal aid where vulnerable individuals are concerned. 7. We would also like to reinforce the voices of other organisations who contend that public spending on legal aid provides future savings, including comment by the Bar Council and the evidence provided in July 2010 by the Citizens’ Advice Bureau, “Towards a business case for legal aid”.210 It has been noted that defendants who represent themselves will most likely delay courts and are less likely to obtain optimum legal outcomes. 204 http://obiterj.blogspot.com/2011/06/legal-aid-sentencing-and-punishment-of.html 205 http://www.iasuk.org/home.aspx 206 http://www.guardian.co.uk/world/2010/aug/01/asylum-seeker-osman-rasul-death-legal-aid 207 Id. 208 Id. 209 Id. 210 http://www.barcouncil.org.uk/news/latest/710.html, http://www.citizensadvice.org.uk/towards a business case for legal aid.htm Legal Aid, Sentencing and Punishment of Offenders Bill ImmigrationL aw 8. As an organisation which campaigns to protect the rights of those in the asylum and immigration system, Rene´ Cassin welcomes the Government’s retention of legal aid provision for asylum claims and immigration detention appeals. However, we would like to emphasise the importance of legal aid for immigration cases themselves, which are excluded under the new legislation in Schedule 1 of the Bill.211 This means that cases involving family reunion, deportation/removal and refusal for leave will be excluded.212 Why is itI mportant thatL egalA id is available forI mmigrationC ases? 9. During the first reading of the Bill, the Lord Chancellor stated, “. . . we will retain legal aid in cases where people’s life or liberty is at stake . . .”213 Yet, people’s liberty is at stake when all immigration decisions are taken.214 Additionally, the lawfulness of a person’s detention is necessarily connected to the case deciding their immigration status.215 10. Moreover, under the new legislation, victims of domestic abuse would also be deprived of legal aid for their immigration case.216 Currently, the Immigration Rules allow victims of domestic violence to apply for Indefinite Leave to Remain.217 Rene´ Cassin supports the government in preserving legal aid for domestic violence cases. 11. However, victims of abuse who cannot afford their own legal advice will no longer be able to get specialist help integral to the preparation of their immigration case. Victims may be anxious as to the repercussions of turning to the authorities for help, fearing potential detention, deportation, and separation from their family. 12. We are concerned that this may lead to victims who cannot afford legal advice and have an uncertain immigration status remaining trapped in abusive relationships. Considering the commitment of the Home Office to end violence against women and girls, outlined in the paper “Call to End Violence Against Women and Girls” (2010), we strongly believe that the Government should consider retaining legal aid for victims of domestic violence applying under Part 8 of the Immigration Rules.218 13. Furthermore, immigration decisions are often made swiftly; appeals need to be made within 10 days, or five days if in detention.219 The decision will be made entirely upon the evidence presented before the tribunal, and so the defendant must prepare and gather the necessary evidence to best present their case.220 The evidence may be vast in amount and expensive to gather.221 14. It is incredibly hard for vulnerable individuals to prepare witness statements and expert reports without legal help, especially in the short space of time provided under the existing framework.222 Immigration law is a highly complex area.223 As Court of Appeal Judge Lord Justice Longmore recently stated, it cannot be expected that a defendant could keep up with the complex law without specialist legal advice.224 15. A High Court judgment, R (Evans)v Lord Chancellor and Secretary of State for Justice [2011] EWHC 1146 (Admin), was highly critical of the Government’s decisions in 2010 to deny legal aid in public interest cases where there were potential human rights violations.225 We hope that the government will more fully take on board some of the concerns raised about cuts to legal aid in amending the new Bill. July 2011 211 http://www.publications.parliament.uk/pa/bills/cbill/2010-2012/0205/cbill 2010-20120205 en 1.htm 212 Young Legal Aid Lawyers’ briefing for House of Commons second reading of Legal Aid, Sentencing and Punishment of Offenders Bill, 29 June 2011. 213 Hansard HC, 21 June 2011: Column 166. 214 ILPA Briefing Legal Aid, Sentencing and Punishment of Offenders Bill, June 2010: Matters of relevance to Immigration Detention. 215 Id. 216 Id. 217 http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/ 218 http://www.homeoffice.gov.uk/publications/crime/call-end-violence-women-girls/ 219 ILPA Briefing Legal Aid, Sentencing and Punishment of Offenders Bill, June 2010: Matters of relevance to Immigration Detention. 220 Id. 221 Id. 222 Id. 223 Id. 224 AA (Nigeria)v SSHD [2010] EWCA Civ 773. 225 http://www.lag.org.uk/Templates/Internal.asp?NodeID%93727. Legal Aid, Sentencing and Punishment of Offenders Bill Memorandum submitted by Citizens Advice Bureau (LA 54) Response to theP ublicB illC ommittee At the evidence session on 14 July Damian Hinds MP requested further information from me in respect of our “business case for legal aid” figures, having noted the findings we published on this last year. I am more than happy to comply. Let me start with the background to this research. It originated in discussions on Management Information issues which took place two years ago at senior level between Citizens Advice and the Legal Services Commission. These led to common agreement that we should find ways of analysing outcomes data collated in our respective case recording and research systems to inform policy development on future spending decisions and priorities for commissioning. Subsequently, our policy team was tasked to work with the LSC to look at case outcomes data with a view to developing some research, as a joint project between ourselves and the Commission, to explore the possibilities of designing empirically valid measures of cost- benefit for different types of legal aid. After looking at various possible approaches with colleagues in the LSC, the Legal Services Research Centre and Professor Roger Bowles, we decided that the way forward would be to put together an exploratory research paper—hence the title “towards a business case”—that we could present to the LSRC’s international research conference as a discussion paper to spur further research into an area of analysis that had been hitherto unexplored. The datasets which we drew from are statistically significant; the study looked at: — all the 2007–08 data for the civil and social justice surveys on problem incidence and “adverse consequences” (a sample of around 6,000) undertaken by LSRC; and — all the 2008–09 data on controlled work case outcomes and billed case data from all LSC contracted providers at the “Legal Help” level in debt, welfare benefits, housing and employment (around 400,000 cases). However, we recognised that there was a big problem with methodology and assumptions—especially in numerically identifying the proportions where legal advice does not help and cannot therefore make any saving—and the measurements used to quantify those savings. We therefore built in a control category between those cases which experience adverse consequences with known costs and those that do not (LSRC survey data) and between those legal aid cases which record a beneficial outcomes and those which did not receive a beneficial outcome (LSC outcomes data). The methodology was specifically designed to strip out this “deadweight” from the analysis so that the results could not be seen as skewed. The cost-benefit analysis algorithm arrived at was developed within the LSC, based initially on a worked example in the housing category. However, after being stripped of its policy function in early 2010 the LSC withdrew from the project. We decided to complete the paper on our own and the LSC continued to give us access to their data for this purpose. The resulting business case paper was therefore very much a first stab at doing a cost benefit analysis of legal aid work, and we welcome you probing the figures. To answer to your two specific questions, I would say the following: 1. Whether we have done any comparable research for non-legal aid channels Yes. Quite separately from the analysis of LSC outcomes, Citizens Advice have also provided some analysis to BIS of savings to Government from CAB casework; this is also dealt with in the business case paper at paragraphs 93–96 and Table 10. These estimates were included in the paper as they are relevant and comparable. 2. Whether it is legitimate to represent loss of employment costs as GDP loss This is a good question. We based adverse consequence costs on the analysis of the civil justice survey data in the LSRC’s paper Mounting problems: Further Evidence of the Social, Economic and Health Consequences of Civil Justice Problems.226 This found that loss of employment amongst survey respondents as result of legal problems resulted in direct costs to the public purse through benefit claims. For respondents claiming unemployment related benefits, the average period was 19 weeks, making the average costs of job loss £1,075. The cost at today’s values is likely to be higher, however, as the Mounting Problems research used the Jobseeker’s Allowance rate of £55.65 applicable to April 2004 for a lone parent above the age of 18 or a single person over the age of 25. In addition to these costs, loss of employment caused a net social cost measured in terms of lost output. The value of output foregone was measured using GDP per head, given the average spell of unemployment reported among respondents who lost their job as a consequence of a problem. The average value of lost 226 Published in Transforming Lives: Law and Social process LSRC 2007. Legal Aid, Sentencing and Punishment of Offenders Bill output amounted to £8,140—again this is an under-estimate as the figure was derived from average GDP per head on the basis of market prices pertaining in 2003, with a weekly value arrived at by dividing the annual value by 52. On balance, we thought it was legitimate to factor in both sets of indicators from Mounting Probems for lost employment costs into the overall cost benefit analysis. The data on positive outcomes was then mapped over these adverse consequences. So for each category of law the model analysis does the following: — Shows the total number of clients seen by legal help providers. — Multiplies clients seen by percentage of adverse consequences. — Analyses those numbers by the percentage that benefit from legal aid. — Multiplies the numbers for each adverse consequence by the stand costs for those adverse consequences. — Shows the total cost of provision for that category of law. — Undertakes a sum of the adverse consequence avoided. — Takes away cost of provision from cost of consequences avoided. — Expresses total expenditure as a percentage of costs avoided. The high level source data is contained in the appendicies to the paper; if you require the original spreadsheets we can supply these also. We do not claim that the methodology is perfect, or that is not open to challenge, especially about what should or should not be included in calculating the adverse consequence costs. However, we do think that the methodology is a good starting point for analysis and debate. For further research on cost-benefit analysis in respect of legal aid spending, you might also be interested in looking at the following the following: On debt advice see: http://www.justice.gov.uk/downloads/publications/research-and-analysis/lsrc/impactlitrev.pdf http://www.justice.gov.uk/downloads/publications/research-and-analysis/lsrc/bmrb.pdf http://www.justice.gov.uk/downloads/publications/research-and-analysis/lsrc/ OutreachAdviceSumfinal 24102009.doc.pdf From Law Centres: http://www.lawcentres.org.uk/publications/new-economics-foundation-research/ From other jurisdictions see: Price Waterhouse’s research for the Australian system http://www.legalaidact.org.au/pdf/economic value of legalaid.pdf Perryman research in Texas http://www.texasatj.org/files/file/Perryman%20Report.pdf Report from Canada BC http://www.vancouverbar.ca/placeholder/pcla report 03 08 11.pdf I hope the Committee finds this useful and answers the questions Mr Hinds raised. July 2011 Memorandum submitted by the All Party Parliamentary Group on Equalities (LA 55) I am writing on behalf of the All Party Parliamentary Group on Equalities to share with you our worries about the proposals for legal aid contained in the Legal Aid, Sentencing and Punishment of Offenders Bill. The Equalities APPG discussed these proposals at a meeting on Tuesday, 12 July.Members then expressed concern both about the speed with which this bill is being taken through the House of Commons and about the proposals to limit the access to legal aid for many of the most vulnerable people who experience discrimination and disadvantage in many aspects of their lives. In particular members are concerned about: — The removal of legal aid in most subject areas, both in the lower and the higher courts. — The limitations on access to initial legal advice for people who have had their legal rights infringed. Legal Aid, Sentencing and Punishment of Offenders Bill Access toL egalA id Whilst we welcome the inclusion of legal aid in respect of claims under the Equality Act 2010 we are deeply concerned that claims in relation to welfare benefits, clinical negligence, criminal injuries, debt, employment, immigration (excluding asylum), housing (unless a person is facing homelessness) and divorce are excluded from receiving legal aid whether the case is in the higher or lower courts. These cases will include complex cases which cannot be adequately presented without access to specialist legal help, yet they will not meet the very restrictive requirements of the “exceptional cases” criteria. The Government’s initial Equalities Impact Assessment clearly showed that these proposed cuts would be discriminatory in their impact because black and minority ethnic people and people with disabilities will be particularly adversely affected. For example, in employment cases clients are 24% ethnic minorities, in non-homeless housing they are 31% ethnic minorities and 27% disabled and in welfare benefits they are 27% ethnic minorities and 63% disabled. This compares to a national population of 8% ethnic minorities and 18% disabled people.227 These figures show a significant adverse impact for ethnic minority people across all these categories and for disabled people in relation to non-homeless housing and welfare benefits.228 Even though the Government has acknowledged that some of its proposals “do potentially have a greater effect on those with a particular protected characteristic” nevertheless they argue that their proposals should be fully implemented as they are “a proportionate means of achieving a legitimate aim”, namely the saving of money. These provisions will certainly not promote equality of opportunity as required by the Public Sector Equality Duty and will do disproportionate damage to disabled people and ethnic minority people’s lives. Helpline The Government is proposing a single telephone helpline to give advice on the limited areas that remain in scope for legal aid and introduce a phased expansion of this to other areas. We are concerned about the accessibility of this service to vulnerable groups of people such as those who don’t speak good English, people with mental health problems or those with other disabilities such a hearing limitations. In view of the particular equality impact of the proposed changes to legal aid we do regret that you have not had the opportunity to hear from any equality organisations such as the Equality and Human Rights Commission or the Equality and Diversity Forum or from organisations representing ethnic minority people or disabled people. Nevertheless I hope that you will be able to take account of our concerns. I would of course be happy to meet with you and your Committee. Sandra Osborne MP, Chair July 2011 Memorandum submitted by Mr Joseph Anthony Culkin (LA 56) Written submission to the Public Bill Committee scrutinising the Legal Aid, Sentencing and Punishment of Offenders Bill (Suggesting amendments relating in particular to clause 25) 1. I am the father of someone who faces approximately £80,000 of costs, (following unsuccessful litigation) and enforcement would make him bankrupt. The costs are not my son’s but those of his opponents. My son has no costs, since he was unrepresented. The opposing side had the services of a local authority legal department, a firm of solicitors, and barristers. My son was granted legal aid initially, but this was withdrawn after permission to apply for judicial review was granted, for budgetary reasons only, so that he had the option of continuing unrepresented, or caving in and accepting injustice and abuse of power. Though a child, he continued unrepresented. 2. I am secondary school teacher, who was unemployed at the time when my son needed assistance. I had some legal knowledge, having completed the LLB and LPC. My son was forced to go to court in order to defend himself, and this litigation was made necessary only by the intransigence of the other side. That intransigence was fuelled by the knowledge on the part of the adversary that my son was impecunious, that he was unrepresented, and that the local authority was prepared to fund litigation, in the words of Risk Manager for Wirral MBC, “without specific regard to the economics,” (in an email to the Defendant Head Teacher, disclosed during the proceedings) so that my son was faced with an ever-increasing potential bill for opponents’ costs if he lost. 3. At several stages, my son expressed his willingness to avoid legal action for a simple withdrawal of a false and unprovable allegation against him, but this was repeatedly declined by the Defendants. I am certain, having read the statements of the Defendants, in relation to assurances given by the funder, Wirral MBC, as to the Defendants’ impunity from costs, that the willingness of Wirral MBC to provide funding 227 All these figures are taken from the MoJ Equality Impact Assessment. 228 It is perhaps not surprising that disabled people are underrepresented in employment cases since one of the particular problems frequently experienced by disabled people is difficulty in getting a job. Legal Aid, Sentencing and Punishment of Offenders Bill for the conduct of disproportionate, unreasonable and ultimately unnecessary litigation, through an extraordinarily expensive firm of solicitors—namely Weightmans LLP—was the reason why the Defendants would not come to a sensible agreement and avoid these costs altogether. 4. I acted as litigation friend, and then McKenzie Friend for my son. He failed to receive a fair hearing at many crucial stages. This was due, not only to the gross inequality of arms, and the rules relating to the role of McKenzie Friends, but to the threat of adverse costs orders against both my son, and me as his McKenzie Friend. On one occasion, I had to withdraw my services at a crucial stage, because of the threat from an opposing barrister that an adverse costs order would be made against me if I continued to assist my son. During the main trial, I was confined to the basic role of taking and passing notes and was unable to speak to the court on my son’s behalf. Whilst this afforded me with some protection against potential adverse costs, it deprived my son of any form of real help, and predictably, he lost the action. The opponents then applied for a part 52 costs order against me, based on the fact that I had acted as McKenzie Friend for my son (in spite of the very limited role I was allowed to fill), but after a subsequent hearing (in which I was able to speak) the adversary was unsuccessful in obtaining a part 52 costs order against me. By that time, my son was still an impecunious full time student. 5. This oppressive strategy, available to the rich and powerful, of incurring disproportionate costs in order to dissuade a poor individual from pursuing his legitimate claim for justice, recently resulted in my son abandoning an appeal, for which he had arguable grounds, from a decision of Lady Justice Slade in relation to costs of Judicial Review. The mounting costs (in spite of his inability to pay them) and the prospect of a 3 year payments order following his anticipated bankruptcy, broke his will to continue to seek justice. I have no doubt that those who made the unprovable allegation against him; those at Wirral MBC who funded “without specific regard to the economics,” the accusers’ defence, and those at Weightmans LLP, who reaped the financial reward in the form of Council Tax payers’ funds, for counselling such a path, had intended this result all along. I write because I think such strategies should not be available to the rich and powerful, and in particular to those charged with the duty to serve the public and/or care for children. 6. To put things in context, my son was 12 years old when the events leading to the litigation began. The litigation itself related to an accusation made without evidence, and into which he had been denied a hearing. The school failed to inform me at the time and so I queried this conduct towards him. The teacher making the accusation stated in the very document containing the accusation, that he could not prove that it was true. I underline these words because they raised at the outset, three important points. 7. Firstly it is obvious that the reasonable thing to do in such circumstances would be to withdraw any such allegation. Had that approach been followed these costs would not have been incurred. The second thing to note is that there was (at St Mary’s Catholic College Wallasey) no internal appeal from any decision of the Head Teacher, other than one to exclude. That meant that, if the Head Teacher decided not to withdraw the unprovable allegation, the only way forward would be to seek a remedy outside of the school’s disciplinary procedures. The former Head Teacher, who had the financial backing of Wirral MBC and legal backing of Weightmans LLP would not be able to justify an allegation he had accepted was unprovable, but those advising and funding him will have known that, by virtue of his public office, he would be able to hide behind a defence of qualified privilege in any legal action in relation to the making of any untrue allegation. 8. This illustrates the extent to which Wirral MBC and Weightmans LLP, who were receiving the funds, were prepared to use their vastly superior financial resources—ie, public funds—to intimidate my son into abandoning a perfectly reasonable and essentially simple complaint, and to frighten me into withdrawing my help and support from my son, so that he would be completely denied the opportunity even to attempt to access to justice. In order to help my son, I had effectively to risk bankruptcy and the loss of the family home. 9. In simple terms, Wirral MBC and Weightmans LLP unreasonably and unnecessarily incurred £80,000 in costs rather than withdraw an allegation against a child, which the Defendants themselves, in writing, had acknowledged was unprovable. That raises issues of proportionality, which ought to have been taken into account in assessment of costs, but as I said, my son was not represented and my own ability to assist him has been hampered by his opponent’s threat of adverse costs orders so that the Courts have not appreciated the full story behind these disproportionate costs. 10. I mentioned that my son was 12 years old when the events leading to the litigation began. Those events took place at St Anselm’s Catholic College, Birkenhead, and the events subject to litigation at St Mary’s Catholic College, Wallasey were a virtual rerun of what happened at St Anselms, except that, St Anselm’s College had thought better of it and withdrew the allegation. There is no doubt whatsoever in my mind that the situation at St Mary’s College was stage-managed in order to get even for my successful challenge to the treatment my son had been receiving at St Anselm’s College, where the Chair of Governors was a Conservative Wirral MBC Councillor. Indeed the problem at St Anselm’s College arose when I pointed out that a governor’s printed request for £5 monthly from parents towards the building of a new Sports Hall (with the promise of associated government funding) did not include the statement required by law that pupils of parents who could not contribute would not be victimised. Both St Anselm’s College, and Wirral MBC ignored my letter to them about that, so I simply did not pay the sum demanded, and my son was indeed victimised because of it. He is now 23 and has been working for just over a year, but faces bankruptcy at the hands of Wirral MBC and Weightmans LLP, after 11 years of harassment. Legal Aid, Sentencing and Punishment of Offenders Bill 11. The adversary would say that my son brought these costs on himself by bringing the claims to clear his name, but that raises the question whether children (except children of the conspicuously wealthy) should be denied access to justice. Should parents be confronted with the stark choice between saving the reputation of a child and financial ruin through the threat of adverse costs orders, and, where a parent proceeds to defend their child against unreasonable and unjustifiable attacks on their reputation, should the child be pursued, in lieu of their parent, into adulthood so as to blight their working life as soon as it begins, by those with the power to dispose of public funds in this way? 12. Some think that children’s reputations do not matter so much as adults, but the reality is that school records can have a serious and lasting effect on a person’s prospects and life chances. For this reason, children should have an effective remedy against unjustifiable attacks on their reputations by those in positions of power and trust. Unfortunately, the defence of qualified privilege, together with the threat of adverse costs orders, helps to promote a culture of impunity and arrogance on the part of some (thankfully not all) Head Teachers. Many children who are unjustly permanently excluded from school have even less support than my son had, since they also come from low income families without the means to access justice by way of legal representation. Further withdrawal of legal aid means that there is an increasing need for children and their parents to be able to challenge injustice without fear of financial ruin if they are unsuccessful. 13. These experiences have led me to believe that the English Rule, whereby costs follow the event, operates against ordinary people by encouraging the rich and powerful to use costs as a weapon against them in stifling genuine complaints against autocratic abuse of power. I strongly feel that it would be in the interests of justice, and conducive to more prudent public expenditure, to abolish the English Rule, however, since the current proposals do not include abolition of the English Rule, I would be grateful if you could consider an amendment along the following lines, so that disparity in power and wealth could be taken into account by judges in such a way that an unrepresented litigant would only very rarely be at risk of adverse costs orders, and would never be so at risk against a conspicuously wealthy, publicly funded, or insured party—whether claimant or defendant. 14. For example, presently a winning litigant in person can claim, I believe, just £9.23 (there are proposals to increase this to £18) per hour costs from the losing side, and some form of equality would be achieved if adverse costs order against losing litigants in person were constrained by a similar benchmark. Better still for access to justice; this Bill could enshrine a presumption that unrepresented litigants, who are not insured or conspicuously wealthy, would be immune from adverse costs orders. This would be in accord with Lord Jackson’s proposals for qualified one way costs shifting, which unfortunately the government intends to implement only in respect of personal injury cases. 15. As an alternative, the following suggested amendment could have an important role in promoting access to justice by helping to level the playing field, as it would help to remove the costs risk operating against parties unable to obtain legal aid, which seriously hinders access to justice by exacerbating existing gross inequality of arms, and would also encourage legal representatives to keep costs down by agreeing settlements with unrepresented litigants. Through the promotion of agreement without recourse to the courts, it would have the additional benefit of reducing the burden on the courts, and I would be grateful if you could consider this and the above matters when scrutinising the Bill. 16. Suggested form of amendment to clause 25. In clause 25(1) please consider augmenting sub-paragraph (a), and (b) as shown below in italics: 25. Costs in civil proceedings (1) Costs ordered against an individual in relevant civil proceedings must not exceed the amount (if any) which it is reasonable for the individual to pay having regard to all the circumstances, including– (a) the financial resources of all of the parties to the proceedings, and whether or not the losing individual was legally represented; (b) their conduct in connection with the dispute to which the proceedings relate, and in particular; (i) where the losing individual was not legally represented, the difference in the costs risk between the winning and losing party and the degree to which the winning party, or their legal representative, appears to have relied upon the greater costs risk, to the losing individual, before or during the proceedings. (ii) where the financial circumstances of the losing individual were conspicuously poorer than those of the winning party, the degree to which the winning party, or their legal representative, relied upon their superior financial resources, before or during the proceedings, in order to gain an advantage. July 2011 Legal Aid, Sentencing and Punishment of Offenders Bill Written submissions and proposed amendments from Garden Court Chambers Gypsy & Traveller Team (LA 57) Summary (A) The Legal Aid Bill will have a severely restrictive effect on the provision of legal services for arguably the most disadvantaged ethnic minority community in Britain: Gypsies & Travellers. It further removes legal services in the case of loss of home from occupants of bricks and mortar accommodation in circumstances where, we are convinced, this is not intentional. We consider that the Bill, as currently drafted, is unlawful under both Human Rights and Equality Legislation. We propose amendments which would avoid this. The general background is at paragraphs 8–18 and the amendments at paragraphs 19–44. Who we are? (B) Garden Court Chambers Gypsy & Traveller team consists of barristers who have specialised in legal aid work on behalf of the Gypsy and Traveller community for many years. Members of the team are recognised for their outstanding commitment to, and expertise in, this, and other, areas of law, in particular Housing Law and Discrimination. Team members have been awarded Legal Aid Lawyer of the Year: — Marc Willers, Barrister of the Year Award 2011. — Jan Luba QC, Barrister of the Year Award 2007. — David Watkinson, Barrister of the Year Award 2005. (C) We have been involved in many of the leading cases in this area of law over many years, among them: South Bucks DCv Porter (No. 1) [2003] UKHL 26; [2003] 2 AC 558 Harrow LBCv Qazi [2003] UKHL 43; [2004] 1 AC 983 Connorsv United Kingdom (2004) 40 EHRR 189 Codonav Mid-Bedfordshire [2004] EWCA Civ 925; [2005] H.L.R. 1 South Bucks DCv Porter (No. 2) [2004] UKHL 33; [2004] 1 WLR 1953 Kayv Lambeth LBC [2006] UKHL 10; [2006] 2 AC 465 McCannv United Kingdom (2008) 47 EHRR 913 Dohertyv Birmingham CC [2008] UKHL 57; [2009] 1 AC 367 Kayv United Kingdom, 21 September 2010 Manchester City Councilv Pinnock [2010] UKSC 45; [2010] 3 WLR 1441 London Borough of Hounslowv Powell and Others [2011] UKSC 8; [2011] 2 WLR 287 Our concerns 1. If brought into force as it stands now this Bill will have severely restrictive effects on the provision of advice and representation to Gypsies and Travellers in connection with one of the most basic of all human rights, the right to accommodation. It would also have serious unintended consequences in other areas of housing law. For reasons of time and space we are unable to comment on its effects in other areas of law. Definition of terms ECHR% European Convention on Human Rights The basic structure of the Bill 2. Clause 7 of the Bill defines legal services. 3. Clause 8(1)(a) of the Bill states that civil legal services will only be available in those areas specified in Schedule 1, Part 1 of the Bill. 4. Clause 9 provides for exceptional cases in which civil legal services can be provided, even if not specified in Schedule 1, Part 1 of the Bill. These relate to inquests and to cases in which a failure to provide such services would breach an individual’s rights under either the ECHR or EU Legislation. 5. Clause 10 allows for an individual’s entitlement to civil legal services to be regulated by both a financial means test and other criteria, including an assessment of the cost: benefit ratio, the individual’s prospects of success and the nature and seriousness of the alleged breach of the individual’s rights. 6. Schedule 1, Part 1 of the Bill lists those services which remain in the scope of public funding (all forms of advice, assistance and representation). Individual paragraphs within Schedule 1, Part 1 relate to distinct areas of law in respect of which civil legal services will be available: a. Paragraph 17 deals with claims for judicial review, which is defined to include cases which, though not brought in the Administrative Court, are nevertheless required to be decided on the same principles; Legal Aid, Sentencing and Punishment of Offenders Bill b. Paragraph 20 deals with claims for breaches of an individual’s rights under the ECHR and Human Rights Act 1998; c. Paragraph 27 deals with “loss of home”. d. Paragraph 37 deals with claims brought under the Equality Act 2010, eg race, disability, sex discrimination claims etc. It will be appreciated there will be cases in which civil legal services may be provided under more than one of these headings in respect of any one case because the points arising can properly be categorised in more than one way. 7. Schedule 1, Part 2 modifies and amends the apparent provision of civil legal services provided for in Schedule 1, Part 1. Its practical effect is to make very substantial inroads into the services apparently provided in Part 1. In our submission, it has an enormous and discriminatory effect on the Gypsy and Traveller community as well as other serious but unintended consequences. The Gypsy and Traveller cases: background 8. The main types of Gypsy and Traveller cases that come under the housing umbrella are: — evictions from unauthorised encampments; — evictions from rented sites; — other issues relating to rented sites (eg disputes over licensing conditions); — High Court planning cases (injunctions, statutory challenges to decisions made by planning inspectors regarding planning and enforcement notice appeals, challenges to stop notices and direct action etc); and — homelessness cases. 9. Some 25% of the Gypsy and Traveller population who live in caravans in England and Wales live either on unauthorised encampments (ie as trespassers on land owned by someone else) or on unauthorised developments (where they own the land but have developed it in breach of planning control). Both categories are statutorily homeless because, in either case, they have nowhere they can legally station their caravans. This must be compared with the proportion of the settled population who are statutorily homeless, a mere 0.1%. For people caught in this situation there is no realistic alternative to continued trespass or the breach of planning control. As local authorities almost never provide pitch accommodation for the homeless the only alternatives for these people are council or privately run Gypsy and Traveller sites. There is, nationally, a gross shortage of such sites and almost inevitably there are substantial waiting lists: the waiting time for such a site in Essex a few years ago was 50 years. 10. For people caught in this situation the problems are formidable, including a battery of legal measures designed to facilitate their swift and immediate eviction. They are caught in a cycle of repeated, forced eviction which effectively prevents them from accessing basic facilities such as healthcare and education. Studies have shown not only that Gypsies & Travellers have the worse health outcomes of any ethnic group in the UK but that this fact is clearly linked to the lack of stable and reliable accommodation from which they can access such services. It is against this background that the needs of this community for legal advice and assistance must be seen and the scope of the impact of the current proposals upon them measured: experienced and specialist solicitors working in this area estimate that at least 75% of their “accommodation cases“ for Gypsy and Traveller clients would no longer be within scope if the current proposals are passed unamended. 11. Under the Government Bill all unauthorised encampment eviction cases will go out of scope because all such cases are cases of trespass to land and thus within the current exception in Schedule 1, Part 2, paragraph 5. Again, it is essential to remember that the people who are trespassing probably have no choice about doing so: in the absence of authorised provision a Gypsy and Traveller family evicted from one site has no choice but to stop (and trespass) somewhere else and to hope that their trespass will be “tolerated” for a time before they are evicted again. In the event of a medical emergency or the need to attend a funeral etc. their only recourse may be to legal advice and assistance to prevent them from being evicted before the immediate crisis has passed. Members of our own team have worked with families who have been evicted, on average, 3 times a week over many months and whose children have had trouble accessing basic education because, when they come back from school they return to find that their home and family have gone (having been forcibly evicted at the behest of a public authority). 12. The lack of lawful stopping places which is at the root of the problem has a long history. With the passage of the Caravan Sites and Control of Development Act 1960, when the commons were closed to Gypsies and Travellers and there was an increasing loss of traditional stopping places, local authorities were given a power to supply sites for the use of Gypsies and Travellers. However, between 1960 and 1970 only 12 local authorities made use of that power (see Clark and Greenfields, Here to Stay, University of Hertfordshire Press, 2006 p. 72). Between 1970 (when a duty upon local authorities to provide sites was brought into force with the Caravan Sites Act 1968) and 1994 (when that duty was repealed), some 350 sites were built in England. While this level of provision was still completely inadequate, it should be recognised that those sites would not have been built without that duty being in place. Between 1994 and 2006, the Legal Aid, Sentencing and Punishment of Offenders Bill Government placed the emphasis on the private provision of sites by Gypsies and Travellers themselves (see Department of the Environment Circular 01/94). This was a policy failure. The provision of sites virtually ground to a halt and it became much more difficult to obtain planning permission (see Friends, Families and Travellers Report Confined, Constrained and Condemned (1996)). Since February 2006, when ODPM Circular 01/2006 was published, there has been a slow but sure increase in the provision of sites (see research by Dr Jo Richardson and Ros Lishman of the De Montfort University for Lord Avebury Impact of Circular 01/2006: Supply of New Gypsy/Traveller Sites 29 March 2007). On 13 April 2011 the Coalition Government published Planning for traveller sites, the draft guidance that is designed to replace ODPM Circular 01/2006. This draft guidance relates to England only. The consultation deadline on this guidance has just been extended to 3 August 2011. A large number of Gypsy and Traveller support groups are opposed to this guidance because they feel it will loosen the control over local authorities and simply lead to a stagnation, once again, in the provision of sites, as happened when matters were last left to local authorities in 1994–2006. 13. What is clear is that a series of failures, both by central and local governments, has led to a position where there is an inadequate provision of sites. Gypsies and Travellers who remain on unauthorised encampments and unauthorised developments do so through no fault of their own: there is simply no other option. 14. As already noted the lack of legal and stable accommodation has had, and continues to have, an enormous impact on the Gypsy and Traveller community. A recent report produced by the Travellers Aid Trust following on from a Panel Review which took evidence from some of the leading experts in this area, A Big or Divided Society?, referred to the disadvantage and prejudice experienced by Gypsies and Travellers in this country. With regard to education, the report stated:- Travellers of Irish Heritage and Gypsy and Roma pupils are nearly three times more likely than White British pupils to be identified as having special educational needs. Fewer than 10% of Gypsy/Roma/Traveller pupils are among the top 50% of achievers at Key Stage 4. 15. With regard to health, the report stated:— It was in response to the research findings on their health status … that the Department of Health targeted health improvement of Gypsies, Roma and Travellers in a policy initiative aimed at reducing health inequalities, the Pacesetters Programme. The results showed striking inequalities in the health of Gypsies and Travellers, even when compared with people from other ethnic minorities or from socio-economically deprived white UK groups and demonstrated the long-term health impact associated with a history of persecution, social pathologisation and social exclusion of Gypsies and Travellers. Poor accommodation and a lack of sites are often major variables that impact on the health of Gypsies and Travellers (page 54). 16. These problems are just as acute for Gypsies and Travellers living on unauthorised developments— effectively residing on land in breach of planning control—and their need for legal advice and representation is thus equally acute. Planning enforcement actions are, in effect, for this community a method of eviction every bit as real as the obtaining of a possession order. If an Injunction is granted or a Stop Notice comes into effect or direct action under the Town and Country Planning Act 1990 section 178 is taken, the Gypsy or Traveller concerned will have to leave the land. As in the case of unauthorised encampments, specialist knowledge is required and it is wholly unrealistic to think that individuals from within the Gypsy and Traveller community can sensibly represent themselves. Gypsies & Travellers: the need for representation 17. The gross shortage of available accommodation and severe disadvantage associated with this makes the need for proper and appropriate representation in cases involving the housing and accommodation needs of Gypsies and Travellers clear. In addition, it must be remembered that this is a specialist area and is certainly not one in which the Gypsy and Traveller community can be expected to represent themselves. Many of the rules of law which allow for their eviction are specific to this area of the law, eg Criminal Justice and Public Order Act 1994 section 61, sections 62 (A) to (E), and section 77. There is specific Government guidance that needs to be taken into account including, in England, Department of the Environment Circular 18/94, ODPM Guidance on Managing Unauthorised Camping [2004] and ODPM Home Office Guide to Effective Use of Enforcement Powers—Part 1: Unauthorised Encampments [2006]. There is a wealth of important and subject specific caselaw, egR v Lincolnshire County Council Ex Parte Atkinson [1997] JPL 65; R (Casey and Others)v Crawley Borough Council [2006] EWHC 301 Admin. 18. Gypsy and Traveller cases raise their own unique issues in homelessness cases, both in terms of the suitability of the accommodation offered, eg Codonav Mid-Bedfordshire [2004] EWCA Civ 925; [2005] H.L.R. 1, and in terms of the duties and obligations upon the local authority, eg Lee v Rhondda Cynon Taf CBC [2008] EWCA Civ 1013. Evictions from an unauthorised encampment may amount to a breach of Article 8 of the ECHR (see Manchester City Councilv Pinnock [2010] UKSC 45; [2010] 3 WLR 1441 and London Borough of Hounslowv Powell and Others [2011] UKSC 8, [2011] 2 WLR 287). Legal Aid, Sentencing and Punishment of Offenders Bill The proposed amendments [Note: where an amendment is proposed, any addition to the Bill in its current form is shown highlighted in red and underlined. Where any deletion from the Bill in its current form is proposed it is shown in red and struck through.] Clause 8(2): amending the scheme approved by Parliament by order 19. We suggest the amendment of Clause 8(2) as follows: “(2) The Lord Chancellor may by order modify Schedule 1 by adding or omitting services from Part 1 of the Schedule (whether by modifying that Part or Part 2, 3 or 4 of the Schedule).” We are concerned that the Lord Chancellor is to be given the power to effectively make further wholesale cuts to the legal aid scheme without further recourse to Parliament—this being the effect of the Bill as currently drafted. However, if it is considered appropriate to entrust the Lord Chancellor with the authority to substantially amend the scheme now being put before Parliament by order, we submit that the power conferred should be amended to allow him or her to enlarge the scheme as well as to cut it. Indeed, we suggest that it would be desirable for the Lord Chancellor to have the power to add to the list of services for which funding could be provided by order (thus allowing a rapid response on the part of Government in, the currently highly likely, event that the exclusion of certain services is declared unlawful either by the UK courts or by the European Court of Human Rights in Strasbourg) while it may not be appropriate for him or her to have the power to reduce the scheme in the same way. Clause 9(3)(a): Exceptional Cases 20. We suggest the amendment of Clause 9(3)(a) as follows: “(3) For the purposes of subsection (2), an exceptional case determination is a determination— (a) that it is necessary to make the services available to the individual under this Part because failure to do so would be reasonably likely to be a breach of— (i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or (ii) the individual’s rights to the provision of legal services under European Union law, or (b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.” As currently drafted the provision of civil legal services would be provided if the Director has (a) determined that the individual in question qualifies for such services under the financial means test and other criteria to be laid down pursuant to clause 10 of the Bill and (b) that it is necessary for such funding to be provided because a failure to do so would breach either their rights under the ECHR or their rights under EU law or that it is appropriate to do so having regard to the risk of such breaches. We suggest the addition of the words “be reasonably likely to”, so that the need for continual referral to clause 9(3)(b) is rendered unnecessary. As presently drafted a potential applicant for legal services would have to prove the breach alleged in order to qualify for services under 9(3)(a), an all but impossible test given that the determination will be made before the case has been heard, the evidence gathered, arguments marshalled etc. The proposed amendment allows exceptional funding to be granted where the refusal of it would be “reasonably likely to be a breach” of either ECHR or EU law. Clause 9(3)(b) would remain as a further alternative, allowing for a discretion to grant exceptional funding where the reasonable likelihood test was failed but where the seriousness of the potential breach was such that funding should nevertheless be granted given the gravity of the breach if proved. Schedule 1, Part 1, paragraph 17(2): the scope of judicial review 21. We suggest the amendment of Schedule 1, Part 1, paragraph 17(2)(a) as follows: “(a) the exclusions in Part 2 of this Schedule, with the exception of Paragraphs 5 and 15 of that Part, and” 22. As set out above, Schedule 1, Part 2, limits the apparent availability of legal services in cases where Schedule 1, Part 1 applies. In this case while civil legal services are to be provided in respect of an enactment, decision, act or omission (Sch 1. Pt 1, para 17(1)) this apparent provision is limited by the provisions of Schedule 1, Part 1, paragraph 17(2) which provides that civil legal services shall not be available where Schedule 1, Part 2, paragraph 5 applies. In practice what this means is that public funding is not available for judicial review of any enactment, decision, act or omission which relates to trespass to land. 23. In the context of the Gypsy and Traveller community this is of the utmost importance. As a result of the severe shortfall in local authority provision of legitimate accommodation for Gypsies and Travellers 7.9% of the Gypsy and Traveller caravans in England229 are currently living on unauthorised sites, ie sites where they do not own the land and are trespassing. As we have seen, this is not the result of a wilful desire to break the law but the result of the simple absence of any alternative option: without the money to buy their own land, without land available with planning permission for their use and without any available public 229 Count of Gypsy and Traveller Caravans, 8.7.10 Legal Aid, Sentencing and Punishment of Offenders Bill provision, trespass is the only remaining option. For such people an action in judicial review is their only means of challenging an unreasonable, ill-considered, ill-informed, unlawful or inhuman decision to evict them yet again, perhaps when family members are seriously ill or the education of children with special educational needs will be disrupted. It is these people who will be denied legal advice and assistance if the Bill is not amended as we suggest. 24. Further, we submit, to pass the Bill as currently drafted, containing the blanket ban on the provision of civil legal services in cases of trespass to land is likely to be in breach of the UK’s obligations under the ECHR and unlawful as an act of indirect discrimination. It is beyond doubt that this measure will have a wholly disproportionate effect on the Gypsy and Traveller community for whom homelessness and the inevitable necessity of trespass is an everyday fact of life (as opposed to the settled community only 0.1% of whom are statutorily homeless). We respectfully suggest that there is no prospect of the discriminatory application of this Bill being objectively justified: the sums of public money in issue are relatively small while the effect of the measure is devastating. We note that Romani Gypsies and Irish Travellers are protected ethnic groups under the Equality Act 2010 but that there is no mention of them in the Equality Impact Assessment accompanying this Bill. In the absence of any assessment of the impact of this measure on these groups, no justification of its discriminatory effect can be advanced for the simple reason that it has not been properly considered. 25. Turning to the effect of the ECHR, it has recently been made clear in two separate decisions of the Supreme Court (Manchester City Councilv Pinnock [2010] UKSC 45; [2010] 3 WLR 1441 and London Borough of Hounslowv Powell and Others [2011] UKSC 8; [2011] 2 WLR 287) that Article 8 ECHR will apply to judicial review (and other) challenges to decisions by public authorities to seek the eviction of people from what is their “home”: “it is clear that the following propositions are now well established in the jurisprudence of the European court: (a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end” per Lord Neuberger, Pinnock, paragraph 45 This, clearly,applies to trespassers to land—people with no right of occupation of the land under domestic law. Given the clear right to have the proportionality of the interference with their “home” (as defined in Article 8 ECHR) determined by an independent tribunal, set out by both the UK Supreme Court and the European Court of Human Rights, we suggest that to deprive a class of the most vulnerable potential victims of access to civil legal services is likely to be unlawful, not just pursuant to the Equality Act 2010, but also under the UK’s obligations under the ECHR itself. Schedule 1, Part 1, paragraph 17(9)(b): the definition of judicial review 26. We suggest the amendment of Schedule 17(9)(b) as follows: “(9) In this paragraph— “EU Procedures Directive” means Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status; “judicial review” means— (a) the procedure on an application for judicial review (see section 31 of the Senior Courts Act 1981), but not including the procedure after the application is treated under rules of court as if it were not such an application, and (b) any procedure in which a court, tribunal or other body mentioned in Part 3 of this Schedule is required by an enactment or other rule of law to make a decision applying the principles that are applied by the court on an application for judicial review; ……” 27. Following the Supreme Court cases of Pinnock and Powell referred to above and the House of Lords decision in Doherty v Birmingham CC [2008] UKHL 57; [2009] 1 AC 367 it is now English law that challenges to decisions to seek possession of a person’s home on the grounds and principles applied in judicial review should be brought in the county court or High Court and not in the Administrative Court. The addition of the wording “or other rule of law” provides for such judicial review challenges to be funded, if otherwise appropriate. We suggest that this simple amendment is necessary to avoid an otherwise irrational distinction being made between cases which are deemed to be “judicial review” cases because the rule of law which requires them to apply those principles is statutory and cases which are not deemed to be “judicial review” cases because the applicable rule of law is not statutory but is established by judicial decision. Legal Aid, Sentencing and Punishment of Offenders Bill Schedule 1, Part 1, paragraph 20: Breach of Convention rights by public authority 28. We suggest the amendment of Schedule 1, Part 1, paragraph 20 as follows: “Breach of Convention rights by public authority 20 (1) Civil legal services provided in relation to— (a) a claim in tort, or (b) a claim for damages and/or any other remedy (other than a claim in tort), in respect of an act or omission by a public authority that involves a significant breach of Convention rights by the authority.” 29. The addition of the words “and/or any other remedy” allows for other remedies (eg a declaration of incompatibility) to be sought in addition, or in the alternative, to a simple claim for damages. We suggest that if a claim for breach of Convention rights against a public authority passes the merits test, the cost: benefit ratio assessment, the assessment of the seriousness of the breach etc. pursuant to Clause 10 of the Bill (all of which will be essential for funding to be granted) there should be no further barriers in the way of civil legal services being provided. We suggest that the word “significant” is deleted on the basis that the assessment pursuant to Clause 10 will already have addressed this issue. Schedule 1, Part 1, paragraph 27(1): definition of loss of home 30. We suggest the amendment of Schedule 1, Part 1, paragraph 27(1) as follows: “27 (1) Civil legal services provided to an individual in relation to— (a) court orders for sale or possession of the individual’s home, or (b) the eviction from the individual’s home of the individual or others, or (c) court orders the effect of which is to prevent the individual from accessing or otherwise continuing to occupy their current home.” 31. We suggest that the addition of the proposed paragraph 27(c) is needed in order to ensure that paragraph 27 really does relate to all cases in which the individual is at risk of losing their home. The proposed amendment would bring within the scope of the provision many of the planning measures that effect the Gypsy and Traveller community so seriously, eg decisions by local planning authorities to take direct action, obtaining injunctions or Stop Notices. The practical effect of all of these measures is to evict the individual by making it impossible for them to continue to occupy their home or to resume occupation or gain access to their home (which includes land) if they have been absent from it for whatever reason. As noted above, these are measures which affect a very substantial proportion of the Gypsy and Traveller population. Schedule 1, Part 1, paragraph 27(3): the exclusion of cases of trespass to land 32. We suggest the amendment of Schedule 1, Part 1, paragraph 27(3) as follows: “(3) Sub-paragraphs (1) and (2) are subject to the exclusions in Part 2 of this Schedule, with the exception of paragraphs 5 and 14 of that Part. 33. We submit that it is inappropriate and potentially unlawful to deny the provision of civil legal aid services to persons who are trespassing on land. For the reasons already set out at paragraphs 22–26 above many Gypsies and Travellers have no choice but to trespass upon land. They are not wilful squatters but people with no alternative who have very real and pressing needs: they are a peculiarly vulnerable group who should not be denied access to civil legal services because they have been forced into a cycle of repeated trespass. We believe that their exclusion from the services that can otherwise be provided to protect the individual from the unjustified loss of their home is likely to be in breach of both race discrimination legislation and the ECHR. 34. Not every threat to the family home faced by Gypsies and Travellers encamped on land upon which they are trespassing can be met by way of a claim for judicial review. Given the particular existence of powers of eviction designed specifically to target the Gypsy and Traveller community (in particular the Criminal Justice and Public Order Act 1994) it is imperative that those subject to such powers are not deprived of all assistance when they are applied against them. 35. We further submit that the blanket exclusion of “trespassers” from the services provided in respect of loss of home will deny many people access to justice in, we suspect, ways and circumstances simply never considered by the Bill’s drafters. In particular we believe that the following people would be ineligible for civil legal services if the Bill passes without this amendment: a. a person in accommodation provided for them pursuant to a local authority’s duty to house the homeless upon whom a notice to quit has been served which has expired; b. a former joint tenant of a local authority house or flat whose tenancy has been terminated by the service of a notice to quit by the other joint tenant; Legal Aid, Sentencing and Punishment of Offenders Bill c. a person against whom a forthwith possession order has been obtained by oppressive (ie wrongful) conduct on the part of a local authority or Registered Social Landlord and who seeks to have that order set aside. Plainly, it was not the intention of the Bill’s drafters to exclude such people and no proper basis for doing so is given. Further, these are all people who have a clear right to challenge the proportionality of their eviction from their property under Article 8 ECHR following the decisions of the Supreme Court in Pinnock and Powell. Schedule 1, Part 1, paragraphs 27(8)—(12): the definition of “home” 36. We suggest amending these paragraphs as follows: “Definitions (8) In this paragraph “home”, in relation to an individual, means the house, caravan, houseboat or other vehicle or structure that is the individual’s only or main residence, subject to sub- paragraph (9). (9) References in this paragraph to an individual’s home do not include a vehicle or structure occupied by the individual if there are no grounds on which it can be argued— (a) that the individual is occupying the vehicle or structure otherwise than as a trespasser, and (b) that the individual’s occupation of the vehicle or structure began therwise than as a trespasser. (10) In sub-paragraphs (8) and (9), the references to a caravan, houseboat or other vehicle include the land on which it is located or to which it is moored. (11) For the purposes of sub-paragraph (9) individuals occupying, or beginning occupation, of a vehicle or structure as a trespasser include individuals who do so by virtue of— (a) title derived from a trespasser, or (b) a licence or consent given by a trespasser or a person deriving title from a trespasser. (12) For the purposes of sub-paragraph (9) an individual who is occupying a vehicle or structure as a trespasser does not cease to be a trespasser by virtue of being allowed time to leave the vehicle or structure. 37. The points at issue are those already set out at paragraphs 32–35 above. The effect of this definition section, as currently drafted, is to deprive just under 8% of the Gypsy and Traveller population in England of their access to civil legal services when their only and family home is under threat. This, we consider, is inappropriate, disproportionate and unlawful. We are also concerned that these provisions may, inadvertently, affect others (again as set out above). For example, one half of a couple who have split up and whose partner has terminated their joint tenancy agreement by way of a notice to quit would be denied access to justice by the current provisions simply because they could not be argued to be anything other than a trespasser and hence within sub-paragraph (9)(a). 38. Our amendment, therefore, is one that simply strikes through the existing sub-paragraphs 27(9)–(12) inclusive so “home” is given a simple definition, independent of issues of trespass. This avoids all of the pitfalls and injustices we have identified and can be done without opening up the system to abuse. It appears, from the explanatory notes accompanying the Bill, that the actual purpose of these sub-paragraphs is to prevent squatters in buildings from obtaining legal aid. However, with an appropriately written merits and proportionality test being applied to all potential claims under Clause 10 of the Bill it is hard to see how unmeritorious claims of this sort could obtain funding in any event. We respectfully suggest that if there are concerns as to claims of this sort obtaining funding then the merits criteria (ie does the claimant have a better than 50% chance of successfully defending the claim) to be applied to every application for assistance under Clause 10 is the correct way of combating it. Claims that are plainly doomed to fail because the occupier of the land has no right to remain on the property and, in the case of a public authority, because that authority does not owe them significant and substantial duties of its own, will not qualify for funding in any event. Schedule 1, Part 1, paragraph 37(2)(a): the exclusion of trespassers from “equality” claims 39. We suggest amending this paragraph as follows: (2) Sub-paragraph (1) is subject to— (a) the exclusions in Part 2 of this Schedule, with the exception of Paragraphs 5 and 15 of that Part, and (b) the exclusion in Part 3 of this Schedule. 40. For the reasons already set out above claims brought by trespassers on land should not simply be ruled out when funding is being considered for a claim under the Equality Act 2010. It should be remembered in this context that local authorities who, historically, have failed to provide sufficient accommodation for Gypsies and Travellers in their areas, and who are thus, on one view, actually responsible for the ongoing trespass by many members of that community, also owe equality duties, including the public sector equality duty.This puts upon them an obligation to have due regard to the need, not only to eliminate discrimination, Legal Aid, Sentencing and Punishment of Offenders Bill but also to foster good relations between different ethnic communities and to promote equality of opportunity between them. This is a duty which has a good deal of potential application in terms of the provision of accommodation and the framing of relevant policies in respect of the Gypsy and Traveller community. Given that those most in need of assistance from local authorities are often those condemned to trespass indefinitely, we consider it to be wholly inappropriate for those same people to be prevented for accessing civil legal services in respect of these issues. Schedule 1, Part 2, paragraph 5: trespass to land 41. We suggest the amendment of this paragraph as follows: “5 Civil legal services provided in relation to trespass to land unless the individual’s right to respect for his home, private or family life pursuant to Article 8 European Convention on Human Rights is arguably engaged. 42. It must be understood that this proposed amendment is not one which would “resolve” all of the problems and issues that have already been discussed in relation to paragraph 5, Part 2. The amendments set out above are necessary, even if this amendment is made. However, it is an amendment which has real merit of itself because it would allow for advice and assistance to be funded where an individual has an arguable claim that his/her case is one in which Article 8 might assist them, as envisaged by the Supreme Court in the recent cases of Pinnock and Powell. Schedule 1, Part 2, paragraph 12(1): claims for breach of the ECHR 43. We propose the amendment of this paragraph as follows: “12 (1) Civil legal services provided in relation to a claim for damages and no other remedy in respect of an act or omission by a public authority that involves a breach of Convention rights by the authority.” 44. As currently drafted the Bill makes it impossible to obtain funding for a case involving a breach of ECHR rights if damages are claimed. While we accept that there may be arguments in favour of requiring claims for damages alone to find an alternative source of funding, we suspect that the Bill’s drafters simply made a mistake here. There seems to be no sensible reason for allowing a person with a powerful claim against a public authority for breach of their Convention rights (who may be seeking a declaration, injunction, mandatory order etc.) to receive public funding but to remove it if they add to that claim a claim for damages which may, in fact, be modest and wholly incapable of forming the basis of an alternative funding arrangement. If there is a desire to ensure that claims for substantial damages are pursued by way of alternative funding arrangements, this should (and can) be done via the criteria for funding individual cases in Clause 10 and not by a clumsy blanket ban in Part 2 of Schedule 1. We hope that this paper is of assistance. August 2011 Memorandum submitted by the South East Strategic Partnership for Migration (SESPM) (LA 58) 1. About the South East Strategic Partnership for Migration (SESPM) 1.1 SESPM was established in 2000 and is one of 12 such partnerships covering the UK; it provides a resource which enables an independent and neutral consultative function between the South East (covering Kent, Sussex, Surrey, Hampshire, Isle of Wight, Buckinghamshire, Berkshire, Oxfordshire and Milton Keynes) the Home Office and Government. 1.2 The Executive Board comprises of senior representatives from local authorities, public, private and voluntary sectors. 1.3 Our key functions include monitoring trends, addressing challenges, maximising opportunities and inputting into policy formation. 2. Purpose of this Memorandum—A focus on immigration at the local level and likely displacement of costs to local authorities. 2.1 SESPM has collected a range of views from across the South East and in particular identified a number of key concerns that are likely to negatively impact on local authorities in relation to how legal aid changes will affect immigration cases in future. 2.2 There are also a number of concerns that have been received from voluntary sector and interest groups across the South East which are reflected in other Memoranda posted on this bill and for ease of reference are summarised in section 4 of this paper. Many of the concerns of local authorities are also shared by voluntary and community sector contributors. 2.3 For the above reason the main purpose of this submission is therefore to draw attention to the likely impact on local authorities and public services in section 3 below. Legal Aid, Sentencing and Punishment of Offenders Bill 2.4 SESPM recognises the rationale behind the proposals and the need to review legal aid in the light of the economic climate. However, it is concerned about the likely displacement of costs with local authorities’ incurring additional costs (see section 3 below). This is a significant issue and needs to be taken into account as the impact could actually result in a greater cost to the public purse in some cases. 3. Likely Impacts on Local Authorities and Public Services 3.1 SESPM received responses from a number of local authorities and public services from across the SE covering District, Borough, Unitary, City and County Councils, namely Oxfordshire County Council, Kent County Council, Surrey County Council, East Sussex County Council, Portsmouth City Council, Brighton and Hove City Council, Southampton City Council, Milton Keynes Council, Slough Borough Council, Rushmoor Borough Council, Arun District Council, East Sussex Healthcare NHS Trust. Responses range from local authority practitioner leads to senior management. 3.2 Responses were broadly consensual in identifying the following as areas of concern, likely to result in a further strain on local resources. People who have not regularised their immigration status are among the most financially excluded and are therefore highly likely to present for local authority support, placing the burden of support and demand on the resources of those authorities. 3.3 The likely impacts are summarised as follows: I. A rise in the number of households from abroad with unresolved immigration situations and therefore no right to work and No Recourse to Public Funds (NRPF) presenting to the local authority for accommodation and support. II. For those families and vulnerable adults who are supported by local authorities, delays and additional expense might arise as the inability to access independent legal advice makes it more difficult to achieve resolution on their immigration cases and their discharge from local authority care. III. Increased pressures on social workers and legal departments in local authorities to unpick the complex immigration cases of households for which they have accepted a duty—leading, ultimately, to questions about the need to purchase immigration legal advice in order to resolve these situations. IV. Complex legal and financial dilemmas will arise for local authorities as they consider whether to provide advice in order to resolve NRPF cases that may otherwise remain in limbo. V. Unaccompanied Asylum Seeking Children (UASCs) and care leavers making applications for further leave on Article 8 grounds will be excluded from assistance under Legal Aid. The Local Authorities’ obligations to these children may therefore have to expand to include picking up responsibility for ensuring legal advice and representation. VI. There will be a safeguarding impact, especially for UASCs, as the proposed changes would make both children and adults increasingly vulnerable, requiring an inter-agency response which could have been prevented. This would increase costs to provider organisations. VII. Without access to specialist advisors, those with insecure immigration status may be less likely to approach the authorities for support. The inability of families to submit Article 8 applications may result in Human Rights Act assessments which conclude that families have no grounds for support and are offered assistance in returning to their countries of origin instead. VIII. There are likely to be additional pressures on poorer migrant communities to accommodate and support people with outstanding immigration applications (particularly with shared country of origin) for longer periods, including asylum seekers who experience problems and delays in receiving support. It is demonstrated that this often leads to overcrowded and potentially dangerous living conditions, including the spread of notifiable communicable diseases such as TB. IX. The removal of refugee family reunion from the scope of legal aid may reduce the capacity of refugees to integrate and those who are deprived of family reunion are likely to be disadvantaged, with knock-on consequences for their capacity to deal with the effect of other issues, including other non-immigration related problems they may face. It may also encourage the illegal entry of family members resulting in similar problems as set out in the point above. X. There may be a negative impact, in terms of activity in the informal economy and areas of crime such as trafficking, related to people being unable to regularise their immigration status. XI. Advice for asylum support matters will be limited to cases involving accommodation, meaning that people who require subsistence only support will not be able to access advice. 3.4 In the light of the above there is also a strong likelihood of hidden pressures connected with the broader BME and migrant communities with factors such as: I. Overcrowding and increased poverty as those who are destitute and/or have an unresolved immigration situation have to be supported by other community members, themselves on low incomes and in insecure housing. II. Families who feel they have to remain hidden from the authorities. Legal Aid, Sentencing and Punishment of Offenders Bill III. More complex needs assessments recognising the additional pressures on some migrant populations and also in commissioning services for them. IV. A great deal of trust and confidence will need to be built up by local authorities amongst their local migrant populations in order to discover the true extent of the problems facing the community—especially if they involve community members whose legal status in the UK is unclear. 4. Voluntary and Community Sector Responses from the South East 4.1 Responses were received from Brighton Housing Trust, The Links Project (Hastings), Shepway CAB, Milton Keynes CAB, Reading Refugee Support Group, Money Advice and Community Support (Brighton), Lewes Group in Support of Refugees and Asylum Seekers, Hastings Intercultural Organisation. 4.2 The impacts in 3.3 and 3.4 above were shared by the VCS respondents who, in addition, cited the following: I. Individuals living in the UK with immigration controls very often face a huge variety of challenges in their day to day lives due to the complexity of the circumstances that they are living in. These include the effects of poverty and living an unsettled way of life, the risk of exploitation, and the risk of becoming involved in illegal activities. This can then lead to ill health and health inequalities, reduced life chances, isolation and community tensions. II. The experiences prior to being in the UK, lack of experience of UK cultures and bureaucracies and also having to navigate a complex legal system in the UK also have a huge impact III. These risks mean that it is vitally important to have access to good, appropriate legal advice when needed and provided in the areas that individuals subject to immigration controls live. The proposed changes to Legal Aid will undoubtedly reduce the already inadequate supply of accredited legal representation and place further strains on front line advice and support services that can provide early help and interventions, often stopping issues reaching crisis point. IV. The current proposed changes will further exacerbate the lack of legal advice provision for asylum seekers. For example in East Sussex there is only one specialist provider (ie Brighton Housing Trust Immigration Legal Services and the Citizens Advice Bureaux) able to offer level 1 immigration advice. V. Vulnerability to becoming victims of fraudulent representation and loan sharking. The fraudulent advocates routinely charge £500 for “opening” a file and will guarantee their clients a positive outcome in their cases. Further fees then follow but without any assistance being given other help. It is important to note that regulatory bodies such as the Law Society and Legal Service Commissions would take up to 3 years to intervene in cases of false or fraudulent representation. VI. Exploitation and coercion: for example in Hastings and St Leonards there is already some evidence of exploitation of people subject to immigration control by their partners or in businesses. Limited access to representation due to legal aid change is likely to increase distress, homelessness, domestic violence and violation of human rights. VII. Family reunion is a complex process and those on indefinite leave to remain will cease to be eligible for Legal Aid impacting on cohesion and equalities. VIII. Complex Immigration cases requiring independent expert witness advice and opinion will not be eligible, leading to a likely increasing number of illegalities. It is also likely that there will be an increase in demand for the local MP’s intervention IX. The proposed changes would leave people more at risk of, and vulnerable to, criminal activities, including prostitution which would have health risks for individuals. Not having access to legal advice will be a miscarriage of their human rights August 2011 Memorandum submitted by Cleveland & Co Solicitors (LA 59) Re:LegalA id,Sentencing andP unishment ofO ffendersB ill 1. We are a medium sized provider of Legal Services based in Whitechapel London. We now employ about twenty staff admitted and clerical. We provide legal services to several hundred clients mostly through Legal Aid and Representation although we do provide services on a private basis and on very limited occasion a “pro bono” basis. The categories of work that we deal with are Immigration and Asylum, Human Rights, Employment, Housing, Community Care Criminal, Actions against the Police, Debt and Welfare Benefits. We now hold a LSC contract for Immigration Employment and Criminal work. Up until the last contract period we also held a Housing Community Care and Welfare Benefits Contract this remains in dispute with the LSC. Legal Aid, Sentencing and Punishment of Offenders Bill 2. We would suggest that we have relevant expertise, experience and special interest in the Government’s proposals to restrict and reshape the civil Legal Aid environment. This is because in our view the proposals will directly affect the company, our employees and our client base severely and in our view unnecessarily, quite apart from the more general view with regard to access to justice better expressed by others. We also note that clearly all of our employees and many of our client base are tax payers too. 3. It is noted that the proposals for reducing the scope for civil legal aid are directed squarely at the areas of law and clients that we as a company deal with. We note the proposals to restrict the scope of legal aid are allegedly decided on the basis of the vulnerability or other wise of clients. This rational is noted as the reason why in immigration work asylum detention deportation and human rights are left in scope whereas in our view oddly family matters are apparently taken out of scope despite the governments obligations under Article 8 of the ECHR and s55 of the 2009 Borders Act. The rational further “explains” why in terms of housing matters if it is a question of possession then the matter remains in scope but if it is about disrepair and suitability of housing then the matter is no longer in scope. 4. Many of our clients on any understanding of the concept are vulnerable they have legal disputes between themselves and powerful government institutions such as the UKBA, DWP, landlords private and social, employers and financial institutions. Unrepresented client’s are indeed weak litigators and if their redress is though the law then they should be able to access that redress by legal representation to create the desired equality of arms other wise the legal right becomes otiose. 5. A rational given for taking matters out of scope is because the areas of law are simple and easy to understand and therefore there is no need of legal representation. Whereas it is our submission that immigration law, employment law, housing law benefits law community care law are the most complex areas of law on the statute book. It is also noted there have been many years judicial interpretation of the law in these areas in the UK courts and the European Courts. For an example how many Immigration Acts have been passed in the last decade? How many remodels of the “Points Based System” have their been? How many times has the benefit system been “shaken up” and “reformed” in the last decade. We submit that these legal aid reforms will reduce the ability of litigants to argue the case if their applications are refused by mistake of fact or mistake of law. 6. A further rational given for taking some matters out scope is the strength and innate fairness of the Tribunal system. However, we work daily within the Tribunal system and our understanding of the Tribunal system points in the opposite direction. In our experience matters at Tribunals are decided in an adversarial environment with strong litigants who are usually legally represented. Our clients opponents are able to raise procedure and cross examine evidence in an increasingly hostile environment. We are aware that Tribunal Judges can be faced with grave difficulties when there are “litigants in person” hearings can extend further than necessary rather than when litigant’s are represented legal questions and disputes can be narrowed. 7. It is noted that after the recent collapse of the Immigration Advisory Service Mr J Sedgewick ACE UKBA wrote a letter to ILPA on 26 July 2011 and it included this comment…”It is very important to the UKBA that adequate levels of advice are available for those making immigration applications, particularly those who are vulnerable. We will make every effort to ensure that IAS clients are not disproportionately affected by the current situation and will treat individual cases sensitively.” As a company we have been allocated 2000 of IAS’s files by the Legal Services Commission. If this company did not exist because of these proposals then the importance of getting adequate levels of advice as noted by the UKBA would simply be overridden by purely financial demands. 8. We submit that it should be regarded as most important to the Tribunal and Courts, to government departments, landlords employers and financial institutions that relevant legal advice and assistance is readily available subject to a reasonable means test to all those like our clients who other wise would not get any. 9. We submit that in the round these proposals if they are accepted it will mean the closure of our company, the unemployment of many of our staff and the loss of provision of legal advice and assistance for most of our clients. August 2011 Memorandum submitted by National Accident Helpline (LA 60) This document is a short briefing on National Accident Helpline and our views on how the Legal Aid, Sentencing and Punishment of Offenders Bill will affect consumers and access to justice. Introduction to National Accident Helpline 1. National Accident Helpline (NAH) is the UK’s leading free advisory service for people who have suffered a non-fault injury as a result of an accident. We help these people seek redress to aid their recovery, through our national solicitor network. National Accident Helpline is authorised by the Ministry of Justice in respect of regulated claims management activities and is a registered company, incorporated in the UK. Legal Aid, Sentencing and Punishment of Offenders Bill 2. NAH was formed in 1993, in advance of both the introduction of conditional fee arrangements and the Access to Justice Act. We were formed by a group of solicitors who saw the advantages of pooling resources and advertising through a national brand—NAH—to help people frightened of approaching solicitors directly to obtain advice and, where appropriate, pursue their rights to claim for personal injuries suffered by them. 3. NAH is made up of a network of 108 specialist solicitor firms, our panel members, from across the country and is highly regarded across the industry. We have panel firms in England, Scotland, Wales and Northern Ireland. Our panel members pool resources to advertise as a gateway for thousands of personal injury victims who are seeking an entry point into the legal system. NAH business model and how we work 4. The NAH model is significantly different to arrangements that operate in other areas of the personal injury market and that involve referral fees. The NAH model is a pooled marketing model, rather than a referral model. Indeed, this distinction was recognised when NAH was established in 1993 at a time when referral fees were not permitted in the legal system. The Law Society recognised that the NAH model did not involve referral fees and that our pooled marketing arrangements do not constitute a referral fee arrangement. 5. During 2010 NAH received around 195,000 enquiries from consumers who are injured in accidents and who want advice and help on what to do. Our call centre staff are legally trained. They take the initial enquiries and filter out spurious and weak claims and then pass the enquiry to one of our panel members who have a geographic or specialism link to the consumer. The centralised NAH call centre filters out around 130,000 of those enquiries (those unlikely to have a legitimate claim to pursue) and refers around 60,000- 65,000 people with their consent to one of NAH’s specialist personal injury panel member solicitors. The call centre ensures that the consumer is made fully aware of the way in which NAH works with our panel solicitors. The principles of justice in personal injury cases 6. Our response to the Bill Committee is based around nine principles of justice in personal injury and clinical negligence cases, which we believe are commonly accepted by stakeholders and indeed expected by consumers. These principles, listed below, are fundamental in order to ensure a fair and just system is in place. It is our view that any changes proposed for reform of civil litigation funding and costs should not contravene any of these principles. We hope that the Public Bill Committee will be mindful of these principles in all of its considerations of Bill amendments and throughout the legislative process. The nine principles of justice in personal injury cases I. Accident victims deserve the right to seek redress for injuries caused to them through the negligence of another party, regardless of their financial means. II. Financially vulnerable claimants should not be deterred from making a legitimate claim on the grounds of any potential cost, whether known or unknown at the start of the claims process. III. Successful claimants should be entitled to the entirety of any damages received, in order to help them move on with their lives following their injury and provide full restitution for the damage caused. IV. Claimants should be entitled to the same high standards of service and legal representation from all types of organisations, solicitors and bodies representing accident victims. V. Defendants in personal injury cases should be able to dispute claims that they believe are fraudulent or without legal merit. VI. Successful defendants in personal injury cases should not have to pay any claimant costs and should recover their own legal costs. VII. The application of justice in personal injury cases involving public sector defendants should not place overly-punitive requirements on any party, regardless of whether they are an individual, private organisation or public sector body. VIII. Public bodies who contribute to the rehabilitation of the accident victim, such as the NHS or Department of Work and Pensions, should be recompensed for costs by the party found responsible for the accident. IX. The application of justice in personal injury cases should not reward unnecessary delays, overburden the court service, or impinge on the right of claimants or defendants to bring or defend claims. Legal Aid, Sentencing and Punishment of Offenders Bill NAH’s view of the Legal Aid, Sentencing and Punishment of Offenders Bill 7. National Accident Helpline is most concerned with the aspects of the Bill which were taken from proposals presented to the Government by Lord Justice Jackson regarding changes to the civil litigation system, which can be found in Part 2 of the Bill, under “Litigation and costs”. A number of key issues in the Bill which will affect National Accident Helpline’s customers are devolved to the Lord Chancellor for interpretation. Therefore, it is difficult to comment on how these issues will affect NAH and our consumers without knowing the exact detail of what will be implemented. 8. The issues which have particular resonance for NAH’s customers are listed below: — s.41(2) (4B) on Conditional Fee Arrangements: This clause states that the Lord Chancellor decides the cap on the success fee and the damages it can relate to. We believe that Conditional Fee Arrangements (CFAs) exist in order to provide access to justice for those who cannot afford to pursue litigation and who are not eligible for public funding. Therefore any changes to this system must still protect those most vulnerable. Lord Justice Jackson proposed a 10% uplift on damages to mitigate against the unfairness to injured people caused by ending recoverability of success fees from the paying party. This proposal is not contained within the Bill and the absence of this provision is of grave concern. To reduce the devastating impact of these proposals on accident victims a significant uplift on all personal injury damages is required as recommended by Law Commission report 257. — s.41(4) ends recoverability of success fees: We oppose this clause, which ends recoverability of success fees. The clause puts an end to full compensation to those who most need and deserve it, creating significant access to justice gaps and incentivising obstructive behaviour by defendants. The purpose of the recoverability of success fees is to enable good access to justice and to ensure that the claimant’s ability to gain redress is not reduced in any way by the legal process. This clause will lead to a denial of access to Justice for thousands of deserving claimants injured in accidents. — s.42 (1)—(5) on Damages-based Agreements: This section legalises US style contingency fee arrangements and allows prescribed bodies to take a “cut “of any damages. — s.43 (1) on Recovery of Insurance premiums by way of costs: This clause ends recoverability of after the event insurance premiums, except in circumstances prescribed by the Lord Chancellor. This is an entirely unacceptable proposal and contravenes Principles 1, 2, 3 and 9 of the principles set out above. If recoverability is ended the categories of exempt cases described at s.43 (2) requires significant extension to protect those most vulnerable. Lord Justice Jackson’s solution to the huge access to Justice gap created by this section was a flawed mechanism known as qualified one way cost shifting. The Bill makes no reference to this provision and until the relevant secondary legislation is drafted it is impossible to fully quantify the devastating effect of this proposal on access to justice. 9. All of the above points have the potential to greatly affect access to justice for NAH’s consumers. As the Bill itself does not give the specifics of how these changes will be applied, as the Lord Chancellor will make the final decisions, it is extremely difficult to state exactly how consumers will be affected although it is obvious that these proposals will have a significant detrimental impact on accident victims. 10. From our analysis of previous statements and comments from Ministers, it does appear that the Government’s intention will be to draw up the secondary legislation in such a way that it will make it substantially harder for people who have suffered an accident, through another’s fault, to access justice and achieve full restitution. 11. We believe that the Bill should be amended to ensure that this restriction of access to justice does not take place. This would be best served by removing all of Part 2 from the face of the Bill. Summary 12. National Accident Helpline is concerned that specific details of how this legislation will be applied in practice are devolved to the Lord Chancellor, making it impossible for us to assess the full effect of this legislation on access to justice. 13. However, we are very concerned that the Bill as currently drafted will dramatically impinge upon the ability of innocent people who have been injured, through the fault of another, to obtain justice and restitution for the harm that is done to them. Legal Aid, Sentencing and Punishment of Offenders Bill 14. National Accident Helpline believes that the “nine principles of justice in personal injury cases” should be followed by the Public Bill Committee during the shaping process of this legislation. This is fundamental in order to ensure a fair and just system is in place. August 2011 Memorandum submitted by Roger Smith, Director of Justice (LA 61) Re: Evidence Session on 14 July 2011 to the Public Bill Committee in respect of the Legal Aid, Sentencing and Punishment of Offenders Bill 2011 I write further to the evidence I gave to the Public Bill Committee in respect of the Legal Aid, Sentencing and Punishment of Offenders Bill on 14 July 2011. During the evidence session (at col 124), Helen Goodman MP asked about JUSTICE’s concerns in respect of the adult bail provisions and I said I would write to the Committee in respect of this. I therefore here set out JUSTICE’s views on the Bill’s bail proposals. In our written evidence to the Committee we said, at para 19: We welcome the removal of likelihood of failure to surrender to custody as a criterion for refusing bail in cases where there is no real prospect of a custodial sentence (clause 73 and Schedule 10). However, in the small number of cases where there is no real prospect of a custodial sentence but there is serious risk, that cannot be dealt with by conditional bail, that a defendant will commit serious violent or sexual offences while on bail or interfere with witnesses, we believe that a remand in custody should continue to be available. We therefore believe that the exceptions proposed in the Bill intended to apply to offences of domestic violence should be extended to allow a remand in custody in any case where there is no real prospect of a custodial sentence but there is a serious risk—that cannot be dealt with by bail conditions—that the defendant will commit serious violent or sexual offences and/or interfere with witnesses whilst on bail. We anticipate that the number of cases in which this would be necessary would be small, but believe that it is important that a residual discretion remains to allow justice to be done (by protecting victims and witnesses) and to protect the public. If it is believed that custodial remands are currently being overused on the grounds of likelihood of committing offences on bail/interfering with witnesses in cases where there is no real prospect of a custodial sentence, we believe that the better solution is to tighten the criteria for a remand to custody rather than to ban it in certain categories of case. September 2011 Memorandum submitted by Action against Medical Accidents (AvMA) (LA 62) 1 AboutA vMA 1.1 Action against Medical Accidents (AvMA) is the independent charity for patient safety and justice. Established for nearly 30 years, AvMA provides specialist advice and support to over 3,000 people a year affected by medical accidents, and works collaboratively with the Ministry of Justice, Department of Health, NHS, lawyers, regulators and other patients groups to improve patient safety and the way injured patients are responded to. AvMA brings a unique and well informed independent patient / consumer perspective to these issues. 1.2 AvMA has particular expertise in the field of clinical negligence. AvMA established the first accreditation scheme for solicitors who specialise in clinical negligence (its clinical negligence “panel” ) and continues to train, advise and support solicitors specialising in clinical negligence. Access to justice for people harmed as a result of avoidable mistakes in healthcare remains central to the charity’s mission. 2 ExecutiveS ummary 2.1 AvMA is profoundly concerned about the negative impact that the changes in the current Bill would have both for access to justice for people affected by clinical negligence and for the NHS and the State (and the taxpayer) as a whole. 2.2 We argue that clinical negligence should be kept in scope for legal aid, and point out that this view is shared not only by advocates for patients and access to justice but also the NHS Litigation Authority itself and the Clinical Disputes Forum (which represents stakeholders from all sides involved in clinical disputes). 2.3 We argue that amendments are also needed to the proposals for changes to how conditional fee agreements (no-win no-fee arrangements) will work. 2.4 We point out that patient safety is likely to be harmed if people are less able to legally challenge healthcare providers. Legal Aid, Sentencing and Punishment of Offenders Bill 2.5 We also point out that the proposals as they stand fail to take account of the extra costs that will be accrued by the NHS as a result of the reforms, which are likely to exceed any modest savings for the Ministry of Justice. 3 LegalA id andC linicalN egligence 3.1 The assumption that the reformed no-win no-fee system would provide a suitable alternative for claimants is misplaced and ignores the responses from specialists to its consultation. A survey of AvMA’s specialist clinical negligence panel solicitors suggests that at least 50% less cases will be taken on. Only the more obvious straightforward cases will be taken on, leaving some of the most vulnerable people in society including brain injured children, with no access to justice. 3.2 The Ministry of justice impact assessment for the Bill takes no account of the extra costs that would be accrued by the NHS if clinical negligence were to be taken out of scope for legal aid. Responses to our Freedom of Information requests to the Department of Health and NHS Litigation Authority confirm that no such assessment even exists. (See appendices). 3.3 Unless large numbers of people are denied access to justice at all (which is not the policy intention), the result of the reforms would be additional expense for the NHS and the State overall. For example, whilst the Ministry of Justice estimates it would save just £10 million a year by taking clinical negligence out of scope for legal aid, we estimate that if all cases which are currently successful under Legal Aid were successful under the revised no-win no-fee arrangements, the cost to the NHS of investigating new claims and settling previously legally aided cases under the reformed system would amount to at least as much. This is mainly because the NHS will have to pay for expensive insurance premiums to cover the cost of medical expert reports. However, the NHS will also have to spend money investigating and defending more spurious claims generated by throwing the market open to non specialist solicitors and claims farmers, without any of the controls offered by legal aid. Further, we are concerned that the recoverability of after the event policy costs is proposed to be in respect of medical reports only. In cases involving serious and persisting injury there are many disbursements in addition to medical experts. Fees for quantum experts can amount to as much as £30,000 and miscellaneous disbursements for travel, couriers, specialist medical examinations such as MRIs and subsistence can amount to as much as £15,000 3.4 Currently only firms represented on the specialist clinical negligence panels can run cases under legal aid. Establishment of specialist clinical negligence panels is seen by most experts as having been invaluable in improving efficiency and the ability of solicitors to assess potential cases, including screening out ones without merit. The reformed system would enable any non-specialist solicitor to run a clinical negligence case with none of the controls exercised currently by the Legal Services Commission, encourage claims farmers and generate more unmeritorious claims. 3.5 We note that even the NHS Litigation Authority wishes to have clinical negligence retained in scope for legal aid. Their response to the consultation states: “Overall, we are strongly in favour of retaining legal aid for clinical negligence cases using current eligibility criteria”. Sir Rupert Jackson himself said in his proposals for reform of no-win no-fee agreements: “I stress the vital necessity of making no further cutbacks in Legal Aid availability or eligibility … the maintenance of Legal Aid at no less than present levels makes sound sense and is in the public interest”. The Clinical Disputes Forum, a charity which brings together all the different stakeholders in clinical disputes, also argues for the retention of legal aid specifically for clinical negligence. 3.6 We do not agree that the mere possibility of “exceptional funding” being awarded if the Ministry of Justice is in danger of being in breach of Human Rights goes anywhere near enough towards preserving access to justice. Experience of exceptional funding to date has shown that it is in practice very rarely awarded. Also, there would be an administrative burden attached to assessing applications for exceptional funding, hearing appeals and no doubt satellite litigation over alleged unfair denial of funding. The fact that the Ministry of Justice is already conceding that it would have to allow for 35% of the existing rate of cases to be funded through the exceptional funding route, lest it be in breach of Human Rights, makes it all the more sensible to retain clinical negligence in scope altogether. 3.7 We strongly advocate the retention of clinical negligence within scope for legal aid. 4 The“J ackson” reforms—ConditionalF ee or“N o-winN o-fee”Arrangements 4.1 The proposed reform of no-win no-fee agreements means that if a solicitor is to claim a success fee in successful cases, they have to claim it from the claimant’s general damages and past losses. The proposal is to increase the level of general damages by 10% to compensate claimants for this (although how this can be guaranteed is not explained). However, solicitors will be able to claim up to 25% (and many argue this will be necessary to make this work viable) thereby depriving deserving claimants 15% of the general damages that the court has deemed they are entitled to. We believe it is wrong in principle to force solicitors to eat into the damages that claimants need and deserve in order to pay for a new system that the Government is imposing.. Not only does this go against the well established legal principle that the claimant is entitled to damages to compensate him/her for the injury but serves to increase the likelihood of a conflict Legal Aid, Sentencing and Punishment of Offenders Bill of interest arising between solicitor and client. We strongly support the principle is that the “polluter pays”. Further, no account has been taken of the situation where past losses are held in trust for another, such as where there is a claim for past care provided by a relative, the so called “gratuitous care” claim. 4.2 If the proposal to pay for solicitors’ success fees by allowing deductions from claimants’ damages goes ahead, the increase in general damages needs to be considerably greater to cover the expected rate of success fee. The Ministry of Justice has so far failed to explain how it can guarantee an increase in general damages in any case. The Bill should not allow deductions from claimants damages if the corresponding increase in damages is not guaranteed on the face of the Bill. 4.3 The Ministry of Justice accepts that in order to make the new arrangements for no-win no-fee work and to make insurance to cover claimants from costs payable to defendants in the event that they lose unnecessary, people need not to be liable for the defendants’ costs. It proposes what it calls “qualified one- way costs shifting”. It is said that all but the very rich will benefit from this arrangement. However, either this arrangement should be available to all, or there needs to be a specific rule about what constitutes a degree of wealth such that a claimant would not benefit from “one way costs shifting”. It is an essential component if access to justice under no-win no-fee is to be preserved and should be on the face of the Bill. We believe that one-way cost shifting should be available to all, or at least there should be no uncertainty as to what constitutes “conspicuously wealthy”. 4.4 Whilst we recognise the need for some reform of the current system as it applies to claimants, the opportunity should also be taken for defendants to be incentivised to investigate and settle claims promptly where appropriate. This could result in massive savings in legal costs. We would advocate a system of staged success fees, where the defendant pays no success fee if they admit liability promptly, but pays increasingly more the longer an eventually successful case is defended. 5 Impact onP atientS afety andO therU nintendedC onsequences 5.1 Investigation of legal claims provides a powerful incentive for the NHS to improve safety and often results in vitally important lessons which would not otherwise come to light. This includes the “unsuccessful” claims investigated under legal aid but dropped often for technical legal reasons, but which still uncover failings in care. Putting aside the human cost, just one additional successful clinical negligence case involving serious and persisting injury, as a result of weaker patient safety, could on its own wipe-out the estimated annual ‘savings’ from scrapping legal aid. 5.2 We share the Judiciary’s concerns about the impact on the courts and the system as a whole that an increase in litigants in person, which we see as inevitable if the Bill goes ahead un-amended, will have. 5.3 Ironically, whilst a so-called perceived “compensation culture” (which does not actually exist currently when it comes to healthcare) is said to be one of the drivers for reform, the proposed changes will do more to promote the unsavoury aspects of a “compensation culture” than deter them. For example relinquishing the degree of quality control afforded by the legal aid system for clinical negligence will throw the market open completely to non-specialist and less scrupulous solicitors and claims farmers. There would in all likelihood be an increase in this type of activity. 6. Alternatives toL itigation 6.1 We are disappointed that Lord Jackson’s recommendation to reconsider implementing the NHS Redress Act was ignored. We are in favour of an administrative system to award compensation in less complex cases, if suitably designed and sufficiently independent, as an alternative to litigation. We are not however convinced that a “road traffic accident” type portal along the lines currently envisaged would be an appropriate way of dealing with such claims. We are concerned that discussions of this scheme to date have completely excluded representatives of patients/consumers. Appendices 1. Freedom of Information Act—response from Department of Health 14/07/2011. DE00000630934 Thank you for your requests of 12 July 2011 under the Freedom of Information Act (2000). Your exact request was: “Please supply any assessment or estimate you hold of the impact on the number and cost implications of clinical negligence claims against the NHS of the proposed legal reforms contained in the Legal Aid, Sentencing and Punishment of Offenders Bill, or of the Ministry of Justice’s consultaions of responses to consultations on Civil Litigation Costs and Reform of Legal Aid. Please include any relevant letter or memorandum as well as any report.” The Department of Health does not hold any information relevant to your request. I should explain that your request falls under the remit of the NHS Litigation Authority (NHSLA) and as a separate body under the Freedom of Information Act, I would advise that you contact them directly. Details on how to do so can be found at the following address:' http://www.nhsla.com.foi/(. Legal Aid, Sentencing and Punishment of Offenders Bill If you have any queries about this email, please contact me. Please remember to quote the reference number above in any future communications. If you are dissatisfied with the handling of your request, you have the right to ask for an internal review. Internal review requests should be submitted within two months of the date of receipt of the response to your original letter and should be addressed to: Head of the Freedom of Information Team, Department of Health, Room 317 Richmond House, 79 Whitehall, London SW1A 2NS. Email:' freedomofinformationwdh.gsi.gov.uk(. If you are not content with the outcome of your complaint, you may apply directly to the Information Commissioner (ICO) for a decision. Generally, the ICO cannot make a decision unless you have exhausted the complains procedure provided by the Department. The ICO can be contacted at: 2. Freedom of Information Act request—response from NHS Litigation Authority From: Ruth Symons [Ruth.Symonswnhsla.com] on behalf of FOI [foiwnhsla.com] Sent: 27 July 2011 17:15 To: Peter Walsh Subject: RE: Freedom of Information Act request Follow Up Flag: Follow up Flag Status: Red Dear Peter The response to your question (relating to England) is that we have made no such assessment. Regards, Ruth. Ruth Symons, Risk Manager, NHS Litigation Authority September 2011 Memorandum submitted by the Medical Protection Society (MPS) (LA 63) Introduction 1. The Medical Protection Society (MPS) is the leading provider of comprehensive professional indemnity and expert advice to more than 270,000 doctors, dentists and other health professionals around the world. We have nearly 120 years experience of the medicolegal environment and operate in over 40 countries around the world. In the United Kingdom around 170,000 doctors, dentists and other healthcare professionals are members representing around 50% of all doctors and 70% of all dentists. 2. As a mutual, not-for-profit organisation we offer members help, on a discretionary basis, with legal and ethical problems that arise from their professional practice. This includes clinical negligence claims, disciplinary and professional regulatory investigations, inquests, complaints and general ethical and professional advice. In England and Wales, MPS handles around 5,000 clinical negligence claims and potential claims at any one time. 3. We firmly believe that every patient who has been harmed as a result of negligent treatment is entitled to an explanation, apology and fair and timely compensation. We always seek to establish the facts, assess the merits of a claim and provide a prompt and comprehensive response to claimants. Where we believe compensation is due our approach is to ensure that we provide fair compensation as soon as possible; where we believe no negligence has occurred we will provide a full explanation which allows the claimant to understand our reasoning. We will also explore alternative dispute resolution wherever possible and appropriate. 4. The way in which clinical negligence claims are handled differs across primary and secondary healthcare. In the NHS hospital sector, the NHS Litigation Authority and the Welsh Risk Pool provides an indemnity through a mutual pooled scheme for the cost of clinical negligence claims brought against NHS Trusts and Health Authorities in England and Wales. Claims are brought against NHS Trusts and Health Authorities instead of individual doctors. In primary care, MPS and other Medical Defence Organisations (“MDOs”) provide an indemnity against the cost of clinical negligence claims brought against independent contractors such as GPs and dentists. MDOs also manage all clinical negligence claims against private consultants. Claims will be brought against the individual healthcare professional and the legal representation will be provided by MPS from our medical and dento legal advisers and in-house or panel lawyers. Any compensation awarded to the claimant along with their legal costs will usually be funded by the practitioner’s MDO. Legal Aid, Sentencing and Punishment of Offenders Bill 5. MPS welcomes the opportunity to comment on the Legal Aid, Sentencing and Punishment of Offenders Bill. Our submission focuses on Part 1 of the Bill regarding legal aid and Part 2 regarding litigation funding and costs. Part 1: LegalA id Legal Aid 6. We agree in principle with the proposal to exclude clinical negligence cases from legal aid funding since there is no reason why funding by conditional fee arrangements (CFAs) should not be available for most meritorious clinical negligence claims. 7. However, we have some concern that the costs incurred in the early investigation of complex claims may be beyond the means of some claimants. We have in mind particularly the costs involved with the early investigation of cases involving profoundly disabled babies, where a raft of expert evidence is required to establish a claim. We believe that limited legal aid should be available in such cases to fund preliminary investigations and that, once it becomes clear that the claim has merit, the claimant could then move to a CFA, with the Legal Aid Fund having a charge over any damages and costs recovered to meet the earlier costs. Part 2: LitigationF unding andC osts 8. MPS has long held deep concerns about the way in which costs are managed in clinical negligence cases and we have been urging the government to implement the fundamental changes proposed by Lord Justice Jackson. Our experience shows that the costs associated with claims in England and Wales are among the most expensive in the world. It is clear that these legal costs in clinical negligence cases have become disproportionate and unsustainable. Clause 41: Conditional fee arrangements 9. We warmly welcome the proposal in clause 41 of the Bill to abolish the recoverability of success fees, commonly charged by lawyers acting under Conditional Fee Arrangement (“CFA”). We believe that CFAs are a primary driver in escalating legal costs, giving claimant lawyers an unhealthy stake in prolonging a claim. Clause 43: Recovery of insurance premiums by way of costs 10. We are disappointed that Lord Justice Jackson’s recommendation to ban the the recoverability of after the event (ATE) insurance premiums in all circumstances has not been followed. However, we can understand the arguments in favour of having some limited recovery in the absence of legal aid provision. 11. ATE insurance is often taken out by claimants too early during the outset of the pre-action phase before the claimant faces any risk of having to pay the defendant’s costs and when a prospective defendant may not even be aware of the potential claim. This means that a defendant who wishes to settle a claim at an early stage will have to fund the unnecessary premiums paid by the claimant. In these circumstances, we would not consider the recoverability of insurance premiums to be appropriate. 12. If the recoverability of insurance premiums is to be limited to the cost of expert reports in clinical negligence cases, as stated in clause 43, section 58C(1) and (2), we would like to see some control over the number of experts instructed. Defendants should only be liable to pay for that part of the premium where reports are actually relied upon. This would emulate the current situation. 13. We urge the regulations to prescribe a maximum amount for the recoverability of ATE insurance as inferred in clause 43, section 58C(4)(a). This would prevent excessive cost building and the inappropriate or excessive use of experts. 14. In order to reflect the impact of the availability and cost of ATE premiums following the reforms, we also recommend a regular review of the maximum amount to be recovered. It is difficult to comment now on what the financial maximum or mechanism for determining the proportion to be recovered should be, as we do not know how the insurance industry might respond to the need for this type of product. Legal Aid, Sentencing and Punishment of Offenders Bill Clause 51: Payment of additional amount to successful claimant 15. We note the proposal to allow payment of an additional amount not exceeding a prescribed percentage of the amount awarded to the claimant by the court. We consider that there should be a prescribed scale of increases linked to the value of the award to avoid disproportionate additional awards. We recognise that this proposal reflects the recommendations of Lord Justice Jackson and will incentivise defendants to make early and realistic offers to settle meritorious claims. September 2011 Memorandum submitted by the Association of Personal Injury Lawyers (APIL) (LA 64) Introduction to APIL 1. The Association of Personal Injury Lawyers (APIL) is a not-for-profit membership organisation, established more than 20 years ago to fight for the rights of people injured needlessly, through no fault of their own. We all have a responsibility to ensure we do not injure other people, and this is even more important in circumstances where the individual is directly in the care of another, such as in the workplace, in our hospitals and schools. Where those responsibilities are neglected, however, and injury occurs as a result, the injured person has a right to proper redress, paid for by the wrongdoer, who must be held to account. ExecutiveS ummary 2. Removing legal aid for clinical negligence will restrict access to justice for the most vulnerable. 3. Ending recoverability of the success fee and the ATE insurance premium from the wrongdoer will mean the wrongdoer will be rewarded, and the injured person will be penalised. It will make justified claims below a certain figure uneconomic to run, restricting access to justice. 4. Some injured people with complex cases will not be able to find a solicitor who can risk taking them on. Industrial disease cases, for example, involve complexities such as the need to establish which employer was involved, whether more than one employer was involved, and when the claimant became aware of the disease. 5. Victims of clinical negligence will be hit particularly hard as not only will they be unable to gain access to legal aid, they will also face the prospect of having money taken out of their damages. 6. These reforms will disadvantage people who have been injured as a result of someone else’s negligence, and will only save money for the insurance industry. This is neither fair nor just. 7. Conditional fee agreements have provided access to justice to people like critically injured Client A, whose case is outlined at the end of this evidence. The need for legal aid for clinical negligence 8. Access to justice is one of the key principles of a modern democratic society, and legal aid provides access to justice for the most vulnerable people. 9. Legal aid should be retained for all clinical negligence cases. Removing legal aid for clinical negligence cases will remove access to justice for the most vulnerable people who have been injured through no fault of their own who, in most cases, are seeking medical treatment to make them better. These vulnerable people, who will no longer be entitled to legal aid, will then suffer as a result of the proposed changes to “no win no fee”, which will often result in money being taken out of their damages to pay towards their legal fees. Worse still, in complex cases it may be difficult to find a lawyer prepared to run the case at risk. 10. The cost to the Government of funding clinical negligence cases, out of a legal aid budget of £2.2 billion, is £17 million.230 Removing clinical negligence cases from scope would save less than 1% of the legal aid budget. 11. The National Patient Safety Agency was notified of more than one million adverse incidents between April 2010 and March 2011.231 During the same period, however, only 8,655 clinical negligence claims were brought against the NHS.232 This means that less than 1% of potential claims were brought against the NHS. 230 Legal Aid (Clinical Negligence Cases) Oral Answers to Questions—Justice House of Commons debates, 23 November 2010, 2.30pm 231 NRLS Quarterly Data Workbook up to March 2011 232 NHSLA Report and Accounts 2010/2011 page 12 Legal Aid, Sentencing and Punishment of Offenders Bill The importance of conditional fee agreements (CFAs): research findings 12. APIL commissioned joint research with the Access to Justice Action Group (AJAG), and this research showed that the overall majority of CFA users are people of average means. The research, conducted by ICD, reveals that more than half of CFA users earn less than the national average wage (approximately £25,000 per annum). Out of those questioned, more than half received less than £5,000 in compensation. While this is not a huge amount of money to a large insurance company, this is a substantial amount of money to most people. 13. The research also revealed that of approximately three million people in England and Wales who have used CFAs in the last five years, three-quarters have only done so once. This demonstrates that the users of CFAs are only one-time users, and will have no previous knowledge or understanding of the system. They therefore need as much support as the system can give them. The effect on injured people: research findings 14. APIL has recently researched its own members about the impact of part two of the Bill. This research gives an indication of some of the costs which will have to be borne by the injured person. 15. Part two of the Bill prevents the success fee from being recovered from the losing defendant, the person who caused the injury.Under the current system, the claimant’s solicitor recovers the success fee from the losing defendant, and this fee is reserved to help compensate for cases which are ultimately lost (and for which no fee is payable), and discourages solicitors from “cherry picking” only the most straightforward winnable cases. The Bill puts an end to recoverability and forces the solicitor to take the success fee (which will be capped at a suggested 25% of the damages awarded for pain and suffering) out of the damages awarded to the injured person. 16. Not only will the injured person lose out by having money taken from his damages, but a capped success fee may prevent the solicitor from taking on a case in the first place, so that an injured person with a riskier, or more complex (yet meritorious) claim will be denied access to justice. In industrial disease or clinical negligence cases, for example, it can be very difficult for the solicitor to know at the outset if the claim is likely to succeed. As a result of these proposals, the solicitor may find it more difficult to commit to the initial investigations and reports needed to establish the chances of success. 17. The Bill also prevents the after the event (ATE) insurance premium from being recovered from the losing defendant, so the costs will have to be met by the injured person. If the claim is as a result of clinical negligence, the claimant will have to pay about £5,000 for an ATE insurance policy. In terms of other types of cases, a claimant will have to pay £400 for a road traffic accident (RTA) case, and £1,000 for a public liability (PL) case. £5,000 could be almost half a year’s wages to somebody earning minimum wage, and this could be a barrier for someone who needs to make a claim, and who may be unable to work again. 18. This research also revealed that it would be harder to find a solicitor to take on a personal injury case if this Bill were to be passed. Under the new proposals, those APIL members who responded said they would only be able to take on an employer liability case if it had a 65% chance of success, a road traffic accident case if it had a 60% chance of success, and a public liability case or a clinical negligence case if it had a 70% chance of success. Solicitors will be unable to take on meritorious cases which have a lower chance of success, denying access to justice for the injured person. 19. Taking into account the costs which will no longer be recovered from the losing defendant, the research suggests that the injured person would lose, on average, about £2,000 from his damages, £2,000 which has been determined as what is needed by injured people. 20. The Government has said previously that general damages will be raised by 10% to cover the loss of the success fee from the damages. The Government is yet to reveal, however, how such an increase can be put into practice. It is unknown how an increase in damages can be proven if the amount is settled between parties outside of court. Why should the injured person pay? 21. As a result of this Bill, part of the legal fee would be paid out of the damages awarded to the injured person. This is neither fair nor just. Nobody asks to be injured. An injury can change a life forever and will certainly result in pain and inconvenience. Why should the injured person have to pay the costs which will be incurred as a result of someone else’s negligence? 22. An injured person isn’t bringing a defamation claim for something that has been said in the newspapers, he is bringing a personal injury claim because he doesn’t have a choice. 23. Damages, which are carefully calculated to reflect the victim’s pain, suffering and practical needs, were never designed to include a fee for the injured person’s lawyer, and nor should they.The negligent party, who caused the injury, should cover all the costs incurred by the injured person, rather than the injured person having to rely on the state for support and financial assistance. Legal Aid, Sentencing and Punishment of Offenders Bill Damages will be even lower for injured people 24. By not allowing the success fee or the ATE insurance premium to be recoverable from the losing defendant, the injured person will lose money out of his damages, which are already deemed by many to be too low. 25. The Law Commission, in 1999, made recommendations that damages for pain, suffering and loss of amenity (general damages) should be increased. This recommendation followed a consumer survey and a study by Professor Hazel Genn in 1994. 26. The Law Commission recommendations included that general damages which amounted to more than £3,000 should be increased by at least 50% but no more than 100%. For damages between £2,001 and £3,000, there should be a series of tapered increases. 27. If the recommendations were not implemented within three years, the Law Commission wanted legislation to be introduced to implement the increase. Twelve years on, the recommendations have never been fully implemented. 28. The proposed 10% increase, which was included in the response by the Government to its proposals for reform of civil litigation funding and costs consultation, but not included in this Bill, would therefore not increase damages to the level deemed suitable by the Law Commission. Regulating referral fees 29. While referral fees are not dealt with in this Bill, APIL is aware that some sympathy has been expressed within Government to have referral fees banned. Should an amendment be tabled, the following views should be taken into account. 30. Most solicitors have reservations about referral fees, including those who pay them. There are, however, serious concerns about banning them, even if that could be achieved at this stage, when they are so well established and when there are issues such as the difficulty of actually defining a referral arrangement. APIL’s concern in relation to referral fees has always been the protection of the injured person: this protection cannot be achieved by driving referral fees back underground, where we know from previous experience that arrangements would be subject to no transparency or control at all. 31. A knee jerk reaction is not what is required here. 32. APIL notes that the Legal Services Board’s review found little evidence that referral fees cause any harm to consumers’ rights and we support the LSB’s drive for proper transparency in relation to referral fees, along with robust and joined-up regulation. This would create a level playing field with the regulation of lawyers. Strong regulation could look at the reasonableness of fees. 33. This should start with the imposition of a tight rein on the business models of claims management companies, insurance companies and other introducers. To expect solicitors to police the activities of introducers, as is currently the case, is simply impractical. We would like to see the need for written authority to be given every time an individual’s details are passed on. The importance of CFAs—Client A’s story 34. Client A is now 22 years old. He was nine when his mother was told that he would spend the rest of his life “like Christopher Reeve” following a botched blood transfusion in hospital. 35. Client A was born with scoliosis (curvature of the spine) and a diaphragmatic hernia, which was repaired at birth. After a successful operation to help straighten his spine, he was given a blood transfusion appropriate for an adult rather than a child. He was left paralysed below the upper part of his chest, with very limited movement in his arms and no movement in his hands. 36. After years of struggling to bring a legal claim, and with the case looking hopeless, legal aid was eventually withdrawn. It seemed Client A had little hope of a meaningful future, until Client A’s mum found a solicitor who was prepared to take his case on and was successful in obtaining the substantial award Client A needed to start putting his shattered life back on track. The case was funded through a “no win no fee” agreement. 37. “Client A’s case was incredibly complex and difficult, not least because liability had not been admitted by the hospital at any point following the blood transfusion,” said Client A’s solicitor. “Under the terms of this new Bill, I could never have acted for Client A. The risks were simply too high to justify a limited success fee, so Client A and his family would have had to rely on the state for help, while the negligent party remained unaccountable for the negligence which caused his injuries.” 38. “Money isn’t everything,” said Client A’s mum. “But it’s bought my son the things he needs, like proper housing, a decent wheelchair and other special equipment which helps him to cope. It’s helped to give him confidence in what he can do. He’s able to go to college and it looks like he’s headed for a career in computers. He’s also now able to pay for a team of professional carers who look after him 24 hours a day, seven days a week. Legal Aid, Sentencing and Punishment of Offenders Bill 39. “Without this money, I would never have had a life of my own, and neither would my other children. This sort of thing doesn’t just affect one person—it affects the whole family. And the kind of life my son was facing would have been so intolerable for him, he has told me he would have killed himself.” September 2011 Memorandum submitted by Still Human Still Here (LA 65) 1. Still Human Still Here is a coalition of more than 40 organisations that are concerned with the destitution of refused asylum seekers in the UK.233 Since 2008, we have reviewed asylum policy and practice to identify the causes of destitution and possible solutions which would both reduce the human and financial costs of the current asylum system. 1.1 In February 2010, Still Human published a detailed report which highlighted the lack of adequate competent legal advice and representation as one of the reasons why an individual with a well founded fear of persecution can go through the asylum system without being properly identified as such: “The asylum determination system still gets a quarter of its initial decisions wrong. The success rate at appeal for asylum seekers from certain countries is even higher. For example, in 2008, more than 40% of Eritreans and Somalis appealing against the refusal of asylum won their cases. While many asylum seekers will eventually be granted some form of status, after a lengthy and costly appeals process, others, particularly those without good legal representation, will get to the end of the process without having their protection needs recognised and end up destitute.”234 1.2 Even in 2009, research indicated that, in some areas of the UK, “as many as four out of five cases are wrongly refused legal aid [by misapplication of the merits test for representation on an appeal] and one third of those have a valid claim for some form of protection”.235 1.3 This problem has been exacerbated over the last 12 months by the closure of Refugee and Migrant Justice236 and the Immigration Advisory Service.237 This is reflected in the fact that 28% of appeals were allowed in the first quarter of 2011 and success rates for particular nationalities were even higher (eg 56% of Somalis, 46% of Zimbabweans and 45% of Eritreans had their appeals allowed in the first quarter of 2011). 1.4 While Still Human Still Here welcomes the Government’s decision to retain asylum within the scope for Legal Aid, we wish to draw the Committee’s attention to several concerns that nonetheless arise in the area of asylum by reason of the measures in the Legal Aid, Sentencing and Punishment of Offenders Bill and other developments arising out of the Legal Aid Green Paper: Proposals for the Reform of Legal Aid in England and Wales. 1.5 We believe these measures threaten to exacerbate existing weaknesses in the decision making process and the problem of destitution by further reducing the availability of competent and effective legal advice and representation for asylum-seekers. 2. Impact uponL egalR epresentation 2.1 In July 2011, Carolyn Downs, chief executive of the Legal Services Commission, highlighted her concerns to the Committee in respect of the sustainability of Legal Aid provision in the not for profit sector and the immigration and asylum area.238 “The area where we have had some concerns is about the large reductions in scope and the ability of certain parts of the legal services markets to adapt to that, particularly the not for profit sector, which the Government absolutely accept in their impact assessments, and in the immigration and asylum field.” 2.2 That assessment is in sharp contrast to the position taken by the Secretary of State for Justice last year at the time of Refugee and Migrant Justice’s closure: …The fixed fee system introduced three years ago by the last Government is already being successfully used by the vast majority of not-for-profit organisations in this area of law. As other organisations have successfully made the transition, it is only reasonable to expect Refugee and Migrant Justice to do the same… Every other organisation, including the other not-for-profit organisations, has coped with this… [Refugee and Migrant Justice] did not make the adjustments for 2007 that everyone else succeeded in making… [Refugee and Migrant Justice] had a 7% market 233 For more information see http://stillhumanstillhere.wordpress.com/. Refused asylum seekers range from those who have no protection needs to those whose protection needs have not been properly identified. 234 Still Human Still Here, At the end of the line: Restoring the integrity of the UK’s asylum system, February 2010, page 3. 235 Ibid, page 18 (citing Devon Law Project, Asylum Appellate Project—Second Year Report, 2009). 236 Refugee and Migrant Justice entered into administration in June 2010, following which it closed. 237 The Immigration Advisory Service entered into administration and closed its doors on 8 July 2011. 238 Hansard HC, Public Bill Committee, Tuesday 12 July 2011 (afternoon), Column 71, Q158. Legal Aid, Sentencing and Punishment of Offenders Bill share. It was, of course, part of the old advisory service, which was split up some time ago. The other half of the old advisory service [the Immigration Advisory Service] is to get a much bigger market share—over 20%.”239 2.3 The Government’s confidence in June 2010 has been contradicted by subsequent events. The Immigration Advisory Service has not coped, despite its receipt of over 20% of the immigration and asylum Legal Aid market in November 2010. Moreover, it is not only these two substantial not for profit organisations that have not been able to cope. For example, earlier this year, Fisher Meredith, a very respected firm of solicitors, largely closed its immigration department and in doing so withdrew completely from immigration and asylum Legal Aid. These difficulties have already led to periods during which areas of England and Wales have been left without any (immigration and) asylum Legal Aid provision240 and these problems are again being revisited with the closure of the Immigration Advisory Service. 2.4 However, the problem facing asylum-seekers is not simply whether a Legal Aid adviser is available, it is whether the quality of work provided by any such adviser is sufficient to properly identify and present the asylum claim. For those who are torture survivors, rape survivors, victims of trafficking, suffering from mental or physical or learning difficulties, children, non-English speakers, in detention, and/or unfamiliar with and afraid of authorities and legal systems, this problem is especially acute since these individuals will often face substantial difficulties in disclosing the detail of their history and asylum claim. 2.5 The sustainability of the asylum Legal Aid market is, therefore, at risk in two distinct ways: (1) that there are insufficient advisers available; and (2) that, although an adviser is available, the quality of work delivered and the time spent to establish trust and confidence is simply inadequate. 2.6 In addition to the matters raised above, other factors compounding these risks include: — Asylum Legal Aid advisers currently carry substantial Legal Aid debt owed to them by the Legal Services Commission. This is because the Commission does not pay for work in progress. Rather payment is made at particular stages when work can be closed (eg when a claim or appeal is finally concluded).241 This places significant financial strain on the adviser, particularly those properly pursuing complex cases which may not be closed for long periods of time. — Asylum Legal Aid advisers were required in November 2010 to undertake a range of both asylum and immigration Legal Aid work.242 Now they are told that an area of work (immigration) for which they were required to provide, including by maintaining or taking on staff, is to be removed.243 However, when the fixed fee regime was introduced in asylum and immigration in October 2007, the Legal Services Commission had said that financial viability would result because Legal Aid advisers should undertake a mix of complex and more straightforward cases.244 By removing immigration from Legal Aid, the Bill both undermines the model of work required to be adopted in November 2010 and undermines the possibility of advisers being able to balance less time-consuming cases against the losses made on the fixed fees paid for complex and time- consuming cases. — There has been no increase to immigration and asylum Legal Aid rates since 2001. 2.7 In these circumstances, the Legal Aid provisions in this Bill as they affect those advisers currently providing Legal Aid in asylum cases, coupled with the proposed Community Legal Service (Funding) (Amendment No 2) Order 2011245 which is intended to impose a 10% cut on all civil Legal Aid fees, constitutes a grave threat to an already inadequate and fragile area of Legal Aid provision. This can only exacerbate the existing problem whereby so many asylum-seekers pass through the asylum system, including any appeal, without their claims ever being properly identified and presented and are then left destitute and in limbo because they cannot safely return to their countries of origin, as was the case for thousands of Zimbabweans in the UK between 2002 and 2011. 2.8 In addition, members of the Public Bill Committee have raised concerns that provisions in the Bill relating to scope may drive some people to present their claims as falling within alternative categories so as to access Legal Aid. Kate Green MP noted: “The classic area is the boundary between immigration and asylum, and we can expect some cases currently covered by legal aid as immigration cases to be transferred to asylum.”246 239 Hansard HC, 17 June 2010 : Columns 1023, 1024, 1026 and 1028, per The Lord Chancellor and Secretary of State for Justice, Mr Kenneth Clarke QC. 240 ILPA’s July 2011 Briefing for the Committee on Amendment Nos. 83-85 provides further detail. The briefing is available at: http://www.ilpa.org.uk/pages/legal-aid-sentencing-and-punishment-of-offenders-bill-2011.html 241 This is explained further in ILPA’s July 2011 Briefing for the Committee on Amendment Nos. 83-85 op cit 242 The tender process required that all applicants bid for minimum numbers of matters starts in both immigration and asylum, see http://www.legalservices.gov.uk/docs/civil contracting/ImmigrationServices IFA v.3.pdf 243 This results from paragraph 25(1) of Schedule 1 to the Bill. 244 Department of Constitutional Affairs/Legal Services Commission, Legal Aid Reform: the Way Ahead, Cm 6993, November 2006, pages 8–9. 245 More information see ILPA’s August 2011 response to the Ministry of Justice consultation on the proposed Order, see http:// www.ilpa.org.uk/pages/non-parliamentary-briefings-submissions-and-responses.html 246 Hansard HC, Public Bill Committee, Tuesday 19 July 2011 (afternoon), Column 219 Legal Aid, Sentencing and Punishment of Offenders Bill 2.9 This risks the prospect of some non-asylum migrants being left without legal advice and assistance and consequently making unnecessary asylum applications which will have a negative impact on the cost and speed of the asylum system. 3. Conclusion 3.1 In May 2011, Damian Green MP, Minister for Immigration, made clear his ambition for “an asylum system which is more compassionate and produces the right decision, at the first time of asking”.247 We welcome this ambition. However, it depends on the quality of work put in by both the UK Border Agency caseowner and the asylum-seeker’s legal representative. For the reasons we have set out here, Still Human Still Here is gravely concerned that this Bill and related Legal Aid developments will seriously undermine the prospect that this ambition is realised, as some people in need of international protection will continue to pass through the determination procedure without being properly recognised and ultimately find themselves destitute and in limbo at the end of the process. September 2011 Memorandum submitted by Amnesty International UK (LA 66) Introduction: 1. Amnesty International UK aims to bring about a fair and effective asylum system. We conduct research into aspects of asylum policy and practice, develop proposals for improving policy and practice and promote our proposals with Government, Members of Parliament and others. We are a founder of the Still Human Still Here campaign concerned with destitution amongst asylum-seekers, are represented on the National Asylum Stakeholder Forum and recently published our report into the use of restraint techniques in the removals process.248 Asylum is only one of several areas in which we are active. Our activity in this area, as in all areas, is underpinned by our general purpose to protect people wherever justice, fairness, freedom and truth are denied. 2. This Memorandum sets out four key areas of concern relating to the immigration and asylum Legal Aid provisions of the Legal Aid, Sentencing and Punishment of Offenders Bill. These are addressed under the following headings: a. Detention and Removal b. Article 8 c. Legal Advice and Representation d. UK Border Agency Asylum Responsibilities Fundamental human rights are at stake in many immigration and asylum cases, including the recognition of refugee status, the right to life, the right to be free from torture, inhuman and degrading treatment or punishment, the right to liberty and the right to be free from unnecessary, unlawful or disproportionate interference with private and family life. Access to competent legal representation, and thereby effective access to the courts, is of critical importance in securing these fundamental rights. 3. First, we recall the stated rationale behind the measures in this Bill. In November 2010, the Government stated it “strongly believes that access to justice is a hallmark of a civil society”249. In June 2011, the Secretary of State for Justice reiterated a general intention that Legal Aid should “continue to be routinely available in 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”250 The Government set out four factors as the foundation for the proposals it had decided to pursue:251 a. The importance of the issue—especial priority to be given to matters of life, liberty, physical safety, homelessness, intervention by the State and holding it to account; b. The ability of a litigant to act without representation, with regard to characteristics of the litigant (eg age, disability or trauma); c. The availability of alternative sources of funding for legal representation (eg conditional fee agreements, legal insurance and trade union support); and d. The availability of alternative routes to resolve disputes (eg ombuds and complaints procedures). 247 Speech given to the National Asylum Stakeholder Forum on 26 May 2011, see http://www.homeoffice.gov.uk/media-centre/ speeches/asylum-forum-dg-speech 248 Out of Control: The case for a complete overhaul of enforced removals by private contractors, July 2011 249 Ministry of Justice Green Paper Proposals for the Reform of Legal Aid in England and Wales, CP12/10, November 2010, executive summary (paragraph 1.2) 250 Ministry of Justice Reform of Legal Aid in England and Wales: the Government Response, Cm 8072, June 2011, Ministerial Foreword of Kenneth Clarke (page 4) 251 Cm 8072 op cit, Section 3 The programme of reform (pages 11-12, paragraph 6) Legal Aid, Sentencing and Punishment of Offenders Bill Detention andR emoval: 4. Immigration detention and removal inevitably concerns liberty. It constitutes an especially intrusive intervention by the State, sometimes acting by private contractors. It includes the removal of persons and families to countries where there are widespread human rights abuses and insecurity; and can include the separation, potentially permanently, of adults and/or children from their families, their home, their community, their language and indeed the country of their birth and/or citizenship. Also, as in the tragic case of Jimmy Mubenga,252 it has on occasion led to someone’s death while in the care of the State. 5. The Bill fails to accord these matters their manifest high importance. Further, in one critical respect it accords less protection in the area of detention and removal than it generally provides. In judicial review cases, the Bill provides Legal Aid exclusions that only apply in the immigration and asylum area253 and specifically apply in removal cases.254 This is done despite the fact the cases in which Legal Aid would be excluded are generally cases where Legal Aid would also have been excluded in any previous proceedings255—contrary to the express intent of the senior judiciary.256 It is done despite the Government’s acknowledgement that cases of concern to the senior judiciary are largely not cases brought on Legal Aid in any event.257 Moreover, it is done in cases that would have especially perverse results including reducing or removing effective scrutiny of the State when it ignores, avoids or misapplies the rulings of the Court. This arises because the exclusions are triggered by previous proceedings regardless of the individual having been successful in those previous proceedings or the State having avoided a ruling by withdrawing its decision in those previous proceedings. 6. The Bill specifically provides for Legal Aid to challenge immigration detention.258 However, the Government’s stated intention is to distinguish between detention and the underlying immigration issue.259 The distinction is neither rational nor practicable. If liberty is properly accorded especial importance, detention must be restricted to when strictly necessary and lawful. The lawfulness of detention depends directly upon the underlying immigration issue (eg someone may lawfully be removed because he or she is not entitled to remain; if so, detention may be lawful if necessary to effect the removal). In order to challenge detention, a competent legal representative will need to investigate and address the underlying immigration issue (eg is the removal lawful?) that is the reason for the detention.260 7. The Bill risks creating a harmful and costly cycle of detention. Someone, unable to afford legal representation, may face detention because his or her underlying immigration case is not properly identified or presented. Legal Aid is available to challenge detention, and initial investigation may show merit in the underlying immigration case; thereby release is secured. Now, Legal Aid is again not available. Unable to properly present the immigration matter, the person again faces detention. 8. Considering the Government’s four factors: (i) detention and removal necessarily concerns liberty, intervention by the State and holding the State to account (and in individual cases further fundamental matters); (ii) detainees are especially disadvantaged in pursuing their claims without representation by reason of their detention; (iii) there are no alternative sources of funding for those who cannot afford legal representation; and (iv) there is no alternative dispute resolution process. Article 8: 9. We are particularly concerned about Article 8 immigration cases where the State proposes to remove someone from the UK. Many cases involve adults and children, born in the UK and/or British citizens, who have lived many years in the UK, facing separation (possibly permanently) from family, home and community in the UK, and have little or no connection (including family or language) with the country to which they face removal. Cases involve complex legal questions such as whether the State’s decision accords with relevant policies,261 whether the State’s aim in pursuing removal is proportionate to the resulting interference with private and family life.262 Cases often require detailed gathering and presentation of complex evidence (including witness statements and social work, medical and other expert reports). 252 See our report Out of control, op cit 253 Paragraphs 17(5)-(7), Part 1 of Schedule 1 to the Bill 254 Paragraph 17(6) op cit 255 Paragraph 25(1), Part 1 of Schedule 1 to the Bill generally excludes immigration from Legal Aid; and it is these immigration cases that will be largely caught by paragraphs 17(5)-(7) op cit 256 Response of a Sub-Committee of the Judge’s Council to the Government’s Consultation Paper CP12/10, 11 February 2011 (paragraph 16) 257 Cm 8072 op cit, Section 3 The programme of reform (page 13, paragraph 14) 258 Paragraph 22, Part 1 of Schedule 1 to the Bill (also paragraphs 23 & 24) 259 Cm 8072 op cit, Annex A Cases and proceedings retained within the scope of legal aid (page 100, paragraph 72) 260 Note, eg R (Lumba)v Secretary of State for the Home Department [2011] UKSC, per Lord Dyson: “…it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one.” 261 The difficulty of even discovering what is the policy has driven a Court of Appeal judge to observe “I am left perplexed and concerned how any individual whom the Rules affect… can discover what the policy of the Secretary of State actually is at any particular time…” per Longmore LJ, AA (Nigeria)v Secretary of State for the Home Department [2010] EWCA Civ 773 262 This is the ultimate test in a five-stage legal analysis required in Article 8 cases, on which the House of Lords has ruled “The search for a hard-edged or bright-line rule to be applied in the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires” per Lord Bingham of Cornhill, EB (Kosovo)v Secretary of State for the Home Department [2008] UKHL 41 Legal Aid, Sentencing and Punishment of Offenders Bill 10. These cases also highlight a wider flaw in the Bill, which would exclude Legal Aid for onward appeals where Legal Aid was excluded for the original decision or first instance appeal. Onward appeals are generally only available on error of law grounds with permission of a judge.263 They necessarily proceed only when a judge rules a question of law is raised that has merit. In immigration cases, the State is the other party. As the individual appellant, the State is equally entitled to seek permission for onward appeal if it is unsuccessful at first instance. The State may be represented by teams of lawyers. There are many examples of the individual succeeding at first instance only for the State to appeal.264 Of course, there are equally examples where the individual has not succeeded at first instance and seeks to appeal. Currently (subject to the Legal Aid merits test, or the ability of the individual to pay privately), both the individual and the State have an equal opportunity, with permission of a judge, to challenge the understanding and application of law by the first instance judge. The Bill would remove that equality for individuals who cannot afford legal representation. The State may continue to seek to overturn an individual’s success at first instance through successive stages—appeal to the Upper Tribunal, appeal to the Court of Appeal and appeal to the Supreme Court—despite the individual having no representation throughout. 11. Considering the Government’s four factors: (i) Article 8 cases include especially intrusive interventions by the State; (ii) these cases involve complex matters of law and often require detailed and complex evidence gathering, and are therefore not appropriately amenable to self-representation; (iii) there are no alternative sources of funding for those who cannot afford legal representation; and (iv) there is no alternative dispute resolution process. LegalA dvice andR epresentation: 12. The Legal Services Commission has indicated that immigration and asylum legal services are threatened by the Government’s proposals and this Bill.265 There are several reasons to consider that threat to be acute. 13. Last year, Refugee and Migrant Justice (formerly the Refugee Legal Centre) with years of experience representing asylum-seekers, entered administration and closed. At the time, the Government confidently asserted “every other organisation, including not-for-profit organisations has coped [with the fixed fees Legal Aid regime]”;266 and announced the Immigration Advisory Service (the other large not-for-profit in the area) would be receiving “a much bigger market share—over 20%” (cf. the “7% market” of Refugee and Migrant Justice).267 That confidence was misplaced. The Immigration Advisory Service has just closed its doors and entered administration.268 It was not coping. Others have not coped. For example, Fisher Meredith solicitors ceased their immigration and asylum Legal Aid work this year. 14. Last year’s events led to areas with no immigration and asylum Legal Aid provision.269 This year’s events carry the same risks. However, effective advice deserts are a longstanding problem, because in many areas the Legal Aid capacity has been inadequate to meet demand and in some cases, while individuals have secured Legal Aid, the quality of representation has been inadequate. Work with our partners in the Still Human Still Here campaign over several years has frequently highlighted that many asylum-seekers become destitute having passed through the asylum system unsuccessfully, despite having good asylum claims. A significant cause has been poor legal advice and representation.270 15. The Bill, and the intended 10% reduction in all Legal Aid fees, will exacerbate these problems. In October 2007, the previous Government introduced the current fixed fee regime. Essentially, a Legal Aid representative receives the same fee for all asylum cases (similarly there is a fixed fee in immigration cases). It does not matter that one case requires more work than another.271 This was said to be sustainable because quicker, more straightforward cases would mitigate the cost to the representative of doing more time- consuming and complex cases.272 As others warned, this provides incentive to those who would cherry-pick and spend inadequate time on cases.273 In November 2010, Legal Aid contracts required a mix of immigration and asylum work. The Bill would render this required structure inappropriate. Further, 263 This is the case in appeal immigration and asylum appeals. 264 In Beoku-Bettsv Secretary of State for the Home Department [2008] UKHL 39, for example, the appellant succeeded before an immigration judge at first instance, but the Secretary of State appealed. The matter went all the way to the House of Lords for the immigration judge’s original decision to be reinstated. 265 Hansard HC, Public Bill Committee, Tuesday 21 July 2011 (afternoon), Column 71, Q158 (evidence of Carolyn Downs, chief executive of the Legal Services Commission). 266 Hansard HC, 17 June 2010 : Column 1024 per Kenneth Clarke MP QC, The Lord Chancellor and Secretary of State for Justice. 267 Hansard HC, 17 June 2010 : Column 1028 per Kenneth Clarke MP QC, The Lord Chancellor and Secretary of State for Justice. 268 See http://www.iasuk.org/home.aspx 269 See ILPA’s July 2011 Briefing for the Committee on Amendment Nos. 83-85 available at: http://www.ilpa.org.uk/pages/legal- aid-sentencing-and-punishment-of-offenders-bill-2011.html 270 See Still Human Still Here report At the end of the line: Restoring the integrity of the UK’s asylum system, February 2010 (pages 3 & 18); report available at http://stillhumanstillhere.wordpress.com/ 271 There is a limited exception in respect of cases that are so complex to take more than three times the notional equivalent hours relating to the fixed fee. 272 Department of Constitutional Affairs/Legal Services Commission Legal Aid Reform: the Way Ahead, Cm 6993, November 2006, (pages 8–9). 273 eg Constitutional Affairs Committee Third Report of Session 2006–07 Implementation of the Carter Review of Legal Aid, HC-223, 1 May 2007 (paragraphs 67–76). Legal Aid, Sentencing and Punishment of Offenders Bill removing immigration from Legal Aid scope will undermine the very basis on which fixed fees are supposed to be sustainable. It will remove opportunities to offset the cost to representatives of complex and time- consuming asylum claims. The 10% fees’ reduction will accentuate this problem. UK BorderA gencyA sylumR esponsibilities: 16. Members of the Committee have identified that the Bill’s measures on Legal Aid scope may lead to claims being re-categorised so as to fall within scope, eg Kate Green MP said:274 “The classic area is the boundary between immigration and asylum, and we can expect some cases currently covered by legal aid as asylum cases to be transferred to asylum.” 17. Some cases may be presented as either immigration or asylum claims,275 eg someone may have a claim under the immigration domestic violence rule276 and be at risk from her partner (or his or her family) in her home country. In other cases an individual has distinct potential claims relating to immigration and asylum respectively, eg someone may qualify for leave to remain under the long residence rule277 and be at risk of persecution in his home country. An individual may choose not to make an asylum claim because he or she prefers to avoid the asylum system (and prospects of detention, delays on limited support without permission to work, and re-telling traumatic experiences). In some cases Article 8 and Article 3 overlap.278 Some Article 8 cases concern both family life in the UK and circumstances in the country to which return is proposed. The risk highlighted by Kate Green is not limited to these cases. 18. The Minister for Immigration, Damian Green MP, aspires to “an asylum system which is more compassionate and produces the right decision, at the first time of asking”.279 The Bill undermines this aspiration. It risks increasing asylum claims, putting more pressure on asylum decision-making resources and the quality of decision-making. It risks increasing the problems of inadequate and inaccessible legal representation for asylum-seekers, thereby increasing the prospect that asylum claims are not fully identified and presented at the earliest opportunity. That many and more asylum-seekers will pass through the asylum process without their claims being properly identified, presented and considered, will do nothing to improve confidence in the asylum system. It will perpetuate problems of the past, including the problem of destitution. September 2011 Memorandum submitted by Harry Smith Taylor JP (LA 67) I am writing to you in my capacity as a private individual. You will also note from below that I am a Justice of the Peace. I broadly support the Bill and its ethos and wondered whether there was opportunity to do more to increase the effective punishment whilst reducing sending offenders to prison. The Magistrates’ Sentencing Guidelines detail a list of available options whch is often not practicable or do not offer the broadest range of options for sentencing. I come to these issues as a young and new magistrate. I make a few brief points: 1. There is an over burden placed on the Courts to obtain reports, particularly probation, on offenders without proceeding to sentencing. Some reports are mandatory. This creates a large number adjournments and new hearings for sentencing. I think the scope of these reports needs to be reduced to a minimum and more emphasis needs to be placed on the defendant and defence counsel, as an officer of the Court, to establish the true extent of the defendant’s background as opposed to the Court accepting the cost in disruption to hearings, sentences, adjournments and re-consideration. The duty of the defence counsel to the court may need clarifying along the lines of the duty to the court owed by an expert witness. I believe that this would reduce the amount of court time wasted in finding out more of the offender’s background. This is a primary cause of delay in proceeding swiftly with justice. It is costly and needs to be brought under control with the public purse in mind. 2. I take the view that magistrates should be able to sentence offenders to prison for up to 2 years for an offence with the policy objective of reducing cases which need to be sent to the Crown Court and all the cost that this entails. The range of offences which are triable summarily only could be increased to achieve the same objective. As magistrates discharge community justice amongst its peers then the need to increase the diversity and representation of the community is vital. The move in recent years to reduce the number of 274 Hansard HC, Public Bill Committee, Tuesday 19 July 2011 (afternoon), Column 219. 275 An asylum case is a claim to refugee status or an Article 3 claim (eg that a person faces torture, inhuman or degrading treatment or punishment). 276 Immigration Rules, paragraph 289A (HC 395). 277 Immigration Rules, paragraph 276A (HC 395). 278 As demonstrated in cases such as Costello-Robertsv UK (13134/87), ECtHR (1993). 279 See speech given to the National Asylum Stakeholder Forum on 26 May 2011, available at http://www.homeoffice.gov.uk/ media-centre/speeches/asylum-forum-dg-speech Legal Aid, Sentencing and Punishment of Offenders Bill benches and increase district judges would be on reflection a way to reduce the cost on the public purse should the trend be reverted. A community justice target would be helpful in deciding how many benches a court should deploy. 3. Society would benefit from combined sentencing; a period in prison, unpaid work requirement, curfew and prohibitions within one sentence in that the offender experiences a range of punishments within one sentence so that it is the equivalent of a prison sentence by virtue of the tougher restrictions on their liberty. Tougher combinations of punishments for longer periods of time would in the end act as a greater deterrent and give time to bring about rehabilitation in the community. 4. There are a large number of matters that come before magistrates’ courts which would benefit from Magistrates having the power after conviction or when pleading guilty, or before if it is put to the defendant as an option, to reduce minor charges to cautions with a fixed penalty for the expedience of justice and immediate disposal from the Court system. 5. In relation to community orders, the increase to 16 hours curfew is an effective policy decision. It does not require the co-operation of the probation service. I think that the curfew should also last up to two years. You see so many repeat offenders going through the system that the current limit is not a deterrent. In addition to the curfew, the power to make specific prohibition orders mandatory such as prohibition of alcohol, drugs, anti-social behaviour should be routine. If a defendant can show the court that they have found suitable connection with training or employment and it is found to be the case, then the court can reduce the onerous conditions of an order as a way of meeting the defendant’s efforts to make changes to their offending and lifestyle. 6. There is a significant problem in London with tourist criminals which magistrates find difficult to apply the same standard of sentencing as those who do not travel to the UK to commit crime. In the USA visas are denied upon entry to the country with a criminal conviction including prison, community work and fines acquired as punishment. There is an opportunity to do two things in this bill. Any foreign national who commits an offence in this country, the courts should be compelled to order that they are automatically deported. The bill should also consider the prevention of aliens entering the country if the declare a criminal offence or make it an automatic deportation if it is discovered during their stay that an offence has been committed or a criminal record was not disclosed. 7. You will be aware that assessments of fines handed down to defendants are based on their means. There is no verification of the means submitted on the means form to the Court unlike say claims for welfare benefits, tax credits and grants from the public purse. There is an opportunity in the bill for a defendant to be required by law to bring evidence of their means to Court for verification. There are many cases were it can be suspected that the self assessment means form is understated but there is no way of effectively challenging the information. If you consider the matter in respect of the same defendant applying for legal aid in pursuant of their defence to a charge, then they would be required to provide evidence of their means before such an application can considered. Again, rather than a duty or cost imposed on a court, the defendant or defence counsel could have a duty to provide evidence or confirmation of the defendant’s means. I have never seen a case were a defendant brings a payslip, income support letter or jobseeker allowance entitlement to court. Assessment of fines is purely undertaken on the trust of the defendant. 8. The public would have more confidence in sentencing if certain assumptions were automatic such exclusion order or prohibition orders following the nature of a crime. Many such elements already exist for sex offenders but the extent of repeated antisocial behaviour and its effect on local communities does not have the same policy priority yet it is clear that the extent of the problems on communities in complex and far reaching. More needs to be done in the sentencing of prevention orders and banning orders as the norm rather than the exception. This would require a power to broaden the type and nature of bans imposed on a defendant. It is often the case that defendants do not find community punishments demanding enough to prevent re-offending or that the consequences of a breach are insignificant. 9. Lastly, it strikes me that if policy makes punishment more onerous for individuals and it in turn does start to see a response from the offender because the community punishment is more or less as restricting to liberty equating to a stay in prison, then it is right that the offender having achieved an element of transformation that should be rewarded with a gradual reduction in severity of the sentencing as time proceeds. September 2011 Memorandum submitted by the British Red Cross (LA 68) 1. The British Red Cross provides practical and emotional support to vulnerable refugees and asylum- seekers in the UK. Our services include: — supporting refugees to adapt to life in a new country through our orientation service — peer befriending for unaccompanied young refugees Legal Aid, Sentencing and Punishment of Offenders Bill — providing one-to-one social and emotional support for refugee women through our women in crisis projects — bringing about the reunion of separated families through our family reunion and resettlement service (which is often complemented by our family tracing and messaging service) 2. In recent years, we have seen large numbers of asylum-seekers facing destitution in the UK. We provide short-term emergency support and advice on support that may be available. 3. We have seen the Memorandum submitted to the Public Bill Committee by Still Human Still Here. For several years, we have worked with many of the members of that campaign seeking to address the problem of destitution among asylum-seekers. We recognise the concerns and the analysis set out in that Memorandum, which we support. 4. In addition we wish to make the following points about refugee family reunion: 4.1. The Bill seeks to exclude Legal Aid for refugee family reunion. The Government has explained this as follows:280 Applications to join family members are treated as immigration cases, and are generally straightforward because they follow a grant of asylum. Respondents argued that these cases are akin to claims for asylum but if a person wishes to claim asylum it is open to that person to do so either as a dependant of a primary asylum claimant or to do so in his or her own right. Legal aid for any such asylum claim will be in scope. 4.2 This matter was discussed with both the UK Border Agency and Ministry of Justice at the August 2011 meeting of the National Asylum Stakeholder Forum,281 on which the British Red Cross is represented. Our understanding is that the Government now accept it is no answer to the proposed removal of Legal Aid that family members claim asylum in these cases. These family members are not in the UK, and so would need to travel here, possibly risking exploitation or other dangers including at the hands of people smugglers, in order to be able to make an asylum claim. 4.3. These cases are often not straightforward. Our experience is that family reunion cases can involve significant challenges in evidence gathering and presentation, including but not limited to requirements for DNA testing which in many cases could not be afforded but for Legal Aid.282 Moreover, advising and assisting with refugee family reunion applications falls within regulated immigration advice,283 and hence is not something an agency is permitted to do unless having demonstrated general competence to provide immigration advice (the competency standards are higher for more complex advice work and providing representation at appeals).284 4.3. The Government acknowledges that litigants “from a predominantly physically or emotionally vulnerable group”285 should be prioritised for Legal Aid as being generally unable to present their own cases. However, whether one is considering the sponsoring refugee (ie the refugee in the UK seeking to be reunited with family overseas) or the applicants for refugee family reunion visas (ie the family members overseas applying to come to the UK to join the refugee), the group would fall within the Government’s categorisation. The refugees we work with distressed by their ongoing separation from family (including partners and children) and the situations facing their separated family members. Continued separation can constitute a major hurdle to rehabilitation from trauma and integration in the UK. 4.4. As we have indicated, continued separation from family members is a barrier to refugee integration. In April 2010, Scottish Refugee Council concluded:286 A final important point highlighted by refugees and agencies working with them throughout this report is the link between family reunion and integration. There is focus by government in both Westminster and Holyrood concerning the integration of refugees, and help is being provided regarding obtaining work, education and language training. However, the evidence presented here indicates that all such help may be rendered worthless if refugees are not able to rebuild their lives with their families. The difficulty both in terms of time being used to pursue reunion and overall health and wellbeing for refugees living apart from their loved ones is an important finding of this research. 280 Ministry of Justice: Reform of Legal Aid in England and Wales: the Government Response, June 2011, Cm 8072, page 28, para. 90 281 National Asylum Stakeholder Forum (NASF) meeting of 4 August 2011, held at Lunar House, Croydon 282 This was discussed at the August 2011 NASF meeting, when the Immigration Law Practitioners’ Association highlighted that whereas DNA testing is frequently required by the UK Border Agency and while the Agency has powers to pay for that testing it does not generally pay for this testing in respect of the sponsor refugee in the UK and payment is often covered by way of a disbursement charged to Legal Aid funds 283 Part V, Immigration and Asylum Act 1999 establishing the Immigration Services Commissioner and regulation and criminal sanctions in respect of immigration advice and services 284 Three of our offices in the UK have been granted exemption by the OISC (Office of the Immigration Services Commissioner) permitting advice to be given at Level 1 (this permits initial advice only) 285 Ministry of Justice op cit, page 11, para. 6ii) 286 Scottish Refugee Council: “One Day We Will Be Reunited”: Experiences of Refugee Family Reunion in the UK, April 2010, page 51 Legal Aid, Sentencing and Punishment of Offenders Bill In his written statement to the House of Commons on the current family migration consultation, Damian Green MP, Minister for Immigration, emphasised the importance of integration.287 However, the Government is making significant cuts in funding for refugee integration, including withdrawing all Refugee Integration and Employment Service funding from September this year.288 If Legal Aid is also withdrawn for refugee family reunion, this will be a further barrier to the prospects of integration by refugees. Moreover, for many of those who continue to suffer the distress of family separation, steps such as recovering from trauma, learning English, settling in the community and finding a job may simply prove impossible. September 2011 Memorandum submitted by Al-Hasaniya (LA 69) Introduction: 1. We are a charity based in the Borough of Kensington and Chelsea serving the needs of Moroccan and Arabic-speaking women and their families. We have been supporting our clients for over 25 years and have more recently received a Guardian Small Charities Award for our achievements. 2. We provide wide-ranging services to Arabic-speaking residents in the borough. Among these, our Domestic Violence Project is funded by the local borough and provides individual support for Arabic- speaking women living in the borough who are suffering or have suffered domestic violence. Generally, our services are particularly directed at vulnerable women and children who have a great deal of difficulty in accessing services and support. 3. This submission is particularly concerned with domestic violence and immigration. However, we first set out some of our general concerns. GeneralC oncerns: 4. Like other community-based groups, we are very concerned at the proposals contained in this Bill to remove Legal Aid from a wide range of areas. The areas selected for exclusion from Legal Aid will have an immensely damaging effect not only on our clients but also on our capacity to deliver our services. We are already experiencing a huge impact on our services as a result of the sudden fall in legal services available. If this trend continues and Legal Aid is generally withdrawn, the demands upon our services are likely to increase. We are also concerned at the risk that our clients are exploited by paying for legal services, which they cannot afford and are of little or no value; or in the worst of cases wrong advice that harms our clients. This is not sustainable. We do not have the legal expertise to assist with legal queries, yet without adequate capacity of competent legal advisers in whom we can trust, our staff and volunteers are at risk of being overwhelmed by matters they are not resourced to deal with and with nobody to whom they can refer or signpost. DomesticV iolence: 5. Our Domestic Violence project provides practical and emotional support for women suffering any kind of physical or emotional abuse. We work closely with solicitors and advice agencies to provide a programme of advice, advocacy and referral, which assists the women to access help with legal, housing, family, welfare benefit and immigration issues. Many of the cases we come across are very complex and involve many different areas of law, particularly immigration and housing. We work closely with solicitors and advice agencies in order to be able to help these women make informed choices and secure a decent life for their families. In addition to this we must tread very carefully in terms of the cultural implications of domestic violence. We have had cases where a huge amount of work takes place to secure accommodation for a victim of domestic violence, applications have been made to court for injunctions and due to family pressure the victim will return to her husband. Whilst extremely frustrating and worrying, we can only remain in contact and ensure that the victim knows they have an avenue of support should the need arise again. This problem is not exclusive to the Arabic-speaking community, but is an issue for all victims of abusive relationships. 6. We have noted the statement by Jonathan Djanogly MP, Minister for Legal Aid, made in the Committee’s Session on 19 July 2011: …The matter of including cases brought under the immigration domestic violence rule in the scope of civil legal aid was raised a great deal during the consultation… After further consideration, however, we accept that such cases are unusual. There is a real risk that, without legal aid, people will stay trapped in abusive relationships out of fear of jeopardising their immigration status. The type of trauma that they might have suffered will often make it 287 Hansard HC, 13 July 2011 : Column 28-29WS (Family Migration) 288 More information about the withdrawal of Refugee Integration and Employment Service funding is available at: http:// www.refugeecouncil.org.uk/news/archive/press/2011/January/310111 press UKBA cut funds refugee services Legal Aid, Sentencing and Punishment of Offenders Bill difficult to cope with such applications. We also appreciate that people apply under great pressure of time, and access to a properly designated immigration adviser is a factor. We intend to table a Government amendment to bring such cases into scope at a later stage. 7. The risk that the Minister identifies is both real and serious. He is also correct that trauma, relevant timescales and immigration advice regulation are all factors that contribute to the need for specialist legal advice and assistance in these cases. Further to this, we wish to draw five matters to the Committee’s attention. 8. Firstly, it is necessary to highlight more clearly the issue of immigration advice regulation. This means that we (and organisations like us) cannot lawfully provide advice about immigration unless we become registered with the Office of the Immigration Services Commissioner (OISC). To be registered we would need to show a general expertise in immigration law. We do not have that expertise, and it is not within the scope of our services to seek to develop or maintain such an expertise. If Legal Aid becomes no longer available for immigration matters, we will not be able to fill the gap. Many of our clients will simply be left without advice or assistance on these matters. 9. Secondly, immigration domestic violence cases do not only arise where the migrant victim’s circumstances fall within the scope of the immigration domestic violence rule. The rule relates to migrants, who have joined their British or settled partners in the UK, while they undergo a “probationary” period before being permitted to apply for indefinite leave to remain. However, other victims of domestic violence have similar difficulties arising from their immigration status, eg partners of European citizens in the UK and partners of migrants with limited leave in the UK. 10. Thirdly, immigration domestic violence cases often require legal expertise in several areas, including immigration, housing and family law. The victims in these cases also often require advice and assistance from a lawyer with an understanding and sensitivity to the emotional, social and cultural implications of being such a victim. Our Domestic Violence project has worked with solicitors and other advice agencies to provide the support and assistance that victims need. However, the situation in the Borough has become increasingly difficult now that we are reduced to only one Legal Aid solicitor to whom we can refer cases. While we are very grateful for the support she provides, we are very concerned that with only one option for referral the situation has become extremely precarious. 11. Fourthly, there are often further legal difficulties related to a client’s immigration situation— including family, housing and welfare difficulties. To address these other difficulties, an adviser will often need expertise in both immigration law and in family, housing or welfare law respectively. We fear that the general exclusion of Legal Aid in immigration is likely to make the situation of our clients very much worse, particularly where their legal entitlements in relation to family, housing and welfare are affected or governed by their immigration status. We are alarmed that these concerns will not only affect adults, but also children as we understand the Government to propose that children be excluded from Legal Aid in exactly the same way as adults. 12. Finally, we are concerned about the Government’s proposals for a single and mandatory telephone gateway to access Legal Aid, and for advice to be increasingly delivered by telephone. Talking to people face to face is the most effective method of helping our clients, and of identifying their needs. This helps to create trust, so that our clients can disclose things they might not otherwise disclose, and helps us to see what are the things our clients may not be understanding or reluctant to explain fully. It also allows us to inspect paperwork, which can reveal problems that would not otherwise be apparent. We do not intend to suggest that telephone advice services are unimportant, only that our experience shows that there are many cases where telephone advice is not appropriate (and this may not be clear over the telephone). 13. If the telephone gateway is introduced, we fear this would increase our workload. Our clients would still come to us, for us to make the call on their behalf. Instead of being able to just make the relevant referral they need, to a lawyer whom we know and can have confidence in, we would have to go through a potentially long process of telephone queries before an actual referral is made or accepted; and, if accepted, possibly accepted by a lawyer who has no experience of working with us or our clients. It would be far better, and quicker, if we were able to refer directly to a lawyer we know. Conclusion: 14. We welcome the Government’s recognition that migrant victims of domestic violence face particular hurdles to escaping their abusive relationships arising from their immigration situation. However, we are concerned that the Government appears to have focused solely on the situation of those victims, whose circumstances fall within the scope of the immigration domestic violence rule (paragraph 289A of the Immigration Rules). For the reasons we have outlined above, a focus on that rule is inadequate. Such a focus would leave many other victims of domestic violence trapped in abusive relationships by reason of their immigration status. It would also, given the wider intentions in the Bill, put at risk the adequacy or availability of legal advice and assistance for those victims whose circumstances do fall within the particular immigration rule. 15. Below are two case studies giving example of the immigration domestic violence cases we deal with. Legal Aid, Sentencing and Punishment of Offenders Bill CASE STUDY ONE— Mrs D came to see us in 2009 for support. Having entered the UK to join her husband, she was given the two year limited stay as the foreign spouse. Her husband subjected her to verbal, emotional and physical abuse from the moment she entered the UK. He was controlling and cruel. She was eventually thrown out of the matrimonial home rendering her homeless, and penniless. Having used the local park as her home, she was finally brought to our Centre. The most important task for us was to secure a safe home for her as a top priority. Limited leave to remain comes with No Recourse To Public Funds and so it was a mammoth task to find shelter for her and whilst we were trying to do so, she made the decision to return to the violent husband who in turn sent her back to her country of origin, she remained there nearly 12 months, before he agreed to her return. Once back the same pattern of violence and abuse ensued. She left and was able to stay with benefactors who accommodated her for over 12 months, in return for housework and other domestic duties, whilst we worked tirelessly with the Police, her lawyers and medical team to prove the utter demented behaviour her husband subjected her to. She was eventually granted indefinite leave to remain. Mrs D’s immigration, housing and family solicitors were fundamental in the outcome of her case. Through our input and support they were all able to work together in-order to provide the best possible support to her. The process of compiling evidence, making the right applications to the Home Office as well as the possibility of going through an appeal process is not one that our centre has the capacity to do nor do we hold the specialist expertise to provide such a service. Mrs D was not in a position to pay for legal advice as a result of her circumstances and had she not received this vital support through legal aid, we would hate to imagine where she would be today. Support both emotional and on a practical level continue in the hope that Mrs D will overcome the traumas she suffered and begin a new life. CASE STUDY TWO— Ms E was referred to us by her GP who wanted to refer her to counselling. Ms E had been in the UK for approx 8 months and had a 2-year spouse visa making her totally dependent on her husband. She had been repeatedly raped by her husband and due to cultural and religious barriers believed that to report him she would be going against her religion and culture. Family pressures also stopped her from doing so. She needed to discuss her issues with a religiously sensitive counsellor who would understand her anxieties. Ms E equally had practical issues that she needed support with, she wanted to leave her husband, however because of her immigration status, unless she was able to report her husband to the police and gather strong enough evidence for her to leave the matrimonial home, she would not be able to apply for stay in the UK under the domestic violence rules. She would also not qualify for any public funds or social housing, and because of language barriers as well as the emotional turmoil she was going through, she was not in a position to work and support herself. She was therefore in a very vulnerable position. Ms E felt she could not return to her homeland, as she would have shamed her family and stated they would not want her back as a divorced woman. The pressure from her family was a main factor as to why she could not report the matter to the police. Through our contacts and long-term working partnerships with solicitors we were able to find a solicitor who was able to work with Mrs E through the assistance of legal aid. However, more and more often we are noticing a significant reduction in solicitors who are able to provide advice through legal aid. It proved to be very difficult to secure a refuge space for Ms E, however, having obtained advice from a housing solicitor she felt she could remain in the matrimonial home with her husband until we were able to identify alternative accommodation. Throughout this time we maintained communication with her solicitor and were able to work together in order to identify alternative living arrangements for our client. Ms E also sought advice from an immigration solicitor as well as a family solicitor who was able to provide advice on the application process for an injunction and exploring the options of divorce or legal separation. Ms E’s position was very unstable; she was very unsure about her situation and very scared about doing anything to help herself out of it. Had it not been for the input of solicitors through the vital assistance of Legal Aid, Ms E would not be aware of the process of action available to her and as such would have remained within her abusive relationship and no doubt would have deteriorated. Helping her understand what support was available to her provided her with the knowledge and confidence to help herself. Ms E continues to receive one to one support from both the domestic violence and mental health projects as well as attend workshops and centre activities. September 2011 Memorandum submitted by the Forum of Insurance Lawyers (FOIL) (LA 70) FOIL (The Forum of Insurance Lawyers) exists to provide a forum for communication and the exchange of information between lawyers acting predominantly or exclusively for insurance clients (except legal expenses insurers) within firms of solicitors, as barristers, or as in-house lawyers for insurers or self-insurers. FOIL is an active lobbying organisation on matters concerning insurance litigation. Legal Aid, Sentencing and Punishment of Offenders Bill FOIL has over 5,000 members. It is the only organisation which represents solicitors who act for defendants in civil proceedings. This response has been drafted following consultation with the membership. Summary 1. In this submission FOIL will focus on a limited number of issues, namely Clauses 41, 43, 44 and 51 in Part 2 of the Bill. 2. FOIL believes that many of the arguments put forward in opposition to the proposed reforms do not withstand scrutiny: the negative consequences of the introduction of the reforms are being significantly overstated whilst there is a failure to recognise the benefits that the changes will bring. 3. FOIL challenges, in particular, four of the arguments put forward by the claimant lobby to oppose the reforms. It argues that: a. There is no fundamental right to recover compensation without any deduction in costs. b. The new rules will not leave personal injury claimants under-compensated. c. The current system may provide access to justice to claimants but access to justice for defendants is being stifled. d. Legal representatives will still take on cases after the reforms. 4. Addressing the detail of the Bill, the current wording in Clauses 41 and 44 may not achieve the intended result with regard to the abolition of recoverability of success fees and ATE premiums payable under CCFAs. 5. The provisions under Clause 51 need careful thought to avoid creating perverse incentives for undesirable behaviour by claimants. 6. It is important that the Jackson reforms are adopted as an interlocking package. 7. On a further issue not included currently in the Bill, FOIL believes that referral fees should be banned. Introduction 1. In this submission FOIL will focus on a limited number of issues, namely Clauses 41, 43, 44 and 51 in Part 2 of the Bill. As the Committee will be aware these sections deal with some of the reforms to the civil justice system proposed by Lord Justice Jackson in his report on civil funding, namely, abolishing the rules on recoverability of costs to prevent a success fee or an ATE insurance premium from being recovered as part of a costs order from an unsuccessful opponent; and making changes to the additional sums to be recovered by a claimant who makes a successful offer to settle. 2. The Legal Aid, Sentencing and Punishment of Offenders Bill 2011, and the Jackson report before it, have prompted a fierce debate within the legal profession, the insurance industry and the wider claims community. 3. The arguments put forward in opposition to the reforms by the claimant community speak of a catastrophic impact upon individuals seeking to bring claims and upon the concept of access to justice. It is claimed that only the current rules can preserve the ability of injured people to bring actions and obtain appropriate compensation. 4. FOIL believes that many of the arguments that have been put forward do not withstand scrutiny. Whilst the changes to the system will require adjustments to be made in the legal services market, FOIL believes that the negative consequences of the introduction of the reforms are being significantly overstated whilst there is a failure to recognise the benefits that the changes will bring. 5. Lord Justice Jackson himself anticipated that his recommendations on CFAs would cause discomfort within the legal profession. As he indicted in his final report: “It must be frankly admitted that the conclusions reached in this chapter will cause dismay to many lawyers. It is, of course, congenial for claimant lawyers to see their clients provided with comprehensive funding and insulated from all risk of adverse costs. It is congenial for both claimant and defendant lawyers to have a constant stream of work passing across their desks…But these undoubted benefits have been achieved at massive cost, especially in cases which are fully contested. That cost is borne by taxpayers, council tax payers, insurance premium payers and by those defendants who have the misfortune to be neither insured nor a large and well-resourced organisation”. 6. FOIL shares His Lordship’s concerns for those who ultimately bear the brunt of excessive legal costs. The people whom Lord Justice Jackson identifies have been the least vocal in the debate on funding. It would be regrettable if the considerable noise being created by the various campaigns against reform were allowed to drown out the reasonable demands of the less vocal man on the street who is currently paying the price of the litigation regime through taxation and escalating insurance premiums. Legal Aid, Sentencing and Punishment of Offenders Bill 7. FOIL believes that the proposed changes will create a more balanced civil justice system in which individuals, and companies and organisations will be able to enforce their rights and obtain full redress from the civil justice process but at significantly reduced cost, benefiting society in general and creating an environment in which access to justice is a reality for all parties involved in litigation. Rules on Recoverability—the Principles FOIL would wish to address in more detail some of the arguments put forward in the current debate: Claimant Argument 1—Claimants have a right to recover compensation without any deduction in costs. 8. Throughout the development of civil litigation and funding procedures the right to bring proceedings has never been interpreted as a right to bring proceedings without cost. It is notable that although Art 6 of the European Convention on Human Rights enshrines the right to a fair trial in both civil and criminal proceedings, and includes the provision of free legal advice within the definition of a fair criminal process, there is no right to free funding for civil proceedings. 9. In all cases which are funded by legal aid, in the event that the claim is successful the Statutory Charge will be applied to enable the Legal Services Commission (LSC) to recoup its costs from the successful claimant. As the guidance provided by the LSC explains, part of the rationale of the Charge is a recognition that if legal services are free costs tend to escalate: the Charge is designed to deter people from running up unnecessary legal costs. 10. It is argued that receiving full compensation without any deduction for costs, as under the current personal injury regime, is a fundamental right. Ironically, this can result in claimants using a CFA being in a better position that some of the most vulnerable people in society who are eligible for means tested legal aid and who, if they are successful in their claim, are then required to surrender a portion of what they have recovered to repay their legal costs. Claimant Argument 2—the new rules will leave personal injury claimants under-compensated. 11. There has been much criticism of the 25% of damages (excluding damages for future losses) which it is said will be absorbed in costs under the new rules. 12. Firstly,it should be noted that the financial modelling, undertaken by Professor Fenn for Lord Justice Jackson, has confirmed that even if 25% of damages are absorbed in costs, 61% of claimants will still be better off due to the proposed 10% increase in general damages. FOIL does not believe that this data is “flawed”, as suggested by one of the witnesses before the Committee and would be happy to provide further details on this point if required. 13. The figure of 61% will further increase when the impact of the new additional awards under Part 36 are factored in. The many claimants supported by trade unions and other membership organisations will also be better off under the package of reforms as it is likely that the market will adjust and that no success fees will be charged in those cases. 14. Secondly, there is no requirement in the rules that 25% of damages must be absorbed in costs. That will be the maximum deduction permitted. What is likely to occur is a change in the market, creating a commercial environment in which claimant firms compete to obtain instructions, particularly on high value cases, by offering to accept lower success fees. By this means the financial impact on claimants will be significantly reduced. 15. It is argued that claimant firms need to recover success fees at current levels to cover the cases they lose. Lord Justice Jackson did not accept that that was the case and, although he gave the claimant lobby an opportunity to produce evidence to substantiate the claim, no data was produced. In evidence presented to the then Master of the Rolls, Lord Woolf, during his review of civil procedure in 1996, claimant lawyers claimed a success rate on personal injury cases of 95%. Anecdotally, defendant lawyers support that claim, particularly on high value cases: most defendant lawyers will only win one or two high value claims a year. This suggests that there is room for claimant lawyers to reduce the success fees charged and still operate profitably, if the operation of the legal services market required them to do so. Claimant Argument 3—the current system provides access to justice. 16. When Lord Woolf published his report on the reform of the civil justice system in 1996 he used the title, “Access to Justice”. He identified a number of principles to which the system should adhere to deliver access to justice. These included “offer proportionate procedures at reasonable cost”—recognition that there is more to access to justice than unlimited expenditure. For Lord Justice Jackson keeping costs proportionate is also a crucial element in ensuring access to justice. As he stated in his report: “Access to justice is only practicable if the costs of litigation are proportionate. If costs are disproportionate, then even a well-resourced party may hesitate before pursuing a valid claim or maintaining a valid defence. That party may simply drop a good claim or capitulate to a weak claim, as the case may be”. Legal Aid, Sentencing and Punishment of Offenders Bill 17. Current case law abounds with judgments in which judges express dismay at the high level of legal fees incurred by claimants, often far in excess of the value of the claim. In recent cases judges have described claimant funding arrangements as “grotesque” and have described themselves as “aghast” at the level of costs incurred. In a recent case in which the costs exceeded the sums involved in the case Lord Justice Ward commented that “the great British Public must think that something has gone wrong somewhere if litigation is conducted in this way. I share that sense of horror”. 18. One of the major reasons for such excessive costs being incurred in personal injury cases is that as claimants do not pay any part of their costs, win or lose, they have no interest in the level of costs being incurred. As the Legal Services Commission has recognised a “free” service leads to excessive costs. 19. Under the current system it could be argued that claimants have access to justice, but the excessive costs created have the effect of stifling access to justice for defendants. As Lord Justice Jackson indicated in his report: “If the opposing party contests a case to trial (possibly quite reasonably) and then loses, its costs liability becomes grossly disproportionate. Indeed the costs consequences of the recoverability rules can be so extreme as to drive opposing parties to settle at an early stage, despite good prospects of a successful defence. This effect is sometimes described as “blackmail”, even though the claimant is using the recoverability rules in a perfectly lawful way”. 20. This can be a particular problem with ATE premiums with staged premiums, with the final stage coming into effect just before trial. In high value cases the final stage payment can be hundreds of thousands of pounds, placing significant pressure on defendants to settle even where they have a reasonable defence. This is exactly the “blackmail” effect mentioned above. Claimant Argument 4—solicitors will no longer be prepared to handle claims under the new regime, leaving claimants unable to obtain justice. 21. It is regularly claimed that unless full success fees can be recovered from defendants it will not be economically viable for claimant solicitors to handle compensation claims. There are many issues raised by this assertion, which are not possible to address in detail in this submission, but, in brief, an examination of the detail of costs under CFAs will indicate that claimant work is extremely profitable: — Even without success fees the base costs charged on a large personal injury claim can be as much as £350–£400 per hour. — The total claimant’s base costs, without a success fee, on a large personal injury claim routinely reach £400,000–£500,000. — Success fees are set as high as possible to maximise recovery. As Prof Zander has indicated in his research on costs the current detailed assessment process which is designed to control the costs incurred on a case cannot properly control the level of the success fee. Senior Costs Judge Peter Hurst has stated that whilst costs judges do their best they are inhibited as they can only look back over the “smoking ruins” of the litigation. — Success fees do not only reflect the chances of winning or losing but other risks are factored in, including the possibility that the claimant may misjudge the value of the claim. This can result in a situation where a success fee of 25% can still be payable even though liability is admitted and the case is therefore bound to succeed. 22. Prior to 2000 the costs regime prevented recovery of success fees and ATE premiums and these were paid by claimants themselves, in provisions very similar to those to be introduced by the Bill. At that time claimant lawyers asserted that CFAs with non-recoverable success fees and ATE premiums worked well. In 1996 when Lord Woolf was gathering evidence for his review of civil litigation rules claimant lawyers argued in their evidence to him that CFAs under which claimants paid their own success fees and premiums were: “providing access to justice in personal injury cases for those who previously did not litigate through fear of costs”. 23. There was no indication from the claimant lobby at that time that the regime preventing them from taking on cases, or that the rules caused hardship to their clients. Legal Aid, Sentencing and Punishment of Offenders Bill 24. The costs regime to be introduced by the Bill already operates in Scotland, with no indication that claimants there find it difficult to find lawyers to represent them. As Lord Justice Jackson noted: “…at the Glasgow seminar …a number of speakers made the point that personal injuries litigation, which is currently being conducted under the new procedures developed by the Court of Session, is the most successful part of the Scottish civil justice system”. 25. One of the features of the funding regime for personal injury which has developed over the past 10 years is the increase in referral fees, to absorb the excess profit generated by success fees. FOIL supports a ban on the payment of referral fees as one of the measures required to re-adjust legal costs to a correct level. TheD etail FOIL would wish to draw the Committee’s attention to a number of points of detail in the Bill. Clauses 41 and 44 26. Sub-paragraph 41(6) in this Clause indicates that the new rules on recoverability of success fees will only apply to CFAs entered into after the section comes into force. Under Clause 44(2) bodies will still be able to recover a “self-funding insurance premium” in cases where the undertaking was given before the Act takes effect. 27. There is no specific mention of Collective Conditional Fee Agreements (CCFAs) in the Bill—the type of CFAs which are usually entered into by membership organisations, which cover a large number of individual cases under one agreement. Without specific reference to CCFAs there is a danger that under these agreements, entered into, in some cases, many years ago, success fees and “self-funding premiums” will continue to be recoverable after the Bill has become law. Clause 51 28. This provision will allow claimants who subsequently recover more than their offer to settle to receive an additional payment of damages (which Lord Justice Jackson recommended should be 10%). 29. The aim of this provision is to encourage early offers of settlement but unless it is carefully thought through it has the potential to encourage undesirable claimant behaviour. 30. In a large claim the additional 10% could be worth anything from £50,000 to £1 million: very considerable sums could be at stake. The availability of these additional sums could have the following impacts: — a reluctance for claimants to engage in rehabilitation for fear of affecting the value of their claim and losing the additional payment; — The adoption of a more adversarial litigation style by claimants; — The creation of an incentive for claimants to proceed to trial in the hope of beating their offer, thereby receiving the additional payment. 31. To avoid the new provisions creating perverse incentives it is important that the consequences of the additional payment are considered carefully. The impact could be tempered either by capping the additional payment, particularly in large cases, or by building in judicial discretion which would allow the additional payment to be denied to those who have not adhered to the Overriding Objective or who have not mitigated their losses. Provisions not included in the Bill 32. Lord Justice Jackson viewed his recommendations as an interlocking package of reforms and took the view that it would be the “worst of all worlds” to retain some elements of recoverability or to create a more complex system by qualifications and exceptions. FOIL endorses the view that the reforms should be adopted as a package. 33. Some of Lord Justice Jackson’s recommendations are not included in the Bill, including the introduction of one way costs shifting; a new test of proportionality; reversal of the decision in Carverv BAA; increasing the rates for successful litigants in person; and increasing general damages by 10%. From the research paper published with the Bill, FOIL understands that these issues will be addressed by other means. It is important that these provisions are introduced to ensure that the reforms result in a balanced regime. Legal Aid, Sentencing and Punishment of Offenders Bill 34. As indicated above, on a further issue included in the Jackson proposals but not included in the Bill, FOIL believes that referral fees should be banned. September 2011 Memorandum submitted by the Criminal Justice Alliance (LA 71) About theC riminalJ usticeA lliance The Criminal Justice Alliance (CJA) is a coalition of 58 organisations—including campaigning charities, voluntary sector service providers, research institutions, staff associations and trade unions—involved in policy and practice across the criminal justice system.289 The CJA works to establish a fairer and more effective criminal justice system. Introduction 1. This briefing highlights the main areas of interest for the Criminal Justice Alliance in the Legal Aid, Sentencing and Punishment of Offenders Bill. We welcome a number of measures contained within the bill, including: extending the criteria for suspended sentence orders, the removal of barriers to the use of the Mental Health Treatment Requirement, and restrictions on the use of remand. All of these measures will allow for a more effective and efficient use of resources at a time when this is particularly pressing. Importantly, this package of proposals recognises that the huge overuse of prison over the last 20 years has had damaging consequences for individuals, families and communities, and that more effective options are available. 2. We have, however, serious concerns about the extended curfew hours for those serving a sentence in the community, with a new maximum of 16 hours per day; the imposition of conditional cautions by the police without referral to the Crown Prosecution Service; and mandatory minimum sentences for new knife offences. There would, in our opinion, be negative consequences as a result of the introduction of all of these measures, and we would strongly advise against them. Our concerns are set out in greater detail below. PART 1—LEGAL AID Clause 12: Advice and assistance for individuals in custody 3. The CJA is extremely concerned by the inclusion, under Clause 12 of the Bill, of a “means” and “merit” test for the provision of initial legal advice and assistance for those arrested and held in police custody, thus removing the current automatic entitlement to free legal advice for all in such circumstances. Such a provision could have profoundly damaging consequences for individuals who are arrested, including miscarriages of justice, and is squarely at odds with the principles of a fair and civilised criminal justice system. Additionally,it is questionable how workable this provision would be in practice, given, for instance, the tight timescales within which the police operate. A means test would cause delays and waste resources. PART 3—SENTENCING AND PUNISHMENT OF OFFENDERS Clauses 53 & 54: Duty to consider a compensation order and to give reasons for and explain the effect of a sentence 1. The CJA welcomes the duty, in Clause 53, for courts to consider making a compensation order. However, there is a significant omission in the Bill with regards to restorative justice. The CJA, along with Restorative Justice Council and Prison Reform Trust, recommend the bill be amended to place a duty on criminal justice agencies to offer restorative justice to all victims of crime pre-sentence, whenever an offender pleads guilty and agrees to participate in the process, and where it is safe and appropriate to do so.290 2. Additionally, we welcome the duty, in Clause 54, for courts to give reasons for and explain the effect of a sentence in ordinary language: this is important to aid the understanding of both victims and offenders, and indeed, local communities and the general public. However, we echo the concern raised by JUSTICE, a member of the CJA, in their Briefing for the Public Bill Committee291 about the order-making power granted to the Lord Chancellor to except cases from this duty, since it is difficult to imagine circumstances in which it would not be appropriate to provide an explanation of the sentence. 3. We are very concerned about the omission of the current duties on courts to explain their consideration of the thresholds for both custodial and community sentences. The seriousness of a custodial punishment merits appropriate consideration and an explanation of why a high level community order has not been imposed. The current duties are an integral part of ensuring that sentences passed are fair and proportionate, and they should be retained. 289 Although the CJA works closely with its members, this briefing should not be seen to represent the views or policy positions of each individual member organisation. For a full list of the CJA’s members, please see http://www.criminaljusticealliance.org/ organisations.htm 290 Criminal Justice Alliance (2011) Restorative Justice: Time for action: http://criminaljusticealliance.org/RJtimeforaction.pdf 291 Available at http://www.justice.org.uk/data/files/resources/284/LASB-HCCS.pdf Legal Aid, Sentencing and Punishment of Offenders Bill Clause 56: Breach of a community order 4. The CJA welcomes, albeit cautiously, the introduction of fines as a possible response to breach of a community order. This will allow sentencers greater flexibility in this area, and so enable them to impose sanctions for breach that are appropriate given the specific circumstances of the breach. However, we would emphasise the need for any fine imposed to be means-tested. A report by Revolving Doors, a member of the CJA, has highlighted the problematic nature of financial penalties that are not linked to an individual’s income and ability to pay,observing that “these fines may lead people to resort to crime as a means of getting the money to pay the fine.”292 Taking into account an individual’s financial circumstances when imposing any fine will, therefore, need to be addressed. We would also recommend that, given the low incomes and limited financial means of many offenders, the maximum fine available to sentencers should be reconsidered, and lowered. Clause 56: Breach of a community order 5. We also welcome, albeit rather cautiously, the introduction of fines as a possible response to breach of a community order. This will allow sentencers greater flexibility in this area, and so enable them to impose sanctions for breach that are appropriate given the specific circumstances of the breach. However, we would emphasise the need for any fine imposed to be means-tested. A report by Revolving Doors, a member of the CJA, has highlighted the problematic nature of financial penalties that are not linked to an individual’s income and ability to pay,observing that “these fines may lead people to resort to crime as a means of getting the money to pay the fine.”293 Taking into account an individual’s financial circumstances when imposing any fine will, therefore, need to be addressed. We would also recommend that, given the low incomes and limited financial means of many offenders, the maximum fine available to sentencers should be reconsidered, and lowered. Clauses 57 & 58: Suspended sentence orders 6. The CJA is pleased that the Bill extends the criteria for suspended sentence orders, so that custodial sentences of up two years may be suspended. However, there must be clear guidance on when a suspendend sentence should be given to prevent inappropriate or over-use. Evidence shows that suspendend sentences can be used where a community order would have been more appropriate.294 7. We welcome the introduction of flexibility around the imposition of community requirements. This clearly recognises that the threat of custody imposed by a suspended sentence order is a significant punishment in itself, and that adding a community requirement may be an unnecessary addition; it also allows for the possibility that community requirements may not be appropriate in every case, and that this will depend on the individual circumstances. 8. As we have set out above in relation to community orders, we welcome, cautiously, the introduction of fines as a possible response to breach of a suspended sentence order, as this will allow sentencers greater flexibility. However, as with fines for breaching a community order, any fine imposed for a breach of a suspended sentence order will need to be means-tested. This will ensure fairness, and will also aid compliance with financial penalties. We would also recommend that the maximum fine available for breach of a suspended sentence order should be lowered. Clause 59: Programme requirement 9. We support JUSTICE’s opposition to the removal of Sub-clause 202(5) of the Criminal Justice Act 2003 (as set out in Sub-clause 59(3) of this bill), which requires the consent of third parties for programme requirements. As they point out in their second reading briefing, it is important that providers of programmes have consented to the placement of those on community orders with them: without this consent, productive engagement with a programme requirement can hardly be expected. Clause 60: Curfew requirement 10. The CJA has serious concerns about the extension of the maximum hours of curfew as part of a community order from 12 to 16 hours per day. We have seen no evidence that this measure would reduce reoffending, and believe it will cause severe disruption to employment opportunities, caring responsibilities and rehabilitation, such as alcohol or drug treatment. It is well established that employment has a significant part to play in reducing reoffending; a seminal report by the Social Exclusion Unit, published in 2002, highlighted that employment reduces the risk of reoffending by between a third and a half.295 However, as the National Audit Office has reported, curfew orders of up to twelve hours can limit the employment opportunities available to offenders;296 curfew orders of up to sixteen hours will have an even more constraining effect, and could pose a real barrier to finding work. 292 p.91; Pratt, E. and Jones, S. (2009) Hand to mouth: The impact of poverty and financial exclusion on adults with multiple needs, London: Revolving Doors. 293 p.91; Pratt, E. and Jones, S. (2009) Hand to mouth: The impact of poverty and financial exclusion on adults with multiple needs, London: Revolving Doors. 294 p.42: Justice Select Committee (2008) Towards Effective Sentencing: Fifth Report of Session 2007-08. 295 Social Exclusion Unit (2002) Reducing reoffending by ex-prisoners, London: Office of the Deputy Prime Minister. 296 National Audit Office (2006) The electronic monitoring of adult offenders, London: The Stationery Office. Legal Aid, Sentencing and Punishment of Offenders Bill 11. Extended curfew hours could also have a severe impact on offenders who have caring responsibilities, and may put them in the position of having to breach their order so that they are able to fulfil their responsibilities. Since many of those who are primary carers, such as lone parents, are women, such a measure could have a disproportionate impact upon female offenders. Additionally, many offenders have multiple and interrelating needs, including drug or alcohol dependency or mental health problems; for such individuals, such an order may actually prove an obstacle to changing their behaviour by preventing them, through its onerous requirements, from engaging with a range of appropriate support. For offenders with such needs, who are likely to have chaotic lifestyles, imposing orders with extended curfew hours may be setting them up to fail. We also believe that the extended maximum hours would represent a severe restriction of an individual’s liberty that cannot be appropriate within the context of a community sentence. 12. The CJA is not opposed to extending the maximum length of a curfew requirement from six to twelve months, as this may encourage their use for offenders who would otherwise receive a prison sentence, which is to be welcomed. It will be essential, though, that sentencers are provided with guidance to ensure that such orders are used appropriately, and only for those offences that truly merit them. Clause 62: Mental health treatment requirement 13. The CJA supports the removal, under Clause 62, of the need for a psychiatrist’s report for the imposition of a Mental Health Treatment Requirement (MHTR). The MHTR has been woefully underused since its introduction through the Criminal Justice Act 2003; although 40% of offenders on community orders are thought to have a diagnosable mental health problem,297 in 2009, for instance, just 809 MHTRs commenced out of a total of 231,444 requirements issued with community orders.298 A report by the Centre for Mental Health, a member of the CJA, has identified the requirement for a full psychiatric report as “the biggest barrier to the creation of an MHTR”,299 and we therefore welcome a more flexible approach. Clause 73: Bail 14. We very much welcome the restrictions placed on the use of remand through Clause 73 and Schedule 10 of the Bill, so that remand is not available to sentencers where there is no real prospect that an individual will receive a custodial sentence upon conviction. The use of remand where a custodial sentence is not, finally, imposed, can result in unnecessary disruption, including the loss of employment and housing, which can contribute to further offending behaviour. 15. The use of remand can have a particularly damaging effect on women, who are often the primary carers of children, as well as lone parents responsible for the maintenance of the family home. The overuse of remand—in 2009, one-third of women offenders remanded in custody did not go on to receive a custodial sentence300—results in the needless separation of children from their mothers, and the loss of accommodation. This provision should serve to limit this damaging use of custodial remand for women. 16. The further provision inserted through Clause 73 and Schedule 10, that remand should remain an option in cases where there is a risk of domestic violence, provides an appropriate and necessary safeguard, and we fully support this. Clause 103: Employment in prisons 17. We are concerned by the inclusion, through Sub-clause 103(4), of a provision that allows for some of a prisoner’s earnings from employment in prison to be paid to him or her before or after release “on fulfilment by the prisoner of prescribed conditions”. We firmly believe that, upon release, prisoners should be able to access money that they have legitimately earned without the imposition of any additional conditions; to impose any conditions upon the receipt of these earnings would be unfair and, indeed, exploitative. Clause 107: Conditional cautions 18. The CJA does not support the inclusion of Clause 107, which allows for conditional cautions to be issued without referral to the Crown Prosecution Service. Given that conditional cautions can result in onerous conditions, the oversight of the CPS is appropriate, to ensure that the conditions are proportionate and achievable. In addition, giving the police powers to authorise conditional cautions will increase the 297 Khanom, H., Samele, C. and Rutherford, M. (2009) A missed opportunity? Community sentences and the Mental Health Treatment Requirement, London: Centre for Mental Health. 298 Ministry of Justice (2010) Offender management caseload statistics 2009—available at http://www.justice.gov.uk/ publications/docs/omcs-2009-complete-210710a.pdf 299 p.5: Khanom, H., Samele, C. and Rutherford, M. (2009) A missed opportunity? Community sentences and the Mental Health Treatment Requirement, London: Centre for Mental Health. 300 Ministry of Justice (2010) Statistics on women and the criminal justice system—available at http://www.justice.gov.uk/ statistics-women-cjs-2010.pdf Legal Aid, Sentencing and Punishment of Offenders Bill bureaucratic burden on the police, at a time when they are trying to reduce costs and bureaucracy.This could therefore lead to less use of the conditional caution, or less time and focus given to ensuring that the conditions are appropriate and will be effective. Clause 113: Offences of threatening with an article with a blade or point or an offensive weapon 19. We are extremely concerned by the introduction of a mandatory minimum sentence of six months for knife offences. A mandatory custodial sentence is a blunt instrument with which to attempt to tackle the problem of knife crime. The evidence for the deterrent value of such sentences is non-existent,301 and custodial sentences simply cannot address the complex social problems underlying such behaviour, as is clear from the high reoffending rates for those released from custody. Indeed, short custodial sentences are particularly ineffective at tackling offending behaviour—in 2009, 59.4% of those who served a sentence of under 12 months were convicted of a further offence within a year of release.302 20. Mandatory minimum sentences do not allow the specific circumstances of an offence to be taken into account by the individual sentencer and, as such, can lead to the disruption of proportionality, fairness and consistency in sentencing. The Sentencing Council, the introduction of which the CJA fully supported, has done a great deal already to inject a greater degree of clarity and consistency into sentencing, and we would recommend against any measures, including mandatory minimum sentences, that work against these efforts. 21. As JUSTICE highlight in their briefing, the necessity of creating the offence of threatening with an article with a blade or point or an offensive weapon is questionable, since other offences already exist to address such behaviour. AdditionalI ssues Restrictions to the use of IPPs 22. The CJA very much welcomes the announcement of an urgent review of sentencing by the Prime Minister, and the government’s stated intention to replace the widely discredited indeterminate sentence for public protection. The use of IPPs has resulted in too many prisoners serving disproportionately long sentences, unable to demonstrate to the Parole Board that they are suitable for release, due to the lack of availability of the relevant courses. Despite reform to IPPs in the Criminal Justice and Immigration Act 2008 too many prisoners continue to receive IPP sentences and very few are released. 23. The CJA believes that IPPs are a fundamentally flawed and unworkable sentence and we encourage the Government to abolish the IPP sentence entirely and instead use discretionary life sentences for those cases where an indeterminate sentence is genuinely essential and determinate sentences for other offenders. Young Adults 24. The Criminal Justice Alliance is disappointed that the Bill does not take the opportunity to set out a coherent strategy for young adults in the criminal justice system. The opportunity should be taken to repeal previous legislation that scrapped Detention in a Youth Offender Institute, and further commitments should be made on the supervision and support for ex-prisoners in this age group. Women 25. We are very concerned by the lack of provisions in the Bill relating to women offenders. The female prison population has grown from 1,561 in 1993 to over 4,000 today. The authoritative report by Baroness Corston has clearly set out recommendations for change that have received widespread political and justice sector support. In order to ensure this valuable work is continued, there is a need for a Ministerial Champion for Women in the Criminal Justice System. The CJA therefore supports the amendments proposed by the Prison Reform Trust to ensure a cross-government strategy on women and a designated minister with responsibility for its delivery across government departments and local authorities. Youth Justice 26. The National Appropriate Adult Network has highlighted the anomalous position of 17-year-olds held in police custody; under the Police and Criminal Evidence (PACE) they are classed as and treated as adults, meaning that they are not entitled to the support of an appropriate adult. We fully support NAANs recommendation that the Ministry of Justice should work with the Home Office to address this and that 17- year-olds in the police station have the same rights as other children. 301 Ashworth, A. (2010) Sentencing and criminal justice, Cambridge: Cambridge University Press. 302 Ministry of Justice (2011) Adult reconvictions: Results from the 2009 cohort England and Wales—available at http:// www.justice.gov.uk/downloads/publications/statistics-and-data/mojstats/adult-reoffending-statistics-09.pdf Legal Aid, Sentencing and Punishment of Offenders Bill Rehabilitation of Offenders Act 27. We welcome the Government’s commitment, as set out in the Breaking the Cycle green paper, to review the Rehabilitation of Offenders Act, 1974. This Act was previously reviewed in 2002 and the resulting report, Breaking the Circle, recommended urgent reform; those recommendations were never brought into force. We therefore urge the government to bring forward legislation in this parliamentary session to review the Act. September 2011 Memorandum submitted by Asbestos Victims Support Groups Forum UK (LA 72) Part2L itigation andF undingC osts:Clauses 41-43 The Asbestos Victims Support Groups Forum UK (the Forum) The Forum represents asbestos victims support groups throughout the UK which are charities, or not- for-profit organisations, dedicated to providing support to asbestos victims and their families who suffer from asbestos-related diseases. Summary 1. It is our firm belief that the requirement to pay legal costs set out in clauses 41-43 will deter many asbestos victims, especially mesothelioma sufferers, from making a claim. Asbestosis claimants could lose the whole of their compensation. 2. We think the reforms will seriously affect access to justice: cases will not go to trial and test cases will not be run. We think that costs can be reduced without making innocent victims pay guilty defendants for the right to claim compensation, and if the Bill is carried government will incur additional costs. 3. We think that recoverability of ATE premiums for disbursements (clause 33) should be extended to industrial disease claims. 4. We think that the 10% uplift in general damages is illusory. One Way Qualified Cost Shifting is likely to be more costly to claimants and gives rise to the risk of losing a home or savings. Submission Effect on Mesothelioma Sufferers and their families 5. From our day-to-day work with asbestos victims we know that many mesothelioma sufferers simply do not claim compensation because they are too ill and weakened by their disease. Those who do, mainly do so because we can tell them that they will not have to pay any costs. We believe that many more mesothelioma sufferers will not claim because of the increased burden they will face having to be responsible for legal costs as set out in clauses 41-43 of the Bill. To assess the effect of the reforms we conducted a survey of mesothelioma sufferers and their families. 6. The Forum surveyed hundreds of mesothelioma sufferers and their families who have, or who are making a claim for compensation, to ask if they agreed with paying legal costs and, if in doing so, would it have made a difficult time worse and a decision to claim more difficult. 7. Unsurprisingly, the 744 respondents to date (we are still receiving comments) overwhelmingly opposed the change and said it would have made claiming more difficult. What did surprise us was the number (393) who added their comments and the strength of their comments: their disbelief and disgust at the Bill’s proposals. Their comments struck at the heart of the reforms, and some of the comments are found at Annex A. 8. The Bill, based on Sir Rupert Jackson’s report, seeks to “provide the opportunity to rebalance the risks of litigation between claimants and defendants”. Respondents were outraged that having risked their health and lives by working with asbestos with no protection, they are asked to share the risk of litigation with the defendant who has, literally, given them a death sentence. 9. The Government’s approach set out in the Ministerial Forward to the consultation paper: “In seeking to rebalance the costs of civil cases, we are endeavouring to ensure: … that unnecessary or frivolous claims are deterred; and that as a result costs overall become more proportionate.” Respondents were equally outraged at the suggestion that they make frivolous claims or that they should suffer because some people might do so. Legal Aid, Sentencing and Punishment of Offenders Bill Effect on Asbestosis and Pleural Thickening sufferers. 10. Those who suffer non-malignant asbestos diseases, asbestosis and pleural thickening, have often been exposed to asbestos in several workplaces. They must not only provide evidence of heavy exposure dating decades ago, but they must forgo a portion of compensation where insurers cannot be traced for employers that are no longer trading. Furthermore, they have to repay the whole of the government lump sum payment, not a portion of it reflecting the portion of damages they receive. Payment of legal costs will wipe out compensation for many asbestosis and pleural thickening sufferers. Maintaining access to justice and reducing litigation costs 11. Where a case goes to trial the success fee may be 100% and the ATE premium increases considerably. In such cases a solicitor will not pursue a claim to trial as they will be unable to recover the full success fee. Important test cases simply will not be run as the cost of ATE premiums and success fees will be far too high. Solicitors will defray some of the costs thrown onto claimants, but will be more risk averse, taking on fewer cases. 12. Changes were made to the CFA regime on the abolition of Legal Aid for almost all personal injury cases to improve access to justice. Improved access to justice is now deemed too expensive because litigation costs have risen. We believe that costs can be reduced without penalising claimants and reducing access to justice. Already, significant changes have been made through fixed costs for low value RTA claims. Success fees have been limited to 12.5% for personal injury claims and 27.5% for disease claims. We believe there is further scope for reducing costs by restricting success fees so that none are paid if an offer is accepted within the pre-action period and success fees are staged according to the progress of a claim. Additionally, current success fee percentages should be looked at again. We believe that claims management companies activities, “ambulance chasers”, should be controlled and cold-calling outlawed. 13. It should be accepted that there is no “compensation culture”, but rather a perception of a compensation culture, as made clear in the House of Commons Constitutional Affairs Committee third report, “Compensation Culture” 2005–06, and more recently in Lord Young’s report. Costs to Government 14. The inevitable reduction in civil claims resulting from the reforms will reduce the recovery of government lump sum payments and recovery of benefits at some considerable cost to government. Recoverability of ATE premiums in medical negligence cases 15. Clause 43 allows for the recoverability of ATE premiums relating to the cost of expert reports in certain clinical negligence cases. We think this is an arbitrary decision as it is necessary to provide costly expert medical and engineer reports in asbestos disease cases. Recoverability of expert reports should be extended to asbestos disease cases. 10% uplift of general damages and ATE costs 16. The 10% uplift of general damages is illusory. In some 97% of cases defendants make an offer, which includes all aspects of the claim. It will be impossible to know that there actually has been an uplift of 10%. 17. Even if there is a demonstrable uplift of 10%, in employers’ liability insurance claims, claimants will still be much worse off. One Way Qualified Cost Shifting (OQCS) 18. Although OQCS will remove the need for ATE, it is qualified by conditionsconcerning conduct of the claimant and the claimant’s financial resources. It will be impossible to tell a claimant that their house or savings will not be at risk. This will rule out many mesothelioma claims. OQCS does not provide for disbursement costs which can be as high as £8,000 for a mesothelioma claim. Annex A The comments below were made by mesothelioma sufferers and their families on survey forms asking what effects the Government’s proposals would have had on them when making a claim. Comments expressing outrage at the proposals 1. “It’s an outrage” 2. “I think this Bill is outrageous. Victims and their families do not need this as well.” 3. “People are losing loved ones through no fault of their own and due to the shortcomings of the companies they worked for. To try and make anyone pay to gain compensation for the death of a loved one is disgusting. I lost my dad on 19 May only 5 months after diagnosis, he was 63 and had worked all his life paying his insurance and taxes. Surely this contribution to the state over 40 plus years warrants his family the right to claim without fear of losing out financially. Legal Aid, Sentencing and Punishment of Offenders Bill 4. How ironic, that in working and contributing to the state over all these years, it is through work that my dad, and many more, sometimes do not even get to enjoy their retirement. 5. I would like to express on behalf of my family and my dad, my outrage and disgust at these proposals. I would like, if possible, to be kept informed of any progress made in dealing with this matter.” 6. “I am disgusted. They need to come and witness a sufferer dying from this awful disease.” 7. “It is bad enough having a death sentence without having to worry about finances.” 8. “My husband made a claim in January 2010 after being diagnosed with mesothelioma. He died in August that year. I feel the government’s introduction of this Bill is disgusting considering this disease is mostly found in working class people.” 9. “The MPs responsible for this are a disgrace to humanity. Pen pushers with no idea of the real world of hard working class men and women killed by asbestos while the top dogs got richer and richer with the knowledge of how dangerous asbestos was for decades and decades and decades.” 10. “It is disgusting that any minister would contemplate proposing such a Bill, when past and present back as far as early 1900s should have banned asbestos and now they are responsible for this illness of people to date because they failed to ban it,” 11. “To even think of a Bill let alone introduce one is disgusting to all sufferers of this dreadful disease (I am only 56 yrs. of age)” 12. “Being told you have this disease is a big shock. Having to pay to get justice is a slap in the face.” 13. “Having lost my husband to this vile disease the idea the victim should pay is obscene” 14. “The government should be ashamed there’s enough suffering and heartache for the claimants and family without having to worry about paying any amount of costs.” 15. “This is a disgrace! This disease changes every member of the family life through negligence of the people who have no regard for people’s wellbeing” 16. “My father lost his life to an industrial disease. It was not his fault so why should we be penalised. Isn’t losing him enough payment.” 17. “Totally unfair and out of order to punish a working man in this way through no fault of his own.” 18. “I find it intolerable that I have contracted this cancer through no fault of my own, that this government then want me to pay some of the compensation in legal costs.” 19. “Typical of this government, they couldn’t care less about the working man. Sufferers need all the help they can get.” 20. “Recently widowed I would like to say the pain and suffering endured by both my husband (the victim) and all his family during and after this atrocious disease is unimaginable. To discover the cause if this disease, pain and suffering is due to the negligence of profitable companies who chose to ignore health and safety laws is beyond comprehension. Then to learn that these companies are to now going to be protected over financial compensation, by law, is to me sickening and too painful contemplate and I personally see this as effectively authorising future employers to go ahead and virtually ignore health and safety laws” 21. “Losing a family member to mesothelioma is bad enough. The heartache of having to relive the pain should be payment enough. We wholeheartedly oppose the Government’s actions.” 22. “Let them that caused it pay it all. I didn’t ask to get mesothelioma.” 23. “Due to lack of early regulations men and women have been exposed to asbestos without knowing the risks and now are expected to pay for the privilege of asking for their right for compensation for the death sentence they’ve been dealt.” 24. “Mesothelioma cancer is horrendous no cure and not self inflicted. We want the people responsible to admit this hence the claims. (I remember on behalf of my sister)” 25. “The victims and families have suffered the ultimate price. This approach is an injustice.” 26. “These proposals are disgraceful, losing someone to mesothelioma is absolutely heartbreakingand the fault of persons employing people without the proper protection against asbestos so it is only fair they should pay.” 27. “To lose a loved one, and having to face all the legal battles fighting for what should automatically compensation has been a mine field. It’s a disgrace that people who have died, or will die with mesothelioma paid all their NI insurance and tax to know they will never see anybody who will stand up and say sorry. The insurance company’s are a disgrace and this government need to stand up for what is right and give these sick people and family’s help. Where is the dignity watching someone die of mesothelioma.” 28. “Obviously these people haven’t seen the effects of mesothelioma to watch someone you love die of the disease was horrendous.” 29. “Mesothelioma sufferers should not be penalised for something that was not their fault. The guilty party who provided the asbestos should pay!!” Legal Aid, Sentencing and Punishment of Offenders Bill 30. “The whole point of making a claim is to make a guilty party pay attention and take responsibility. As the “victim” why should we “pay” again is our life not enough.” 31. “My husband recently died from mesothelioma caused by exposure to asbestos. The new bill proposed is totally unjust.” 32. “It can NEVER and under NO circumstances be justified for the claimants to pay any monies from their compensation to the guilty party! Their pain and suffering is enough to bear without this twist of the knife!!” 33. “This proposal is adding insult to injury. Yet again the mesothelioma sufferer will be required to fight at a time they are least able to do so” 34. “Once again the Government is trying to take as much as possible off those that need the help the most” 35. “As the Government knew long before it was admitted, that asbestos was dangerous, it seems very cruel to make sufferers of mesothelioma pay.” 36. “Through no fault of their own, sufferers should have no added stress or their families, and everything possible should be done to make this process as smooth as possible. 37. “My life has been turned upside down, and I really didn’t want to think about anything except spending my last days with my family. I am only pursuing the claim to help my family when I am gone. I worked all my life and paid all my N.I and taxes, so this seems unfair.” 38. “This Bill is an insult to people suffering from Mesothelioma through no fault of their own. The trauma of seeking compensation and having to pay legal fees and insurance out of a successful claim is shocking. The Government should be more considerate about this.” 39. “Another contribution toward the banker bailout no doubt. Picking the pocket of a dying or possibly deceased man…disgraceful!” 40. “This government is a disgrace. This Bill is a disgrace, and the people going through this have to cope with enough pain and suffering.” 41. “Mesothelioma is a terrible disease it has taken my beloved husband away from me” 42. “I find it appalling that through no guilt of your own a person carrying out their work can lose their life and leave their dependants without a mother or father. It is morally sickening that those people left behind are left paying for the justice they so badly deserve and need. It’s disgraceful!” 43. “The results of this dreadful disease will stay with our family forever. His life time work took him in contact with the killer asbestos. The victim sacrificed once more. Defendant, Recognition, Accountability, Responsibility indeed.” 44. “Mesothelioma is the cruelest often short lived cancer. Fighting for breath, fighting to live, fighting for possible compensation that is all that seems left. It has no place in this Bill whatsoever.” 45. “No amount of compensation could ever compensate for my husband’s suffering and loss of life. To even contemplate this is wrong. My husband’s suffering has ended but still I have terrible images of his horrific suffering which I cannot erase. I had no pension, the payment is my pension. Dick’s died with him.” 46. “It is bad enough having this disease, let alone the government taking part of compensation that we are entitled to. In this case, working for the government that caused it!! Disgusting!” 47. “My husband was poisoned going to work. I hope this Government remembers that!” 48. “It is disgraceful to expect victims of mesothelioma to have to pay to receive compensation. Their death sentence should be payment enough!” 49. “It’s absolutely disgusting. Haven’t they given enough with their lives?” 50. “It seems so very wrong.” 51. “They are already getting away with murder.” 52. “It just makes you feel worthless.” 53. “They shouldn’t take any of it—the people getting the compensation are the ones who have the pain and suffering.” 54. “As the Government knew long before it was admitted, that asbestos was dangerous, it seems very cruel to make sufferers of mesothelioma pay.” 55. “Appalling proposals—suffering the loss of husband/father/granfathyer due to working hard all his life then to lose his life due to his exposure to asbestos—paid taxes & NI all his working life & ultimately cost him his life.” 56. “Mesothelioma sufferers are victims they don’t have any say about their condition they live with a death sentence.” Legal Aid, Sentencing and Punishment of Offenders Bill 57. “My husband was an innocent mesothelioma sufferer who died as a consequence of his employers negligence, it is morally wrong for mesothelioma sufferers to have the additional burden of part of their legal costs” 58. “Whatever will the Government do next to penalise innocent victims of this dreadful disease. It is 2 years since my husband lost his battle with mesothelioma and my family and I are still trying to come to terms with our loss.” 59. “The government should be doing more for these people whose lives are wrecked by this terrible disease. The people involved in these diseases should be made to pay and not take any money from the claimants. My Ben worked at Cammell Lairds when submarines were getting built so it took 42 years to become a cancer. It took my husband’s life and firms and government should be made to pay” 60. “The victim and family have suffered enough with this horrible disease. Watching your loved ones life drain away with pain and drugs knowing no cure and they can’t breathe. Depending on oxygen and then watching them die. The worry of paying for a funeral and bill and if you win having to pay the DHSS back. Without insurance policies it’s not worth the years of stress trying to get compensation. So please please fight this unfair bill for all the unlucky people who are suffering now and in the future”. 61. “Mesothelioma is a terrible disease and no one should have to endure suffering like it. If someone is responsible they should be held to account. To make the process of proceeding with a claim more difficult can only be wrong.” 62. “To see the person you love dearly suffer and die with a terrible disease. You know only misery and loss. I am full of grief and sadness. You make a decision to try to see some justice. For the government to snatch what they can and make you pay for suffering—it is cruel and unfair” 63. “I have lost my dad, who looked after me. Our family have been through a terrible time. This proposal is a disgrace to all the families who have lost a loved one, or who will lose one to mesothelioma. This government must listen to us.” 64. “How dare they do this to us? Don’t they think we have suffered enough? Losing a husband at an early age, it gets worse not better”. 65. “How can it be fair (or moral) to reduce the costs levied on organisations that have taken your life through their negligence? It’s basically making you pay out for your own death” 66. “The government should live in the shoes of the sufferers for a month to understand the turmoil they and their family go through without having to worry about court costs”. 67. Comments on the risk of paying legal costs 68. “If there had been a risk of me paying costs I would not have tried to claim.” 69. “I would most certainly have thought very seriously about starting civil claim proceedings if costs were likely to have deducted from an unknown final sum.” 70. “This is a terrible thing to happen to those who are innocent victims of Mesothelioma, they have enough to cope with without having to try and find money to defend their chance of claiming compensation. We are presently going through this procedure and if I knew that the government were about to do such a despicable thing I’m not sure we would have embarked on such a hard and emotional journey.” 71. “These proposals would only inflict more pain and suffering on innocently affected mesothelioma sufferers and would serve to dissuade them from claiming compensation.” 72. A decision on my late husband’s case for compensation has yet to be made. He struggled with the decision to apply for compensation once his diagnosis was known. He could not have gone ahead to claim knowing that we would be made to pay costs. This is wrong for mesothelioma victims and their families added stress. 73. Compensation for Mesothelioma is entirely different from, and can in no way be compared with compensation for personal injury. My late husband made it quite clear on the first consultation with our solicitor, he would not make any claim if there was any risk. 74. I think that if the Bill mentioned in your letter is passed, it should not apply to mesothelioma sufferers. They are a very special case and should not have to risk losing out financially,especially if they lose their case. 75. If we had have known legal costs would have been incurred, with the figures involved, I don’t think we would have made a claim. 76. I am making a claim on behalf of my late father in law but I am sure he would have reconsidered if he had to pay some of the legal costs. 77. Without “no-win-no-fee” agreement we would not have even begun the process. 78. “We thought long and hard about making a claim. At the time we found making any decisions very difficult and we would not have gone ahead with it if there had been any chance of having to pay cost. Through no fault of his own he was in an awful position. Risking our future security would have been the complete opposite of what my husband would have wanted.” 79. “My decision to claim would definitely have been affected under these new proposals.” Legal Aid, Sentencing and Punishment of Offenders Bill 80. “This is a terrible thing to happen to those who are innocent victims of Mesothelioma, they have enough to cope with without having to try and find money to defend their chance of claiming compensation. We are presently going through this procedure and if I knew that the government were about to do such a despicable thing I’m not sure we would have embarked on such a hard and emotional journey.” 81. “Living with this devastating disease is bad enough without all this extra stress this decision would put upon us!” 82. “If we had been faced with having to pay out for insurance or risk paying costs we would have been unlikely to make the claim as my Dad, the mesothelioma sufferer, died just a couple of months after diagnosis and the costs would have been another savage blow to my Mum, now widowed.” 83. “People who have mesothelioma have suffered enough when the government known about it for years. To try to take money from them is a disgrace and it will stop a lot of people making a claim.” 84. “My husband Cliff who died from mesothelioma told our solicitor that he would not proceed if there were any costs. He died 17 May 2009.” 85. “In most cases I don’t think people would go ahead with a claim because of financial implications.” 86. “Many sufferers and their families would not be able to claim if faced with expensive legal costs. My father worked all his life in filthy foundry conditions full of asbestos, and earned just enough to exist. He sadly died from lung cancer caused through his working conditions.” 87. “My husband took some comfort knowing his family would have financial security through his compensation, but I doubt he would have pursued any claim under the new proposals.” 88. “The devastating effect of discovering I have mesothelioma has had, not only on myself but also on our family would be compounded by having to risk paying legal costs.” 89. “Losing a loved husband to this terrible disease was traumatic. If I’d had to risk more financial cost it would have made me too scared to take the opportunity to seek compensation. I feel this compensation is owed to mesothelioma sufferers who contracted the disease through no fault of their own. They paid with their lives and shouldn’t be asked to pay anything else” 90. “Cancelled claim due to the threat of these payments” 91. Comments on how much increased stress would be involved 92. “It’s bad enough having a death sentence without having to worry about finances.” 93. “We have all had enough grief. Please no more.” 94. “I think it is a disgrace to put sufferers abd their families through more worry and pain.” 95. “The stress that Mesothelioma causes is horrendous, so no further stress is needed by trying to make sufferers and their significant others adhere to these proposals and pay out of their own pocket with money they haven’t got.” 96. “Watching a loved one suffering this disease is enough of a trauma without the added worry of legal costs.” 97. “Drastically difficult as costs would not be known in advance.” 98. “How can this be morally correct? To make in my case, the most heartbreaking time of my life and the family, much harder to bear. My case has not reached court yet.” 99. “Being diagnosed with mesothelioma is a big shock. To then be expected to pay legal costs from any compensation that might be awarded adds yet more worry that is not needed.” 100. “Its bad enough to have developed mesothelioma whilst just earning a living but to have to pay these costs when making a claim is doubling the worry and suffering—all totally cruel and criminal” 101. “Compensation is the furthest thing from your mind when a loved one has this awful disease. It is only the help of the support group and a helpful solicitor that you could do this. Making things harder is just adding more upset to an impossible situation.” 102. “Having to pay costs etc. would have made a bad time even worse”. 103. “The changes that the government are intending are against sufferers and families human rights and would make a claim very difficult indeed!!” 104. The risks of using asbestos were well known by Government and Council Authorities years before and this makes them responsible and therefore claimants should not have to worry about legal fees at such a time of distress. 105. “Losing a loved one to this deadly disease is heartbreaking enough, but to have the worry of the costs added, is adding insult to injury. This is just typical of this uncaring and grasping government.” 106. “It is hard enough to live with the condition without any other problems.” 107. “This disease is hard enough to live with, do not need more problems.” 108. “It was very distressing for me and my family to be diagnosed with this terrible disease, caused by no fault of my own, and if I had to pay legal fees to fight a claim it would add to our distress.” Legal Aid, Sentencing and Punishment of Offenders Bill 109. “Like many sufferers of this disease my husband died before compensation was received. If these proposals had been in place it would have caused us both a deal more stress during a terrible time.” 110. “Mesothelioma sufferers and families endure overwhelming suffering. They do not need extra burdens due to costs.” 111. “My father died before his time, my mother is left with dementia, why make it harder for her?” 112. “Come the time this decision is made the sufferer and family are at their lowest ebb emotionally and very fragile. All the help necessary should be given. Coming out with a Bill that makes it more difficult means more hardship both financially and personally.” 113. “During an already difficult time having to worry about legal costs would have been too traumatic. I would not have been able to carry on. They took all the burden off our shoulders.” 114. “When you lose someone due to mesothelioma through no fault if their own the last thing you need is having further stress.” 115. “Sufferers go through enough pain and suffering without having to think about costs.” 116. “This is a horrific illness to watch someone go through without the worry of monies.” 117. “Its bad enough to see someone suffering without all the problems with compensation.” 118. “Our family has suffered already as have many others why make our suffering worse?” 119. “You don’t want your family to have the ongoing worry about this after you’ve passed on.” 120. “Through non fault of their own, sufferers should have no added stress or their families, and everything possible should be done to make this process as smooth as possible.” 121. “I lost my husband to this disease suddenly and at a time when our lives should have been relaxed and enjoyable. He was active and strong until August 2005, but became ill and died within 4 months on the 21st December 2005, aged 70. Any further stress at this time would have made the situation much worse.” 122. “It is immoral for claimants to have to pay any legal costs in mesothelioma cases. It is a very difficult time, I know my husband died and the payments of legal costs hanging over us would be horrendous” 123. “It was a very difficult and upsetting time and it was a very worrying period going through the claim period which would have been even more worrying and stressful if these new legislations had been in place. Mesothelioma sufferers contracted this illness through gross neglect of the government and employers and claimants should not be given any added worry or stress after all the distress the illness entails” 124. “It is a very traumatic & emotional time without having to worry about legal costs as well.” 125. Comments on trivial claims and mesothelioma as a special case 126. “I can understand the need for legislation to prevent the trivial no win no fee claims but how can the claim of a mesothelioma sufferer be “lumped” in with “ambulance chasers”? Mesothelioma has only one outcome and that is loss of life it is nothing trivial and patients need help not hindrance. (widow)” 127. “I agree with the government’s decision to try to stop trivial and dishonest claims but in some cases ie mesothelioma it is totally wrong.” 128. “Perhaps valid to curb “whiplash” type claims but grossly unfair for medically confirmed terminal illness/disease.” 129. “I think that if the bill, mentioned in your letter, is passed it should not apply to mesothelioma sufferers. They are a very special case and should not have to risk losing out financially, especially if they lose their case.” 130. “This proposal should never affect Mesothelioma sufferers. It is already a painful experience, this will just make it worse.” 131. “Mesothelioma is a special case—a dreadful fatal cancer caused by negligence in the workplace in most cases and involving huge suffering for victims and their families.” 132. “I believe the issue of claims in respect of Asbestos and industrial related issues to be vastly different to those passing claims for compensation for minor mishaps ie tripping over pavements and the like.” 133. Comments on deterrent to breach of H&S Law 134. “Compensation just means that money worries don’t compound a very difficult and upsetting situation. It also acts as a deterrent to those who flout the laws on asbestos.” 135. “Guilty defendants should pay all the costs making companies now think about health and safety of its employees and the financial implications not only now but in the future.” September 2011 Legal Aid, Sentencing and Punishment of Offenders Bill Memorandum submitted by Bail for Immigration Detainees (BID) (LA 73) 1. BID is an independent charity that exists to challenge immigration detention in the UK. We work with asylum seekers and migrants held in removal centres and prisons to secure their release from detention. From August 2010 to July 2011 BID provided legal advice, information and representation to 2,115 immigration detainees. Summary 2. BID is gravely concerned that the removal of all immigration claims from scope for Legal Aid funding will mean that in practice large numbers of immigration detainees will no longer have any meaningful opportunity to challenge the UK Border Agency’s (UKBA’s) decision to hold them in immigration detention. 3. The complexity of immigration law and the circumstances of immigration detainees mean that it will not be possible in the vast majority of cases for detainees to properly prepare and present their own immigration cases. 4. BID has worked with numerous clients who have been held in immigration detention for long periods, and who the courts have ultimately found to have been detained unlawfully.In a number of cases, our clients’ legal aid representatives have successfully challenged the immigration decision which was the basis of their detention. 5. We are particularly concerned by the impact which the removal of Legal Aid for immigration claims would have on children who are facing removal from the UK with their families or separation from their parents. We are also concerned that the removal of Legal Aid funding for certain immigration and asylum judicial reviews will prevent detainees from challenging unlawful decisions to remove them from the UK. 6. Finally, there are a number of areas where the removal of immigration cases from the scope of Legal Aid funding may result in unintended and problematic consequences for the asylum and immigration system. Introduction 7. BID welcomes the Government’s recognition, in their response to the Legal Aid consultation, that cases concerning an individual’s loss of liberty are of a high priority and that Legal Aid should continue to be routinely available in such cases subject to means and merits tests.303 The Government also deems to be of high priority cases involving a risk to life or physical safety; homelessness; and cases where the individual faces intervention from the state, or seeks to hold the state to account. 8. Other factors which the Government identifies as relevant to what should remain in scope for Legal Aid are: — the individual’s ability to present their own case; — the availability of alternative sources of funding; and — and the availability of alternative means of resolution.304 9. As a result of the prioritisation of cases concerning loss of liberty,the Government proposes that people in immigration detention will continue to be able to access Legal Aid to apply for bail. This is a welcome proposal from BID’s point of view, particularly given the fact that there is no statutory time limit on immigration detention in the UK. 10. However, we are extremely concerned that the removal of all immigration claims from scope for Legal Aid funding will mean that in practice large numbers of immigration detainees will no longer have any meaningful opportunity to challenge the UKBA’s decision to hold them in immigration detention. 11. The UKBA’s decision to detain a person under Immigration Act powers is a direct consequence of an immigration decision. For example, where the UKBA has made a decision to refuse an applicant leave to remain in the UK, they may then detain them in order to effect their forced removal. This means that in immigration cases, and particularly in removal and deportation cases, the individual’s liberty is immediately at stake. Challenging immigration detention is inextricably linked to challenging the immigration decision which is the justification for detention. If all immigration claims are removed from scope for Legal Aid funding, detainees who are not asylum applicants will, in most cases, have no means of properly putting forward their immigration case and challenging their detention. Alternatives toL egalA idF unding 12. The complexity of immigration law and the circumstances of immigration detainees mean that it will not be possible in the vast majority of cases for detainees to properly prepare and present their own immigration cases. Detainees are, by virtue of their situation, isolated and ill-placed to gather evidence, including witness and expert evidence, to support their cases. Their knowledge of English may be very 303 Proposals for the Reform of Legal Aid in England and Wales: Consultation Response. Ministry of Justice, June 2011, p 4. 304 Proposals for the Reform of Legal Aid in England and Wales: Consultation Response. Ministry of Justice, June 2011, paragraph 6, p 11. Legal Aid, Sentencing and Punishment of Offenders Bill limited. In some cases they will suffer from mental illnesses. It is unrealistic to imagine that detainees will have the knowledge of court procedures and case law, and the ability to advance complex legal arguments in an adversarial procedure, which would be necessary for them to properly prepare and present their cases. 13. We also note that the Government is generally represented in cases or proceedings taken against it, and suggest that an expansion of types of case or proceeding where individuals are held to be generally able to represent themselves goes against the principle of equality of arms. 14. The Office of the Immigration Services Commissioner, and the Law Society’s Immigration Accreditation Scheme, are both intended to regulate standards of immigration advice. Both schemes take into account the complexities of different areas of Immigration Law by restricting advisors from being able to advise unless they have passed exams that reflect knowledge in those areas of the Law. It is illogical therefore to suggest that litigants who have no knowledge or experience in these levels of legal competency should be able to represent themselves both prior to, and before a Tribunal. 15. Detainees are unable to earn money to pay for legal costs. As immigration advice and representation are regulated, advice cannot be provided by charities who do not meet the requirements of such regulation. 16. In immigration cases, there are no alternative means of resolution. Immigration matters cannot be resolved by mediation, ombudsmen, complaint procedures or other dispute resolution methods. Background onI mmigrationD etention 17. It is not uncommon for people to be held in immigration detention for long periods. Home Office statistics show that of the 25,959 people who left immigration detention during 2010, 8,327 were detained for more than 29 days. Of these, 316 people were detained for over a year.305 BID has clients who have been detained for over four years. 18. BID has worked with a number of clients who have ultimately been granted leave to remain in the UK despite the UKBA having previously detained them and attempted to forcibly remove them from the UK. We have also referred a sizeable number of clients to legal representatives who have made successful claims against the UKBA for unlawful detention. The Independent newspaper recently reported that the UKBA had informed them the agency had set aside over £4 million to pay compensation on pending unlawful detention claims.306 In one recent case, the High Court ruled that the UKBA subjected a man suffering from mental illness to inhuman and degrading treatment in immigration detention, detaining him unlawfully for a period of five months.307 19. In this context, BID considers it to be of crucial importance that detainees have a meaningful opportunity to challenge the lawfulness of the UKBA’s decision to detain them. In our view this would require that immigration cases which pass the merits test remain in scope for Legal Aid funding. Challenges toD eportation 20. The current Bill removes challenges to deportation from scope for Legal Aid funding. 21. BID has had a number of clients in detention with signed deportation orders in place following criminal convictions, who have been resident in the UK for 20, 30 and even 50 years, and yet face deportation to a country of origin of which they have limited or no knowledge. They may have come to the UK as young children themselves. Many of these clients have UK citizen partners, children, and grandchildren from whom they face separation if they are removed from the UK. 22. Deportation action is appealable. However, if deport appeals are removed from the scope of Legal Aid funding, detainees facing deportation who are without private means would have no meaningful opportunity to examine their immigration position and challenge their removal from the UK where appropriate. 23. The majority of BID’s clients who are detained long-term are subject to deportation orders. If these clients are unable to challenge their deportation order, they will not be able to meaningfully challenge the basis of their detention. There is clear potential for situations to arise where a person is detained despite their detention being unnecessary and unlawful in the light of their underlying deport case, because without Legal Aid they have been unable to adequately present or evidence that case. 24. BID has worked with a number of clients who have successfully appealed their deport orders. Without the availability of Legal Aid to make such challenges, these clients could well have been forcibly removed from the UK without having an opportunity to challenge the lawfulness of their deport order. 25. For example, one of BID’s clients successfully appealed her deport order after being detained for six months. She arrived in the UK in 1999 with valid entry clearance, and her daughter was born in the same year. She overstayed her visa but tried to regulate her stay by applying for a student visa. She and her daughter were eventually granted four years discretionary leave. In 2009 she received a prison sentence, having used a false passport to secure a place on a nursing degree. At the end of her six months in criminal 305 Home Office Immigration Statistics April–June 2011. 306 The Independent 15 August 2011. “£12 million paid in asylum seeker claims” by Wesley Johnson http:// www.independent.co.uk/news/uk/home-news/12m-paid-in-asylum-seeker-claims-2338008.html 307 Sv SSHD [2011] EWHC 2120 (Admin). Legal Aid, Sentencing and Punishment of Offenders Bill custody, she was detained under Immigration Act powers and separated from her child by detention for six months during 2009–10. She was served with a decision to deport towards the end of her time in immigration detention, which her Legal Aid representative successfully challenged shortly after her release from detention. She was granted leave to remain in the UK. If she had not been able to access Legal Aid to challenge her removal from the UK, this would have been seriously detrimental to the welfare and best interests of her child, who was born in the UK and had been living here for over ten years. Children 26. The proposal to remove immigration cases from scope for Legal Aid would particularly affect: — Children who are facing removal from the UK with their families. — Children who are separated from a parent by immigration detention, or by that parent’s removal from the UK. 27. The ill-health experienced by children in immigration detention is well-documented. Medical studies have found that detention is associated with post-traumatic stress disorder, major depression, suicidal ideation, self-harm and developmental delay in children.308 The Government’s recent change in policy,which has limited the time children can spend in immigration detention to seven days, is a considerable improvement on the previous situation where children were detained for periods of months. However, children can experience extreme distress even during short periods in detention. For example, in 2009 a 10- year-old girl attempted suicide in a UK Immigration Removal Centre after being held there for three days.309 28. We are therefore extremely concerned about the impact which removing all immigration cases from scope for Legal Aid funding will have on families with children, who may be detained and forcibly removed from the UK without having had the opportunity to properly examine and present their immigration cases. BID and The Children’s Society carried out detailed research into the cases of 82 families who were detained during 2009.310 We found that 48% of the 143 children in the study were born in the UK. 19 families, 23% of our research sample, had been in the UK for over seven years at the time when they were detained. Four of the mothers in the research had become pregnant by or had children with men who lived in the UK. These children would have been separated from their fathers if they were removed from the UK. Such cases raise serious issues in terms of Article 8 of the European Convention on Human Rights (the right to family and private life), international and domestic obligations concerning the best interests of the child311 and the safety and welfare of children.312 29. We are also concerned about the impact which the proposals in the Bill would have on children who are separated from a parent by immigration detention, or by that parent’s removal from the UK. From September 2008 to June 2011, BID’s family team worked with 64 families where children who were not detained had been separated from their parent (in many cases their primary carer) who was in detention. The majority of these parents had committed criminal offences, and were being held in immigration detention following the completion of their criminal sentences, while the UKBA sought to remove them from the UK. During this time, 42 of these parents were released from immigration detention, 31 of them on bail. Only two clients were removed from the UK or returned voluntarily to their country of origin at the end of their detention. On release or return, the average length of detention for these parents was 269 days. Clearly, separating children from their parents for such long periods is likely to be very damaging both to the child and to their relationship with their parent. In some cases, child protection concerns have been raised about the care arrangements which these children are in while their parents are detained. 30. The UKBA also has the ability to separate families by forcibly removing parents and leaving children in the UK, including where these children will be in Local Authority care following their parent’s removal. BID knows of cases where there are no known child protection concerns about a detained parent, and yet the UKBA caseowner has sought authority to split a family for removal. In such cases, it appears that this step is being taken despite the profoundly negative impact it could have on child welfare, because it serves the administrative convenience of the UKBA. 31. A recent case which has revealed particularly poor practice in this area is that of Marlyse Malla, currently being considered by the ECtHR, in which a Cameroonian woman was forcibly removed from the UK without her one year old baby.313 She was detained with her baby,but was separated from her child when she fell ill during her detention and was hospitalised. She was then forcibly removed from the UK without 308 Lorek, A, Ehnholt, K, Nesbitt, A, Wey, E, Githinji, G, Rossor, E and Wickramasinghe, R (2009). “The mental and physical health difficulties of children held within a British immigration detention centre: A pilot study” Child Abuse and Neglect 33:9 pp 573–585; Mares, S and Jureidini, J (2004) “Psychiatric assessment of children and families in immigration detention— clinical, administrative and ethical issues” Australian and New Zealand Journal of Public Health 28:6 pp 520–526; Steel, Z, Momartin, S, Bateman, C, Hafshejani, A, Silove, D M, Everson, N, Roy, K, Dudley, M, Newman, L, Blick, B and Mares, S (2004) “Psychiatric status of asylum seeker families held for a protracted period in a remote detention centre in Australia” Australian and New Zealand Journal of Public Health 28 pp 23–32. 309 Guardian 21 October 2009 “Detained Nigerian girl found trying to strangle herself” Diane Taylor http://www.guardian.co.uk/ uk/2009/oct/21/detained-nigerian-girl-strangle-immigration 310 Bail for Immigration Detainees and The Children’s Society 2011 Last resort or first resort? Immigration detention of children in the UK. 311 Article 3.1, 1989 UN Convention on the Rights of the Child. 312 Section 55, Borders, Citizenship and Immigration Act 2009. 313 ECtHR 15 September 2010 Chamber Fourth Section Application No 19159/08 Legal Aid, Sentencing and Punishment of Offenders Bill her child, who appears to be in the care of the father. The statement of facts on this case published by the court states that Ms Malla “complains that her daughter was taken away from her without her consent, that her rights to motherhood have been violated and that she has no possibility of future contact with or news of her daughter because her father is a national of the Democratic Republic of Congo whose whereabouts are currently unknown.” Ms Malla is currently pursuing this case from the Cameroon. 32. We are concerned that, without the ability to access Legal Aid to properly examine, prepare and present their immigration cases, parents and children who the UKBA seeks to separate by immigration detention and removal will not have a meaningful opportunity to challenge the UKBA’s decisions. 33. We also note that in two cases concerning the separation of families the Supreme Court and its predecessor have highlighted that there will be cases where the child needs to be represented separately.314 In its response to the consultation on Legal Aid reform, the Government revised its proposals in relation to family law in recognition of the fact that “children are not able to represent themselves”.315 It is also the case that children are not able to represent themselves in immigration proceedings; Legal Aid should therefore be provided to them. 34. Furthermore, we are interested to note that the Government’s response to the Legal Aid consultation states that: 35. “Legal Aid would continue to be routinely available in 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.”316 (emphasis added) 36. However, the Government does not appear to have taken into account here the clear risk that children will be placed in care as a result of being separated from their parent by immigration detention or the parent’s removal, particularly given the removal of immigration cases from scope for legal aid funding. JudicialR eview 37. In its response to the Legal Aid consultation, the Government set out its intention to remove Legal Aid for judicial reviews in certain immigration and asylum cases.317 38. These types of judicial reviews are directly concerned with the loss of an individual’s liberty, interventions they face at the hands of the state, and holding the state to account—all matters which the Government has identified as being of a high priority. 39. BID has worked with a number of clients who have been held in immigration detention, and whom the UKBA has sought to forcibly remove from the UK, but who have been granted leave to remain after challenging their removal by bringing judicial review proceedings. In the research which BID and The Children’s Society carried out with families detained in 2009, we collected post-detention data on 30 families. In the cases of three families who lodged judicial reviews in detention, it was subsequently found that errors had been made in the way their cases were considered, so they needed to be looked at again in full.318 40. In its response to the Legal Aid consultation, the Government states that it is removing Legal Aid for judicial reviews in particular immigration and asylum cases in response to recommendations from the Judge’s Council.319 However, the stated aim of the Judge’s Council’s proposals was to exclude only unmeritorious cases from Legal Aid funding. But the Government now proposes to remove Legal Aid for all immigration judicial reviews except cases where the UKBA has not acted within a year of a final decision of a court or tribunal, regardless of the merit of the case. We are gravely concerned that this may lead to people being unlawfully detained and removed from the UK, as they will not be able to access Legal Aid to challenge the UKBA’s decisions. PerverseC onsequences 41. Finally, we note that there are a number of areas where there is a risk that the removal of immigration cases from the scope of Legal Aid funding will result in unintended and problematic consequences for the asylum and immigration system. — There may be an increase in the numbers of individuals applying for asylum because they cannot get legal aid for immigration applications and deport appeals. 314 EM (Lebanon)v Secretary of State for the Home Department [2008] UKHL 64; ZH (Tanzania)v Secretary of State for the Home Department [2011] UKSC 4. 315 Proposals for the Reform of Legal Aid in England and Wales: Consultation Response Ministry of Justice, June 2011, paragraph 50, page 21; Bill Schedule 1, Part 1, paragraph 13. 316 Proposals for the Reform of Legal Aid in England and Wales: Consultation Response Ministry of Justice, June 2011, p 4. 317 Proposals for the Reform of Legal Aid in England and Wales: Consultation Response Ministry of Justice, June 2011, paragraph 16, p 13. 318 Bail for Immigration Detainees and The Children’s Society 2011 Last resort or first resort? Immigration detention of children in the UK 319 Proposals for the Reform of Legal Aid in England and Wales: Consultation Response Ministry of Justice, June 2011, paragraph 13, p 13. Legal Aid, Sentencing and Punishment of Offenders Bill — There is a risk that the numbers of judicial review applications will increase because claimants are not able to pursue their immigration cases in the tribunal due to the lack of Legal Aid funding. Judicial review proceedings will generally be more costly and time-consuming than tribunal proceedings. — There may be an increase in immigration detainees seeking alternative forms of advice and help, and in particular approaching MPs to make representations on their behalf. — Detainees may be able to obtain Legal Aid to apply for bail, but will not be able to obtain Legal Aid to resolve their underlying immigration matter if they are released from detention. This could result in people being repeatedly detained, without ever being able to resolve their underlying immigration issue. — People may be held in immigration detention unlawfully in cases where errors have been made in the UKBA’s handling of their immigration case, but will not be able to access Legal Aid to challenge the UKBA’s immigration decisions and secure their release from detention. — While it is proposed that asylum matters and detention-related matters will remain in scope, in practice most legal aid firms balance immigration and asylum work—particularly as asylum work is costly, and takes a long time to be paid. So the proposed removal of general immigration work from scope is likely to make a number of these businesses unviable. September 2011 Memorandum submitted by the Children’s Society (LA 74) Introduction 1. The Children’s Society is a leading national charity,driven by the belief that every child deserves a good childhood. We provide vital help to the most vulnerable children, young people and families in our society through a range of services. We work with over 50,000 children each year, supporting them and advocating on their behalf to tackle discrimination or disadvantage in their daily lives. Our services include helping young people to access legal services as well as supporting them through the legal process when no-one else will. KeyM essages 1. We believe that different principles should apply to children in an adult legal system, and we propose that all children should have access to publicly funded legal advice and representation when they need it and in cases where their rights are affected. In the UN Convention on the Rights of the Child (UNCRC), children are defined as being below the age of 18 years and as a minimum we would recommend that children under this age should have access to legal help and representation in all the areas of law that are to be taken out of scope in current proposals. According to information provided by the Government, it would cost an additional £10 million320 annually to protect all under-18s who under the current proposals would become ineligible for support under legal aid. 2. In addition we believe that special consideration should be given to disadvantaged young people between 18 and 25 in recognition that those with civil legal problems are likely to be particularly vulnerable and will lack access to any other financial means such as care leavers, disabled young people, young people with mental health issues or victims of trafficking and exploitation. 3. Legal aid is already limited to those who cannot pay for legal assistance by any other means and thus provides a safety net to ensure protection and equality for the vulnerable and disadvantaged. Taking whole areas of legal matter out of scope will inevitably affect the poorest, most vulnerable and marginalised families. This includes children who will suffer as a knock on effect of limited access to justice for their parents or carers, whose decisions will impact on them. This will be particularly important in areas such as housing, welfare, immigration and education where children are affected by their parents’ lack of financial resources and ability to navigate the legal system. This may be hindered for a number of reasons such as parental disability, language barriers, poverty and mental health issues. 4. There is an economic imperative to facilitate good quality legal advice and representation for children and young people to ensure their safety, well-being and life chances in the long-run. Research has shown that children and young people are particularly susceptible to the negative economic and social impacts of their civil justice problem, impacts which result in longer term costs to public bodies.321 Good quality legal 320 Parliamentary Question on 20 July 2011: http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110720/text/110720w0005.htm<1107211001185 321 Sefton, M. (2010) With Rights in Mind: is there a role for social welfare advice in improving young people’s mental health. Youth Access. Accessed 21 July 2011: http://www.youthaccess.org.uk/publications/upload/With-Rights-in-Mind-full-report-FINAL.pdf Legal Aid, Sentencing and Punishment of Offenders Bill advice effectively resolves legal issues for children, young people and families. An effective triage system which can diagnose legal issues with specialist support early on can help prevent issues from escalating in the future. ADifferentA pproach toC hildren isN eeded 5. Children have evolving levels of capacity, are still maturing, and are not always able to understand the full consequences of their decisions and actions. These physiological and psychological differences should make a major rather than a token difference to how society responds to children within the legal system and elsewhere. 6. Research has established that young people have the lowest levels of “legal capability”.322 The transition to adulthood is a particularly challenging time for some young people when support provision stops and young people are left on their own to deal with the consequences. This is particularly the case for many disabled young people, care leavers, young separated migrants and those with mental health issues. We are concerned that these young people, who are over 18 but are nevertheless vulnerable and less able to access justice, will be further marginalised under proposed changes. 7. The Government has recognised that children need special consideration.323 Lord McNally stated in Lords questions on legal aid that “As far as possible, our intention is that, where children are involved, legal aid will still be provided.”324 While in the Bill there is provision for “children who are parties to family proceedings”, and “unlawful removal of children from the United Kingdom” by their parents, legal aid is not to be provided if they are party to legal proceedings generally, for example, in immigration, welfare, housing, education and clinical negligence cases. ChildrenN otP rotected underC urrentP roposals 8. Based on Legal Services Commission’s data for the 2009–10 closed cases, the Government has calculated that around 6,000 children under 18 (or 15% of the current case volume for this age group worth £10 million in costs) will be out of scope for receiving legal aid in civil cases. In addition, 69,000 young people aged 18 to 24 (or 56% of the current case volume for this age group worth £40 million in costs) will not be eligible for legal aid if the proposed changes go through.325 9. The Justice Minister has stated that for cases that will be excluded from the scope of the civil legal aid scheme, there will be a safety net in the form of the exceptional funding scheme. This would come into play if not giving legal aid would breach individual rights under the Human Rights Act 1988 or European Union law. However, the Government has not published details of the full scope of the new scheme or how it will function. The impact assessments state that the Government anticipates that only 5% of excluded cases for education will gain exceptional funding, and no cases for immigration.326 However according to the Equality Impact Assessment the Government estimates that 11% of the clients affected by bringing immigration out of scope will be children and young people under 25 which is equivalent to over 5,600 cases.327 Although the data has not been provided, it is likely that a significant number of these young people will be particularly vulnerable: they will include separated children, care leavers, children who are victims of trafficking, young people with mental health issues and disabilities. 10. If the Government does intend to process significant numbers of cases through the exceptional funding route, new arrangements are urgently needed to ensure that this does not result in a slower and costlier process or worse still, that these cases will simply not receive legal aid funding. This would be detrimental to children. IncompleteA ssessment ofI mpacts 11. The Government has neglected to estimate the full economic and social impacts of the proposals to reform legal aid. The impact assessments published alongside the Government’s response to the legal aid consultation do not include analysis of evidence on the link between providing legal aid and positive social outcomes.328 This means that estimates of the longer term negative impact on individuals and Government finances, resulting from greater negative social outcomes, have been omitted. 322 Balmer N J et al (2009) Knowledge, capability and experience of rights problems. 323 Parliamentary Question on 21 June 2011: http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110621/debtext/110621-0001.htm 324 Parliamentary Question on 7 July 2011: http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/110707-0001.htm<11070743000016 325 Parliamentary Question on 20 July 2011: http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110720/text/110720w0005.htm<1107211000025 326 Annex A: Scope, pg 3, table 4: http://www.justice.gov.uk/downloads/consultations/annex-a-scope.pdf 327 Table 7 shows how different age groups of clients including young people under 25 years would be affected by reduction in scope of face-to-face and telephone services by category of law (pg 131) Equality Impact Assessment,: http:// www.justice.gov.uk/downloads/consultations/legal-aid-reform-eia.pdf 328 Citizens Advice Bureau (2010) Towards a business case for legal aid. http://www.citizensadvice.org.uk/towards a business case for legal aid.htm Legal Aid, Sentencing and Punishment of Offenders Bill 12. In addition the Government has not considered the specific impact on children and young people.329 Whilst the Equality Impact Assessment considers the impact on different age groups, the assessment excludes cases relating to children under 16 years.330 The Government’s literature review of litigants in person does not include information on children and young people acting as litigants in person. However, the general evidence suggests that “litigants in person tend to be younger, and have lower income and educational levels, than those who obtain representation” and could face problems in court, such as understanding evidential requirements, identifying legally relevant facts and dealing with forms. Furthermore, “the weight of the evidence indicated that lack of representation negatively affected case outcomes”.331 There are clear evidence gaps here, particularly in relation to children, which we urge the Government to consider further. 13. Furthermore the Government has not taken into account the impact on children’s rights under the UNCRC, despite earlier this year stating its commitment to giving “due consideration to the UNCRC Articles when making new policy and legislation”.332 14. We also believe that the changes are in conflict with the Government’s obligations to children and young people in relation to the child-friendly justice guidelines adopted by the Committee of Ministers of the Council of Europe on 17 November 2010.333 These guidelines apply to all domestic courts and tribunals, and aim to ensure that in legal proceedings, the rights of children, including the rights of information, to representation, to participation and to protection, are fully respected. The following paragraphs of the guidelines are particularly relevant: “35. Any obstacles to access to court, such as the cost of the proceedings or the lack of legal counsel, should be removed. 37. Children should have the right to their own legal counsel and representation, in their own name, in proceedings where there is, or could be, a conflict of interest between the child and the parents or other involved parties. 38. Children should have access to free legal aid, under the same or more lenient conditions as adults. 42. In cases where there are conflicting interests between parents and children, the competent authority should appoint either a guardian ad litem or another independent representative to represent the views and interests of the child.” SeparatedC hildren andY oungP eople in theI mmigrationS ystem 15. Although we welcome the retention of asylum cases within the scope of legal aid, taking immigration cases out of scope will have a detrimental impact on children, including for those who have are seeking leave to enter or remain in the UK on human rights grounds such as Article 8 (the right to private and family life). We believe this will be particularly problematic for separated children and young people, including victims of trafficking and exploitation. 16. When unaccompanied or separated children (under 18) apply for asylum they are usually334 refused refugee status or Humanitarian Protection but are generally granted Discretionary Leave to remain in the UK either until the child reaches 17° years of age; or for a period of three years.335 This is in recognition of their vulnerability and that there are no adequate reception facilities for them in their country of origin. An application for further leave, and any appeal against a refusal, may be required well before the child is 18 years of age. 17. The safety or welfare of a separated child if returned may or may not raise concerns under Article 3 of the European Convention on Human Rights (the prohibition of torture and inhuman or degrading treatment or punishment), for example, but it will be likely to raise issues under Article 8. It may also include claims which bring into consideration the UK Border Agency’s obligations under the UNCRC and its statutory duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and 329 Parliamentary Question on 7 June 2011: http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110607/text/110607w0006.htm<11060826003959 330 Equality Impact Assessment, pg 131, table 7: http://www.justice.gov.uk/downloads/consultations/legal-aid-reform-eia.pdf 331 Williams, K. (2011) “Litigants in person: a literature review”. Ministry of Justice. http://www.justice.gov.uk/downloads/ publications/research-and-analysis/moj-research/litigants-in-person-literature-review.pdf 332 Written Ministerial Statement from the Department for Education in response to the independent review of the Children’s Commissioner: http://media.education.gov.uk/assets/files/pdf/w/written%20ministerial%20statement%20%20%20office%20of%20the%20 childrens%20commissioner.pdf 333 Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice, adopted by the Committee of Ministers on 17 November 2010, at the 1098th meeting of the Ministers’ Deputies, available at: https://wcd.coe.int/wcd/ ViewDoc.jsp?id%1705197&Site%CM&BackColorInternet%C3C3C3&BackColorIntranet%EDB021&BackColorLogged %F5D383 334 In 2009, 56% of asylum applications made by unaccompanied asylum-seeking children were granted Discretionary Leave to remain at initial decision for those under 18, while 9% were granted refugee status, 1% Humanitarian Protection and 13% were refused outright. Out of the remaining 22% whose initial decisions were received after they had turned 18, 21% of these were refused protection. Home Office, Control of Immigration: Statistics United Kingdom 2009. Accessed 1 July 2011: http:// www.homeoffice.gov.uk/publications/science-research-statistics/research-statistics/immigration-asylum-research/hosb1510/ 335 Whichever is the shorter period is what is granted. Legal Aid, Sentencing and Punishment of Offenders Bill promote the welfare of children. Limiting legal aid to asylum claims would preclude children in immigration cases from advice and assistance in significant legal proceedings concerning an unaccompanied child’s entitlement to remain in the UK and the UK Border Agency’s obligations towards that child. 18. These cases will include children who have come to the UK at a young age but may have been abandoned by their carers or are in the care system without a clear immigration status; children who may have been abused, neglected or exploited by their carers including for the purposes of sexual or domestic servitude (see Hidden Children336 report). Without publically funded legal support, many of these will be made vulnerable to further exploitation in order to raise funds to pay for legal help or be at risk of returning to an unknown country where they have no family or support networks, and where their safety and welfare may be at risk. 19. According to information provided by the Ministry of Justice (MoJ)337, it is estimated that around 2,500 instances of legal help and representation for children under 18 in immigration cases would come out of scope—approximately 42% of the 6,000 cases for under 18s which would come out of scope from civil legal aid overall. Lack ofG oodL egalA dvice makesC hildrenV ulnerable toE xploitation 20. The Refugee Council has highlighted the problems that young people in the immigration and asylum system already have in accessing good quality legal advice.338 Our experience echoes these findings: because of existing restrictions on funding for legal representation, we often see children dropped by their lawyers because their case is too complicated, or demand fees of several thousand pounds to continue.339 This leaves young people, who are desperate for protection, vulnerable to manipulation and exploitation including begging, selling sex and engaging in other forms of illegal work to pay for legal representation. Victims ofT rafficking 21. Child victims of trafficking and exploitation may have immigration claims that are not asylum claims and will therefore fall out of scope for legal aid. Trafficking cases are often very complex and require expert legal advice and representation including expert evidence such as medico-legal reports, country expert evidence and evidence on the modus operandi of traffickers. Again, without legal aid, these vulnerable young people would be at even greater risk. The Children’s Society has worked with many children in this situation—more information can be found in our Hidden Children340 research. ProtectingC hildren’sB estI nterests 22. While the Government has recognised that there may be conflicting interests between parents and children in family proceedings and that children may need special provision in abduction cases, this is not carried through to immigration cases where children will be affected by family removals from the UK. These include cases where the child needs separate representation to ensure their rights are upheld and best interests protected. For example, in EM (Lebanon)v Secretary of State for the Home Department [2008] UKHL 64, removal of the child and his mother to Lebanon would have resulted in the child’s custody being given to his estranged and abusive father with permanent separation from his mother. In ZH (Tanzania)v Secretary of State for the Home Department [2011] UKSC 4, the effect of the mother’s removal would either be to separate the British children from their mother or to remove them from their settled life in the UK and their father. 23. It is entirely unacceptable that a child involved in legal proceedings, who will have no financial resources to pay for legal advice and representation, will be expected to present his or her own case in an adult legal system as a litigant in person, something many adults would struggle to do effectively. Education is aF undamentalR ight 24. The provision of education to children is a fundamental right and a right under Article 1 protocol 2 of the EU Convention on Human Rights. Article 28 and 29 of the UNCRC stipulate the right of the child to education that shall be directed to the development of the child’s fullest potential. Education plays a crucial role in the future life chances of each child and therefore should not be seen as a lower priority for funding. The Government’s education White Paper341 highlights that those who are better educated earn more and are less likely to be unemployed, are healthier and live longer. It argues that “Education allows 336 The Children’s Society (2009) Hidden Children. Accessed 1 July 2011 http://www.childrenssociety.org.uk/what-we-do/ lobbying/policy-areas/young-refugees-and-migrants-0 337 Information provided to The Children’s Society by the Ministry of Justice on 28 July 2011 based on the legal aid caseload data from 2009–10. 338 Refugee Council (2011) Lives in the Balance: The quality of immigration legal advice given to separated children seeking asylum. Accessed 21 July 2011: http://www.refugeecouncil.org.uk/policy/position/2011/livesinthebalance 339 The Children’s Society (2007) Going it alone: Children in the Asylum Process. Accessed 21 July 2011: http://www.childrenssociety.org.uk/what-we-do/parliamentary-work/policy-areas/young-refugees/going-it-alone 340 The Children’s Society (2009) Hidden Children. Accessed 1 July 2011: http://www.childrenssociety.org.uk/what-we-do/lobbying/policy-areas/young-refugees-and-migrants-0 341 Department for Education (2010). Case for Change. Accessed 21 July 2011: http://www.education.gov.uk/publications/standard/publicationDetail/Page1/DFE-00564-2010 Legal Aid, Sentencing and Punishment of Offenders Bill individuals to choose a fulfilling job, to shape the society around them, to enrich their inner life. It allows us all to become authors of our own life stories”. We believe all education cases relating to children should be brought back into scope. LimitingA ccess toE ducation for theM ostV ulnerable 25. According to information provided by the MoJ and the Equality Impact Assessment,342 at least 58% of education cases will still be out of scope under the current proposals. This includes concerns over the level or quality of education, bullying or other professional negligence; exclusion and refusal to provide full time education; cases which challenge admission to institution in non-SEN, non-DDA cases; and non-attendance and proceedings against parents. We believe that this measure will disproportionately impact on parents with disabilities, language or cultural barriers, and will ultimately be detrimental to the life chances of the most disadvantaged children. 26. Providing legal aid for admission appeals, for example, helps ensure that children from different backgrounds have equal access to the “better performing” schools. Appeals are not straightforward and many parents will struggle to support their children’s cases without legal help and representation. Taking legal aid out of scope for education will risk further marginalising children from particular groups as they will be unable to effectively access the legal remedies to attend better performing schools. 27. The situation will be similar in exclusion cases. According to the Government’s own data, children eligible for free school meals are three times more likely to be excluded than children who were not entitled to free meals.343 Traveller, Gypsy and Roma children—who are five times more likely to be excluded from school than the national average344 and nearly three times more likely than White British pupils to have special educational needs345 would be disproportionately affected by the elimination of legal aid for education cases. This represents a systemic problem of inequality rather than a matter of personal choice. Parents are often ill-equipped to understand the law, and apply the facts to effectively challenge exclusion decisions. 28. Legal aid funding in these situations is crucial to protect all children’s right to education. The change goes against the Government’s commitment to protecting the most vulnerable from cuts in public spending. Removing education cases from the scope of legal aid means only higher income households would be able to seek and secure effective legal remedies. A failure to deal with education issues in a timely way can also result in more and longer-term support being required with no real savings for the Government over time. September 2011 Memorandum submitted by the Zimbabwe Association (LA 75) Introduction 1. The Zimbabwe Association (ZA) is a charity and membership organisation which supports Zimbabwean asylum seekers and refugees in the UK. We work to ensure they have access to fair legal representation and accurate information throughout the asylum process. Our aims include utilising and developing members’ skills, accessing education and enabling Zimbabweans to be heard. 2. ZA was formed by volunteers in October 2001. ZA began campaigning against the detention and removal of Zimbabweans; removals were suspended in January 2002. However, since this time, many Zimbabweans have faced serious difficulties in finding competent legal representation and many have found themselves in situations of limbo (without status) and destitution in the UK, despite it being unsafe for them to return to Zimbabwe. A key role for ZA is seeking to direct people to competent legal representation. Access toC ompetentL egalR epresentation 3. Over the last 10 years, and particularly since 2004, several of the most experienced immigration and asylum practitioners have closed or reduced their legal aid work. The loss of Refugee and Migrant Justice (formerly the Refugee Legal Centre) and the Immigration Advisory Service has been a catastrophe, but these are far from the only losses in this area. When Refugee and Migrant Justice closed last year, the Government said this was simply a matter of that organisation failing to cope with the legal aid regime which everyone else was coping with; and that its closure was not a problem because others could fill the gap—in particular the Immigration Advisory Service, which the Government was to give a 20% share of the immigration and 342 Equality Impact Assessment, pg 131, table 7: http://www.justice.gov.uk/downloads/consultations/legal-aid-reform-eia.pdf 343 Department for Education (2010). Statistical First Release: Permanent and Fixed Period Exclusions from Schools and Exclusion Appeals in England, 2008–9. 344 Department for Children, Schools and Families (2009). Permanent and fixed exclusions from schools and exclusion appeals in England, 2007–8. 345 Lindsay, G et al (2006). Special educational needs and ethnicity: Issue of Over and Under Representation. Institute of Education & University of Warwick. Legal Aid, Sentencing and Punishment of Offenders Bill asylum legal aid market.346 This year’s closure of the Immigration Advisory Service has shown the Government’s confidence was misplaced. Over the last 12 months, good quality firms such as Glazer Delmar and Fisher Meredith have stopped doing legal aid work in this area. 4. ZA note the figures quoted by the Justice Committee in its Third Report of Session 2010–11.347 Total civil legal aid spend has fallen from £1,044 million in 2003–04 to £941 million in 2009–10 (a fall of £103 million).348 Immigration and asylum legal aid spend has fallen from £193 million in 2004–05 to £89 million in 2009–10 (a fall of £104 million).349 There has been no serious attempt when making this more than 50% reduction in spending in this area to preserving quality, or ensuring competence. ZA’s experience is that it has become increasingly difficult to find competent legal representation; and we are all too familiar with the damage that poor legal representation has done in many cases. 5. Committee members have discussed concerns of cost and quality. Mr Robert Buckland MP, for instance, said:350 “. . . it is about the quality of the system that we can provide. The challenge facing any Government coming to office in 2010 was to accept the fact that there were limited resources and that those resources would shrink, and to square that shrinking level of resources with providing a system that would reach out not only to the poor but to those who are on the margins, are vulnerable and need real help.” 6. ZA welcome the decision by the Government that asylum will remain covered by legal aid. However, Mr Buckland is right to highlight the importance of quality, and the reduction in legal aid fees by 10%351 increases the existing problem of the financial viability of competent and effective legal aid work in this area. This will be made worse by the removal of flexibility offered to legal aid practitioners (trying to mitigate the cost of complex cases) by removing immigration from legal aid. 7. It does not appear to us that the Government or the Committee have so far fully understood the significance of regulation of immigration advice. In principle, ZA support regulation because we are all too aware of the consequences of bad immigration advice and the opportunity for exploitation of those who need immigration advice. However, immigration law is complex and regulation requires organisations that wish to provide advice to demonstrate general competence in this area. Many community and general advice agencies are not in a position to join the regulated scheme352, and hence cannot give immigration advice (and face criminal prosecution if they do so). When the Committee members discuss distinctions between “legal advice” and “other advice”,353 it is vital that they recognise the criminal regulatory scheme that is peculiar to immigration. Asylum andI mmigration 8. Committee members have discussed questions of the boundary between categories of law. For example, Kate Green MP spoke of “the classic area [being] the boundary between immigration and asylum”.354 She, as others, was particularly concerned with the possibility that cases present differently because “individuals can no longer use particular categories of law because they are now outside of scope”.355 ZA agree there is a risk that the Bill will lead to an increase in asylum claims. However, ZA wish to highlight a different point about the boundary between asylum and immigration, which is that the Bill’s narrow focus on asylum risks failing to provide the protection the Government intends, including “in cases where people’s life or liberty is at stake, where they are at risk of serious physical harm”.356 9. Over the past decade many Zimbabweans have lived in destitution and limbo in the UK because their asylum claims have been refused, and at certain times (ie before January 2002, between November 2004 and July 2005 and more recently) they have faced removal to Zimbabwe. Yet for many of these people return has been, and remains unsafe. In October 2005,357 the Asylum and Immigration Tribunal made a general (country guidance) ruling that, if returned, they faced persecution. In November 2008,358 that tribunal made a similar ruling. Before these rulings, many Zimbabweans were refused asylum in circumstances where these rulings showed them to be refugees. More recently, the Upper Tribunal (Immigration and Asylum Chamber) made a general ruling in January 2011359 which continues to show that large numbers of Zimbabweans face 346 Hansard HC, 17 June 2010 : Columns 1023, 1024, 1026 and 1028 (Kenneth Clarke QC MP, Lord Chancellor and Secretary of State for Justice). 347 Government’s proposed reform of legal aid, HC 681, 29 March 2011. 348 Ibid, paragraph 14 and table 4. 349 Ibid, table 4. 350 Hansard HC, Public Bill Committee, 19 July 2011 (afternoon) : Column 214. 351 Draft Community Legal Service (Funding) (Amendment No 2) Order 2011. 352 Part V, Immigration and Asylum Act 1999 (establishing the Immigration Services Commissioner). 353 eg Hansard HC, Public Bill Committee, 19 July 2011 (afternoon): Columns 206, 234 and 235. 354 Hansard HC, Public Bill Committee, 19 July 2011: Column 219. 355 Ibid. 356 Ministerial Foreword by Kenneth Clarke, Ministry of Justice Reform of Legal Aid in England and Wales: the Government response, June 2011, Cm 8072 (page 4). 357 AA (Zimbabwe)v Secretary of State for the Home Department [2005] UKAIT 00144. 358 RN (Zimbabwe)v Secretary of State for the Home Department [2008] UKAIT 00083. 359 EM (Zimbabwe)& Orsv Secretary of State for the Home Department [2011] UKUT 98 (IAC). Legal Aid, Sentencing and Punishment of Offenders Bill persecution if returned to Zimbabwe. In that most recent ruling, the tribunal explicitly recognised a situation that applies to several Zimbabweans who have been denied asylum in the UK over the last decade when it ruled in respect of one of the appellants:360 “Whether JG could ever have substantiated a protection claim to remain or not, it is understandable that she would be unwilling to return voluntarily to a society so ravaged by violence, insecurity and an absence of sound governance as was Zimbabwe under ZANU-PF.” 10. There are several Zimbabweans, who have needed legal representation to resist removal over the periods to which we refer. This includes individuals who have been refused asylum (and had asylum appeals dismissed), yet have subsequently been recognised as refugees. It includes families (such as that of JG and her children), who have lived in the UK for many years (and in the case of many children all or nearly all their lives), several of whom should have been recognised as refugees but were not and who do not have any safe or stable place to return to in Zimbabwe at this time. Many of these have been failed by the asylum system (the reasons for this include poor legal representation, to which we have referred above). Many of these have had to rely upon immigration (including Article 8 claims) and judicial reviews to secure their safety in the UK. 11. Finally, in relation to this, ZA endorses the importance of funding for test cases, as highlighted by Kate Green.361 Test cases, funded by legal aid, have been vital for Zimbabweans and for the asylum system to recognise the severity of the situation in Zimbabwe. The capacity for bringing such cases has been seriously compromised by the closures of Refugee and Migrant Justice and the Immigration Advisory Service, to which we have referred. However, ZA also shares her and others’ concern about the quality of initial decisions, such as UK Border Agency asylum decisions (even when assisted by test case decisions). For example, in the face of the country guidance ruling in November 2008, save for during the first quarter, the UK Border Agency maintained a high refusal rate during 2009 while conversely (though perhaps inevitably) the rate of allowed appeals remained very high.362 RefugeeF amilyR eunion 12. One area where the boundary drawn by the Government between asylum and immigration is inappropriate concerns refugee family reunion. The following is but one example: T and his wife were granted refugee status in January 2009. Their children were stranded in South Africa having fled from Zimbabwe, and had experienced the violent xenophobia of 2008 in South Africa. T was desperate to get his children out. His legal aid lawyer helped identify the correct forms, communicated with the British High Commission in Pretoria and gave them correct information regarding the possibility of the children being able to travel without Zimbabwean passports. A number of applications were refused but the lawyer helped with the court appeal against the refusal. An Immigration Judge allowed the appeal and eventually visas were issued to the children. Shortly afterwards they arrived in the UK in September 2010, and were reunited with their parents after seven years apart. It has taken over two months for T and his wife to start believing that it is not a dream and that their children really are with them. The children still wake up from nightmares terrified that they have been taken away from their parents and are back in Zimbabwe or South Africa. As T says, their family reunion would have been, “Almost impossible without legal help”. 13. The stress of trying to achieve family reunion—even with legal aid—is colossal. Refugees deprived of legal aid and unable to reunite with their families will likely suffer excessive strain with the risk of serious ill-health, mental and physical. Continued family separation is a profound hurdle to refugee integration. TelephoneG ateway andT elephoneA dvice 14. ZA welcomes the Government’s decision that asylum is not suitable for advice by telephone, and that asylum is not to be included in the initial mandatory telephone gateway for legal aid. However, we have several concerns about the mandatory use of a telephone service in other areas, which will create difficulties for refugees and others. 15. Being able to see papers is often vital in immigration and non-immigration problems. In non- immigration matters, it will often be important to see papers to understand a person’s immigration status. Sensitive matters often cannot be or will not be disclosed or discussed over the telephone. Many refugees, whether English-speaking or not, lack confidence on the telephone. Moreover, there is greater risk of misunderstanding over the telephone, including because the parties cannot see each other and cannot see that one or the other does not appear to be understanding or appears to need to say something more. We ask the Committee to investigate the Government’s intentions about telephone advice, and in particular whether 360 EM (Zimbabwe) op cit, paragraph 308(iv). 361 Hansard HC, Public Bill Committee, 19 July 2011 (afternoon): Column 219. 362 For Quarters 2, 3 and 4 for 2009, the Home Office Control of Immigration Quarterly Statistical Summaries show that the refusal rate in Zimbabwe cases was 74%, 82% and 76% respectively. For these same Quarters, the Summaries show the appeal allowed rate in Zimbabwe cases was 44%, 42% and 43%. (The allowed appeal rate for all nationalities in these Quarters was 26%, 31% and 30%.). Legal Aid, Sentencing and Punishment of Offenders Bill advice given on the telephone will be followed up in writing. Written advice is generally important, but will be particularly important where advice has only been delivered by telephone. It may be the only way by which both parties can be sure that they have a shared understanding of the instructions given on the one hand and the advice given on the other. 16. ZA’s experience of seeking to access legal help via the Community Legal Advice Helpline following the closure of Refugee and Migrant Justice is far from encouraging. The helpline involved choosing between several options and several stages before finally speaking to someone. Advice on the helpline included referring people to legal firms that had ceased providing legal aid. The cost to callers using mobiles was very high (approximately £5.00). In summary, this service was expensive, inaccurate and for some prohibitively inconvenient. 17. ZA also has experience of mandatory telephone gateways—following the UK Border Agency’s introduction of requirements to make appointments by telephone to make fresh asylum claims and first asylum claims in 2009 and 2011 respectively. Individuals, organisations, including ZA, and legal representatives have wasted hours and days being unable to get through to make an appointment over periods of days and weeks. OtherA reas ofL aw 18. Committee members have discussed that arguments about legal aid scope may “miss the point [eg] because we are dealing with ordinary people who do not come in off the street and into the law centre to say that they have a debt problem, but who come in with human experiences and concerns and in need of legal advice”.363 ZA stresses that refugees include people with debt, employment, housing, welfare (and other) problems just like others. However, for many refugees, questions about their immigration status, unfamiliarity with systems and structures in the UK, and the ongoing trauma of histories of torture or family separation increase their vulnerability to these problems. The decision by the UK Border Agency to withdraw all Refugee Integration and Employment Service funding will increase refugees’ vulnerability. September 2011 Memorandum submitted by the Magistrates’ Association (LA 76) Part 1, Legal Aid Qualifying forC ivilL egalA id Clause 10, page 7, amend sub-paragraph (5) by adding at end “although legal aid may still be provided in cases where mediation has been considered as an option and has been found to be inappropriate.” Explanatory note We support mediation as the first option, but for any private law cases deemed not suitable for mediation, legal aid should be available subject to standard means testing. This will ensure equal representation and should avoid delays. Advice andA ssistance forI ndividuals inC ustody Clause 12, page 8. Delete sub paragraph (1). Explanatory note This seems to exclude those who come into the police station of their own volition before any arrest is made. This may well be the time that they need legal advice. Part 2, Litigation Funding and Costs Part 3, Sentencing and Punishment of Offenders Duty toL iaise betweenS entencers andP robation Page 38. Insert new clauses before clause 53—duty to liaise between sentencers and probation. “There shall be a duty upon each probation trust to liaise with sentencers in the area for which the trust has responsibility.” “It shall be the duty of the Lord Chancellor to make arrangements to ensure that magistrates have a knowledge of the probation service and the programmes provided.” 363 Mr Robert Buckland: Hansard HC, Public Bill Committee, 19 July 2011 (afternoon): Column 216. Legal Aid, Sentencing and Punishment of Offenders Bill Explanatory note Liaison between sentencers and probation has suffered as a result of a series of changes to legislation over the past 25 years which have resulted in no one having a clear responsibility for ensuring that it happens. This history is summarised below: There used to be a number of statutory provisions governing the relationship between magistrates and probation services. In 1994 the Home Office, anticipating a change from PLCs to Probation Boards, wrote: “Under the new arrangements the Chief Probation Officer will be responsible to the probation board for devising a strategy for liaison with sentencers both in the Crown Court and the magistrates’ courts. In relation to the magistrates’ courts a new duty is to be placed jointly on chief probation officers and on justices’ clerks to ensure effective liaison. Justices’ clerks will be accountable to the magistrates’ courts committee for the exercise of this duty.” The legislation referred to was not forthcoming at that time and so, in 1996, the MA with Central Probation Council, the JCS and ACOP worked together to produce a handbook for good practice in liaison. This described the function of liaison as being to: — foster links between justices and the probation service; — ensure that the courts are supplied with adequate information concerning the establishments and other facilities provided by or otherwise available for use by, the probation service; and — provide each probation officer with help and advice in performing his or her duties. In the absence of legislation, it was suggested that overall responsibility for liaison should be shared between the probation committee and the magistrates’ courts committee. In 2000 there was another attempt to introduce new legislation and this time it was specifically proposed that probation liaison committees should be abolished. Our response to this, again in partnership with ACOP, CPC and the JCS, was that any new legislation should include a shared statutory duty to ensure liaison between CPOs and sentencers, probably via justices’ clerks. This was not achieved and the Criminal Justice and Court Services Act 2003 established Probation Boards with effect from April 2001. Judges and magistrates could be members of the boards—but the liaison role was not entirely clear. Guidance was then developed by the Senior Presiding Judge in 2005. This guidance was updated annually. The Offender Management Act 2007 then created the National Offender Management Service (NOMS) and announced the replacement of probation boards by probation trusts. It was the view of the SPJ that it would not be appropriate for members of the judiciary to be full members of the trusts and that decision has now been implemented. We are now in a position where there is no statutory responsibility for liaison and no formal connection between sentencers and probation. We therefore believe that the time has come to introduce a statutory duty for liaison between sentencers and probation—making this a shared responsibility between the probation trust and the judiciary. Court’sD uty toC onsiderC ompensationO rder Clause 53, page 38 add new sub-paragraph (b) “Where a court makes a compensation order, it may make provision for immediate payment to be made to the victim from the compensation order fund.” Explanatory note A compensation fund is required so that those who are awarded compensation actually receive it when it is awarded—instead of the current system where many such awards are either incompletely paid in irregular small instalments or not at all. This would start to put the victim at the heart of the criminal justice system. Duty to giveR easons for andE xplainE ffect ofS entence Clause 54, page 39 add new sub paragraph (3A) “victim information order”. “The court may order that the prosecution should inform the victim of the court’s decision and the consequences thereof.” Explanatory note Once a case has been concluded either in the courts there is no guarantee and certainly no formal process to ensure that a victim, if they so wish, is informed of the outcome. It is our belief that this is easily remedied by the introduction of an order of the court, a “Victim Information Order”, whereby a sentencing bench makes an order that the prosecuting agency gives the victim information concerning (a) The sentence of the court. (b) The reasons and the aims of that sentence. (c) The commencement of the implementation of that sentence. Legal Aid, Sentencing and Punishment of Offenders Bill (d) The completion of that sentence. (e) Any compensation arising out of that sentence and when it will be paid. By making such an order, the court can be satisfied that the person or persons affected by the offence is kept at the heart of the criminal justice system. NB. The VIO can only apply to cases which are dealt with in courts. The Government may also wish to similar consider arrangements for when offences are dealt with “out of court”. CurfewR equirement Clause 60, page 45. Commentary This section increases the maximum curfew period to 16 hours per day for up to 12 months. We welcome this section as it gives magistrates the opportunity to be flexible and allows imaginative weekend curfews which have high punitive effect but restrict employment very little. Magistrates will have (as they currently have) the power to split times across the day to cover sensitive periods, for example when schools are letting children out at the end of their day. Improved technology, for example a GPS in the tag, is a developing area with increasing possibilities. We are aware that guidance on proportionality will be required, because making maximum use of the new powers to impose a curfew of 16 hours per day, seven days per week for 12 months would entail a severe restriction of liberty and would have implications for others in the same household YouthR ehabilitationO rder:Fine forB reach Clause 70, page 52, delete entire clause. Explanatory note Very few young people or their parents could afford a fine of £2,500. The current arrangements are adequate and the current maximum (£1,000) should be retained. RestorativeJ usticeR equirement Page 52, insert new clause after clause 70: Youth Rehabilitation Order—proposed restorative justice requirement: “The court may include in a youth rehabilitation order a restorative justice requirement.” Explanatory note The Youth Courts Committee of the Magistrates’ Association believes that there is a definite place for restorative justice, including conferencing, in the right circumstances and to make this a specific requirement of the YRO would emphasise its value. Magistrates’Courts’Powers toI mposeI mprisonment Clause 71 (2), page 52, lines 41 and 42, delete (a) (repeal of Section 154 of Criminal Justice Act 2003) Explanatory note Our proposal is to delete the clause repealing 12 months’ maximum custodial powers for magistrates. This was provided for in Section 154 of CJA 2003 but has not yet been brought into effect. We propose that the power to do so remain in force. If the Government were to be persuaded in the future by the Magistrates’ Association’s cost saving proposals to switch work from the Crown Courts to the magistrates’ courts, it might have difficulty finding legislative time to implement the change so it is an advantage to leave Section 154 in CJA 2003. Clause 71 (2), page 53, lines 3 and 4, delete (e) (repeal of Section 282 of Criminal Justice Act 2003). Explanatory note The proposal is to delete the clause repealing the increase in the maximum sentence of an either way offence on summary conviction to 12 months. This proposal is a necessary addition to the previous one. The whole purpose of increasing magistrates’ powers would be so that they could, for example, sentence cases of opportunistic looting (non domestic burglary), instead of having to commit them to the Crown Court. At present the maximum sentence is 10 years on indictment but only six months on summary conviction. Section 282 of the CJA 2003 would allow the Government to increase the maximum sentence on summary conviction for all such offence to 12 months. Legal Aid, Sentencing and Punishment of Offenders Bill Amendment ofB ailE nactments Clause 73, page 53 and Schedule 10—Amendments of enactments relating to Bail. Delete entire clause and schedule. Explanatory note By Clause 73 and Schedule 10 of the Bill the 1976 Bail Act is amended so that certain of the exceptions to the presumption that bail should be granted to a defendant will not apply where there is no real prospect that the defendant will be sentenced to a custodial sentence—described as “the no real prospect test”. We believe that the proposed change is unnecessary and overly complex which will do little or nothing to aid the administration of justice and give confidence to the public. The no real prospect test is at the core of the draft legislation and is introduced by amending the 1976 Act by its inclusion as a new paragraph 5A. Its effect is relevant at all stages in proceedings and applies to imprisonable and non imprisonable offences. Our specific concerns about the test are that: — It effectively places the court considering bail in the same position as a sentencing court; it is unclear whether it is for the Crown’s case to be taken at its highest. Many bail cases are required to be decided on minimal information without the availability of reports and ability of defence solicitors to effectively take instructions and mitigate. This but for all the most obvious or simple cases [where bail would usually be granted anyway] is seen as a fundamental weakness of the test. — The August riots showed the importance of giving magistrates the discretion to withhold bail, when there are reasonable grounds to believe that further offences will be committed. The courts remanded many suspects immediately into custody and ensured that potential troublemakers were off the streets and could not return the next night. — It is not clear whether it applies to the “offence” or the offender [or both] with antecedents etc. including bail act offences, breach of court orders to be taken into account. — It may bind the sentencing court in that the defendant if convicted will pray in aid of the bail history. — Custody will not be available where a defendant breaches bail conditions by obstructing the course of justice or interfering with witnesses—other than those witnesses who fall within the provisions of the Family Law Act [Domestic Violence application]. This is seen as a major and fundamental weakness to the application of justice and the powers of the court. It further enhances the opinion that we and many others hold that the government’s desire to make a “process” distinction between serious and less serious offending is misplaced, wrong and out of step with public opinion. The “no real prospect test” is seen as doing a considerable disservice to victims. — If applied at the outset of the remand process the test will negate the long held practice that bail need not be given if it has not been practical to obtain sufficient information about the defendant or his circumstances. We see this as a further weakening of the responsibility of the court and effect on public confidence. — The removal of the ultimate sanction of custody is seen as a major weakening of the powers of the court. There will be a likely increase in appeals to the Crown Court if magistrates take a robust view on the application of the test. — The underlying principle shows a real lack of understanding of the realities of the circumstances facing judges and magistrates in dealing with a large number of bail issues. The financial savings, real or imaginary, in the application of the test will be hugely offset by costs to the police and other agencies dealing with consequences of breach of bail together with the incalculable loss of public support and confidence. — The Bail Act offence [S6] provisions appear not to be affected. Breach of bail, failure to surrender is an imprisonable offence. It is unclear how this might be considered by the prosecuting authorities. — A further exception to the reasonable prospect test is where the defendant falls within the provisions relating to drugs [Para 6B] There is no corresponding recognition in regard to alcohol— we believe this is idiosyncratic. — If the no reasonable prospect test is satisfied it would appear that electronic monitoring of bail conditions such as curfew will not be available, as the court has to be satisfied that without the electronic monitoring requirements the person would not be granted bail. If a remand in custody is prohibited by the test, so will a tagged curfew. This further limits the power of the court. — It has been suggested that, as Bail Act offences are imprisonable, magistrates could sentence to custody for the Bail Act offence alone, if there had been failure to surrender or interference during the course of the proceedings. However, if the defendant pleaded not guilty to the Bail Act offence, the court would have to adjourn for a trial so the matter would be irrelevant to the magistrates’ deliberations on bail. Legal Aid, Sentencing and Punishment of Offenders Bill Remands toL ocalA uthorityA ccommodation Clause 75(4)(a), page 54, add after “receive the child” the words “within three hours of the order being made, unless there are geographical or other genuine reasons why this is impractical”. Explanatory note We feel that a time factor should be specified, within which the designated authority must receive the child. Conditions etc onR emands toL ocalA uthorityA ccommodation Clause 76(3) (b), page 55, delete “must” insert “need”. Explanatory note Without this amendment the clause implies that the person must not have a name or must be anonymous. Requirements forE lectronicM onitoring Clause 77, page 56, delete sub-paragraph (6). Explanatory note We strongly disagree with this requirement because it would result in the youth offending team deciding the sentence. Requirements forE lectronicM onitoring:ExtraditionC ases Clause 78, page 57, delete sub paragraph (6). Explanatory note We strongly disagree with this requirement because it would result in the youth offending team deciding the sentence. FirstS et ofC onditions for aR emand toY outhD etentionA ccommodation Clause 81, page 59, delete sub paragraph (3). Explanatory note We disagree with this condition. This offence condition would exclude a large number of offences for which a child is at present sometimes remanded to youth detention accommodation. Such offences would include shop theft and almost all drug offences. We feel that the court should retain its right to remand a child charged with such offences in certain circumstances, such as the likelihood of interference with witnesses. Second set ofC onditions for aR emand toY outhD etentionA ccommodation Clause 82, page 60, delete sub paragraph (3). Explanatory note This sentencing condition causes us considerable concern. We find it unrealistic to expect a court to decide at this very early stage whether there is a real prospect that the child will be sentenced to a custodial sentence. We appreciate that this may be possible in some cases, such as isolated cases of minor shoplifting, but in many other situations it will be completely impossible. Furthermore to grant bail could erroneously be interpreted as implying that an eventual custodial sentence will not be appropriate. Magistrates need to retain their discretion in deciding whether or not to grant bail. First set ofC onditions for aR emand toY outhD etentionA ccommodation:ExtraditionC ases Clause 83, page 62, delete sub paragraph (3). Explanatory note See 81(3) above. We disagree with this condition. This offence condition would exclude a large number of offences for which a child is at present sometimes remanded to youth detention accommodation. Such offences would include shop theft and almost all drug offences. We feel that the court should retain its right to remand a child charged with such offences in certain circumstances, such as the likelihood of interference with witnesses. Second set ofC onditions for aR emand toY outhD etentionA ccommodation:ExtraditionC ases Clause 84, page 62, delete sub paragraph (3). Legal Aid, Sentencing and Punishment of Offenders Bill Explanatory note See 82(3) above). This sentencing condition causes us considerable concern. We find it unrealistic to expect a court to decide at this very early stage whether there is a real prospect that the child will be sentenced to a custodial sentence. We appreciate that this may be possible in some cases, such as isolated cases of minor shoplifting, but in many other situations it will be completely impossible. Furthermore to grant bail could erroneously be interpreted as implying that an eventual custodial sentence will not be appropriate. Magistrates need to retain their discretion in deciding whether or not to grant bail. Remands toY outhD etentionA ccommodation Clause 85, page 64, sub-paragraph (9). Insert after “The designated authority must receive the child”, the words “within three hours of the order being made, unless there are geographical or other genuine reasons why this is impractical”. Explanatory note We feel that a time factor should be specified, within which the designated authority must receive the child. Repeal ofU ncommencedP rovisions Clause 99, page 78, sub-paragraph (7), add new sub-paragraph (c) “Omit section 137 and Schedule 16 of the Coroners and Justice Act 2009” (which extends a driving disqualification when a custodial sentence is also imposed) Explanatory note These provisions have not been commenced and are not required since courts can take a period of custody into account when imposing a discretionary disqualification. They would be difficult to apply in practice and would require consequential amendment for any change in legislation that would affect a prisoner’s custody release date. PenaltyN otices Clause 106, page 86, see commentary on schedule 14 below. ConditionalC autions;Involvement ofP rosecutors Clause 107, page 86, insert new sub-paragraph (7) “an authorised person should be no less qualified or experienced than a police constable.” Explanatory note Reference is made under Clause 107 that powers are to be made available to an authorised person. There is nothing contained in the explanatory note as to whom this may apply and no doubt that will be determined in subsequent regulations. Bearing in mind this is already the situation with community resolutions, we have no objection in principle to the removal of the requirement for any conditional caution to only be applied subject to the agreement of the CPS [referred to as “a relevant prosecutor”]. However, we have concerns that “an authorised person” may include inadequately trained or inexperienced officers of whatever denomination. ConditionalC autions:Removal ofC ertainF oreignO ffenders Clause 108, page 86. Commentary There is reference to conditional cautions possibly containing a requirement for foreign national to leave the country and not return for a period of time. However, we are conscious of the problems experienced involving much more serious issues which end up with enforcement problems where a substantial number of people who may be involved with this will be from a member state of the European Union or from a state where human rights are a source of concern: any such requirement may well lead to expensive and time- consuming appeals or judicial reviews which would far exceed the effectiveness of any such exclusion, possibly included as a requirement without proper investigation into subsequent consequences. Substantial care in allowing such conditions to be included needs to be exercised and a relevant prosecutor of senior Legal Aid, Sentencing and Punishment of Offenders Bill officer with experience of the European Union provisions and human rights legislation will undoubtedly need to be involved. Again this identifies the need to ensure that any authorised person is suitably qualified and experienced. Power to makeC onsequential andS upplementaryP rovision etc Clause 114 (3)b page 30, line 35 delete “6 months” insert “12 months”. Explanatory note To tie in with the proposals to clause 71 (above) the Government would need the power to amend any legislation to increase the maximum sentence on summary conviction to 12 months at the highest. Schedules Schedule 1—CivilL egalS ervices Schedule 1, clause 10 (1), page 100. Amend by adding at end: “where there has been certification, as in the pre-application protocol, namely, that there has been an allegation of domestic violence which has resulted in a police investigation or the issuing of civil proceedings for the protection of any part within the last 12 months.” Explanatory note We have concerns regarding the proposal that legal aid in private law cases will be available only in cases involving domestic violence. It is our opinion that this may lead to parties asserting domestic violence as a way of accessing legal aid. Schedule 10—Amendments ofE nactmentsR elating toB ail Schedule 10, page 165. Delete. Explanatory note See comments on clause 73. Schedule 14—PenaltyN otices forD isorderlyB ehaviour Schedule 14, page 177, lines 34 and 35—delete paragraph 2. Explanatory note This paragraph seeks to amend Section 1 of the Criminal Justice and Police Act 2001 so that the Secretary of State can, by order, add to the list of offences capable of being dealt with by an on the spot penalty, without, as at present required, the order being first laid before and approved by a resolution of each house of Parliament. This would not allow the Secretary of State to create new offences but would allow him to switch more offences to out of court disposals without giving notice to parliament. It would mean that interested parties such as the Magistrates’ Association would lose a period of notice in which to make representations about the decision before implementation. Schedule 14, Paragraph4 Commentary With regard to the proposal for the police to set up educational courses and to set the fees for offenders to pay, we have concerns that it could be considered that the police who are imposing such educational conditions might be encouraged to do so if they are the recipients of the fees and the two organisations should be completely separate. We therefore feel that any such educational facility should be provided by an organisation [possibly the local education authority or other approved educational facility] more appropriately in a position to provide such courses and without any involvement with the imposition of the requirement in the first place. Consideration should be given to all fees for educational requirements should be standardised so that the requirement in any part of the country will attract the same financial and time requirement wherever the offender may be. [There may be a case for excluding the standardisation of the fee from the metropolitan police force area.] As with all out-of-court disposals, proper records need to be kept and any such penalties registered against offenders’ records and logged so that they can be accessed nationally through the PNC. There is no reference to this in the proposals. Legal Aid, Sentencing and Punishment of Offenders Bill Schedule 14, Paragraph 10 Commentary This allows a court to set aside a registered fine from a penalty notice. In this proposal, the court is to become an appeal mechanism against such penalty notices. However, there is only reference to setting such notices aside. When such penalties are imposed, they are issued without reference to any financial means and then the amount escalated on registration through non-payment. We recommend that, as with other financial enforcement which comes before the courts, we are given power to remit all or part of any such fine in the interests of justice, not just given power to set it aside. In this way, we can take the means of any offender into account. September 2011 Memorandum submitted by Discrimination Law Association (LA 77) 1. The Discrimination Law Association (“DLA”), a registered charity, is a membership organisation established to promote good community relations by the advancement of education in the field of anti- discrimination law and practice. 2. The DLA comments in this document only on those sections of the Legal Aid, Sentencing and Punishment of Offenders Bill (“the Bill”) directed at the provision of legal aid. The DLA believes that those aspects of the Bill’s provisions will have a significant adverse impact on access to justice for people most in need of legal help to enforce their rights and least able to pay for it. Whilst we agree that, wherever possible, people should be encouraged to resolve issues out of court and that legal aid spending should aim to maximise value for money, we do not agree that the proposals in this bill achieve this aim a fair and equitable way. 3. The DLA is extremely concerned about the scale and extent of the radical reforms contained in the Bill. The Bill largely reflects the proposals contained in the Ministry of Justice’s “Proposals for the reform of Legal Aid in England and Wales, November 2010”. We remain committed to the view expressed in our Response to that consultation exercise that the proposed reforms will have “calamitous consequences”364 for the provision of civil legal aid to the most vulnerable in society. That this is likely to be the case is evidenced by the lengthy equality impact assessment (EIA) showing disproportionate adverse impact on women, ethnic minorities and disabled people published by the Ministry of Justice (MoJ) at the same time as the proposals contained in this Bill were published for public consultation.365 Notwithstanding the overwhelming opposition to the proposals in the November 2010 consultation document, many of these rashly formulated and inadequately analysed plans were re-affirmed in the Government’s Response in June 2011366 and have now found their way into the Bill. For this reason, the DLA reiterates and repeats in this document many of the comments made in its response that consultation.367 4. The Bill is likely to make the effective exercise of rights impossible for the very vulnerable, whether that vulnerability relates only to membership of a protected class or whether vulnerability is compounded by such membership. In any event, disabled persons, women, black and ethnic minorities and religious and sexual minorities tend to represent a significant cohort of those who can properly be described as vulnerable for the purposes of public funding for litigation. This raises serious issues about whether the reforms infringe international instruments which guarantee access to justice and the right to an effective remedy (eg Articles 6(1) and 13 of the European Convention on Human Rights). 5. We are concerned about the equality impact of the removal of legal aid from claims in relation to welfare benefits, clinical negligence, criminal injuries, debt, employment, immigration (excluding asylum), many planning and eviction cases for Gypsies and Travellers, housing (unless a person is facing homelessness) and divorce. We consider that inadequate consideration has been given to the difficulty posed by the complexity of some cases. These changes fail to take account of the fact that the protection of rights which require detailed argument and expert evidence will become illusory if legal aid is removed. 6. The Government’s stated aim is to reduce the need for litigation as well as to save costs. The proposals to exclude legal aid from early stages of problem solving (which are not threatening to life or liberty,to family life or to loss of a home) risk the escalation of these problems, especially for vulnerable groups, until threats to health and personal safety, family life or loss of a home become very real. This strategy will both increase the fear and distress of the people involved and is likely, in the end, to add to the costs to be borne by the legal aid fund and society more generally. 364 The phrase used in the Response of the Civil Legal Aid Sub-Committee of the Bar Council to the Proposals for the reform of Legal Aid in England and Wales, November 2010. 365 Proposals for the Reform of Legal Aid in England and Wales Equality Impact Assessment, November 2010. 366 “Legal Aid Reform in England and Wales: The Government Response” (“The Government Response”), June 2011, Cm 8072. 367 The fuller response of the DLA to the consultation can be found at http://www.discriminationlaw.org.uk/submissions. Legal Aid, Sentencing and Punishment of Offenders Bill RetainingD iscriminationC ases withinS cope ofL egalA id 7. We welcome the Government’s confirmation that discrimination cases will remain in scope and that funding will continue to be provided for claims relating to a contravention of the Equality Act 2010. 8. The DLA also welcomes the Government’s concession—in line with the DLA’s Response to the original consultation at paragraphs 22–35 of that document—that “cases will arise where it will be difficult to separate discrimination from other issues in terms of funding”.368 As we stressed in our full Response to the original consultation, it would be both impractical and undesirable in the majority of such mixed claims for an adviser to provide legal assistance in respect of only one element of a claim. The experience of our members is that a very significant number (if not the majority) of discrimination claims litigated in and outside of the employment tribunal are, in fact, mixed claims. In the employment context they will often be linked to unfair dismissal, redundancy or unlawful deduction from wages claims. In the non-employment context, they will frequently be attached to tortious/contractual claims against public or private bodies or claims in relation to housing, community care or other social or healthcare provision. It therefore remains our view that such mixed claims ought not to be outside of scope as a matter of general policy. 9. We note the Government’s statement that it will ensure that the new scheme will make provision for funding such mixed claims in full or in part in certain circumstances. We are pleased about this in so far as it represents an acknowledgement of the reality our members know only too well. However, we wish to record our strong view that this is by no means an adequate or optimal resolution. It will be creative of an additional administrative burden on skilled advisers whose resources will be stretched to breaking point in the context of the disappearance of alternative sources of advice and representation caused by other public spending cuts. It is incongruent policy-making to provide funding for mixed claims only on an exceptional basis when such claims are far from exceptional. 10. It is the DLA’s view therefore that employment cases linked to discrimination cases should not be taken out of scope. There should be express provision for assistance in such mixed cases as a matter of general rule/policy. Removal ofI mportantA reas from theS cope ofL egalA id 11. The DLA has consistently opposed the exclusion from legal aid of welfare benefits, clinical negligence, criminal injuries, debt, employment, immigration, many planning and eviction cases for Gypsies and Travellers, housing and divorce. These exclusions will have a negative impact on the Government’s commitment to creating a fair and equal society by the effective legal protection against anti-discrimination. In relation to most if not all of the potentially excluded areas, discrimination is both likely to occur (eg in housing, school exclusions and in the employment context) and likely to be undetected as a proper legal basis for challenge, in the absence of specialist advice. Therefore the exclusion from scope of the “core” areas of potential litigation (employment, immigration, housing matters etc) will severely prejudice the ability of claimants to seek redress for discrimination in any such area. This may render the retention in scope of discrimination of little practical value at all. This cannot be consistent with the UK’s international obligations under, for example, the EU Race Directive, the EU Charter of Fundamental Rights and the European Convention on Human Rights. ClinicalN egligence 12. The DLA set out in clear terms at paragraphs 38–42 of its original response to the November 2010 consultation the basis on which it opposed the exclusion of clinical negligence from scope. The particular concerns we raised were the unreliability of the assumptions made by the Government that there would be alternative funding sources and the particular detriment that might be visited upon children, disabled and incapacitated persons by the withdrawal of funding in an area where success would be dependent upon the ability to conduct detailed investigations and commission expert reports in respect of extremely complicated material. 13. The DLA notes that the proposed course of the Government is now to (a) put in place, subject to parliamentary approval, a power to allow successful claimants to recover ATE insurance premiums to cover the cost of expert reports etc; and (b) to encourage the use of the exceptional funding scheme where the absence of funding would lead to a breach of Convention rights. The DLA still considers that special consideration should be given to children, protected parties and disabled persons in respect of these claims and is very concerned that access only to the exceptional funding scheme in such cases may cause good claims by these vulnerable groups to slip entirely through the funding net. CriminalI njuries 14. The DLA considers that it is incorrect to treat applications made under the Criminal Injuries Compensation Scheme (“CICA”) as if they were solely concerned with financial compensation. The application process is far from straightforward and entails the completion of a lengthy document. Applicants will require assistance both in completing the application and in dealing with the review and appeal processes. The people who apply to the CICA include young abuse victims and women who have 368 See The Government Response at Appendix A, paragraph 127. Legal Aid, Sentencing and Punishment of Offenders Bill suffered sexual assaults and other physical violence. Those who have suffered psychiatric injury and/or have serious mental or physical health difficulties will face an additional hurdle in seeking access to the CICA Scheme without assistance. It is well known also that those who suffer domestic and/or sexual abuse often fail to characterise what they have suffered in those terms and do so only with the help of a skilled representative. It is incorrect to assume that alternative avenues for assistance can be called upon by those affected. 15. The DLA notes that the Government has responded by re-affirming its decision to exclude these claims from scope save where a failure to provide funding would amount to a breach of Article 6 of the ECHR. The Government has indicated that the kind of claims which may fall to be granted exceptional funding are cases which engage Article 15 of the Trafficking Convention. The DLA wishes to remind the government that cases concerning young people and others who have suffered abuse and/or serious violence of psychiatry injury and sexual assault will also potentially give rise to Article 6 breaches if not funded. Housing 16. The DLA alluded in its original response to the important public interest attached to effective access to justice in respect of housing disputes which entail complex statutory provisions. We expressed concern that the exclusion from scope of a number of housing matters would disproportionately affect those with physical and mental disabilities, those with language difficulties and those otherwise unable to raise their concerns in a manner considered appropriate to legal proceedings. 17. Whereas the DLA welcomes the Government’s decision to bring unlawful eviction claims within scope and to provide funding in circumstances where an order for sale against an individual’s home is sought, these ameliorative measures do not really serve to mitigate many of the problems highlighted in the reponse of the Housing Law Practitioners Association (“HLPA”) referred to in the DLA’s original response. By way of example, HLPA pointed specifically to the indisputable merit in early intervention and timely advice on debt and welfare benefits if the true aim is to avoid the social and financial cost of potential homelessness. This very important point appears to have been avoided in the Government’s Response and in the correlative provisions of the Bill. 18. More over, there appears still to be little concern on the part of the Government about the disproportinate impact that the exclusions will have on the less articulate, and of course on the protected groups noted to be affected in the MOJ’s own impact assessment. The MoJ’s own EIA notes the disproportionately large percentage of disabled housing law clients who will be adversely affected by this proposal as they are disproportionately likely to require advice and assistance in order to resolve housing complaints(27%). Similar significant disproportionality would apply to women and BAME clients (60% and 31% respectively). Immigration where theI ndividual is notD etained 19. In the context of the funding of discrimination claims, the Government has recognised the impracticability, at least in certain circumstances, of only providing funding for one aspect of a claim where an individual also has other complaints. The DLA was therefore surprised to note that, in the immigration context, the Government has dismissed a completely analogous logical inconsistency pointed out in the DLA’s original response and in that of the Bar Council. The Government has maintained that advisers ought to be able to separate out their advice on detention matters from the underlying immigration application and provide advice only on the former. The DLA can only regard this as reflective of selective myopia. The DLA repeats the point made in its original response to the effect that it specifically disagrees with the suggestion that “individuals in immigration cases should be capable of dealing with their immigration application”.369 In so far as it is suggested in the Government Response that “contracted legal aid providers should not generally find it difficult to distinguish between advice related to aspects of immigration detention or bail and the underlying immigration issue”, the DLA is strongly of the view that the government has missed the crucial point entirely. The point made by the DLA, the Bar Council and other interested groups is that the question of the lawfulness of the detention which may be challenged with legal assistance will often be inextricably linked to the merits of the underlying application. It is not that advisers will find it difficult to distinguish between detention advice and other immigration advice but rather that it would be inappropriate for such advisors—if they are concerned, as they ought to be, to provide individually tailored, competent and adequate advice—to advise on detention matters whilst ignoring a potentially linked immigration issue upon which they are competent to advise and which may affect the convention rights of the persons concerned. We reiterate the following points made in our original response: (a) The removal of immigration claims by those in detention from scope at the same time as retaining claims which challenge the lawfulness of that detention is logically inconsistent. Where continuing detention will depend on the merits of the underlying immigration application it will be inimical to the provision of appropriate advice for the adviser to be expected to advise only on a challenge to the detention itself. 369 Reform of Legal Aid: Government Response, June 2011, para 83, p 27. Legal Aid, Sentencing and Punishment of Offenders Bill (b) Many immigration applications are made in circumstances where the persons concerned are children and/or the victims of trafficking and/or otherwise cannot be described as making a “free and personal choice” to come or to remain in the UK. (c) The exclusion from scope of immigration cases will frustrate the policy behind immigration rules intended to prevent persons from having to remain in abusive relationships in order to stay in the UK. The retention of funding for domestic violence cases does not appear to extend to immigration cases and, therefore, very vulnerable persons will be unable to benefit from that retention where their immigration status is in issue. (d) Migrants will tend to encounter greater difficulties in attempting to represent themselves than UK citizens by reason of cultural and language barriers. This will have a detrimental impact on their right to a fair hearing and an effective remedy. 20. The MoJ EIA reveals that the proposed removal will have an overwhelmingly disproportionate impact on Black and Minority Ethnic groups who would comprise 85% of clients losing legal aid for this purpose. 21. The DLA is also concerned about the specific gap in discrimination protection that will result from the proposal to remove most types of immigration cases from scope. It is difficult to conceive of many situations in which a person would seek to bring a case of discrimination before the Special Immigration Appeals Commission or the First tier or Upper Tribunal (Immigration and Asylum) without at the same time appealing against the immigration decision in question. Thus to provide legal aid for a discrimination claim but to exclude legal aid from the appeal against the decision allegedly tainted by discrimination cannot be justified as rational or proportionate. WelfareB enefits 22. The DLA strongly opposes the exclusion of welfare benefits from scope and is concerned that a large proportion of those in receipt of benefit or eligible for benefit will be disabled persons. They are far more likely to have problems with access to the courts by reason of physical or mental health problems and will therefore be particularly affected by the withdrawal of funding. 23. The MoJ EIA also records the impact on BAME groups of this particular exclusion as being 85%. 24. The DLA notes that the Government has retained the exclusion of welfare benefits cases from scope save for judicial review cases and claims relating to the contravention of the Equality Act 2010. The Government’s suggestion that applicants (a large proportion of whom will have language/communication difficulties and/or other disabilities/disadvantages) can present their cases without legal assistance flies in the face of what is said by those who are in fact engaged in the daily provision of such advice (eg Citizens Advice). TheE ffect onL itigants inP erson and theC onduct ofP roceedings 25. The MoJ EIA acknowledges that the proposed reduction in the scope of legal aid will result in an increased number of litigants in person which “may potentially lead to delays in proceedings, poorer outcomes for litigants (particularly when the opponent has legal representation) implications for the judiciary, and costs for Her Majesty’s Courts Service.” The DLA is extremely concerned that this reduction of the scope of legal aid is likely to deprive many of access to a fair hearing. 26. There is also a significant risk of increased or wasted costs resulting from the removal of legal aid. While a representative advising under legal aid must be satisfied of the merits of the case, an unrepresented party is under no such constraints. Unrepresented parties may not be able to identify relevant points of law and may seek to advance other points requiring judges to find their way through lengthy pleadings and bundles of documents which fail to advance an arguable point of law. These problems will be significantly greater for the vulnerable groups which have been identified as the main users of legal aid. TheC ommunityL egalA dviceH elpline 29. In its original response, the DLA set out the reasons for its strong opposition to the proposal to establish the Community Legal Advice helpline as the single gateway to access civil legal aid advice.370 We set out our objections to the use of a helpline as the only way of accessing legal aid and also to the proposal to allow access to legal aid in a face-to-face meeting only to those who could show that they met very strict exceptions at paragraphs 84–85 our original response. The “single telephone gateway” proposal was also met with strong and vocal opposition by many other interested groups. In particular, the Housing Law Practitioners Association stated that they considered it to be the one of most objectionable proposals in the Green Paper (See HLPA Response at http://www.hlpa.org.uk/cms/2011/02/legal-aid-reforms-response/, para. 4). 30. The DLA reiterates its opposition to the single telephone gateway and continues to believe that it is seriously ill-advised for three main reasons: 370 Initially to cover debt (that is in scope), special educational needs cases, discrimination cases and community care cases only. Legal Aid, Sentencing and Punishment of Offenders Bill — an exclusive gateway will have a disparate adverse impact on groups defined by sex, disability and ethnicity; — the impossibility of providing full and accurate advice by telephone to all potential legal aid clients and the risk of inaccurate diagnosis which could, wrongly, exclude clients from the advice to which they are entitled – which, in turn raises issues of access to justice; and — the impact of the forecasted huge reduction in funding for face to face legal help on the survival of not for profit legal aid providers across the country. 31. The DLA notes with some alarm that the government proposes to include community care in the proposed mandatory telephone gateway. The DLA has had sight of a letter sent to the Parliamentary Under Secretary of State for Justice on 26 August 2011 by a group of expert community care legal practitioners371 urging the Government to remove community care from the proposed mandatory gateway and to undertake a full and proper consultation as to the suitability of such a proposal including consideration of measures which might secure effective access to legal advice and representation for the vulnerable client group concerned. 32. The letter provides instrumental confirmation, and more, of the issues identified and summarised by the DLA in its original response. It indicates, importantly,that community care is not an area of law in which there is currently a non-mandatory CLA telephone service operating. This fact rather suggests that the decision to include community care could not have been founded upon any evidence that such a service was or was likely to be suitable for this particular cohort of applicants for legal assistance. As the letter also indicates, community care clients are, as a group, significantly more likely than others to be frail or disabled and are least likely to have effective verbal communication skills. This client group is therefore the category of clients most likely to require face to face consultation in order for suitable legal advice and representation to be delivered. The DLA is startled that the Government considered it appropriate to make this proposal in the face of opposition to the single telephone gateway by responders to the original consultation, and this time in relation to a client group in respect of which it could hardly be seen to be more inappropriate. The DLA entirely endorses the views expressed in the above-mentioned letter to the Parliamentary Under Secretary and emphatically encourages the government to reconsider its position. Reduction inF unding forF ace toF aceL egalH elp 33. The EIA estimated that funding for face to face legal help to not for profit legal help providers, including law centres, CABx, race equality councils and other local advice agencies, will be reduced by 85%. The funding for face to face legal help to solicitors will be reduced by 75%. 34. In many parts of the country it is already very difficult for people who believe they have been victim of unlawful discrimination to obtain to find a lawyer able to provide publicly funded legal help. 35. The DLA simply cannot see how agencies such as law centres and local advice agencies will survive if they lose 85% of their funding for legal help. Their survival is further put at risk by the decisions of many local authorities to cut funding for local advice services. Rarely, if ever, does a body that is forced to close for lack of funds ever re-open. So the loss will be permanent and the losers will be members of the public who will not have the advice they need in order to protect and defend their rights in many areas including discrimination. 36. While few solicitors firms will be equally dependent on legal help funding, the DLA does not expect many firms to fill any gaps in the provision of legal help. We are greatly concerned that while we have a new Equality Act, expanding rights against discrimination for many people, in practice, fewer people will be able to receive good quality timely advice in order to enforce these rights. OtherS olutions? 37. Many legal aid cases are the result of administrative shortcomings of public authorities and their failure to make accurate and appropriate initial decisions. Huge legal aid costs could be saved if public authorities improved their decision-making procedures. That better decisions can be made is evidenced by the success rate when particular decisions are challenged. For example, the Disability Charities Consortium report that, currently, the Work Capability Assessment is overturned in 40% of appeals. 38. The DLA noted the comments of the Chair of the Administrative Justice and Tribunals Council372 when he highlighted the failure of public bodies to get decisions right first time across many areas of public decision-making. He identified that 41% of social security appeals were successful, in immigration, there was 371 The group of solicitor signatories is: Ben Hoare Bell LLP, Bindmans LLP, Disability Law Service, Edwards Duthie, Fisher Meredith LLP, Hereward and Foster Solicitors LLP, Jackson and Canter LLP, Julie Burton Law, Mackintosh Law, Pierce Glynn LLP, Public Law Solicitors, Steel and Shamash Solicitors, Switalskis Solicitors LLP. 372 Radio 4’s Today programme, 17 November 2010, see http://news.bbc.co.uk/today/hi/today/newsid 9197000/9197123.stm Legal Aid, Sentencing and Punishment of Offenders Bill a 37% success rate and 43% of victims of criminal injuries were successful when they appealed against the decision of officials. He commented that public bodies fail to learn the lessons of successful appeals; while they may put the matter right in the particular case they do not change their systems and repeat the same mistakes, which is a serious waste of taxpayers’ money. September 2011 Memorandum submitted by Weightmans (LA 78) 1. Weightmans is a Top 50 law firm. It is one of the largest national defendant litigation solicitor practices. It handles motor, liability and other classes of claim for clients from the general insurance industry and other compensators, including the NHSLA and self-insured commercial and public sector organisations such as Local Authorities and Primary Care Trusts. Alongside this is a large Commercial practice. 2. We welcome the opportunity to submit written evidence to the Public Bill Committee. Our interest is in: Part 1, Legal Aid and Part 2, Litigation Funding and Costs, Clauses 41, 42, 43, 44 and 51. 3. The disproportionality of claimant costs is extreme in the case of claims against the NHS. The NHSLA reports that claimant costs in cases against the NHS accounted for 76% of their £257 million annual expenditure on legal costs for claims closed last year and that the NHS negligence bill topped £1 billion for the first time. Steve Walker, Chief Executive of the NHSLA has made it clear that the withdrawal of legal aid from clinical negligence cases would be counterproductive (Part 1) and would “undoubtedly cause NHS legal costs to escalate massively”. He has explained that: “Bills from claimant lawyers in brain-damaged baby cases are already among the highest we see: those lawyers will seek 100% uplifts in such cases, were recovery from defendants still possible, and ATE premiums would be huge, were cover to be available at all. Consequently, implementation of this proposal . . . would result in an overall increase in public expenditure, rather than the decrease which is sought.” As things stand, the withdrawal of legal aid from clinical negligence cases will cost the taxpayer far more than its saves and is morally questionable. Indeed Lord Justice Jackson in his Final Report (Chapter 7, 4.2) stressed the continuing role of Legal Aid as an integral part of his package of reforms. 4. Weightmans supports Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Bill to the extent that it gives effect to some of the recommendations adopted by the Government in its response to the “Jackson” Consultation—ie it does not deal with Qualified One Way Costs Shifting and the 10% uplift to General Damages compensation (Pain Suffering and Loss of Amenity). This is an omission when considering the interlinking nature of all of these intended reforms. This highlights a major concern which is the absence of an overarching implementation plan. Together the package of reforms offers the opportunity to introduce better balance into the litigation process as between the parties, including giving the claimant a financial interest in the legal costs of the claim, and ensuring that claimant legal costs become more proportionate, ie lower. Disproportionate claimant legal costs impact claims of all values from modest sprains to catastrophic head injuries. Reduced expenditure on claimant legal costs will benefit consumers, businesses and public bodies through the costs they pay for goods and services. To retain the integrity of the package, the timetable for change needs to be aligned and properly sequenced. 5. A report by Datamonitor forecasts that personal injury claims’ costs for insurers will rise from £8.4 billion in 2010 to £9.7 billion in 2014. The potentially beneficial changes flowing from the Government’s response to the Jackson Report have been factored in, slowing the rate of increase, but there is clearly still much to be done to tackle the levels of claimants’ legal costs which are a significant inflationary driver of claims costs overall. Deloittes have also just reported that underwriting losses in the motor insurance industry exceeded more than £2 billion last year. They found that insurers lost 20p for every pound of premium earned and posted a net combined ratio of 120% compared to 119% in 2009. Data from the Association of British suggests that for every £1 of compensation paid to injured claimants, 87p is paid to the claimant lawyer, this disproportion feeding through to premiums and operating costs for consumers, businesses and public sector bodies. 6. Whilst the intended Jackson reforms are an important step forwards, they are a staging post on a potentially wider reform journey, and again in considering this Bill, the overall direction of travel and goal of the reforms should be sustained: tackling disproportionate claimant legal costs and modernising and simplifying the civil litigation process. It is important that the master plan for change is articulated and understood so that all can understand the timetable for change and the pace of that change. This will enable everyone to plan and adapt their business models. 7. A further, key omission from the current Bill is action to ban the payment and receipt of referral fees— with steps concurrently taken to remove the excess fat within claimant legal costs that fund the payment of such fees. Referral fees are deeply embedded within both injury and non injury claims, with many parties seeking a slice of the referral fee cake including insurers, brokers, unions, car hire companies, repairers and public services such as police forces. Weightmans responded to the Consultation in 2010 to suggest that these arrangements should be banned. For many, referral income is part of their operating model. Claimant lawyers usually have to pay such fees for personal injury claim referrals up front, encouraging some of these lawyers to adopt assertive ways of converting and retaining clients. The drive for income will equally Legal Aid, Sentencing and Punishment of Offenders Bill encourage some work referrers to have loose practices around how the claimants are identified and captured, as evidenced by the rise in text messaging “cold calling”. Both contribute to the ever increasing level of personal injury claim frequency that has itself come under scrutiny in the past few years, including in the Lord Young report “Common Sense Common Safety.”. 8. As previously mentioned, the reforms within Part 2 of the Bill will require all parties to change their business and operating models and the way that they approach the handling of claims. 9. To drive this, we believe it is entirely appropriate that a claimant has a financial stake in the amount of costs payable to his lawyer (Clause 41). Whilst a claimant’s lawyer can charge his client up to 25% of defined damages under a CFA, there is no obligation to do so. We anticipate that such charges will be competed away, with claimants retaining most/all of their damages and claimant lawyers adapting their businesses to run off base costs. (It should be remembered that the Guideline Hourly Rates, (GHR), already provide for profits and overheads and are typically 20–35% higher than Defendant solicitor’s rates on the same case.) Despite the attempts to take cost out of the system, GHRs are still increasing under the stewardship of the Advisory Committee on Civil Costs; a body who Jackson suggests should be replaced by a Costs Council). Particularly when coupled with the banning of referral fees and removal of associated underlying costs, this should assist in ensuring that claims are appropriately triaged, with frivolous claims rejected, whilst ensuring that genuine claimants can rightly progress their claims. 10. The introduction of Damages Based assessments (Clause 42) offers the claimant an alternative funding method to ensure that compensation claims can be pursued, with the claimant again potentially having a financial interest in the amount of his lawyer’s costs. As with CFAs, it should be anticipated that some if not all of this financial interest will be competed away by claimant lawyers. 11. The Civil Justice Council has just set up a Working Party to look inter alia at proportionality of costs and the current Solving Disputes consultation also offers the opportunity to tackle disproportionate claimant legal costs further by extending the scope of the current RTA PI Scheme and by increasing the reach of fixed costs. If implemented, these changes will benefit the claimant as they will serve to reduce (and potentially make more certain) any exposure to their lawyer costs. Early signs are that this will also speed up delivery of compensation. Proportionality is key and should have retrospective effect. This is important because it will be one of the few ways to control costs on “old regime” cases post October 2012, the date we anticipate that the LASPO Bill will be enacted. 12. The provisions of Clause 43, “Recovery of insurance premiums by way of costs” should be considered alongside the Qualified One Way Costs Shifting (QOCS) reform recommendation—the detail on the latter is being addressed by the CJC Working Party above. A genuine claimant, properly advised by his lawyer and acting reasonably should not be exposed to defendant costs should his claim fail (save for any minimum contribution threshold created). It should also be noted that the vast majority of personal injury claims settle outside the litigation process (with no claimant liability for defendant costs), with claimants winning the majority of cases that litigate. It is important though that that claimants who bring fraudulent claims, and lose their cases, should be fully exposed to defendant legal costs. A possible framework for QOCS is undernoted which would help ensure that QOCS does not become a charter for fraudsters and also ensure that claims frequency does not accelerate. Claim Outcome Qualified One Way Costs Shifting Operates? Claimant receives a payment of damages. Yes. Claimant discontinues action either before or Yes. This would avoid the ramp up of costs for within 14 days of witness evidence exchange. defendants ahead of trial. Some claimants may be encouraged to “have a go”, including starting litigation, but counter balanced by claimant/ claimant lawyer exposure to own costs. Claimant discontinues action after the 14 day No. The claimant has to apply for QOCS to period following witness evidence exchange but operate. before any trial judgement delivered. Claimant loses case at trial. Yes. The presumption is that QOCS will not operate for any finding of fraud/claimant credibility issues. Judge to deal with this as part of the Trial case management or at the request of the defendant at the conclusion of the trial. An action is struck out through claimant non No. The claimant can make application to restore compliance with directions. the action and to have QOCS re instated subject to costs penalties. 13. Defendants recognise that Qualilfed One Way Costs Shifting sits as part of a package that overall has the potential to reduce claimant legal costs. Both claimants and defendants need to have certainty around how QOCS will operate, to help guide decision making around the optimum way and time to get genuine cases settled. Defendant costs are generally far lower than those charged by the claimant lawyer—around Legal Aid, Sentencing and Punishment of Offenders Bill 20-35%— helping manage the degree of claimant exposure. If the claimant has acted reasonably but lost the case, the defendant is better placed by virtue of the cost levels prevailing to absorb such costs (not having paid damages and the much higher claimant legal costs). 14. The After the Event legal expenses insurance market is adaptable, a recent example being the way it has adapted to create cost effective products following the introduction of the new RTA PI Scheme. Underwriters eg Allianz are already looking at how to design products for a post-Jackson world. It remains to be seen how disbursements would be funded in a post-Jackson world—it may be that lawyers will carry the funding cost of same, particularly if supported by the introduction of new capital in an Alternative Business Structures world. Again this may become a feature that will enable competition between claimant firms to the benefit of the claimant 15. For the avoidance of doubt, Clause 41 and 44 should embrace Conditional Fee Agreements, Collective Conditional Fee Agreements and “self funding premium” arrangements. If recovery of ATE for self insured (Union) premiums is still recoverable after this Bill is passed for agreements predating the “start date”, this would undermine the intentions of Jackson. This would effectively create swathes of Super Claimants—funded by ATE and yet protected by QOCS. 16. The objective of Clause 51 should be embraced, equalising incentives between the parties to make and accept reasonable offers—as ever the devil lies in the detail which has been remitted to the Civil Justice Council Working Party to address. Care is needed to ensure that the claimant “reward” is not set at a level that drives adverse behaviours between the parties and that cases are settled without the need for trials. Where the claimant is successful, the “reward” can be used to help fund any success fees that may be payable to the lawyer, but otherwise is for the claimant to retain, alongside the proposed 10% uplift to PSLA. Our view is that a tiered approach with a cap has merit. 17. In summary, the Jackson reforms, including those covered by the Legal Aid, Sentencing and Punishment of Offenders Bill offer an important step on the way to reforming the civil litigation system, creating better balance between the parties and tackling the problem of claimant legal costs that are disproportionately high. The changes will impact all parties with approaches to claims handling and business models changing—but at the heart is the goal of getting fair and timely compensation to genuine claimants with proportionate legal costs, with the reduced expenditure flowing into wider society. The handling of high volume, lower value motor injury claims was recently significantly modernised with a more proportionate fixed costs scheme for claimant lawyers ( though still funding referral fees). Anecdotally all parties have adapted their processes and behaviours to this new reality, with genuine claimants getting damages more quickly—the compensation market place will continue to adapt to future changes. September 2011 Memorandum submitted by Leigh Day & Co (LA 79) 1. Preamble andS ummary ofP roposals 1.1 Leigh Day & Co is a London-based Claimant law firm with a specialisation in human rights and personal injury claims. Over the past 20 years, we have developed particular expertise in international human rights and environmental claims against multinational corporations (“MNCs”) on behalf of clients from the developing world. Our cases have included, for example, claims on behalf of mining giant Cape Plc on behalf of 7,500 South African mine workers exposed to asbestos dust, and against oil trader Trafigura on behalf of 30,000 Ivorian residents exposed to toxic waste dumping. 1.2 Because of this expertise, we are particularly well-placed to offer constructive and focused contributions to the Committee on the impact of the Legal Aid, Sentencing and Punishment of Offenders Bill (“The Bill”) on this type of litigation, and have focused our submission on this area. 1.3 We wish to make it clear that Leigh Day is not opposed to all of the reforms proposed by the Bill, and recognises the need for sensible reform in some areas to promote cost efficiency and savings. In this submission we have attempted to make proposals which accord with this overall objective, whilst at the same time preserving access to justice for this particularly vulnerable group of claimants. 1.4 Our principal concerns relate to the proposed reforms to the funding of civil litigation under ss 41–43 of the Bill, including: — Non-recoverability of success fees from Defendants (s 41). — Non-recoverability of ATE premiums from Defendants (s 43). — Non-recoverability of base costs in as far as they fail the proposed “proportionality” test (which we understand will be introduced via the regulations accompanying the Bill or via the Court Rules). 1.5 Human rights claims against MNCs are far riskier and more expensive than standard personal injuries claims, due to the size and complexity of the cases, the significant resource imbalance between the parties and the logistics of collecting evidence from claimants overseas. These risks are such that, even under the existing funding regime, most claimant firms will not take on these types of cases. Legal Aid, Sentencing and Punishment of Offenders Bill 1.6 The reforms to funding arrangements proposed under the Bill would significantly increase both the cost burden and risk of litigating these types of claims. They would restrict our ability to take on all but the most straightforward cases against MNCs—resulting in reduced access to justice by the victims of human rights violations and a reduced incentive for MNCs to respect human rights in their business operations overseas. We understand that the Special Rapporteur on Business and Human Rights, Professor John Ruggie, has written to the Government expressing similar concerns. 1.7 Given the value of preserving access to remedy in these types of cases, we would propose that: — Provision should be made under s 41 for the Courts to retain the power to order that success fees be recoverable interpartes in the limited context of these types of claims, and where certain public interest criteria are met. — The exemption applied to recovery of ATE premiums in clinical negligence cases under s 43(2) of the Bill should be extended to human rights claims against MNCs. — The current test for recoverability of base costs should be preserved. 1.8 These proposals, if adopted, would ensure ongoing access to justice for the victims of human rights abuses by MNCs while maintaining the overall objectives of the legislation and imposing no additional burden on the public purse. 2. TheI mportance ofH umanR ightsC laims against MNCS The importance of accountability of multinational companies (MNCs) for their Human Rights (HR) impact in developing countries has been increasingly recognised over the past decade. In 2005, Prof John Ruggie was appointed as UN Special Rapporteur on Business and Human Rights with a mandate to recommend effective means to address the HR challenges posed by MNC and other business enterprises. His framework is based on the following three principles: (a) the duty on governments to “protect” the human rights of individuals against third parties including business; (b) the responsibility of business to “respect” human rights; and (c) the existence of adequate legal mechanisms to provide a “remedy” for individuals whose human rights have not been safeguarded by (a) and (b). The UK Government has consistently endorsed the Protect, Respect and Remedy Framework. In June 2011, at the Human Rights Council in Geneva, the UK Government reaffirmed its commitment to implement the Guiding Principles that accompany the Framework, including Guiding Principle 26, which provides that: States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing human rights-related claims against business, including considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy. 3. HumanR ightsL itigation against MNCS in theUK toD ate 3.1 Notable examples of litigation in the UK courts to hold UK MNCs to account for human rights violations are as follows: (a) Ngcobo & Orsv Thor Chemicals: claims by 20 South African workers poisoned by mercury (1995–97). (b) Connellyv Rio Tinto: Namibian uranium miner’s claim for throat cancer (1995–98). (c) Sithole & Orsv Thor Chemicals: claims by 21 South African workers poisoned by mercury (1997–2000) (d) Lubbe & Orsv Cape PLC: claims by 7,500 South African asbestos miners (1996–2003). (e) Bembe & Orsv T&N: claims by 400 Swaziland asbestos miners. (f) Ocensa Pipeline Claim against BP exploration for Colombian campesinos for damage to land (2004–06). (g) Motto & Orsv Trafigura: claims by 30,000 Ivory Coast citizens arising from toxic waste dumping (2007–10). (h) Tabra & Orsv Monterrico Metals: torture claims by 32 indigenous Peruvian anti-mine protesters (2009–10). (i) Arroyo & Orsv BP: exploration for 73 Colombian campesinos for damage to land (2007–ongoing). In addition to providing redress and justice for individual human rights victims, the cost and reputational consequences of these ground-breaking cases have provided a powerful incentive on the part of MNCs to respect human rights. Legal Aid, Sentencing and Punishment of Offenders Bill Nature, complexity and resources required for MNC cases 3.2 These cases are complex, protracted and costly to run primarily due to: (a) Logistical factors: they involve victims and evidence that is mainly overseas and often difficult to access. (b) The fact that the claims are usually against the UK parent company rather than the operating subsidiary, which entails overcoming the “corporate veil” obstacle and investigating the relationship between various MNC entities (the Trafigura case was an exception in this regard). (c) The financial and reputational implications for MNCs which invariably instruct major City law firms who fight “tooth and nail”, and deluge victims’ lawyers with demands and procedural issues. (d) The complexity of the evidence, which often requires instructing highly specialised experts in a range of fields, such as environmental science, chemistry and medicine. (e) The financial situation of the victims means they are in no position to contribute to the funding of the claims. 3.3 In order to have any reasonable prospect of securing justice for victims in MNC cases, claimants’ lawyers need to allocate a level of resources to these cases that is comparable to that deployed by the MNC lawyers. Consequently, the legal costs are invariably significantly higher than the compensation recovered. Given the wider human rights implications of these cases, it would be short-sighted, unfair and unjust to view the justification for pursuing them by simply comparing the level of costs with the compensation recovered. It is worth recalling that for the purposes of allocating public funding, the Legal Services Commission classified the Cape PLC case as being of “very high public interest”. Funding of MNC cases to-date 3.4 Because legal aid is no longer available for these types of cases, most are currently funded through conditional fee agreements (“CFAs”) under which claimant lawyers are only paid if they win. This model enables a slightly more level playing field between the victims of human rights violations (who are often impecunious) and multi-million dollar corporations. It also means, however, that claimant’s lawyers shoulder a significant financial burden throughout the cases and the risk of losing all costs incurred if the case is unsuccessful. 3.5 Cases may last for several years and require the deployment of substantial resources and expense which claimants’ lawyers must carry for the duration with the attendant financial and cash flow burden. The disbursements involved in these types of claims are usually particularly high, often running to hundreds of thousands of pounds (and on occasion, to millions). The current system of “after the event” (“ATE”) insurance has developed to cater for this risk. Whilst it is usually possible to obtain ATE indemnity cover for the disbursements, reimbursement under the ATE scheme is only available for those costs if the case is lost. Again, this means that the lawyers have to fund the disbursements themselves for the duration of the action. 3.6 In recognition of these risks, claimants’ lawyers have to date been allowed to charge the defendants with the “success fees”—an uplift on their standard fees that is recoverable from the MNC in the event that the case is successful. The risk in terms of the complexity, uncertainty and financial outlay associated with MNC cases is often such that the claimants’ success fee will be set at 100% if that accurately reflects the risk of the case. If the success fee is set too high, then the court is likely to reduce it when assessing the costs at the conclusion of the case. 3.7 Notwithstanding the success fee, the costs of lawyers representing MNCs are often higher than those of the claimants. 4. ProbableE ffect of theP roposedR eforms on MNC Litigation 4.1 Apart from the involvement of John Pickering & Partners in the Cape PLC case, Leigh Day & Co (“LDC”) has essentially been the only UK law firm to undertake MNC cases over the past 15 years. This reflects the risks associated with such cases, in terms of their prospects of success, uncertain duration, level of resources and investment required and the cash flow implications of having to carry the financial burden until the conclusion of the litigation. 4.2 The proposed changes to CFA recoverability will substantially reduce the ability of this firm to undertake such cases in the future. It is doubtful whether we would have been able to undertake the cases referred to above under the proposed new arrangements. Certainly, it would not have been feasible to run any of them with the same level of resources or effectiveness. Since that would have reduced the prospects of success it would have reduced on our willingness and ability to embark on the cases. 4.3 Given that virtually no other UK firms have not undertaken such cases to date it is inconceivable that others will do so under the proposed new regime. 4.4 As set out above, the three issues of particular concern in respect of MNC cases are the proposals on non-recoverability of: Legal Aid, Sentencing and Punishment of Offenders Bill (a) Success fees (NB in Australia and South Africa, which have CFA systems that are very similar to the UK, but where success fees are not recoverable from the losing party, there has been virtually no litigation of this type). (b) ATE premiums. (c) Basic costs, to the extent that they fail the “proportionality” test. Non-recoverability of success fees (s 41) 4.5 The effect of this proposal will impact particularly harshly in MNC cases where compensation may be significantly less than costs. Even if LDC deducted success fees from the compensation of MNC human rights victims (which we would be loath to do taking on board the significance of the compensation to the individuals concerned) the reality is that with the 25% cap, this is likely to only scratch the surface in terms of the loss of the success fee. 4.6 The disparity between compensation and costs in MNC human rights cases has become worse as a result of the Rome II Regulation (EC) No 864/2007 coming into force. The effect of Articles 4 and 15 is that compensation will usually be assessed in accordance with local law, which in the case of developing countries will invariably be significantly lower than compensation awarded by a UK court. Previously, the House of Lords (in Hardingsv Wealand) had held that assessment of compensation would be assessed in accordance with English procedure). Rome II will completely undermine any prospect of recovering success fees from claimants’ compensation in MNC human rights cases. The effect of Rome II is even more serious in relation to the proposed changes to the principle of “proportionality” (see below). 4.7 For the reasons given above, our ability to continue to pursue MNC cases on behalf of victims from the developing world will be seriously limited unless the major part of the success fee remains recoverable from the MNC. 4.8 We understand that it has been proposed to increase general damages by 10% in order to ameliorate the effect of the non-recoverability of success fees from defendants. However, given the level of the disparity between costs and compensation common in MNC HR cases, such an increase could not possibly rectify the position in the vast majority of such cases. Non-recoverability of ATE premiums other than in clinical negligence cases (s 43) 4.9 The Bill proposes that ATE premiums would not generally be recoverable from Defendants, other than in clinical negligence cases, recognising the specialist and costly expert evidence required in many clinical negligence cases. 4.10 As indicated above, MNC human rights cases often require equally specialised and costly expert evidence. Unless the same exemption is extended to these types of cases, claimants will still need to obtain ATE cover. The magnitude of the ATE premiums in these cases is such that unless they are recoverable from MNCS, claimant firms will be deterred from taking these cases on, further undermining the viability of these claims. Proportionality 4.11 In the Government’s response to the proposals made by Lord Justice Jackson, it indicated that a new test of “proportionality” would be introduced with respect to the assessment of recoverability of base costs, replacing the existing test whereby a court may still award base costs that are disproportionate to the compensation awarded, provided these were “necessary” to the success of the claim. While this issue is not raised in the legislation, we presume it is likely to be dealt with either via the Court Rules or by regulations. 4.12 As indicated above, costs in MNC human rights cases invariably exceed compensation. These costs should still be regarded as proportionate on the grounds of complexity and importance of the litigation or because the additional costs were “generated by the conduct [of the MNC]” (a specific let-out proposed by LJ Jackson). 4.13 The reality, however, is that MNCs will always argue when it comes to assessment of costs that the recoverable costs should be limited to the level of compensation awarded, and that the factors of importance and complexity etc should not be applied to the benefit of claimants. As a result, claimants’ lawyers will face the prospect of investing enormous amounts of time, money and resources not knowing whether, even if a case is successful, they will recover anything more than a fraction of the costs. Consequently, if implemented without the let out clause referred to above, this proposal would constitute a strong disincentive against claimants’ lawyers taking on these cases. 4.14 Claims on behalf of victims in the developing world, where compensation levels are already generally much lower due to the introduction of the Rome II Regulation would, under this new test, become almost impossible to litigate. Legal costs would surpass the levels of compensation achievable very early on in the case, thus becoming potentially “disproportionate”. This would act as a further disincentive to claimants’ lawyers taking on these cases. Claimants from the developing world would therefore be particularly disadvantaged. Legal Aid, Sentencing and Punishment of Offenders Bill 5. Proposals As indicated, these three proposed changes to the existing litigation funding regime for civil cases, if implemented, would severely reduce our ability to take on human rights cases against MNCs in the future. Only the strongest and most straightforward cases would justify the risk and, even then, Defendants would be able to exert unfair pressure on Claimants to settle for less, rather than running up costs that might not ultimately be recoverable—effectively putting us into conflict with our clients. Given the value of preserving access to remedy in these types of cases, we would therefore make a number of proposals which we hope would enable us to continue to bring these types of claims. First, we believe that provision should be made under s 41 for the Courts to retain the power to order that success fees be recoverable interpartes in the limited context of these types of claims, and where certain public interest criteria are met. We would also strongly argue that the exemption applied to recovery of ATE premiums in clinical negligence cases under s 43(2) of the Bill should be extended to human rights claims against MNCs. Given the specialist expertise generally required in these cases, there is no good reason why the same exemption should not apply. Finally, we maintain that the current test for recoverability of base costs, which allows the courts to weigh up both the proportionality and the necessity of costs incurred, should be preserved. These proposals, if adopted, would ensure ongoing access to justice for the victims of human rights abuses by MNCs while maintaining the overall objectives of the legislation and imposing no additional burden on the public purse. September 2011 Memorandum submitted by Thompsons Solicitors (LA 80) AboutT hompsons Thompsons is the UK’s most experienced personal injury law firm. It has a network of 28 offices across the UK. At any one time we will be running 70,000 claims on behalf of people who have been injured at or away from work, through no fault of their own. TheI mpact ofT heL egalA id,Sentencing andP unishment ofO ffendersB ill onJ ustice for InjuredP eople The end of Polluter Pays — The reforms end the principle of “polluter pays”, which is the cornerstone of access to justice. 25% of good but difficult cases pursued today won’t be in future — Thompsons’ criteria for fighting a case is that it has to have a 50/50 chance of success. — In some accidents, such as a rear end shunt car accident, working out liability is straightforward as it is obvious who was at fault. In other cases liability is not so clear cut. Some, such as disease cases or a claim with more than one defendant or today’s test cases that make new law for thousands of tomorrow’s victims, may fail altogether or merit investigation but are ultimately turned down. — There is a cost to investigate but turn down a claim and a cost where a case is lost. The reforms remove any funding in those circumstances. — Thompsons calculates that if the reforms are introduced as proposed, the lack of a success fee will mean 25% of people injured through no fault of their own who would currently pursue a claim and be awarded compensation will not find a lawyer willing to take on their case. The end of success fees that were agreed by all parties — Success fees were agreed by all sides in the industry through Civil Justice Council mediation. They were fixed in 80% of PI claims using extensive data and a “basket of cases” collected by Professor Paul Fenn from industry stakeholders. — The success fee in successful cases creates a “pot” that currently covers the costs of cases lost or turned down after investigation. Legal Aid, Sentencing and Punishment of Offenders Bill End of success fees means no funds for difficult or lost cases — The reforms proposed will reduce the success fee “pot” by almost 50% making it unviable to take on a case with any substantial risk of losing or to fight a case with less than 75/25 prospects. — Those who lose out will be those whose cases have any kind of complication. It will be business as usual for the victim of a rear end shunt car accident and bad news for the most vulnerable. Upfront payments a barrier to access — At present the costs of incurring disbursements can be insured against and the premium recovered from the defendants. That ends under the reforms. — In future claimants would have to pay for disbursements such as medical reports up front. Those payments would be a barrier to most working people. An expert’s report in an asbestos case would cost around £1,580 and follow up reports are often needed. Enforced proportionality ignores the facts — Costs are almost always higher than damages in industrial disease cases contested throughout by insurers. Enforced proportionality simply between costs and damages and ignoring the complexity of the claim would mean that the chances of success would have to be even higher than 75/25. Reforms hit the wrong target and would mean more road traffic accident claims — RTA claims are rising year on year,373 while employer liability (EL) claims are falling. The reforms will exacerbate that trend. — Datamonitor, which uses CRU and insurance industry statistics, says that by far the greater number of PI claims are motor related374 and they contribute the highest level of costs to the PI market, while EL claims costs are decreasing. — The proposals hit the wrong target offering extra damages to claimants where there is an issue of increased claims (RTA claimants with existing insurance cover) and thereby exacerbating the issue of increased RTA cases whilst hitting those whose claims and claims costs are falling (EL claimants) who require a system of recoverable success fees and ATE. Less money for the NHS — A reduction of claims by 25% overall will impact on CRU and NHS recovery. On 2009–10 figures there would be £39 million (25% of £154.7 million) less recovered by the CRU. Less money for the Treasury — There would be a significant impact on VAT recovery with elimination of the VAT on recoverable success fees and because there would be fewer experts instructed and fewer lawyers’ bills submitted. Similarly there will be a reduction in income and corporation tax in the legal sector and a significant reduction in Insurance Premium Tax paid by the ATE sector. This will add up to a significant loss to the Treasury. Less money for the courts — Civil courts are meant to be self financing and the reforms would change that as court fee income will drop dramatically. The cases that will not be fought are the ones most likely to be issued and incur court fees. More demand on the State — The cost of treatment for injuries and lost wages can be claimed from the defendants in successful claims. Those disenfranchised by the reforms and unable to make a claim will become reliant on the state for benefits and treatment. — This will mean an increased burden on the NHS as claims for private medical treatment paid by insurers will be reduced in line with the reduction in case numbers. — Where experts agree it is needed, insurers currently pay for private care and assistance and home adaptations. That burden will now fall on local authorities in successful claims. There will be reduced repayment to public sector employers of sick pay advanced to claimants pursuing cases against third parties. — In employers liability cases the government’s aim of early return to productive work and rehabilitation where possible will increasingly not be met. 373 2007–11 CRU stats—Motor claims increase from 551,905 to 790,999 (43% increase); EL 87,198 to 81,470 (6.6% decrease). 374 Datamonitor: UK Personal Injury Litigation 2011. Legal Aid, Sentencing and Punishment of Offenders Bill More litigants in person — Some of those who cannot have the benefit of legal representation will serve to swell the number of litigants in person. The judiciary have expressed serious concerns on their behalf and at the prospect of the further burden on a court system that will have reduced income from court fees. Thompsons’ clients have criticised the reforms. Their comments include: — Cath O’Neill: dinner lady exposed to carbon dioxide at work, left with permanent breathing difficulties: “Under the new government proposals my case may not have been taken up by a lawyer because it is difficult. If that happened I would have had no where else to turn, my employers would have got away with poisoning me and I would have got nothing. Even if I had found a lawyer willing to take my case on I would, under the government proposals, have got much less than 100% of my compensation even though I wasn’t to blame for what happened.” — Robin Gutsall: quarry worker with repetitive strain injury: When I was injured a few years ago I was ignored like so many others. I was bullied into a corner and I had to keep working to try and make ends meet but my health problems become debilitating. Eventually I was thrown on the scrap heap 13 years before retirement and left in unrelenting pain. Financially I am in trouble as disability benefit and a reduced pension barely pays the mortgage. The reason I am injured was down to my employers. The current rules mean that I have a solicitor prepared to challenge them employer and I will get 100% of my compensation. Under the government proposals I would not have the hope of justice that I have now. I would have been viewed as falling below the bar between the cost of pursuing a case and the chance of success. The worst of the government proposals is that the company would have been immune. — Rosemary McLoughlin: fell on steps at work: The stairs I had to walk up for years were dangerous and an accident waiting to happen. This was known to the employer but ignored because the bottom line was cost. After I fell down the stairs instead of changing anything I was bullied and my only way out was to go to law. I wasn’t to blame. My case isn’t worth much money to any solicitor but it is worth a tremendous amount to me. It means those responsible will have to admit their fault and it means better safety for the people I work with. Under the government proposals cases like mine will be cut out as too difficult or too costly. People like me will be silenced for all the wrong reasons. — Gary Corcoran: BMW worker who suffered a head injury caused by unsafe machinery: My injury will affect me and the people that I hold dear for the rest of my life. I will forever be a different man after an accident that was not my fault. Pursuing my case was justice for me. Thankfully I had the support of my union and a solicitor in facing a big business that denied responsibility from the very beginning and tried to silence my voice. Without professional help I would not have been able to get justice and my employer would not have introduced the safety precautions in my workplace that they did. Under the government proposals the next person injured will not get justice. September 2011 Memorandum submitted by the Legal Aid Practitioners Group (LAPG) (LA 81) Summary Members of the Bill Committee working on the Legal Aid, Sentencing and Punishment of Offenders Bill are dealing with a large number of proposed changes within a very tight Parliamentary timetable. There have been a number of excellent representations both oral and written. LAPG has prepared a short Question and Answer Briefing setting out four “routine” cases and the effect the proposals will have on the clients. We have included a fifth section on market sustainability. 1. (a) Did you know that if a separating couple do reach an agreement about child contact, neither has the right to obtain free legal advice on how best to keep an arrangement stable. So if, upon separation, a mother recognises that it will be in the childrens’ best interest to see their father but has some anxieties about him, she cannot access advice on what to do to keep her children safe, or to ensure that they are returned to her after contact. The father could simply keep the children at the end of the contact visit, causing untold anxiety and emotional trauma and refuse to return them to her. Without private funds she will not even be able to ascertain her options and will have to either find her way to court instead or take the law into her own hands. (b) But why is that? Because the bill removes the right to free legal advice upon separation save in extreme circumstances of domestic violence, so separating couples will have no opportunity to learn of their rights and how best to protect their children and preserve their contact with both parents. Legal Aid, Sentencing and Punishment of Offenders Bill (c) And what will it mean? It will meant that the primary carer of many more separating couples will simply refuse contact altogether because they will be too anxious about the risks of the other partner failing to return the children. Children will be the main victims being denied a relationship with one of their parents. (d) How much would it cost to give that advice? An initial legal advice session costs only £96.00. Negotiation to ensure that separated couples prioritise the children’s best interests and that both are aware of their rights in the event of things going wrong, costs in the region of £350.00. The costs of removing this basic right to knowledge is difficult to quantify but if it means litigants in person will have to navigate the court system, waiting time and resources, children will be displaced from their primary carers and more will need to take the law into their own hands; the costs are clearly going to be significantly more. 2. (a) Did you know that a parent without care after a separation, let’s say a father without means, will not be able to see a solicitor to regain contact to his children. Imagine the scenario where a mother has a new partner and simply does not wish to engage with the father when he asks to see his children. It may be that the children desperately want to see their father however, they have no power and unless the mother agrees to mediate, the father will not be able to force her to engage or put the children’s best interests first. She can simply choose to completely marginalise him from the children’s lives. (b) Why is that? Because, of a supposition that mediation is a panacea which will be appropriate in all but extreme cases of domestic violence. This is not the case. Mediation provides a solution in some but not all cases and whilst hugely effective when it works, it relies on two engaged parties. (c) So what will happen then? In the above example the father will have to go to court himself, or take the law into his own hands, if he is to maintain a relationship with his children. If he cannot he will simply have to walk away and hope they seek him out when they are adult. (d) How much would it cost to keep this important relationship? As above, initial advice will cost as little as £96.00 and a negotiated settlement less than £500.00. Again the financial cost to society and to the family involved of denying those without private means is hard to quantify but it is clearly far greater than this. So children from well off families will have more chance of growing up in a loving relationship with both parents than those from poorer families? Yes. 3. (a) Did you know that a child can be removed from his or her main carer and taken to another part of England & Wales without the carer having any right to free legal advice to order to secure the child’s return? (b) Why is this? Because the bill only provides that legal aid remain available in cases of international child abduction and provides no funding to pursue preventative strategies to prevent this terribly distressing and costly abuse of children. Much funding for private law applications (such as a Prohibited Steps Orders to prevent children from being removed from their primary carer in the first place) has been completely removed from the scope and the “curative” measures which remain funded are limited only to international abduction. (c) So what must parents do? Again, parents would have to find their own way through the courts or take matters into their own hands. Can you imagine the distress a removed child would suffer or the anguish their parent would feel? (d) What does it cost? Again, the initial advice enabling parents to understand their rights, together with negotiating an agreement not to remove, could cost in the region of £350.00. Should an application to prevent removal be necessary or for the child’s safe return this could be secured for £1,500.00. 4. (a) Did you know that a woman who has been violently beaten persistently throughout her marriage and finds the courage to obtain a Protection Order and separate from her husband, will not be afforded the right to free legal advice when negotiating matters concerning the children or finances if over a year has passed since the Protection Order was made? (b) What does this mean? This means that a woman in those circumstances would have to make an application herself and face the perpetrator of that dreadful abuse in court, potentially being cross-examined by him directly. In reality this would be an unimaginable trauma and she would more than likely leave those negotiations and not have the courage or strength to take the necessary steps to protect her family from a potentially violent father. She may have to settle her financial case without the protection of the court and be forced back upon the state in circumstances when, had she had public funding an Order might have been secured against the violent perpetrator, thus saving the public purse. (c) How much would it cost? Representation in Children Act proceedings to conclusion usually costs less than £3,000.00. The cost of denying the right to legal advice in the above example is unquantifiable to both the vulnerable woman and her children and the cost to the state could be far higher than would have been the case if Financial Orders had been obtained against the other party. 5. (a) Did you know that a newly qualified legal aid lawyer earns between £20,000 and £26,000 per year? Most work 10 hour days and have no pensions, life insurance, health insurance or any other perks attached to their jobs. Legal Aid, Sentencing and Punishment of Offenders Bill (b) But that’s less than a plumber. Yes, or a teacher, doctor or an electrician. The rates are so low because legal aid lawyers have not effectively had a pay rise for almost 20 years and the proposal to slash a further 10% off fees as from 3 October 2011 will bring fee levels down to that of the early nineties. Indeed some of the fee reductions will lead to reductions of up to 33%. Yet business rates, rents, salaries and other overheads have increased since the 1990s. With inflation averaging 2.7% since 1994 when many of the current fees were set, for every £100 received in 1994, firms would need £155.12 now to equal that amount. Instead they are going to be paid even less. (c) Did you know that we have some very concrete alternative suggestions for saving the money required which would not result in further fragmentation of the family, danger and distress to children or further marginalisation of the most vulnerable in our society? In particular the Law Society’s proposals have been dismissed without adequate thought and we urge the Government to re-think these proposals. 6. Information about Legal Aid Practitioners Group. LAPG is a membership organisation of private practice and not for profit providers dedicated to ensuring a quality legal aid system for the most vulnerable. We have membership of almost 400 providers, covering private practice and not for profit organisations, firms throughout England and Wales, large and small practices and covering all areas of legal aid work. We attend regular meetings with the LSC and MoJ. September 2011 Memorandum submitted by the Bar Council of England & Wales (LA 82) Amendments proposed by theB arC ouncil:Part1 Clause 2—Remuneration regulations Amendment: Page 2, line 20 [Clause 2], at end insert— “( ) When making regulations under subsection (3) the Lord Chancellor must have regard to— (a) the need to secure the provision of services to which the regulations relate by a sufficient number of competent persons and bodies, (b) the cost to public funds, and (c) the need to secure value for money.” Purpose and effect: Schedule 5, paragraph 49 of the Bill removes sections 1 to 26 and Schedules 1 to 3A of the Access to Justice Act 1999. The removal of section 25 eliminates the Lord Chancellor’s duty to consider a number of important factors when making any remuneration order. Without such an amendment, the Lord Chancellor will be able to set fees arbitrarily without regard to the likely impact on the provision of legal services by “a sufficient number of competent persons and bodies”. That creates the risk of a long- and short-term decline in the availability of quality advocacy services. The Bar Council already has considerable concerns about the fees proposed within the Government’s response to its consultation on legal aid, which include 10% cuts for family lawyers. At the Bar, women and BME practitioners will be the hardest hit by these proposals.375 Overall, the legal profession (and in due course the judiciary) will become less representative of the public it serves. This outcome runs counter to the efforts of successive governments to ensure that the composition of the judiciary reflects, in its diversity, the society it is meant to serve. The effect of our proposed amendment would be to reinstate the duty to take the stated factors into account. 375 King’s College Survey: 2008: This is a quantitative study of the work of the family Bar in 2008, and the current functioning of the legal aid graduated fee system for barristers in family law cases. The study was commissioned in June 2008 by the Family Law Bar Association (FLBA), and was undertaken by researchers in the King’s Institute for the Study of Public Policy (KISPP) at King’s College London, from July 2008 to December 2008. Data was gathered through surveys of (i) chambers where any family work is undertaken, (ii) barristers who undertook any family work (whether publicly funded or privately paid) in the year to 30 August 2008 and (iii) all family work completed by barristers in England and Wales in a random week, known as the “Week-At-A-Glance”. Legal Aid, Sentencing and Punishment of Offenders Bill Clause 8—Inclusion and omission of services within scope Amendments: Page 5, line 32 [Clause 8], before “omitting” insert “adding services to or”. Page 5, line 33 [Clause 8], after “Schedule” insert “or by amending any description of services included in that Part”. Purpose and effect: Clause 8 currently provides that the Lord Chancellor may, by order, omit further services from the scope of legal aid. It does not, however, allow him to include services within scope. Schedule 1 of the Bill removes large swathes of the law from the scope of legal aid, the consequences of which are likely to include significant social and financial costs. Furthermore, the cutting back of legal aid has been largely justified by the country’s current economic circumstances, which are likely to improve in the future. It would, therefore, be prudent to allow the Lord Chancellor to bring services back within the scope of legal aid. Without amendment, we risk seeing legal aid provisions chipped away as an “easy” way of saving money, without due consideration of which services should be re-included within scope. Our proposed amendments would have the effect of enabling the Lord Chancellor to bring services back within scope and adjust the description of services within scope. Schedule 1—Services within scope of civil legal aid Paragraph 10: definition of domestic abuse Amendment: Page 100, line 3 [Schedule 1], after “family” insert “or other intimate”. Page 100 line 38 [Schedule 1], leave out “physical or mental abuse” and insert “any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional)”. Purpose and effect: In paragraph 10, the Bill relies on a very narrow definition of domestic abuse, which is inconsistent with that used by the Association of Chief Police Officers (ACPO): “Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults, aged 18 and over, who are or have been intimate partners or family members, regardless of gender and sexuality.’ (Family members are defined as mother, father, son, daughter, brother, sister and grandparents, whether directly related, in-laws or step- family.)” It is unclear why, in defining domestic abuse as purely physical violence with a high threshold of objective proof, the Government has chosen to exclude those suffering from intimidation and other forms of psychological abuse from the scope of legal aid. In such situations, where one partner is clearly under the control of the other, mediation is wholly unlikely to succeed, and the effective protection of the victim will depend crucially on the ready availability of representation in proceedings. Even under the Government’s recently revised proposals to include more Domestic Violence victims within scope, we predict that over 40% of those who currently receive legal aid will still fail to receive it under these changes. Of those, half will be at risk of serious harm. When such cases go to court without the financial means to pay for lawyers, both parties will be forced to represent themselves. As litigants in person, they will have to assemble and present complex evidence and cross-examine one another in court, in a process that will take substantially longer and cost the courts far more than one involving experienced lawyers; not to mention compounding the distress experienced by the alleged victim of domestic abuse. Our proposed amendments would have the effect of bringing the Bill’s definition in line with that of the ACPO, thus extending legal aid to those who have experienced psychological, sexual, financial or emotional abuse at the hands of their partner. Legal Aid, Sentencing and Punishment of Offenders Bill Schedule 1—Services within scope of civil legal aid Paragraph 10: representation of both parties to alleged abuse Amendment: Page 100, line 4 [Schedule 1], at end insert “or where an allegation is made that B has been abused by A or is at risk of being abused by A”. Purpose and effect: Paragraphs 10 and 11 of Schedule 1 provide for legal aid for the alleged victim in family cases involving domestic violence or child abuse, but not for the adult against whom the allegation is made. The consequence of this will be a significant “inequality of arms” in such cases. An allegation of abuse is an extremely serious matter and, if upheld, can have permanent consequences in related matters, such as disputes about child residence and contact. In many instances, the alleged victim will face cross-examination by the adult against whom violence is alleged, compounding the suffering of an already vulnerable individual. Furthermore, in cases of this kind, issues around third-party disclosure often arise, requiring expertise that unrepresented respondents are unlikely to possess. Our proposed amendment to paragraph 10 would have the effect of preventing such distressing and costly consequences by bringing the alleged perpetrator back within scope of legal aid. Schedule 1—Services within scope of civil legal aid Paragraph 11: proceedings involving children Amendments: Page 101, line 26 [Schedule 1], leave out ‘(“A”)’ Page 101, line 28 [Schedule 1], leave out “other than A” Page 101, line 41 [Schedule 1], at end insert— “(1A) Civil legal services provided to an adult in relation to proceedings for financial relief in respect of a child who is the subject of an order or procedure mentioned in sub-paragraph (1).” Page 101, line 41 [Schedule 1], at end insert? “(1B) Civil legal services provided in relation to proceedings in which the court is considering giving a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances).” Page 101, line 41 [Schedule 1], at end insert— “(1C) Civil legal services provided in relation to proceedings arising out of a family relationship involving a child in respect of whom a court has given a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances); and ‘family relationship’ has the same meaning for the purposes of this sub-paragraph as it has for the purposes of paragraph 10.” Page 101, line 42 [Schedule 1], leave out “Sub-paragraph (1) is” and insert “Sub-paragraphs (1) to (1C) are”. Purpose and effect: It is not understood why, under Schedule 1, the provision of legal aid is limited to proceedings relating to the children, and not the associated financial remedy proceedings. The child’s economic welfare is important in abuse cases; particularly given the higher incidence of abuse in low-income households. It makes little sense to refer a case involving abuse to mediation, which is unlikely to succeed, and then require both parties either to fund their legal representation in court or represent themselves. Such proceedings can require the dissemination of complex financial documents and will be shorter, simpler and less costly to the courts if experienced lawyers are involved. The court’s considering a direction under section 37 of the Children Act 1989 is an indication that the case involves issues of particular significance and sensitivity, which make legal representation important; all the more so where the court has given a s 37 direction. Our proposed amendments would have the effect of bringing within scope representation of an adult in: (a) proceedings for financial relief in respect of a child whose case falls within sub-paragraph (1); (b) proceedings leading to an order under the Children Act 1989 s 37 (directing investigation where a care or supervision order may be appropriate); and (c) all subsequent steps in family proceedings once a s 37 order has been made. They would also ensure, like those proposed for paragraph 10, and for the same reasons, that the representation of the person against whom allegations of abuse are made is within scope. Legal Aid, Sentencing and Punishment of Offenders Bill Schedule 1—Services within scope of civil legal aid Paragraph 13: representation of adult where child a party to family proceedings Amendments: Page 102, line 44 [Schedule 1], leave out “to a child”. Page 103, line 1 [Schedule 1], leave out the first “the” and insert “a”. Page 103, line 2 [Schedule 1], leave out the first “the” and insert “a”. Page 103, line 4 [Schedule 1], leave out the first “the” and insert “a”. Page 103, line 28 [Schedule 1], leave out the first “the” and insert “a”. Purpose and effect: Paragraph 13 provides for the provision of legal aid for the child parties in cases which come under subsection (1)(a)-(e), but not for the adult parties. In cases which may involve accusations of abuse, this will result in unrepresented adults being forced to cross-examine expert witnesses and, in many instances, the child concerned. That creates significant risks for the welfare of the child. These cases involve matters of utmost seriousness which may result in long-term decisions over contact arrangements. Parents will lose contact rights over their children without legal advice or representation. In their darkest hours, the support of the state will be pulled from beneath their feet. Our proposed amendments would have the effect of bringing within scope the provision of legal aid for adult parties in such cases. Schedule 1—Services within scope of civil legal aid New sub-paragraph: proceedings for payment from spouse or civil partner to fund legal services Amendment: Page 105, line 24 [Schedule 1], at end insert— “Proceedings for payment from spouse or civil partner to fund legal services ( ) (1) Civil legal services in relation to proceedings for an order under section 22ZA of the Matrimonial Causes Act 1973 or paragraph 38A of Schedule 5 to the Civil Partnership Act 2004 (order requiring one party to a marriage or civil partnership to pay the other an amount to fund legal services). Exclusions (2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of the Schedule.”. Purpose and effect: Clauses 45 and 48 make provisions for orders to be made by the court, in divorce and equivalent proceedings, for one party to pay the other an amount sufficient for them to obtain legal services. We appreciate that this represents an attempt on the part of the Government to prevent inequality of arms in private law cases in which one party can afford to pay for legal representation and the other cannot. The details, however, have not been thought through. In particular, unless an application for such an order is within the scope of legal aid, it is unlikely that spouses of modest means will be able to make effective use of these provisions. An application for such an order may involve a detailed study of bank accounts and company accounts, with likely opposition from the proposed payer. As a task requiring forensic analysis, this is not one that will be easily handled by, for example, a wife struggling to cope with the ordeal of a relationship breakdown and the new demands of childcare as a single parent. Our proposed addition to Schedule 1 would have the effect of bringing within the scope of legal aid the application for an order under the Clause 45 and 48 provisions. Clause 9—Exceptional cases Amendment: Page 6, line 11 [Clause 9], before “any” insert “the interests of justice, including”. Purpose and effect: Clause 9 (provision of funding in exceptional cases) does not go far enough to address the gap in funding for parties needing representation. It would not be sufficient to counter the adverse effects of litigants being forced to pursue litigation in person in areas of civil and family law where legal representation is important for the proper conduct of the case (On this issue, see section 9 of the response of the Judges’ Council to the Consultation Paper). Legal Aid, Sentencing and Punishment of Offenders Bill The exclusion of private family law from legal aid is likely to make the operation of this Clause particularly problematic. There is a long line of Strasbourg cases to the effect that at least some family cases not involving domestic violence require legal aid to be available. In many cases, serious injustice would be caused if parties to these emotionally-charged cases were forced to act in person. So in practice, even on the Clause as drafted, it is likely that a large number of cases would have to be treated as “exceptional” because of the risk of a breach of the right to a fair hearing under ECHR Article 6. Moreover, the problem does not end there. Article 6 does not apply in cases of an administrative character. Yet many cases of that kind, reaching the courts from tribunals or decision-making officials, involve important issues—about education, privacy or social care, for example—where unfairness can have devastating consequences for individuals. Not surprisingly, the English courts have long accepted that domestic law in these cases imposes the same standards of fairness as Article 6. But Clause 9 would not permit exceptional funding to be granted to avoid a miscarriage of justice in a case of this sort. That is a major lacuna which we urge the Committee to remedy. Our proposed amendment would ensure that an exceptional case determination may be made where it is appropriate in the interests of justice, and not merely in cases where there would otherwise be a breach, or a risk of a breach, of the European Convention on Human Rights or EU rights. Clause 10—Legal aid in family law cases Amendment: Page 7, line 25 [Clause 10], at end insert— “( ) But the Director must determine that an individual qualifies for civil legal services where the services relate to a matter falling within paragraph 10 of Schedule 1 and— (a) the individual has been admitted to a refuge for persons suffering from domestic abuse, (b) the individual has obtained medical or other professional services relating to the consequences of domestic abuse, or (c) an assessment for the purpose of possible mediation of a family dispute has concluded that the parties need not engage in mediation as a result of domestic abuse, and in this subsection “domestic abuse” means abuse of the kind to which paragraph 10(1) of Schedule 1 relates’. Purpose and effect: We contend that the circumstances in which a person suffering domestic abuse must be treated as qualifying for civil legal aid are excessively narrow, and overlook the fact that many victims choose not to report the abuse to the police, but seek advice, assistance and medical treatment elsewhere. According to the 2008–09 British Crime Survey, only 16% of domestic violence victims reported the incident to the police. Around a third of women who have suffered from domestic abuse since the age of 16 have told no one other than the person who surveyed them. And in its response to the Government’s consultation on legal aid, Welsh Women’s Aid claimed that only 17% of women entering refuges in Wales in 2008–09 contacted the police for assistance. Our proposed amendment would have the effect of ensuring that victims of domestic abuse qualify for legal aid in circumstances outside those narrowly prescribed by the Bill, to ensure that those in need do not go without vital legal advice and assistance. Clause 12—Universal right to police station advice Amendments: Page 8, line 23 [Clause 12], leave out from “premises” to the end of line 11 on page 9. Page 9, line 18 [Clause 12], leave out subsection (9). Purpose and effect: According to this Clause, an individual may qualify for legal assistance in a police station depending on financial resource, criteria (to be determined) set out in regulations, and the interests of justice. This Clause is a significant departure from the Access to Justice Act 1999, because “Advice and assistance is not currently means tested under the equivalent provisions of the 1999 Act” (see 3.4 at page 18 of Research Paper 11/53, and Explanatory Notes to the Bill at paragraph 111). In its current form, Clause 12 significantly undermines the fundamental right to legal advice when arrested and held in custody at a police station. This provision was not consulted on by the Government and has been criticised widely.The reference to “criteria” is unacceptably vague; tellingly,the Clause makes no reference to interests of justice. Decisions will be taken by the holder of a new and as yet untested office: the Director of Legal Aid Casework. Legal Aid, Sentencing and Punishment of Offenders Bill While there is merit elsewhere in ensuring that wealthy individuals pay for legal services which would otherwise represent a drain on legal aid, the introduction of means testing is inappropriate at the police station, when individuals are at their most vulnerable and in need of professional assistance. Experience over the years shows that errors and abuses at the police station are responsible for miscarriages of justice which can be exceptionally difficult and costly to resolve. Our proposed amendments would have the effect of ensuring that individuals arrested and detained by the police retain a universal right to initial advice and assistance. Clause 15—Selection of representative in criminal proceedings Amendment: Page 11, line 22 [Clause 15], at end insert— “( ) An individual to whom representation is made available under this Part for the purpose of criminal proceedings may select any representative willing to act for that individual, and where such a selection is made the representation is to be by way of legal services provided by the selected representative.” Purpose and effect The repeal, by Schedule 5, of section 15 of the Access to Justice Act 1999 would remove the right of an individual granted a right to representation in criminal proceedings to select any representative willing to act for them. There are no provisions within the Bill to replicate this right. The importance of being able to choose one’s own representation—particularly to enable confidence in that representative—hardly needs stating. Our proposed amendment would have the effect of preserving that right. Clause 16—Representation in criminal proceedings Amendments: Page 12, line 8 [Clause 16], leave out from “the” to end and insert “relevant authority must take into account all the circumstances; but it must treat the interests of justice as requiring representation to be made available where”. Page 12, line 9 [Clause 16], leave out “whether”. Page 12, line 12 [Clause 16], leave out “whether”. Page 12, line 14 [Clause 16], leave out “whether”. Page 12, line 16 [Clause 16], leave out “whether”. Page 12, line 17 [Clause 16], leave out “and” and insert “or”. Page 12, line 18 [Clause 16], leave out “whether”. Purpose and effect: Section 12 of the Access to Justice Act 1999 enshrined the right to legal advice for individuals involved in criminal investigations or criminal proceedings as follows: “The Commission shall establish, maintain and develop a service known as the Criminal Defence Service for the purpose of securing that individuals involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation as the interests of justice require.” This right would be withdrawn under Schedule 5 of the Bill and has not been replaced by an equivalent provision. The importance of this statement of principle cannot be underestimated. It encapsulates the duty to provide legal aid in criminal matters, imposed on the Government by the European Convention on Human Rights, Article 6(3): “Everyone charged with a criminal offence has the following minimum rights . . . (c) to defend himself in person, or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.” It is further feared that Clauses 14 and 15 pave the way for a “watered down” version of this duty, by creating regulations which set the financial threshold for entitlement so low that legal aid is effectively denied to all but the most impoverished. Our proposed amendments would ensure that an individual qualifies for representation in the interests of justice where any of the five factors listed in subsection (2)(a)-(e) of Clause 16 are present. Legal Aid, Sentencing and Punishment of Offenders Bill Clause 28—Code of conduct Amendment: Page 22, line 8 [Clause 28], after “body” insert “exercising functions of the Lord Chancellor or the Director pursuant to section 5 or regulations made under that section, including a body”. Purpose and effect: Clause 5 of the Bill enables the Lord Chancellor or the Director to transfer services to “a person” or “employees of” that person “authorised by the Lord Chancellor [or the Director] for that purpose”. But Clause 28 only applies the code of conduct to: “(a) civil servants, and (b) employees of a body established and maintained by the Lord Chancellor.” The effect of this would be that employees of a body or person to whom functions of the Lord Chancellor or the Director have been transferred, but who are not civil servants or “employees of a body established and maintained by the Lord Chancellor”, will not be subject to the Lord Chancellor’s code of conduct. This code will include duties of confidentiality, the avoidance of discrimination and the avoidance of conflicts of interest. If services otherwise provided by the Lord Chancellor or Director are to be outsourced in the future, it is vital that code of conduct duties are transferred alongside public funds. Our proposed amendment would have the effect of extending the code of conduct to cover all individuals exercising functions of the Lord Chancellor or the Director. TheB arC ouncil’sP art2R ecommendations Clauses 41 and 43—Recoverability of success fees and insurance premiums Under the current system of conditional fee agreements (CFAs), unsuccessful Defendants pay the costs of successful Claimaints in the usual way. However, unsuccessful Claimants are usually ordered to pay the costs of successful Defendants. So the amounts recoverable by a successful Claimant include the success fee under the CFA (which counterbalances the risk that the Claimant’s representatives will not be paid at all if the claim fails) as well as the cost of taking out after-the-event (ATE) insurance against the risk of having to pay the Defendant’s costs. The rules on recoverability of success fees and ATE premiums were introduced by the Access to Justice Act 1999. They were seen as necessary to preserve access to justice when that Act radically reduced the scope of civil legal aid. They are still every bit as necessary. Litigation work becomes unviable for providers of legal services unless CFAs provide for a success fee in the event that the client recovers damages, to mitigate the risk of acting without payment if the claim fails. So success fees operate as a form of insurance that maintains access to justice for people who could not otherwise afford legal services. If success fees and ATE premiums are not recoverable from unnsuccessful Defendants, they will have to be paid by “raiding” the damages awarded to the Claimant. In our legal system, damages are calculated to compensate precisely each Claimant for the loss he or she has suffered. So the Government’s proposals would lead to claimants being undercompensated for their injuries. That would be deplorable. Lord Justice Jackson recommended a 10% increase in damages to soften the impact of this change. The Bar Council, among others, has argued that this would be insufficient. In any event, the Bill contains no provision implementing that recommendation. The net effect of Clauses 41 and 43 would be to limit access to justice for those who have suffered loss or injury and cannot afford to take the risk of losing and having to pay their own legal costs, and those of the other side, by their own means. It would also result in undercompensation for those who are nevertheless able to bring proceedings and who win their claim. There is no justification for the Government’s proposals. In most of the litigation brought using CFAs and ATE insurance (such as personal injury claims), the Defendant is a business and is fully insured against paying damages and costs. So the overall cost of funding litigation in this way is distributed among the insured community as a whole. That is a just way of ensuring that injured individuals are in a position to make proper claims and recover adequate compensation. Moreover, ATE insurance is itself a commercial market, acting, in effect, as a brake on unmeritorious litigation. Most ATE insurers require an independent opinion on the merits of a claim before agreeing to insure. The system is a valuable filter, ensuring that bad claims are not carried forward. It has been suggested that, if Claimants have more of a stake in the litigation, they will police costs more carefully. This argument, in our view, has very little force. Claimants themselves often have little control over the quantum of costs. Legal Aid, Sentencing and Punishment of Offenders Bill Conversely, the extent to which unsuccessful Defendants are liable to contribute towards the costs of unsuccessful claims is, to a large extent, in their own hands. They choose whether to admit liability or make an appropriate offer, and the sooner they do so, the lower their liability in costs. The extent to which successful Claimants have to incur costs in order to vindicate their claim depends on the approach of the Defendant. To some extent, under the present system, unsuccessful Defendants have only themselves to blame for spiralling costs, and the cost shifting regime provides an incentive for them to make early admissions and offers. The cap on success fees for certain types of claim, proposed by Clause 41(2), would be a crude and ineffective way of containing costs. It fails to recognise the escalating levels of risk that apply as a case advances towards a contested trial. It is most regrettable that the Government, while seeking to implement Jackson LJ’s recommendations on the recoverability of success fees and ATE premiums, has declined to pursue one of his most important and popular proposals: the abolition of referral fees. The choice of lawyer should not be influenced by who paid what to whom, but should be decided purely on the quality and skills of the individual and their ability to advocate the client’s best interests. In our view, referral fees are bribes. So, in summary, we consider that these Clauses will severely curtail access to justice for people—including some of the most vulnerable members of society—who have been harmed or neglected by the State or by their employer. Where claims do go ahead and succeed, the claimant will have to accept undercompensation as the price of justice. These Clauses turn back the clock to the days when the only people adequately compensated for harm caused by others’ wrongdoing were the very poor, who were eligible for legal aid, or the very rich, who could take on the risk of losing. Recommendations For those reasons the Bar Council urges Public Bill Committee Members to oppose Clauses 41 and 43 standing part of the Bill. Alternatively, however, if the opportunity does not arise for a clause stand part debate, we would invite Members to support the amendments tabled by the Opposition to remove from the scope of Clauses 41 and 43 several categories of claim on which the Bill’s provisions are likely to have a particularly harmful effect. Clause 52/Schedule 6—Defendants’ cost orders Amendment: Page 142, line 18 [Schedule 6], leave out from “proceedings” to “under” and insert “in the Crown Court including an appeal”. Purpose and effect: Part 1 at paragraph 3 of Schedule 6 has the effect of amending section 16A of the Prosecution of Offenders Act 1985 so that, where an individual is accused of a crime, chooses to pay for their own legal defence rather than burdening the state, and is later acquitted, they can only reclaim costs incurred in the Magistrates’ Court (or the Crown Court on appeal). This alone is both unfair and illogical; even more so when the Government is doing nothing to reduce the burden on the legal aid fund by forcing wealthy defendants whose assets have been restrained to pay for their own defence, rather than granting them free legal aid and inflating the cost of legal aid to the taxpayer. Despite the Bar Council’s repeated representations on the latter subject, the Government has not engaged with these cost-saving proposals; yet it intends to make sweeping changes to defendants’ cost orders (DCOs) without consultation. Our proposed amendment would have the effect of preserving the power of the court to make a DCO in respect of an acquitted defendant’s costs in the Crown Court. September 2011 Memorandum submitted by the Young Legal Aid Lawyers (LA 83) Introduction 1. Young Legal Aid Lawyers (YLAL) was formed in 2005. We are a group of lawyers committed to practising in areas of law traditionally funded by legal aid. We have over 2,000 members nationwide including students, paralegals, trainee solicitors and barristers, and qualified junior lawyers. Our members share a belief in the importance of legal aid in upholding the rule of law. We co-host the All-Party Parliamentary Group on Legal Aid with the Legal Aid Practitioners’ Group. Legal Aid, Sentencing and Punishment of Offenders Bill 2. As junior members of the profession we have little financial interest in the detail of the Bill; our interest is in providing the best service that we can to the vulnerable people whom we represent. At the same time we are well placed to comment on the practical reality of these changes and how they will affect the quality of legal help given to those who cannot afford to pay for a lawyer privately. Summary 3. Our evidence is directed at Part 1 of the Bill which deals with legal aid. Our principle concern is that the cuts to legal aid within the Bill will impact harshly on the most vulnerable in society. 4. To avoid duplicating the evidence of other organisations we have focussed on providing case studies which would not be funded under the Bill. These were collated as part of an independent Commission of Inquiry into Legal Aid,376 organised with the assistance of YLAL and the Haldane Society. 5. Our evidence deals with the following areas in turn: concerns over the cuts to scope; the need to ensure that legally aided advice is of good quality; concerns over telephone advice; and the need for legal aid to be administered independently of Government. Scope 6. The cuts to scope contained within the Bill differ little from those proposed in the Green Paper. Our concerns remain the same as in our response to the Green Paper:377 that the cuts will prove to be a false economy which hurt the most vulnerable378 and that the Government has overestimated the ability of ordinary people to navigate the legal system without legal advice. We oppose the cuts to scope in their entirety and consider that Schedule 1 should be amended accordingly. The purpose of this section is to provide examples of cases which would not be funded under the Bill. Immigration 7. Claude was represented by an immigration and asylum practitioner with 25 years experience. He would not be eligible for legal aid under the Bill as he was not an asylum seeker. Claude arrived unaccompanied from Congo on a passport indicating he was seven years old. Immigration officers interviewed the man who met him at the airport. The man claimed Claude was his son returning from a trip to Congo, but evinced no interest in his welfare, and their interaction showed no familiarity. Immigration declined to entrust the child to him, but granted temporary admission into the care of social services pending further enquiries. He was placed with a foster family. DNA testing undertaken by social services showed that the man was not the father. Immigration refused Claude leave to enter and began to look into removing him. Social services brought the child to me, for advice and to conduct his appeal. Claude struggled to follow the instructions he had been given by those who sent him here to the effect that he had lived here before and had come to rejoin his father. The first crack in his facade came with his delightfully typical childish outrage at being told that his passport made him just eight years old: “That’s not right! I’m eight already! I had my birthday before I came!”. As trust between us built he revealed his real name and what he actually remembered of his previous life. He was an orphan who had lived for some time with someone he thought was his grandmother but with other children who had left for different destinations abroad. The suspicion of a child trafficking operation arose. On appeal the judge made an error of law. The case was remitted back for fresh hearing. The end of the story was that Claude was granted discretionary leave to remain and continues to live with his foster family, with whom he had formed strong bonds. Without legal aid Claude would at best have been left in limbo with no secure status or at worst returned to who know what hazards in Congo. Housing 8. DM received legal aid when he became homelessness after mistakes were made with his housing benefit. In future his solicitor would not receive funding to address these mistakes. I began to get into trouble with my rent when the Council reduced my housing benefit by £50 every week. I found it difficult to make up the shortfall on my limited income from part-time work and my rent arrears increased. I tried to speak to the Council about my Housing Benefit to ask why it had been reduced. Nobody could explain why. In the end my landlord started a possession claim against me. When my family and I were evicted we were placed in emergency hostel accommodation. This housing was not very good but we were grateful to have a roof over our heads. 376 “Unequal before the law? The future of legal aid” J Robins (ed) 2011 http://www.jures.co.uk/jures/ ViewWhitePapers?function%View 377 YLAL’s response to the Green Paper is available here http://www.younglegalaidlawyers.org/files/Releases Responses/ YLAL legal aid green paper February 2011.pdf 378 For example, 57% of those affected by cutting legal aid for welfare benefits will be ill or disabled (Equality impact assessment (http://www.justice.gov.uk/downloads/consultations/legal-aid-reform-eia.pdf)), p 62 paragraph 2.213. Legal Aid, Sentencing and Punishment of Offenders Bill The Council investigated our case and decided that they could not continue to house us because I had made us homeless by not paying the rent. I did not think this was right—I had been paying the rent, it was just that it was too high for me to manage. We were evicted again. My partner and children stayed with one friend and I stayed with another. We went to a solicitor who immediately wrote to the Council. The letter warned them of court action unless they agreed to house our family. She also asked social services to help because my young children were at risk of being homeless. The Council agreed to provide us with emergency housing that same day. After, my solicitor got a copy of my Housing Benefit files. From this she could see that it was not my fault that the rent had become unaffordable. She wrote representations to the Council and they agreed to overturn their decision. They accepted that they have a duty to make sure that my family has somewhere to live. 9. Jean Martin’s landlord tried to increase her rent unlawfully. She would not be eligible for legal aid under the Bill until the problem had escalated to the stage where he started threatening to evict her. My landlord tried to increase my rent to a level I could not afford. I live in a house in Enfield where I have lived almost all my life. My parents were the original tenants and they lived there when I was born in 1943. My partner died in 2001 and my son moved out not long after. Since then I have lived alone. In February 2010 I received a letter from my landlord informing me he was going to double my rent. I approached Enfield Council Housing Advice for assistance. They referred me to a solicitors’ firm who advised me that I was a protected tenant under the Rent Act and that the landlord could not lawfully raise my rent to the level he wanted. They helped me apply to court to establish that I was a protected tenant. I was so happy when I heard this—it was like an early Christmas present. All the worry and stress had been like a lead weight around my neck. It had made me ill and I was even taking anti-depressants which I had never had before in my life. Family 10. KD, who experienced domestic abuse, received legal aid to help with her divorce. She would not be eligible under the Bill and the associated policy changes as she does not have sufficient “objective evidence” of abuse. Things between my ex-husband and me started to go wrong around 1990. He was very demanding and controlling and he became physically and emotionally abusive. He forced me to move to Spain with him along with our children. I had tried to leave him in the past but I could not afford to pay for a solicitor to help me with the divorce. He had most of our savings and property hidden behind companies and trusts. I borrowed some money to pay for a solicitor but this money soon ran out. In the end the abuse got so bad that I reported him to the Spanish police. They told him not to come back to our family home. I decided just to leave. When my children and I arrived back in England we had nowhere to stay. The police advised me to go to a refuge. The key-worker there put me in touch with my current solicitors. They applied for legal aid for me and helped me apply for a divorce and to protect my share of our assets. It has taken a while for things to be settled, but the process of sharing out the assets has almost finished. I would not have been able to use mediation because my ex-husband was determined not to provide any information on the trusts he had used to hide our assets. My ex-husband had enough money to pay for a private solicitor. If I had not had legal aid I would have been up against him and his legal team. If that had happened I do not think that I would have received any of my fair share of our capital. Debt 11. Helen received legal aid for her family and debt issues. Under the Bill she would not receive legal aid to help resolve her debts, yet it was only by resolving these problems that she felt able to make a clean break from her abusive husband. I needed legal representation after the breakdown of my marriage. My husband was very aggressive and subjected me to domestic abuse, which was the main cause of the breakdown in our relationship. Since he left me I have been left with a great deal of debt and had to struggle to support my son on my part-time income. My solicitors gave me advice and support with my divorce and managing my debt situation. They applied for a Debt Relief Order on my behalf which removed a great deal of my financial burden. This enabled me to have a clean break from my husband and I have been able to have a fresh start to life. Legal Aid, Sentencing and Punishment of Offenders Bill Welfare benefits 12. Mr and Mrs Mansell received free legal advice to retain their pension credit. They would not receive legal aid under the Bill. My wife and I found ourselves in difficulty following a decision by the DWP to refuse to pay me any Pension Credit. They also told me that I had been overpaid by more than £11,000. This left us with barely any income. We struggled to survive. With professional welfare benefits advice we were able to prepare for a tribunal hearing. We were successful and were able to quickly change the decision that we had to pay money back to the Pensions Service. The rules involved in the Pension Service’s decision were complex and not easily understandable. We found that the Pension Service themselves confused the issue further in advance of the hearing which would have made it nearly impossible for us to deal with the case on our own. 13. In addition to this case study YLAL feel it is important to highlight the high level of poor decision making by the DWP: in the year 2010–11, 50% of incapacity benefit decisions, 38% of Disability Living Allowance (DLA) decisions and 37% of Employment and Support Allowance (ESA) decisions were overturned on appeal.379 The number of appeals to the First-Tier Tribunal is also forecast to rise to 436,000 in 2011–12380 as a result of the Government’s drive to reassess those who are in receipt of Incapacity Benefit. In light of the high rate of wrong decisions by the DWP we feel it is very important that people are provided with legal aid to help prepare their cases. 14. We are also concerned that the Government has disregarded the impact of the forthcoming overhaul of the benefits system with the introduction of universal credit and the replacement of DLA with the Personal Independence Payment. There is a real risk of more incorrect decisions whilst decision-makers find their feet. Quality 15. There is a real danger that wider legal aid reforms will erode the quality of publicly-funded legal help. There should be provision within the Bill to counteract this. 16. Funding cuts, due to come in in late 2011, combined with the planned introduction of best value tendering (BVT) threaten quality by encouraging firms to cut corners in the name of efficiency.Our members are particularly concerned by the trend of “paralegalisation”, where firms, in an effort to cut overheads, rely increasingly on large numbers of inadequately supervised very junior lawyers, or lawyers in training (paralegals), who take on too much responsibility, too soon for relatively little remuneration (anecdotally £16–18,000 per annum is typical), with little in the way of career progression. Very junior lawyers having to take on cases which they are not ready for, is detrimental to the clients who end up receiving a poorer service. 17. As fees are cut, there is also a risk that good firms will be forced to close. We highlight the closure of Refugee and Migrant Justice and the Immigration Advisory Service owing, in part, to financial difficulties. The financial situation for most legal aid firms is already precarious as firms struggle to contend with fixed fees. The criminal and civil legal aid spend has reduced by 12% and 15% respectively in real terms since 2003–04.381 Further cuts to funding risk making a bad situation worse. 18. To counteract these concerns we make three proposals. First, under clause 3 the Lord Chancellor must have regard to the need to ensure that legally aided advice and representation is of comparable quality to non-legally aided advice and representation. Second is that the Lord Chancellor in setting and monitoring standards under clause 3, must have regard to the long-term sustainability of the legal profession and the need to adequately train and supervise new entrants to the profession. These changes would go some way to avoiding the pitfalls inherent in BVT and reducing paralegalisation. 19. Third, is that clause 26(3) needs to be clarified to make it clear that the Lord Chancellor has no power to say that a person must go to a particular person or agency; this would reduce people’s ability to vote with their feet when they receive a poor service removing an important safety check on quality. TelephoneA dvice 20. Clause 26 of the Bill provides the legal basis for a mandatory telephone advice service. It is clear that telephone advice will not always be suitable. For example where the person: — is particularly vulnerable, for example because they have mental health problems; — has difficulty communicating because English is not their first language or otherwise; — has a particularly complicated case; 379 Quarterly tribunal statistics available at http://www.justice.gov.uk/downloads/publications/statistics-and-data/tribs-stats/ quarterly-tribs-stats-q4-2010-11.pdf (table 1.2d p31). 380 Senior President of Tribunals’ Annual Report February 2011 p 39 http://www.judiciary.gov.uk/Resources/JCO/Documents/ Reports/spt-annual-report-2011.pdf 381 NAO The Procurement of Criminal Legal Aid in England and Wales by the Legal Services Commission November 2009 http:// www.nao.org.uk/publications/0910/procurement of legal aid.aspx page 10 paragraph 1.3. Legal Aid, Sentencing and Punishment of Offenders Bill — has large amounts of paperwork; and — cannot access a phone in private. 21. Additionally, it is more difficult to build up a relationship of trust over the phone. This relationship is essential to making sure that people give full details of their case. Many individuals will have built up a relationship with their local firm or law centre over time. Diverting these people away from the trusted lawyer who knows their background will waste time and resources. 22. We are also concerned about the quality of telephone advice. The Government has given few details about the scheme however, a call centre staffed by low-paid advisors is within the scope of clause 26. The possibility of the rights of vulnerable people depending on legal advice from such a service is one that we find deeply troubling. In our view, the best way to safeguard the quality of advice is to allow people the option to go elsewhere if they receive a poor service. The solution to these concerns is for telephone advice to be available but not mandatory. Clause 26 should be amended to reflect this. Independence 23. The Bill must include safeguards to ensure that funding decisions are made independently of government. Legal aid is an essential tool in holding the Government to account and decisions about which cases are funded should be made in the interests of justice and not in the name of political expedience. This is a real concern; in Evansv Secretary of State for Justice,382 the Ministry of Defence was found to have lobbied the Ministry of Justice and the LSC resulting in a change to the funding code precluding cases involving the accountability of Government for the acts of the armed forces abroad and the torture of Iraqi and Afghan nationals. The High Court labelled this as “inimical to the rule of law”. 24. The Bill provides limited protection in that Clause 4(4) precludes Ministerial interference in “individual cases”. This is not sufficient. The Evans case is an example of unacceptable interference which would not be prohibited by this clause. Additionally the LSC is to be abolished and the Ministry of Justice will have operational control over the administration of legal aid, leaving greater scope for unacceptable Goverment interference. 25. We propose that a duty should be placed on the Director of Legal Casework under clause 4 to make decisions independently of Government, and in accordance with the interests of justice. This will ensure that justice is done and is seen to be done. September 2011 Memorandum submitted by WithyKing (LA 84) It is hoped that these bullet points will assist the draft Bill Committee in considering the impact of the current Bill as drafted upon clinical negligence claims, and in particular upon claims brought on behalf of severely disabled children: — There is no compensation culture in this country—there is only a perception of one reflected in the in-depth independent research carried out for the last Government—and accepted by Lord Young in his report for the present Government on health and safety. — The figures from the Legal Services Commission (LSC) which supported the consultation paper on these cuts shows: — The success rates on clinical negligence cases have increased from 80% to 91% so the LSC pays out less money on unsuccessful cases year on year; — Over the same period the net cost of unsuccessful cases at the LSC has decreased by 69%; — The projected saving to the LSC fund of taking all clinical negligence cases out of scope is £17 million/0.01% of the £150 billion deficit. — The Law Society has come up with viable alternative ways of saving more money from the legal aid budget than taking cases out of scope. — If legal aid is withdrawn from all clinical negligence cases, the LSC budget will save £17 million. However,the Department of Health budget, in terms of the increased costs of those cases being run under Conditional Fee Agreements, will be £18.8 million,meaning the proposed “cuts” will actually cost the Government an extra £1.8 million (source: AvMA, independent charity). — The loss of clinical negligence claims will affect the capacity to learn from experience to benefit the taxpayer-funded NHS. — Sir Rupert Jackson’s proposed changes to the Conditional Fee Agreement regime, which are part of this Bill, are dependant upon legal aid remaining in place, if access to justice is to be safeguarded. 382 [2011] EWHC 1146 (Admin). Legal Aid, Sentencing and Punishment of Offenders Bill — While claims on behalf of severely disabled children could be run under Conditional Fee Agreements, unfortunately the costs of those claims, such as expert fees and Court fees have to be paid as the matter goes along—those costs can be £50,000 plus and firms cannot afford to fund those as the claim progresses: NoL egalA id forC asesI nvolvingS everelyD isabledC hildren% N oC ases% N oA ccess toJ ustice — The Government funds the NHS and pays its claims—no access to justice through the legal aid cuts% a conflict of interest/abuse of power. We urge you again to look at the proposed amendment to the Bill provided to the Committee previously. The proposed amendment to help severely disabled children, by their cases remaining in the scope of legal aid is targeted and reasonable and reflects the unusual and difficult position of these high cost claims which cannot be brought under any amended Conditional Fee Agreement regime. Taking clinical negligence claims out of the scope of legal aid will not cut costs; it will increase them in terms of the cost to the Department of Health budget. September 2011 Memorandum submitted by CORE (LA 85) HumanR ightsE xceptionS ought The CORE Coalition of NGOs, including Amnesty International, CAFOD, Friends of the Earth, Oxfam and Traidcraft, is asking the Bill Committee to support amendments to the Legal Aid, Sentencing and Punishment of Offenders Bill, which will ensure that the costs regime for civil litigation will not have the serious and apparently unintended consequence of making it financially unviable for foreign victims of human rights abuses by UK multinational corporations to be able to bring litigation in the UK. The UN Special Representative on Business & Human Rights expressed his deep concerns about the proposed changes in a letter to the justice minister warning that they could “constitute a significant barrier to legitimate business-related human rights claims being brought before the UK courts in situations where alternative sources of remedy are unavailable”. At the Human Rights Council on 16 June 2011, the UK Government restated its commitment to implement the Guiding Principles on Business and Human Rights which accompany the UN Protect, Respect and Remedy Framework. One of its three pillars is greater access to remedy, including through judicial mechanisms, for victims of corporate harm. The amendments that we are proposing would not involve any additional cost to the UK taxpayer and would not be counter to the overall objective of the Bill. We are attempting to ensure that a particularly vulnerable group of claimants would not be denied access to justice in circumstances where they would currently be in a position to make a claim. In our submission below, we set out the three elements of the Bill that would have the impacts that concern us. We also propose amendments that would reverse these effects. Proposed Reforms Three reforms to the costs regime for civil litigation will have the greatest negative impact on international victims of human rights abuses by UK companies: 1. Abolition of “success fees” Multinational corporations devote enormous resources to defending claims and often deluge the claimants’ lawyers with procedural disputes before the cases come to trial. Claimants’ lawyers in these cases are exposed to enormous costs which they have to shoulder if the case is unsuccessful. To date success fees have enabled claimants’ lawyers to spread their risk by using costs recovered in successful cases to fund the costs of those that are not. The abolition of success fees payable by defendants will mean that claimant firms will not be able to run the risk of taking on these types of cases in the future. 2. Non-recoverability of “After The Event” (ATE) insurance premiums from defendants The loser pays principle means that claimants are at risk of facing a demand for massive costs from the multinational corporation if the claimants’ case fails. So they often take out insurance to cover them for this risk. Under the current system, the defendant corporation is liable to pay the premium (the size of which reflects the level of cover and risk involved) if the case succeeds. This Bill proposes the non-recoverability Legal Aid, Sentencing and Punishment of Offenders Bill of ATE premiums from defendants other than in clinical negligence cases, in recognition of the significant expense and expertise required there. However, human rights cases are similar to clinical negligence cases in the levels of expense and expertise required. The same exemption which the Bill already applies to clinical negligence cases should be extended to cases brought against UK companies by human rights victims. 3. Non-recoverability of basic costs This issue is not presented in the Bill but is likely to be dealt with via Court Rules. A potential change to the “proportionality” test, applied in recovering basic costs from defendants, could mean that costs spent on bringing the case may not be covered even if the case is won. This is the result if it is deemed that any legal costs incurred by the claimant that exceed the compensation amount awarded are not recoverable from the defendant. It is almost inevitable that legal costs in such cases against multinational corporations exceed the amount of compensation awarded. This is in part due to the resources required to communicate with and collect evidence from claimants and witnesses, especially when the events occurred in remote or unstable areas, where access and security are problematic. Further, the disparity between the costs and the compensation awarded has actually increased since 2009 with the introduction of the “Rome II Regulation (EC) No 864/2007”, where victims’ compensation is now determined according to the law of the country where the harm occurred rather than in accordance with UK legal standards (resulting in a much lower compensation amount for the victims of developing and emerging countries). In order to maintain a level playing field between claimants and multinational corporations, the proportionality test for recoverable costs must be meaningful and take into account the actual financial resources that have been expended on a case by both sides. Consequences The combined effect of the changes proposed in the legislation will prevent claimants from pursuing a case because of the severely reduced ability of law firms to take on human rights litigation against multinational companies in the future. Claimants’ lawyers will face the prospect of investing enormous amounts of time and money not knowing whether, even if the case is successful, they will recover anything more than a fraction of the costs incurred. Only the very strongest claims will justify the risk and, even then, companies will be able to exert unfair pressure on claimants to settle for less, rather than running up costs that may not be recoverable. Victims of human rights abuses in the emerging and developing worlds, where levels of compensation are typically lower, will lose out most, as their cases will be the least economically viable. Rationale for Amendments that we are asking the Committee to incorporate in the Bill Proposed Amendments to clauses 41 & 43 of the Bill The amendments below are proposed to clauses 41 & 43 of the Bill in order to safeguard future litigation on behalf of claimants from developing companies against large corporations domiciled in the UK or other EU countries. The dumping of toxic waste in the Ivory Coast by Trafigura is one of the best known examples in the UK. Such litigation tends to be very expensive, given the great logistical challenges to representing developing world claimants, and the risks in doing so. Costs are also increased because well-resourced multi-national companies instruct the most skilled and expensive City of London lawyers, who leave no stone undisturbed in defending claims. Conversely, damages in such cases tend to be relatively small, as damages are currently calculated in accordance with Rome ii which requires that they be assessed with reference to the law in the affected country, and not the UK. For obvious reasons, this tends to lead to lower compensation than would be recovered under UK law. Equally, and again for obvious reasons, financial losses such as loss of income will be far smaller where the claimant is, for example, an African subsistence farmer rather than a person living in the UK. The professional and personal risks experienced by lawyers in undertaking such cases make them unattractive, which is why even under current regulations most law firms are unwilling to take these on. Given the high costs and relatively low damages, it will be impossible for such litigation to be presented if success fees and insurance premiums cannot be recovered from the defendant. The proposed amendments below would impose safeguards to ensure the exception is limited to deserving cases where there is no other way of achieving effective access to justice—an obligation of the UK under article 6 of the European Convention on Human Rights. The structure is as follows: — The Lord Chancellor is endowed with a power to exempt, by order, certain Conditional Fee Agreements (CFAs) from the new provisions limiting the success fee to 25% of the damages and prohibiting recovery of the success fee from the opposing party. Legal Aid, Sentencing and Punishment of Offenders Bill — Hence, all that is created is a future power to provide for an exception, not an exception with immediate effect. — The potential exception is limited to cases where the claims include those brought by individuals in tort—ie it does not apply to businesses, and does not apply to commercial disputes. — It is further limited to torts alleged to have been committed in a developing country. — Developing county is defined with reference to the per capita gross national income [PCGNI] of the country in question. This is the method used by the World Bank: see http:// data.worldbank.org/about/country-classifications — We have suggested a developing country is a country whose PCGNI is less than half of the UK’s, although a lower percentage could be used (50% would on present data—http:// siteresources.worldbank.org/DATASTATISTICS/Resources/GNIPC.pdf—capture some Eastern European countries, whereas a lower percentage would essentially limit the exception to countries outside Europe, North America and Australasia). — The exception is further limited to cases which are certified as appropriate by a High Court judge. The criteria for the judge would be: — That the proceedings should be considered by a court in England or Wales in the interests of justice. This would exclude (i) weak cases (justice does not require weak civil cases to come before a court); (ii) cases without adequate links to the jurisdiction (justice will not require a case to be heard by a UK court if there is no link to the UK); (iii) cases involving very low level complaints (justice does not require civil cases to be heard where the subject matter is trifling). — A disparity in resources between claimant and defendant. Thus, the exception is reserved for cases where claimants are financially weak and defendants are well- resourced. — A finding that in the absence of such an exclusion from the ordinary rules on success fees, the claimants would be at significant risk of being unable to secure effective representation. Thus, a claimant would only qualify for the exception if he could show that his apparently meritorious claim would be stifled if he was unable to recover a success fee. — The concept of certification by a High Court judge is based on the tried and tested position in public law cases, eg for judicial review. There, in cases brought in the public interest which might otherwise be stifled by the risk of paying costs to the defendant in the event of success, a High Court judge may make a pre-emptive order either preventing the defendant from recovering costs, or limiting the defendant to recovering a specified sum which the claimant could afford to pay. These are generally known as “protective costs orders”. In the same spirit, we have provided (in effect) that a High Court judge may allow a success fee to be recovered if this is the only realistic way in which a claim can be brought which it is in the interests of justice to bring. — Where a case fulfils all of the criteria we have provided for, a success fee may be recovered from the opposing party, which is not limited to a percentage of the damages. A corresponding change to clause 43(1) of the Bill provides that insurance premiums may also be recovered in these circumstances. ProposedA mendment toC lause 41 of theB ill (7) After sub-section 7 of that section insert— “(8) The Lord Chancellor may by order prescribe that section 58(4A) and 4(B) and sub-section 6 above shall not apply to any conditional fee agreement where all of the following conditions are met: (a) The proceedings include a claim by an individual or group of individuals for damages in tort; (b) The tort is alleged to have been committed in a developing country; (c) A judge of the High Court has certified (whether before or after the commencement of court proceedings), that: (i) The proposed litigation raises issues which ought, in the interests of justice, to be considered by a court in England or Wales; (ii) The resources of the proposed claimant or claimants are significantly less than those of the proposed defendant or defendants; and (iii) In the absence of the provisions of this sub-section there would be a significant risk that the proposed claimant or claimants would be unable to secure effective legal representation in England or Wales. Legal Aid, Sentencing and Punishment of Offenders Bill (9) In sub-section 8 “developing county” means a country, not being a member state of the European Union, whose per capita gross national income was less than 50% of the per capita gross national income of the United Kingdom in any of the three years prior to the year (or if more than one year, the first year) in which a relevant tort is alleged to have been committed.” (8) In section 120(4) of that Act (regulations and orders subject to parliamentary approval) after the amendment made by sub-section (5) of this section, insert “58A(8)”. ProposedA mendment toC lause 43 of theB ill Substitute for the existing text of sub-clause (1): (1) In the Courts and Legal Services Act 1990, after section 58B insert – “58C Recovery of insurance premiums by way of costs (1) A costs order made in favour of a party to proceedings who has taken out a costs insurance policy may not include provision requiring the payment of an amount in respect of all or part of the premium of the policy, unless: (a) The party is one to whom section 58(A)(8) applies; or (b) Such provision is permitted by regulations under subsection (2).” September 2011 Memorandum submitted by Firstassist Legal Expenses Insurance Ltd (FLEIL) (LA 86) The need for ATE insurance inH umanR ights actions againstM ultinationalC orporations Firstassist Legal Expenses Insurance Ltd (“FLEIL”) has been active in the Legal Expenses market since this class of insurance was first permitted in the 1970s. Its insurance capacity is provided by Munich Re, one of the world’s largest insurance groups. FLEIL was the first company to offer deferred and conditional premiums. Unusually in the ATE market it specialises in larger and often complex risks. For this reason it has particularly broad experience of cases outside the “run of the mill” personal injury market. What does ATE do? After-the-Event insurance is designed to protect the policyholder (usually the claimant) against their potential liability to pay legal costs to the opponent if a legal action is unsuccessful. The policy also normally covers the claimant’s own disbursements and can include cover in respect of the claimant’s own solicitor’s costs. TheO rigins of ATE andR ecoverability ATE was developed in the 1990s in response to plans to reduce the availability of Legal Aid as well as in recognition of the fact that “Middle England” was unable to access the Courts for fear of the costs implications of losing an action. The principle that the ATE premium should be recoverable under the “loser pays” rule was established under the Access to Justice Act 1999. The development of ATE and the introduction of recoverability were both driven by Government policy. ATE shares many of the characteristics of CFAs, in that they are both designed to provide a service for individuals unable to fund a case from their own resources. ATE premiums are usually only payable on successful cases and the premium is only due on success, in like manner to the lawyer’s fees under a CFA. An individual contemplating litigation needs to be able to meet the costs of their own lawyer as well as the possibility of having to meet the costs of the opponent if the case fails. The CFA deals with the former and ATE the latter. Without both elements of support, most individuals are unable to bring claims. They are either unable to meet the costs of their own lawyer or would face ruin if the case failed. TheC ost of ATE The cost of ATE depends mainly on the amount of cover required and the merits of the case. In the high- profile Trafigura case a premium of £9.2 million has been found (in the SCCO) to be a reasonable and recoverable premium for a case where the insurer faced a possible claim for £15 million. In Human Rights cases, defendants are likely to incur significant costs, which means that a high level of ATE cover is required. This in turn necessitates a premium commensurate with the risk. Such premiums are almost always going to exceed the means of the claimant(s) and may in some cases exceed the damages awarded. Legal Aid, Sentencing and Punishment of Offenders Bill Its use inH umanR ightsC ases The use of ATE and the importance of recoverability is particularly driven by: — the financial resources of the claimant; — the financial resources of the opponent; — the likely damages; and — the merits of the case. Human Rights cases typically involve claimants of limited means and opponents of far greater means and expertise. Without ATE, the opponent would be able to “burn off” the claimant(s) by incurring substantial costs or by applying for a security for costs order. The former is frequently employed in order to put pressure on the claimant, its solicitor and the ATE insurer. The latter is a routine tactic employed by defendants to prevent the development of an otherwise strong case. The use of CFAs and ATE is often the only alternative to Legal Aid. The availability of Legal Aid has been in decline for more than a decade and the reforms proposed in the LASPO bill will accelerate the decline. It is ironic that having set up the CFA & ATE regime expressly in order to permit the reduction in Legal Aid provision, the Government is now intent on removing both Legal Aid and its replacement (CFAs & ATE) from the reach of most of the population. In cases involving multinational corporations, CFAs and ATE are now the sole funding option capable of holding such organisations to account. OurE xperience in suchC ases We have extensive experience of insuring a wide range of cases, including around 40 Group Actions. Most of these have a “David & Goliath” alignment of claimant and defendant. Amongst these actions have been cases for: — Environmental impairment (generally, but not only, pollution) causing personal injury or damage to property. — Health & Safety failings leading to wide-spread personal injury. — Product liability (eg defective pharmaceutical products). — Competition law abuse (price-fixing and other market abuse). A number of these involve claimants from outside the UK but where the defendant is based in the UK. None of these cases could be funded by Legal Aid and the CFA/ATE approach is the only means by which the actions can currently be brought. TheI mpact of theJ acksonR eforms on theseC ases Ending recoverability will have two principal effects. First, it will mean that the damages in cases which can proceed will be eroded by the cost of the ATE premium and by the success fee under a CFA. Second, where the likely damages are low relative to the likely costs, a case is unlikely to be able to proceed, simply because the law firm and/or the ATE insurer would not be able to recover from the damages the costs they need to provide their services. This obstacle increases as the merits of a case approach 50%. So there will be fewer cases brought and those that are brought would see the damages reduced, usually substantially, by the cost of the CFA success fee and the ATE premium. The Jackson report highlights the risk to defendants of cases funded by CFAs and ATE, and refers to a need to redress equality of arms. In our experience, the defendant has the key advantages of financial superiority and greater access to expertise in most litigation of this type. Removing recoverability will inevitably exacerbate the existing inequality and, in effect, totally preclude such cases from reaching the light of day. The MoJ’s impact assessment (MoJ 080 of 27 April 2011), on which the LASPO bill is based, states: “the proposals aim to reduce costs while ensuring that parties who have a valid case are able to bring or defend a claim”. In our opinion, this statement is manifestly inaccurate for most litigation where one party is financially stronger; the proposals favour the financially stronger party. Legal Aid, Sentencing and Punishment of Offenders Bill How the inequality of financial means adversely affects claimants who challenge stronger opponents and escalates costs The following are examples of conduct which we have experienced in cases for which this company has provided ATE insurance. Security forC osts ATE is invariably arranged in order to protect the claimant from the risk of having to meet the opponent’s costs. The knowledge that a case has ATE backing should reassure the opponent that their costs will be met if the case can be successfully defended. Despite this, it is not uncommon for a financially-strong opponent to make, or threaten to make, an application for security for costs, having been advised that ATE is in place. The application will seek to argue that ATE insurance does not provide adequate security for the defendant’s costs should the claim fail. The application will typically argue: (i) that the insurer may decline to pay the claim at all (voidance or repudiation), or (ii) that the insurance may be inadequate to meet to full extent of the claimants’ liability. Voidance is extremely rare in ATE, despite misleading representations to the contrary. My company has only resorted to this extreme measure twice (in over 3,000 concluded cases). On each case the Judge found that our insured had manufactured evidence which was central to the claim. Voidance on grounds of material misrepresentation or non-disclosure is virtually inconceivable in group actions. With regard to adequacy of cover, we have always provided sufficient cover to meet the opponent’s costs. CostsC aps A claimant may successfully obtain a cost capping Order, so as to restrict the claimant’s liability for costs to an affordable amount (usually the maximum available insurance). However, there is nothing to prevent the defendant from applying to increase the costs cap during the life of the case. This has the effect of applying pressure on the ATE insurer to increase its exposure to the case, or risk the case failing. Where there is a costs cap, the defendant is likely to incur costs far in excess of the cap, secure in the knowledge that the claimant is unable to match that spending in bringing the claim. In both cases the defendant can apply pressure on the claimant and increase the risk that the claim will fail, not because the claim lacks merit, but purely because of the superior financial resource available to the defendant. Concentration ofE ffort A large well-resourced legal team can make life very difficult for a smaller team with finite resources. Examples include: — use of a “heavier” team of barristers in Court, making extensive disclosure requests (which will divert the claimant’s lawyers from their main focus); and — late amendments to the defence (which will again dilute the smaller legal team’s focus as a case approaches trial). ProceduralP oints In such cases the defendant is likely to employ a large law firm. That firm may well be mandated to employ all available processes to frustrate a claim. This will delay a claim or increase costs, to the detriment of the claimant. Counterclaims, in some areas of law, are similarly used as a means to weaken the position of a claimant. In our experience, despite such claims being settled, the response of powerful defendants to the costs recovery process is one of delay and obstruction. These examples serve to illustrate the need for the financial power of a stronger party to be balanced by the protection afforded by ATE. Without recoverability, it is inevitable that the power of the stronger party will be used in an oppressive way to defeat legitimate cases which will have no other means of reaching the court. September 2011 Legal Aid, Sentencing and Punishment of Offenders Bill Memorandum submitted by Liberty (LA 87) AboutL iberty Liberty (The National Council for Civil Liberties) is one of the UK’s leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research. LibertyP olicy Liberty provides policy responses to Government consultations on all issues which have implications for human rights and civil liberties. We also submit evidence to Select Committees, Inquiries and other policy fora, and undertake independent, funded research. Liberty’s policy papers are available at: http://www.liberty-human-rights.org.uk/publications/1-policy-papers/index.shtml Introduction This briefing should be read in conjunction with Liberty’s briefing on Part 1 of the Legal Aid Sentencing and Punishment of Offenders Bill. Part 2 of the Bill deals with litigation funding and costs outside of the scope of legal aid and, like Part 1, will severely curtail access to justice, including for those attempting to bring cases on human rights grounds against large multinational companies. Part 3 is a discreet section of the Bill providing for significant reform of the criminal justice system, including out-of-court disposals, sentencing and bail. Part 2—LitigationF unding andC osts Part 2 of the Bill makes provision for maximum limits to be placed on success fees charged by representatives funded under conditional fee agreements (CFA) and provides that a loosing party can never be liable in costs for the success fee of his opponent’s representative.383 The Bill further significantly restricts the extent to which a loosing party can be held liable in costs for the insurance premiums of a successful party who insured himself against liability arising through legal proceedings; the exception to this rule is for claimants who insure themselves against liability for the cost of expert evidence in clinical negligence cases.384 The Bill would make damages based agreements (DBA), where lawyers’ fees are contingent on success and are paid from the damages of a successful client, enforceable in all areas of civil litigation.385 The Bill addresses the funding of divorce and related proceedings including the dissolution of a civil partnership.386 Provision is made for interim payments to be made by one party in proceedings to another to cover some or all of the legal costs incurred. Such payments are only to be available to impecunious parties who would otherwise have no way of raising the funds to pay for legal services, including obtaining a loan. Courts will be required to consider the financial position of both parties and the interests at stake in proceedings when deciding whether to order a payment.387 The Bill also increases the costs liabilities for defendants where they fail to accept an offer of settlement made by a claimant and subsequently, the award made by a court equals or exceeds the sum offered in settlement.388 Costs liability for failing to accept a reasonable offer is also to be extended to non-monetary cases, with the value of non-monetary benefits to be taken into consideration. The Bill imposes restrictions on cost orders made to defendants who are acquitted in criminal proceedings limiting, in particular, the extent to which lawyers costs can be accounted for in costs awarded to a defendant. Briefing onP art2 Whilst Liberty welcomes modest proposals set out in clauses 46–49 to introduce interim cost payments in matrimonial disputes, and plans to increase the costs liability for defendants who fail to accept reasonable offers of settlement, Liberty has serious concerns about other measures proposed in Part 2 which, when combined with sweeping reforms to the legal aid system, form part of a brutal assault on access to justice. When legal aid was curtailed dramatically by the last Government, including the exclusion of all personal injury claims from scope, the move was justified by measures enacted in the Access to Justice Act 1999 which opened up legal redress to many through the introduction of a conditional fee agreement (CFA) regime. Whilst CFAs are of no assistance to people seeking advice in many of the areas of law excluded from the scope of legal aid under proposals in Part 1 of the Bill, (such as social welfare, immigration and debt, where there is little prospect of damages), these agreements are hugely valuable in other areas of the law. In the areas where CFAs prove an indispensable resource, Part 2 of the Bill will seriously limit their practical availability. The CFA scheme, as currently implemented, requires a loosing insurer to pay the success fee of a claimant’s representative and to cover the after the event insurance premiums which protect 383 Clause 43. 384 Clause 43(1). Subject to limits imposed by the Lord Chancellor in secondary legislation 385 Clause 42. 386 Clauses 46–49. 387 There is provision for the Lord Chancellor, by regulations, to make further provisions. 388 Clause 51. Legal Aid, Sentencing and Punishment of Offenders Bill a claimant against ruinous costs liability. As solicitors are able to offset the risk taken in individual cases, by charging an uplift on their fees in case of success, they are able to take on difficult and time-consuming briefs. If the Bill is enacted in its current form, clause 41 will prevent representatives from recovering a success fee from a party found to be at fault. To the extent that success fees are recoverable, they will only be recoverable from the client. The Bill also provides that success fees must be capped at a percentage of damages; this percentage can be set by the Lord Chancellor in secondary legislation.389 As with other areas of the Bill, reforms are blunt and broad, with no exception made for cases involving, for example, serious human rights violations. Clauses 43 and 44 of the Bill will prevent individuals from recovering, from a loosing party, insurance premiums paid by those who have sought to shield themselves from costs of litigation. This is another in a barrage of measures which will prove a disincentive to ordinary people seeking to vindicate their rights, making justice the preserve of the super-rich. Whilst some concession is made to individuals seeking to ensure themselves against the costs involved in seeking expert evidence in clinical negligence cases, this provision is strictly limited and specifically prevents successful claimants from recovering insurance premiums relating to costs outside of disbursements for expert reports. Firms such as Leigh Day, who have taken numerous claims against massive conglomerates on behalf of ordinary people suffering the health consequences of corporate misconduct have said that they will no longer be able to continue with work of this sort under new proposals for civil litigation funding. Amongst their clients are the 30,000 Ivorians injured by the dumping of toxic waste by Trafigura and South African miners who suffered asbestos poisoning whilst mining for Anglo-American. Pursuing litigation like this is hugely expensive and can take whole teams of lawyers years to complete. Leigh Day have confirmed that the changes proposed in the Bill threaten to make litigation of this kind impossible: In particular, the abolition of “success fees” payable by defendants, will mean that claimant firms like Leigh Day will simply not be able to run the risk of taking on these type of cases in the future . . .390 To the extent that CFAs remain a viable prospect, representatives will be disinclined to take on anything other than the most winnable cases, and important test-case litigation, which is inherently uncertain, will represent a prohibitive risk. Liberty strongly urges the Government to rethink these proposals which would effectively grant impunity against corporate misconduct, including denying redress to victims of personal injury and invasions of privacy. Liberty is further concerned by discreet measures set out at clause 52 of the Bill which could effectively prevent an individual prosecuted for a criminal offence from recovering costs attributable to his defence following vindication at a criminal trial. Under the current law, to be recoverable costs must already be reasonably and properly incurred and this additional requirement creates a real risk that individuals who are found innocent of criminality will, in addition to having endured the huge stress, upheaval and potential stigmatisation of criminal prosecution, be left out of pocket for the cost of their legal defence. As such Liberty supports amendment 228 which would remove clause 52 from the Bill.391 Part 3—Sentencing andP unishment ofO ffenders Chapter 1 of Part 3 of the Bill deals with sentencing of offenders and would make it mandatory for the court to consider granting a compensation order to victims wherever it has the power to do so; where it does not take this course the Court is required to provide an explanation.392 Some of the specific duties on judges to explain sentencing decisions are to be removed, however it is envisaged that all of these matters will fall to be addressed under a general duty to “state in open court, in ordinary language and in general terms, the court’s reasons for deciding on the sentence.”393 Clauses 55–56 provide for community orders to have a clearly specified end-date. Courts will further have more options when considering how to respond to a breach of a community order, including making no order or imposing a fine.394 The suspended sentence regime will also be reformed to allow sentences of between 14 days and two years to be suspended, by contrast with current provisions which limit suspension to sentences of 12 months or less.395 Courts will also be given a discretion as to whether or not to attach a community requirement to a suspended sentence and will be empowered to impose a higher fine for breach of a suspended sentence order.396 Courts will be given wider powers to include programme requirements in criminal sentences, for example requirements aimed at helping offenders to overcome drug and alcohol dependency problems.397 Under the Bill, programmes will no longer be limited to a series of accredited options. Judges will further be able to impose programme requirements, without the approval of a programme officer, even where they place obligations on another individual who may not have provided express consent.398 389 Clause 41(2). 390 Martin Day, Partner in Leigh Day, taken from Press Release accessible at: http://www.leighday.co.uk/news/news-archive- 2011/moj-bill-will-put-corporate-wrongdoers-beyond-the 391 Amendment 228, Karl Turner MP, Notices of Amendments: 1 September 2011. 392 Clause 53. 393 Clause 54(2). 394 When deciding on a sanction, courts will be required to consider extent to which the individual has already complied. 395 Clause 57. 396 Clauses 57 and 58. 397 Clause 59. 398 See clause 59(3) which would repeal the restrictions set out at s 202(4)–(5) of the Criminal Justice Act 2003. Legal Aid, Sentencing and Punishment of Offenders Bill The Bill proposes to extend the maximum period for curfews operating as part of a community sentence to 16 hours per day for a maximum of 12 months. The current limit caps curfew at 12 hours per day for a six month duration.399 The Bill would further make explicit provision for conditions banning foreign travel to be attached to a community order and would allow judges to impose mental health treatment requirements even in the absence of evidence from a mental health practitioner.400 Related provision would remove minimum time periods which currently prevent a judge from making a drug rehabilitation order or alcohol treatment requirements for periods under six months.401 If implemented the Bill would make welcome changes to the youth sentencing regime, giving judges additional powers to discharge young offenders conditionally, in addition to powers to give an absolute discharge or make a referral order.402 Referral orders, which refer offenders to a youth offender panel who will meet with the young person and supervise rehabilitative activities, are to be more widely available to judges. Under the Bill referral orders will be available even where there is a previous guilty plea or a referral order has already been made in an individual case.403 Courts are to have wider powers to sanction offenders for breach of Detention and Training Orders, including by imposing an additional period of supervision.404 Where a curfew is attached to a Youth Rehabilitation Order (YRO), the maximum limit will be extended in line with adult curfew requirements to a maximum of 16 hours per day for 12 months.405 Clause 68 allows judges to make a mental health treatment requirement without the need to obtain evidence from a medical practitioner. Clause 69 provides powers to extend the maximum duration of a youth referral order by six months and to impose an increased fine for breach of an order. Clause 71 repeals uncommenced provisions which would have extended Magistrates’ sentencing powers from six to 12 months. Chapter 2 of the Bill amends the bail regime to provide for exceptions to the presumption in favour of bail to be disapplied where there is “no real prospect of a custodial sentence”.406 However, a new exception to the presumption, which will not be subject to the “no real prospect” test, is proposed to deal with cases where, if released on bail, an individual is likely to engage in conduct amounting to domestic violence.407 Where children are not granted bail, the Bill provides that they must be remanded to local authority accommodation except where a series of conditions apply including where the alleged offence is sexual or violent in nature and only remand to a youth detention accommodation would be sufficient to protect the public from death or serious injury, or to prevent the young person from committing an imprisonable offence.408 Under Clauses 81–85 of the Bill, remand to youth detention accommodation would only be available in cases where it is rendered imperative by a combination of factors going to, amongst other things, the serious of the offence, the risk of absconding and any risk to public. Chapter 4 of the Bill deals with release on license, including providing for unconditional release for individuals sentenced to 12 months or less and provides for prisoners serving over four years to be excluded from the scheme which provides for early release on home detention curfew.409 The Bill corrects an anomaly in the current remand system by bringing 17 year olds within provisions designed to deal with remand for children.410 Clauses 95–96 of the Bill would allow for an erroneous revocation of a license to be cancelled and would lift restrictions on automatic release after an individual has been recalled to prison for breach of a license. The Bill extends provision for the supervision of young adults released from a young offenders’ institutes and provides for further supervision to be accompanied by electronic monitoring and drug testing.411 Pending the Government’s extremely welcome review of the current system of indeterminate sentences, the Bill introduces measures providing for foreign prisoners on IPP sentences to be deported after serving their tariff. Chapter 5 of the Bill deals with prisoners and makes provision for the Secretary of State to introduce new prison rules dealing with employment and remuneration. The Secretary of State will have the power to make payments with the aim of rehabilitating offenders, preventing offending and limiting the impact of crime.412 399 Clause 60. 400 Clause 61 (Foreign travel prohibition) and clause 62, mental health treatment requirement). 401 Clauses 63–64. 402 Clause 65(1). 403 Clause 65. In the later case, this can presently only happen with the recommendation of an appropriate officer—usually the local youth offending team. 404 Clause 66(2). 405 Clause 67. 406 Limited to to adult defendants with no prior convictions and to non-extradition proceedings. 407 For offences punishable with imprisonment—certain exceptions to the presumption in favour of bail do not apply. In relation to non-imprisonable offences some of exceptions to the presumption in favour of bail will only be applicable where a defendant is aged under 18 or has been convicted of the offence. 408 Clause 74, read together with Clause 81. 409 Clause 94. 410 Clause 74(5). 411 Clause 97. 412 Clause 103(10). Legal Aid, Sentencing and Punishment of Offenders Bill Chapter 6 of the Bill is concerned with out of court disposals and would allow for chief officers of police to set up new schemes allowing officers to combine penalty notices for disorderly behaviour (PNBD) with education courses, paid for by the individual, which are designed to reduce the risk of reoffending. The Bill also removes limitations which currently restrict the issuing of penalty notices to authorised uniformed officers.413 This section of the Bill also makes provision for the Secretary of State to issue guidance regarding education courses and regulations dealing with the revocation of PNBDs.414 Clauses 107 and 108 deal with cautions in adult cases, removing the requirement for prosecutorial authorisation before a conditional caution can be issued.415 Where an offender is a foreign national and does not have leave to enter or remain in the UK, new conditions can be attached to a caution designed to facilitate departure from the UK or ensure that an individual does not return within a specified period of time. Clauses 109–112 abolish the current system of out of court disposals for young people known as the “final warning scheme”, replacing it with a new youth caution. The circumstances in which the new cautions can be given broadly mirror provisions of the final warning scheme, but the new youth cautions will be available even if a young person has a previous conviction or has already been given a caution. Under the new scheme there will be no requirement that officers consult with the Crown Prosecution Service before a youth caution or a youth conditional caution is administered to determine whether there is enough evidence to charge. Other requirements incorporated into the final warning scheme still apply, for example the requirement that an adult must be in attendance. Where a young person is given a caution she must be referred to a youth offending team (YOT) as soon as practicable, and a rehabilitation scheme must be put in place where appropriate. Chapter 7 contains widely publicised proposals creating a specific offence of threatening another with a weapon in public, attracting a minimum custodial sentence of 6 months where the offender is aged over 18 unless there are particular circumstances relating to the offender which make it unjust to do impose a sentence of this nature.416 Briefing onP art3 Liberty shares the Government’s expressed aim of reducing re-offending and facilitating rehabilitation, particularly by ensuring that sentencing measures aid rather than hinder reintegration into society. Proposals in the Bill dealing with sentencing acknowledge that prison is not always the solution, particularly in relation to petty offending, and provide judges with the flexibility to adapt sentences to the requirements of an individual case. Liberty supports proposals set out at Chapter 1 of the Bill which will give Courts the flexibility to tailor sentences to the particular needs of the individual. We welcome, in particular, plans which would allow drug rehabilitation and alcohol treatment requirements to be used in a wider range of circumstances. Whilst offending behaviour must be addressed, Liberty believes that the Government’s commitment to tackling the root causes of offending, such as drug and alcohol addiction, represents a progressive approach, likely to yield more favourable results in terms of reducing overall criminality than a system which relies heavily and inflexibly on custodial sentences. Liberty welcomes plans which would see wider use made of suspended sentences, including powers to suspend a sentence of up to two years. We also welcome the Government’s revocation of uncommenced measures which would have seen the sentencing powers of Magistrates increased from six to 12 months. Liberty strongly supports measures which would remove the option of remand for many defendants unlikely to receive custodial sentences if convicted. The deprivation of liberty involved in imprisonment can lead to family breakdown, loss of employment and wider social stigmatisation. As a result, Liberty believes that prison should be reserved for those convicted of or awaiting trial for offences of a serious nature which are likely to justify the imposition of custody after proper consideration of the nature of the crime and any mitigating or aggravating factors. On this basis we welcome the Government’s plans to introduce a new test which requires judges to recognise the presumption in favour of bail, even where certain exceptions apply, in cases where there is “no real prospect that the person will be sentenced to a custodial sentence in the proceedings”.417 We further welcome plans to create a single remand regime for all minors, recognising the unique position of children in the criminal justice system and addressing the injustice created by remand legislation which treats 17 year olds as adults. Liberty supports plans to ensure that, where remand is appropriate in the case of minors, it is confined, wherever feasible, to remand in local authority custody as opposed to incarceration in youth detention accommodation. Notwithstanding these progressive measures we have ongoing concerns about a number of the proposals set out in Part 3, in particular the removal of prosecutorial oversight of out-of-court disposals, extended curfews and some measures impacting upon foreign nationals. 413 Clause 106 read together with Schedule 14. 414 Schedule 14(4)(9). 415 Clause 107. 416 Clause 113(1). 417 Schedule 10, paragraph 5. Legal Aid, Sentencing and Punishment of Offenders Bill SuggestedA mendments toP art3 Amendment 1—amend clause 54 Page 39, line 7, after “in open court” insert “and in writing”. Page 39, line 9, after “offender” insert “both orally and in writing”. Page 39, line 17, insert— “(3A) The duty to provide written reasons under subsection (2) and (3) is subject to any reporting restrictions which may apply in an individual case”. Page 39, line 17, omit subclause (4) and substitute: “(4) The duty to provide a written explanation of sentence under subsections (2) and (3) is subject to any reporting restrictions which apply to the case. (4A) The duty to provide a written explanation of sentence under subsections (2) and (3) includes a duty to provide copies of the document to: (a) the offender and his representative, and (b) the victim and his representative.” Page 39, line 22, omit “(8)” and substitute “(8A)”. Page 39, line 32, insert— “(c) in any case mention any aggravating or mitigating factors which the court has regarded as being relevant to the case.” Page 39, line 44, insert— “(8A) Where the offender is aged over 18 and the court imposes a sentence which may only be imposed in the offenders case if the Court is of the opinion mentioned in: (a) Section 148(1) of this Act (community sentence), or (b) Section 152(2) of this Act (discretionary custodial sentence), the court must state why it is of that opinion.” Effect This amendment would reinstate a number of specific duties to explain elements of a sentence, namely the duty to give an account of relevant aggravating or mitigating factors and an extension of the duty to explain why an offence was considered sufficiently serious to impose a community or custodial sentence in the case of adult offenders. The Lord Chancellor would no longer have the power to remove the specific duty to explain elements of a sentence by means of secondary legislation. In addition to the requirement to explain sentences orally, courts would be obliged to explain the reasons given for a decision specifically and in ordinary language, in written form (subject to relevant reporting conditions). Briefing Fair and consistent sentencing is an important part of due process in the criminal justice system. Liberty supports the Government’s commitment to ensuring that sentences are expressed in simple and accessible language. However a desire to ensure simplicity should not eclipse the need to fully explain every relevant consideration and each aspect of the sentence. The amendment proposed above therefore reinserts the duty, in the case of an adult as well as a child, to explain why an offence was considered sufficiently serious to impose a discretionary custodial sentence or a community sentence. This reflects the significance of these thresholds and particularly the threshold for custody in sentencing decisions and reaffirms the importance of reasoned and consistent decision making. Similarly the amendment to subclause (6) makes specific provision for an explanation of aggravating and mitigating factors, which are vital in explaining why cases that may seem similar at first glance attract different sentences. For many facing sentence in the criminal courts, however straightforward the explanation given by a judge, the full reasoning and justification for a sentence may not be grasped. This may be a particularly serious problem for individuals with learning difficulties, mental health problems or those for whom English is a second language. A statutory requirement to provide a written copy of a sentence in writing, to the subject of the sentence and his representative will facilitate better understanding of decisions, ensuring that Legal Aid, Sentencing and Punishment of Offenders Bill convicted individuals can explore areas of confusion or contention with their legal representative. Similarly a requirement to provide a victim with a written explanation will facilitate better understanding and may be of particular value in cases where mitigating factors act to reduce the severity of a sentence. Amendment 2—amend clause 60 Page 45, line 1, omit clause 60 Effect This amendment would reinstate the current statutory framework governing curfew requirements, meaning that a curfew may not last for more than 12 hours a day and may not apply for a period of more than six months. Briefing Whilst Liberty is broadly supportive of the package of sentencing reforms which would be introduced by the Bill, we have concerns about measures which provide for the wider use of curfews and more onerous curfew requirements for both adults and children. In its Green Paper published in March this year, the Government envisaged the implementation of these new tougher measures in the place of custodial sentences. Whilst the deprivations of liberty involved in the imposition of a curfew are far less than would be the case on receipt of a custodial sentence, Liberty is concerned that, once legislation is passed introducing new and extended powers to tag and curfew, there will be no way of ensuring that they are used as intended. In the past tougher community penalties have not always been used in practice as an alternative to custody, but rather as additional, harsh punishments which are available to courts in circumstances where a custodial sentence would not be appropriate. Curfews of the level and duration proposed will make it difficult for individuals to hold down regular work or perform other useful functions. This level of punishment in the community, amounting to virtual house arrest, is likely to have a stigmatising effect preventing successful reintegration. Such extensive curfew requirements further severely disrupt normal family life, effecting not simply the individual subject, but also family members and others residing with him including minor siblings or children who are in no way implicated in criminality. Amendment 3—amend clause 61 Page 45, line 16 insert— “(2A) In section 177 of that Act, after subsection (6) insert— (7) A court may only impose a foreign travel prohibition requirement where: (a) given the pattern of offending behaviour, it is necessary to prevent further offences being committed; or (b) it is necessary to ensure compliance with other aspects of a sentence or any existing sentence to which an offender remains subject.” Effect This amendment would make imposing foreign travel orders contingent upon one of two specific requirements. Briefing Liberty has no objection to the use of foreign travel requirements as part of community sentences where they are, for example, used to ensure that the requirements of a community sentence are complied with, or an individual does not engage in further criminality abroad. Liberty believes that restrictions on an individual’s ability to travel abroad should be firmly linked to the offending behaviour or compliance with other elements of a sentence. Amendment 4—omit clause 62 Page 46, line 1, leave out clause 62 Effect This amendment would reinstate the requirement that mental health treatment requirements be contingent upon medical evidence from a suitably qualified professional. Briefing Liberty understands the objective underpinning clause 62. From a practical perspective, mental health treatment requirements are an underused resource thanks, in no small part, to the difficulty of obtaining medical evidence from over-subscribed professionals within tight deadlines. We are concerned, however, that without medical opinion, these orders may be imposed inappropriately and place unhelpful burdens on the Legal Aid, Sentencing and Punishment of Offenders Bill individual which fail to contribute towards effective rehabilitation. Liberty urges the Government to explore other ways of facilitating the appropriate use of orders, such as increasing the number of suitable professionals who may provide evidence or providing necessary additional resource. Amendment 5—omit clause 67 Page 49, line 44, omit clause 67. Effect Removes extended curfew powers for juveniles. Briefing The briefing provided in relation to amendment 2 (clause 60) above, applies with still greater force in relation to young people, for whom long curfews may have a particularly profound affect. 16 hour curfews lasting for up to a year are likely to ostracise a young person in his or her community at an important time in their personal and social development and may impede effective rehabilitation, for example, by preventing children from taking part in productive activities such as after school sports or music classes. Amendment 7—omit clause 68 Page 50, line 5, omit clause 68. Effect This amendment would reinstate the requirement for expert evidence prior to including a youth mental health treatment requirement in a sentence. For briefing see amendment 4 (clause 62) above. Amendment 8—amends clause 69 Page 51, line 1, omit “subject to that” and after “may” insert “not”. Page 51, line 22, omit “subject to that” and after “may” insert “not”. Page 51, line 43, omit “subject to that” and after “may” insert “not” Effect This amendment would allow for the duration of a youth rehabilitation order to be extended by up to six months in response to a breach, but provides that an order may not be extended beyond the three year limit for which provision is currently made. Briefing Liberty agrees that there will be cases in which it is far more effective and proportionate to extend the period of a youth rehabilitation order in response to a minor or technical breach as opposed to, for example, imposing custody or a financial penalty. However, placing children under extremely protracted requirements and rendering them vulnerable to further penalty for breach can have a counter-productive effects, including escalation into further sanction for minor failures, frustrating the rehabilitation process. Liberty therefore opposes plans which would enable courts to extend youth rehabilitation orders beyond their current three year limit. Amendment 9—omit clause 70 Page 52, line 22, omit clause 70 Effect This amendment would remove powers to significantly increase the maximum fine to which a child can be sentenced for breach of a requirement of a youth rehabilitation order. Briefing Liberty accepts that fines are a useful part of the adult sentencing regime and further accepts that, in order to be a useful deterrent, sums must be sufficiently large as a proportion of an offender’s assets or income. We are concerned, however, at plans to increase fines to £2,500 for children breaching youth rehabilitation orders. This is a substantial increase from the current limits of £250 for offenders under 14 and £1,000 for older children. The vast majority of minors and particularly those under 16 have no independent financial resources. Fines are therefore effectively a punishment for parents. Liberty believes that increasing the financial hardship facing parents is unlikely to improve outcomes for struggling families and may, in any event, have little direct effect on the child. Legal Aid, Sentencing and Punishment of Offenders Bill Amendment 10—amend clause 100 Page 78, line 9, omit clause 100 and substitute— “100 Repeal of provision for indefinite imprisonment for public protection and indefinite detention for public protection (1) The Criminal Justice Act 2003 is amended as follows. (2) Omit section 225(3), (3A), (3B), (3C) and (4). Effect This suggested amendment would substitute existing clause 100 with a new clause the effect of which would be to repeal provisions of the Criminal Justice Act 2003 which established the indefinite detention regime (known as indefinite detention for those under 18). Our suggested clause 100 negates the need for a provision allowing for foreign nationals to be deported once they have served their tariff; clause 100 of the Bill as drafted is therefore removed. The Home Secretary would still be free to bring deportation proceedings against non-nationals who have served their prison sentence in accordance with existing immigration legislation.418 Briefing Liberty welcomes the Prime Minister’s clearly stated commitment to review the discredited system of indeterminate sentences introduced by the last Government. Referring to indeterminate sentences as unclear, uncertain and inconsistent, David Cameron vowed to “review the existing system urgently with a view to replacing it with an alternative that is clear, tough and better understood by the public.”419 The Criminal Justice Act 2003 created the power to impose indefinite periods of imprisonment for public protection (“IPP”). These sentences do more than punish an offender for a crime he or she has committed and are based on an assessment of the threat that individual is likely to pose in the future. The court may impose a sentence of imprisonment for public protection where the offender is convicted of certain specified serious offences or where a minimum tariff of two years would otherwise have been imposed.420 These sentences then, require courts to predict future risk rather than assess past offending and create an indefinite (effectively a life) sentence for offences which might otherwise have warranted a tariff of two years in prison. Liberty fully supports the duty on Government to protect the public from harm. Indeed the Human Rights Act 1998 (HRA) places specific obligations on authorities such as the police and parole boards to protect individuals from violence at the hands of criminals in a wide range of circumstances. This notwithstanding, indeterminate sentences have been proven to be a dishonest sentencing tool which have undermined public understanding of the sentencing regime and unecessarily inflated prison numbers. IPPs undermine the important common law principle that a person should be sentenced only in respect of matters proven before the court. Further, examples abound of how this indefinite legal limbo works to undermine rehabilitation leaving prisoners and their families unable to prepare, mentally or in practical terms, for release. Liberty has long-standing concerns about the use of preventative incarceration, particularly in circumstances where the individual may find it difficult to prove that he no longer poses a significant risk. Through Liberty’s experience of operating a public advice and information line, it has become apparent that in addition to the principled objections, the IPP scheme has been blighted by practical injustices and inefficiencies. Inadequacy of sentence planning and information Many prisoners serving IPP sentences are unclear as to what precisely is required of them in order to be considered for release. Their sentence plans may be insufficiently specific to enable them to actively progress towards this, and even the institution at which their sentences are to be served may be uncertain as to the appropriate courses prisoners should take to be considered for release. Furthermore, due to the discretionary nature of the sentences, these requirements are subject to change by those considering applications for release, potentially leaving prisoners in the unacceptable predicament of completing one set of conditions only to have more imposed upon them. Non-availability of prescribed courses Liberty has been made aware of numerous cases in which offenders have actively sought, but have been unable to commence, the rehabilitative courses that require completion before they can be released. This may be because (1) there are lengthy waiting lists for these courses, on which non-IPP prisoners who have a fixed release date are prioritised, (2) the offender is placed in an institution where the requisite courses are simply not available or, (3) the offender’s level of English language is inadequate to enable successful completion of the courses. It is clear that in these circumstances, the successful rehabilitation of offenders is seriously undermined. 418 Immigration Act 1971, section 3 and UK Borders Act 2007, section 32. 419 House of Commons Library Research Paper, Research Paper 11/53, pg 47—available at www.parliament.uk/briefing-papers/ RP11-53.pdf. See also comments by the Secretary of State for Justice, Hansard 29th June; Column 989. 420 Criminal Justice Act 2003, s 225. For the list of specified offences see Schedule 15A. Legal Aid, Sentencing and Punishment of Offenders Bill Irregularity or absence of parole hearings It is common for the sentence served by an offender to have far exceeded the minimum tariff imposed without them having been considered for release. In some cases Liberty has been contacted about, even where a parole hearing has been scheduled, this is subsequently adjourned, for instance due to the non- attendance of essential personnel or the absence of a crucial piece of information or evidence. Liberty has received complaints of parole hearings being re-scheduled on numerous consecutive occasions, often with lengthy periods until the next planned hearing. Amendment 12—amend Schedule 14 Schedule 14, page 178, line 1, omit subsections (4) and (5) Schedule 14, page 178, line 9, omit “—” after “by” and omit lines 10–14 and insert “the national probation service”. Schedule 14, page 178, line 22, omit “—” after “by” and lines 23–25 and insert “completing an approved educational course.” Schedule 14, page 178, line 31, omit line 31. Schedule 14, page 178, line 36, omit lines 36–38 and insert— “The national probation service may establish a national education course scheme.” Schedule 14, page 178, line 39, omit “—” after arrangements. Schedule 14, page 178, line 40, omit “(a)”. Schedule 14, page 178, line 43, omit subparagraph (b). Schedule 14, page 179, line 8, omit “chief officer of police” and insert “national probation service”. Schedule 14, page 179, line 11, omit subparagraph (a). Schedule 14, page 179, line 20, omit lines 20–21 and insert— “(ii) the national probation service, and”. Schedule 14, page 179, line 31, omit lines 31–44. Schedule 14, page 180, line 26, omit line 26. Schedule 14, page 180, line 31, omit “(iii)” and insert “(ii)”. Schedule 14, page 180, line 31, omit text in brackets from “including” to “officer”. Schedule 14, page 180, line 36, omit “(iii)”. Schedule 14, page 180, line 40, omit text in brackets from “including” to “officer”. Schedule 14, page 180, line 45, omit text in brackets from “including” to “8”. Schedule 14, page 182, line 32, omit paragraph 14. Effect Schedule 14 of the Bill as drafted would introduce an alternative to pure financial penalties for those given penalty notices for disorderly behaviour such as drunk and disorderly behaviour, destroying or damaging property or engaging in behaviour likely to cause harassment, alarm or distress. Under the scheme proposed in the Bill, those accused of disorderly behaviour could be given the option of undertaking an education course. The suggested set of amendments, whilst retaining the proposed education course scheme, would re- introduce the requirement that all penalty notices, whatever the penalty, are handed out by specially authorised officers in uniform. If amended in the terms set out above, Schedule 14 would give the national probation services the power to establish a nation-wide scheme of courses—this represents a departure from current proposals whereby a chief officer of police would be empowered to set up a local scheme within his or her police authority. The suggested amendments would further remove the requirement that the alleged offender would be required to pay the cost of an education course. Briefing Liberty remains seriously concerned about the use out-of-court disposals, which operate without ordinary due process safeguards, and produce worryingly inconsistent results. Our concerns are set out in greater detail in our briefing on amendment 13 below which relates to clause 107 of the Bill. Against the backdrop of these concerns, the proposed amendments to Schedule 14, would reinsert a number of safeguards into the system of penalty notices for disorderly behaviour, including requirements that notices are only handed out by uniformed and specially authorised officers. The proposed amendments removing responsibility for setting up education schemes from chief constables and giving the probation service the power to set up a nation-wide scheme of courses, are probing amendments designed to encourage debate on the most Legal Aid, Sentencing and Punishment of Offenders Bill appropriate agency to run an education course scheme. Whilst Liberty has concerns about contact between the probation service and individuals who have not been convicted of any criminal offence, the proposed alternative scheme questions the appropriateness of chief police officers running locally based schemes. An obvious concern with such an arrangement is the prospect of inconsistency, both in terms of the availability and content of courses in different areas of the country. The proposed amendments remove the requirement that individuals be required to reimburse the cost of education courses. Whilst some of those arrested will be in a position to cover this cost, for some the expense may be prohibitive—this could lead to a highly unsatisfactory two tier system whereby those who can afford to pay have the option of undertaking activity designed to rehabilitate them, whilst this option is unavailable to those who may have similar rehabilitative needs, but lack the necessary resources. Amendment 13—omit clause 107 Page 86, line 8, omit clause 107 Effect This suggested amendment would insert the requirement that prosecutorial authority must be obtained before police officers issue a caution or a conditional caution. Briefing Of all the proposals set out in Part 3 of the Bill, those sections providing for wider use of out-of-court disposal without the protection of CPS authorisation give greatest cause for concern. Prosecutorial oversight provides at least some measure of protection against inconsistency or bias in decision making and some level of process and oversight. An individual who receives a conditional caution, for example, in addition to having to comply with a specified condition, will have a criminal record which may well affect his or her employment prospects. The consequences for the individual of an out-of-court disposal should not be underestimated. Liberty is concerned that out-of-court disposals are part of a wider trend of legal short cuts; punitive measures dressed-up as “preventative” to escape the fair trial safeguards that civilised societies normally abide by before punishing their citizens.421 Reform of the out-of-court disposal regime Liberty believes that the Government needs to urgently take stock of current use of out-of-court disposals. Since 2003, the total number of out-of-court disposals has increased significantly, by 135%.422 In 2003, 241 000 alleged offences were dealt with out of court and in 2008, the figure was 567 000.423 This means that the proportion of alleged offences dealt with outside court went from 23% in 2003 to just under 40% in 2008.424 This represents a huge sea-change in the way that offences are dealt with. Instead of being brought before an open court for evidence to be presented and judgment reached, well over a third of offences are now dealt with entirely by the police who act as investigator, prosecutor, and judge. In the wake of the recent serious public disorder, the dangers inherent in this system have never been so apparent. The importance of open justice and due process are thrown into sharp focus by the swell of public concern over the recent riots. As each new disposal power has been added to the statute book, Liberty has consistently raised concerns about the way in which summary justice of this type can undermine justice standards, make individuals subject to arbitrary and inconsistent decision-making and damage public perceptions of the police and the justice system as a whole. We have warned, in particular, that the powers are likely to result in an inconsistent approach by different police officers and different forces, especially where complicated judgments are necessary in determining whether a fixed penalty notice, for example, is appropriate. Where ascertaining guilt is a simple black and white matter (ie did this person drop a cigarette butt?) the risks are perhaps minimal. By contrast, where a police officer has to determine whether to issue a penalty notice for disorder the judgments are far more open to differing interpretations given that the definition of relevant behaviour can be as vague as whether the person’s behaviour is “likely to cause harassment, alarm or distress”.425 Indeed, our concerns have been borne out in practice. According to a recent report on out-of-court disposals by the Her Majesty’s Inspectorate of Constabulary (HMIC) and the Crown Prosecution Service (CPS) there are “wide variations in practice across police force areas in the proportion and types of offences handled out of court”.426 The method accounted for from 26 to 49% of offences “brought to justice” in different police force areas and the report found that “where greater use is evident, this is linked in some places to a strong emphasis on achieving targets associated with improving performance in the level of offences brought to justice. Target chasing has not been conducive to the effective exercise of discretion.” 421 Other such measures include the Violent Offender Order or VOO to the ASBO and the Parenting Order. 422 Exercising Discretion: The Gateway to Justice, June 2011, Criminal Justice Joint Inspection—A study by Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate on cations, penalty notices for disorder and restorative justice available at: http://www.hmic.gov.uk/SiteCollectionDocuments/Joint%20Inspections/ CJI 20110609.pdf 423 Ibid. 424 Ibid. 425 Section 1, Criminal Justice and Police Act 2001. 426 Ibid at Footnote 29. Legal Aid, Sentencing and Punishment of Offenders Bill The report recommends, in view of the wide variations in practice and the consequences for alleged offenders and victims, that there ought to be a national strategy for out-of-court disposals to improve consistency. The report also recommends better record-keeping to enhance public confidence. Perhaps most worryingly, of the 190 cases of out-of-court disposals that the report considered that in “one-third of the cases the disposal selected did not meet the standards set out in the existing national and force guidelines that were available.” We do not take issue with the principle that the police should be able to use their professional discretion to determine that despite suspicions or evidence, a prosecution against a suspected offender should not be sought. Indeed, as Sir Hartley Shawcross (then Attorney-General) said in 1951: “It has never been the rule in this country—I hope it never will be—that suspected criminal offences must automatically be the subject of prosecution”.427 However the current system of formalised out-of court disposals fails on two counts. First, as a result of understandable cost-saving and target-achieving desires, it appears that persistent alleged offenders and those suspected of serious offences are not being prosecuted when they should be. Indeed, the recent HMIC report notes that (contrary to national guidance) out-of court disposals are being used to deal with those who appear to be persistent offenders and for alleged offences whose nature or gravity mean that they should not be dealt with out of court. One example being that “An offender with numerous convictions was issued with a simple caution for criminal damage caused during a repeat domestic abuse incident, where the matter had not been referred to CPS for charging advice”. The fact that out-of court disposals can be formally recorded and retained and punishment handed out only increases the temptation for this disposal mechanism to be used. Secondly, the system allows for punishment and criminal records to be created and kept without fundamental principles of justice being adhered to. Instead, prosecutors and police are able to impose on-the-spot punishment without the involvement of the judiciary. By-passing normal judicial and fair trial safeguards can leave individuals open to bias and irrationality in sentencing decisions. An out-of- court disposal, whilst undoubtedly sparing an individual the disruption of court proceedings, can have a significant and long-lasting impact on life chances. An individual who receives a conditional caution, for example, in addition to having to comply with a specified condition, will have a criminal record which may well affect his or her employment prospects as it is disclosable through a CRB check. A caution can also restrict someone’s ability to obtain a visa to travel abroad. While Liberty appreciates the desire to remove delays in the criminal justice system, powers designed to achieve this should not be at the expense of justice. The move towards summary justice is not only of concern from the perspective of the rights of the suspect. Fair trial safeguards, and the involvement of the independent court in the delivery of punishment, are also in the wider public interest and the interests of victims of crime. The rigours of a criminal trial, in which the prosecution is required to establish guilt beyond reasonable doubt and the defendant has the opportunity to argue their innocence, help to ensure that the right person is convicted. Furthermore, hearing criminal cases and handing down punishments in open court, demonstrates that justice is being done and that the state will not accept criminal behaviour, providing a public warning against offending. Amendment 14—omit clause 108 Page 86, line 24, omit clause 108 Effect This suggested amendment would remove the power to introduce, as a condition of a conditional caution, a requirement that a foreign national leave the country. Briefing Liberty is extremely concerned at plans to refrain from prosecuting foreign national suspects who agree to leave the UK as a condition on receiving a caution. Liberty is worried about the implications of this proposal on public protection and the rights of victims. The HRA places the Government and authorities such as the parole board and the police under a positive obligation to safeguard the right to life and the right to freedom from inhuman and degrading treatment. This obligation entails not only a duty to protect the public from attack by dangerous individuals, but also the right of the victim to have her perpetrator brought to justice. This is nowhere more evident than in the case ofX v the Netherlands,428 where the Court of Human Rights held that the state was under a positive obligation to provide an effective criminal law sanction in the case of a young, mentally handicapped girl who was raped whilst staying in a care home. The objective of this proposal is apparently for Government to unburden itself of the cost of dealing with suspected offenders and as a means of furthering the Government’s drive to cut immigration. Victims of crime understandably and rightly want to see suspected offenders prosecuted and—if found guilty—punished for their crimes. This is the case whether the suspected offender is a British citizen or a foreign national. 427 House of Commons Debates, Volume 483, 29 January 1951. 428 [1985] ECHR 8978/80. Legal Aid, Sentencing and Punishment of Offenders Bill Amendment 15—amend clause 109 Page 87, line 24, omit lines 24–30 and insert— “(1) A constable may give a child or young person (“Y”) a caution under this section (“a youth caution”) where the following requirements are satisfied— (a) The first requirement is that the constable has evidence that the young offender has committed an offence, and (b) The second requirement is that a relevant prosecutor decides— (i) that there is sufficient evidence to charge the young offender with the offence, and (ii) that a caution should be given to the young offender in respect of the offence, (c) The third requirement is that the young offender admits to the constable in the presence of an appropriate adult that he committed the offence, (d) The fourth requirement is that the authorised person explains the effect of the caution to the young offender in the presence of an appropriate adult, including the fact that it will appear on a criminal records bureau check” Page 88, line 22, insert— “(8) In this Chapter ‘relevant prosecutor’ has the meaning set out in section 27 of the Criminal Justice Act 2003.” Page 88, line 43, omit subclauses (5) and (6). Effect The suggested amendments to clause 109 retain the proposed system of youth cautions as a replacement to the scheme of reprimands and warnings set out in sections 65 to 66 of the Crime and Disorder Act 1998. However they insert prosecutorial oversight as a precondition of issuing a caution, in much the same way that prosecutorial oversight operates in relation to conditional cautions for adults under the Criminal Justice Act 2003. Additional safeguards are inserted to ensure that the young person and their appropriate adult fully understand the impact of the caution, including the fact that it will appear on criminal records bureau checks. The removal of subclauses 66ZB (5) and (6) would mean that judges have the flexibility to consider the full range of disposals available to respond to an individual case—including a conditional discharge— notwithstanding the fact that an individual has received a caution or a number of cautions within the previous two years. Briefing The importance of independent prosecutorial oversight is nowhere more acute than in the context of children entering the criminal justice system. Further to general concerns about due process and open justice, Liberty believes it is extremely important that appropriate safeguards exist in circumstances where children can be stigmatised as a result of things done before they reach full maturity. For these reasons Liberty welcomed the suggestion, in the Government’s Green Paper on sentencing, that the slate could be wiped clean for juveniles when they reach adulthood for all but the most serious offences. Childhood law-breaking is not necessarily indicative of future behaviour and a greater recognition of developmental immaturity would be a welcome addition to the regime of youth cautions and to the rehabilitation of offenders regime. The suggested removal of constraints on the ability of judges to impose conditional discharges is designed to allow judges to respond to the circumstances of a particular case. Whilst it may well not be appropriate to impose a conditional discharge on an individual who has received a series of recent cautions, sentencing is by nature a case specific process best carried out by independent judicial decision makers in possession of all the relevant facts. Amendment 15—omit clause 112 Page 90, line 1, omit lines 1–16. Effect This amendment would reverse the removal of prosecutorial oversight of the system of youth conditional cautions. Briefing In a situation where a punitive sanction is to be imposed it is particularly important that there is consistency and impartiality in sentences. Liberty has grave concerns about the operation of conditional cautions which allow sanctions to be imposed on suspected offenders without corresponding due process safeguards. In the absence of this level of protection, as a minimum requirement of due process, it is essential that there is prosecutorial oversight of the system. Legal Aid, Sentencing and Punishment of Offenders Bill Conclusion Liberty has grave concerns about the impact of Part 2 of the Bill which forms part of a wider assault on access to justice. The reforms to the CFA scheme will mean justice is effectively denied to all but the extremely wealthy and will leave serious human rights violations, as well as other forms of wrongdoing by large corporations, unchallenged, creating injustice in individual cases, and fostering a general culture of impunity. By contrast Liberty is optimistic, in light of the issues tackled in the Government’s Green Paper on the Punishment, Rehabilitation and Sentencing of Offenders, that further progressive sentencing reforms may be on the horizon, including a broadening of the scope of the Rehabilitation of Offenders Act 1974 and repeal of the dishonest and dysfunctional IPP regime. We welcome many sentencing reforms already included in this Bill and we urge the Government to think again about proposals to extend the use of curfews and remove scant due process protections in the context of out-of-court disposals. September 2011 Memorandum submitted by Carter-Ruck, Solicitors (LA 88) 1. Summary 1.1 The Bill will seriously impede access to the courts for all but wealthy individuals and companies. 1.2 There is much that is good about the current CFA and ATE insurance system. Over the past decade much positive work has been done to iron out problems associated with this system which now provides real access to justice. 1.3 There is wide agreement that the cost of High Court litigation is too high and that further reform is therefore necessary. However, to remove recoverability of success fees and ATE insurance altogether is not the answer as it will force a return to the bad old days where access to the courts was like access to the Ritz Hotel: open to anyone who could afford it. 1.4 In our view the changes currently proposed will largely destroy the real access to justice that the system has brought and fail to replace it with any system that is viable for most citizens of our country. 1.5 We would recommend that the CFA regime remains with recoverable success fees capped at a maximum of 50% of professional charges and a success fee is permitted between a client and his legal advisers capped at 25% of damages recovered. We also propose that the current proportionality test remains in place and is not altered in the manner currently being implemented by the Ministry of Justice. This would be in line with the recommendations of the three senior Costs Judges (see Appendix B). 2. Comments onC lause 41: 2.1 This clause if implemented (combined with other proposals such as changes to “proportionality of costs” being taken forward by the Ministry of Justice) would deprive most members of the public from access to legal representation. It is likely to make it uneconomic for lawyers (solicitors and barristers) to act for parties (whether claimant or defendant) in litigation under CFAs, except in very high value monetary claims. This runs a real risk of depriving litigants of their rights of access to the courts under Article 6 of the European Convention on Human Rights (ECHR). 2.2 Despite the core principle of access to justice, clause 41 of the Bill would severely diminish legal representation and, therefore, access to justice to most of those who: (a) are not eligible for legal aid; (b) are not sufficiently wealthy so that they can afford legal fees; (c) do not have the backing of insurance, a trade union or other such body; and/or (d) are not able or willing to conduct litigation themselves, unless they have a claim for damages of such a size that a reasonable success fee can be paid from the compensation recovered. 2.3 It is likely to become very difficult for litigants to find solicitors (and counsel) who are prepared to act under a CFA where there is no material success fee to compensate for the risk of the litigation being lost. And in the case of defendants, where there is no prospect of recovering any success fee from damages recovered, it is likely to eliminate access to justice under CFAs altogether. 2.4 Carter-Ruck does a substantial amount of CFA work in the media field of law, professional negligence (with particular emphasis on financial mis-selling cases) and in more general commercial cases. If no success fee becomes recoverable, we will need carefully to consider the viability of our CFA scheme, except in high value claims. 2.5 As our client Dr Gerry McCann told the audience at the International Bar Association conference in Madrid on 6 October 2009: Legal Aid, Sentencing and Punishment of Offenders Bill “It is very important that ordinary people like ourselves do have legal representation. I’m not sure we could have gone through this without the CFA. This kind of arrangement should continue in the UK.” 2.6 The proposal to allow a lawyer to recover a success fee from their own client combined with an increase in damages of 10% is wholly inadequate. This is best illustrated by the Naomi Campbellv Mirror Group case where the damages recovered by Ms Campbell were £3,500. An increase of 10% would result in that case in an additional sum in damages of a mere £350. The introduction of DBAs will assist only in relation to high value claims. 2.7 The changes proposed to the Part 36 regime will also help, but only to a very limited extent (as to which we refer further below). 2.8 In many cases the factual and legal issues will be such that it will be quite unreasonable to expect litigants to present their cases before the Court without legal representation, especially where the defendant has the benefit of expert and specialist legal advice. 2.9 The erosion of access to justice by the proposed clause may well result in the UK being in breach of Article 6 and its obligations to ensure that litigants must have “a clear, practical and effective opportunity” to go to Court (de Geouffre de la Pradellev France A 253-B (1992) para 34). 2.10 We therefore believe the Bill will have a serious adverse effect on Human Rights and this is not reflected adequately in the impact assessments. 2.11 We attach (at Appendix B) a paper published by three senior Costs Judges concerning Jackson LJ’s proposals. Their concluding remarks are that “we do not agree with the proposals set out in the Report [of Jackson LJ] about success fees. The CFA regime has undergone many changes and improvements since implementation. Having taken a decade for these to have been achieved, now is not the time to make radical changes which give no guarantee that access to justice at reduced costs will be delivered under Jackson where it failed under Woolf.” 2.12 ConditionalF eeA greements haveB enefited many“O rdinaryP eople” who areC urrent or FormerC lients ofC arter-Ruck 2.13 Many of the people who instruct us on CFAs are “ordinary people” who in the absence of a CFA would have no effective means of redress. At Appendix A we have provided four case synopses demonstrating how CFAs work for different causes of action. Some summary examples from the many cases for ordinary people we have conducted over the past few years: 2.14 In the media context, for example we have represented on CFAs: — A Danish radiologist sued by US conglomerate GE Healthcare over allegations concerning one of its products. — A junior estate agent falsely accused by The Daily Telegraph, Guardian, Independent and Daily Mail of having been arrested in connection with a terror plot to blow up trans-Atlantic airliners. — An Army officer falsely accused by The Guardian of being responsible for the abuse of prisoners. — A comprehensive school teacher, falsely accused in an internal Memorandum of inappropriate contact with female pupils. — Kate and Gerry McCann. — An unemployed woman falsely accused by a regional newspaper of attempted murder. — A local councillor (disabled and on incapacity benefits) who suffered serial libel and harassment over several years by a multi-millionaire businessman who accused her of theft and corruption. — A management consultant whom a local newspaper falsely alleged had been accused of raping a child. — A junior PR worker whose privacy was grossly infringed when the Evening Standard published a photograph of and named her, wrongly stating that she had been raped. — A junior naval NCO falsely accused by a regional newspaper of serious sexual assault and exposure. — A soldier’s wife whose photograph was used by the Daily Mirror to illustrate a story about women being unfaithful to their husbands while serving in Iraq. — A Tamil refugee falsely accused by The Sun and Daily Mail of eating during a hunger strike outside the Houses of Parliament, causing the police to waste a fortune of public money in policing his demonstration. 2.15 Many of our claimant clients in media related cases arrive in our office utterly distraught—often they are in tears—as a result of the actions of the press and the consequences, often devastating, of inaccurate and irresponsible articles about them. Often they are people of relatively limited financial resources and little to no understanding of the law in the area of media law, which is complicated. The overwhelming majority of people who bring libel proceedings against the press are looking primarily for an apology, costs and sometimes, but not always, modest damages. Legal Aid, Sentencing and Punishment of Offenders Bill 2.16 In the commercial/financial misselling context, for example we have represented on CFAs some 45 claimants who had lost huge sums as victims of a fraudulent scheme for the misselling of pension products. The defendant, a substantial bank, dragged out the litigation for several years. There is no way our clients could have achieved any compensation without the benefit of a CFA backed with ATE insurance. 2.17 ConditionalF eeA greements areA vailable to, and ofB enefit to,Defendants as well as Claimants 2.18 It should also be remembered that CFAs are currently available and offered to defendants as well as to claimants. We represented on a CFA Professor Henrik Thomsen, a Danish radiologist sued by US conglomerate GE Healthcare over allegations concerning one of its products. We also defended Hardeep Singh, a journalist who was sued for libel by His Holiness Sant Baba Jeet Singh Ji Maharaj, again on a CFA basis. If success fees were no longer to be recoverable from the losing party, this is likely to end. 2.19 OurS uggestedP roposal/Compromise 2.20 The CFA regime remains with recoverable success fees capped at a maximum of 50% of professional charges and a success fee is permitted between a client and his legal advisors capped at 25% of damages recovered. 2.21 We also propose that the current proportionality test remains in place and is not altered, as currently being implemented by the Ministry of Justice. This would be in line with the recommendations of the three senior Costs Judges (see Appendix B). 2.22 In support of our suggestion, we refer to the following: (a) In the view of the three senior Costs Judges there is no compelling reason why the maximum success fee should remain at 100%. To cap recoverable success fees at say 50% (or a higher figure if this can be incorporated into an expanded CPR 45) in cases that proceed to trial, would make a big inroad into the level of recoverable costs, without dismantling the whole system, but this does not appear even to have been considered by the MoJ. (b) English PEN and Index on Censorship (both well known to be protective of freedom of speech) oppose the principle that CFA success fees be made entirely irrecoverable from the losing party. They do not agree with 100% success fees and advocate a cap on recoverable success fees of 25% where there is a substantial tort. 2.23 Properly to understand the solution proposed above, the following needs to be appreciated: (a) Under the current test of “proportionality” costs recovered by the winner against the loser in litigation (known as “standard basis” costs) are normally 70% to 80% of the costs that the winner’s solicitor is entitled to charge his own client (known as “indemnity basis” costs). This difference between standard and indemnity basis costs, of 20% to 30%, is known as the “shortfall” in the winner’s costs which the winning party has always had to fund himself. (b) With a recoverable success fee of say 25% the winner’s solicitor does not recover 125% of the normal charges he is entitled to charge the winning party. In fact, because of the shortfall in the winner’s costs, the total costs, including success fee, recovered from the losing side will be the same as or less than the normal charges the winning party’s solicitor is entitled to charge his own client. With a recoverable success fee of say 50% the total costs including success fee recovered from the losing party will be 107% to 120% of the normal charges the winner’s solicitor is entitled to charge his client. (c) There needs to continue to be an element of recoverable success fee in order to make it economically viable for lawyers to act for clients on no win no fee agreements in order to provide people with access to justice, especially where the scope of legal aid is being so drastically restricted. An increase in damages of 10% is wholly inadequate to deal with this, as explained above at paragraph 2.6. (d) If the proportionality rules are changed in line with the proposals which the MoJ are currently taking forward the recovery rate of costs between parties to litigation is likely to be far lower than the current 70% to 80%. This will result in defendants using their commercial muscle to drag out litigation, make last minute settlement offers and then argue that costs are disproportionate and therefore irrecoverable. 3. Comments onC lause 42—Damages-basedA greements 3.1 Generally speaking we think it would be helpful to have the Damages-based agreement option available as a means of funding a legal action alongside other funding methods. However, the Bill does not address certain key issues relating to DBAs: (a) Concerning recovery of costs by a party on a DBA the Bill is silent but we agree with the so-called “Ontario model” ie that costs recovery should be on the conventional basis and not by reference to the DBA. Legal Aid, Sentencing and Punishment of Offenders Bill (b) The Bill is also silent on the maximum percentage the lawyer can be paid. We believe that a maximum fee of say 40% should be permitted. This does not mean that the limit will always be sought and/or agreed to. This will depend on the size of the claim and market forces. The higher the limit, the lower the value of claim for which lawyers are likely to be willing to offer DBAs and the more access to justice will be assisted. (c) The Bill is also silent regarding funding of disbursements. They can be financed by the party, legal advisers and/or third party funders (as with CFAs), with an increased percentage permitted for the additional liability and risk. 4. Comments onC lause 43—Recovery ofI nsuranceP remiums by way ofC osts 4.1 This will also result in massive erosion of access to justice. 4.2 There can be no real or effective access to justice if to sue a claimant must either: (a) effectively put his or her house and/or pension and/or savings and/or financial security at risk (where the outcome of legal proceedings is never certain); or (b) take out ATE insurance where the costs of the insurance (and unrecovered costs and/or success fees), are likely to render the litigation uneconomic if the case advances a material distance, with only the ATE insurance provider and legal advisers gaining. This would bring the administration of justice and legal profession into disrepute. 4.3 Owing to the expense of ATE insurance, to adopt this proposal would make all but very high value claims uneconomic. This in turn would destroy access to justice in relation to many/most claims. It would also make matters extremely difficult for defendants being sued, particularly where there is a significant inequality of arms. 4.4 TheP roposal is not in line withS irR upertJ ackson’sR ecommendations 4.5 The abolition of the recovery of ATE was suggested by Sir Rupert as part of a package of reforms which included Qualified One way Costs Shifting yet QOCS is being proposed only in personal injury cases. 4.6 This means that in non personal injury cases the claimant is left in the worst possible situation: without the benefit of QOCS and with no recoverable ATE premiums. 4.7 This will effectively kill off access to justice in the majority of non personal injury claims. 4.8 The need toP rotectP arties fromA dverseC ostsO rders 4.9 Enabling parties to litigation effectively to protect themselves from costs risk is the single most important development that has facilitated access to justice in all sorts of cases. This applies to many categories of cases. For example: (a) defamation and privacy cases (involving Art 8 ECHR fundamental rights); (b) professional negligence cases of all types, including financial mis-selling, legal and accounting negligence; and (c) breach of contract claims. 4.10 In all these cases, claimants normally face a very well resourced (both in terms of finance and expertise) defendant. Absent ATE, or some other provisions to protect them from adverse costs orders, claimants in such cases will be denied access to justice if ATE premiums are not recoverable. This is except in very high value claims and for the very wealthy. 4.11 The position is no less important for defendants who face adverse costs risks (through no choice of their own) from litigation being brought against them. We see no reason in principle why there should not be one way costs shifting in favour of a defendant. The case of Professor Henrik Thomsen (to which we refer above) would be an example of where QOCS might appropriately be applied in favour of a defendant. 4.12 Our suggestedP roposal/Compromise 4.13 ATE premiums for this risk should remain recoverable, provided either: (a) 42 days notice of an intent to take out ATE insurance has been served, thereby to give the opposing party the opportunity to agree not to recover costs or to limit the costs they can recover so as to eliminate/reduce the need for insurance; or (b) the risk is removed through the introduction of a legally certain regime of one way costs shifting or other such provisions (note: the regime proposed by Jackson LJ is not legally certain and is a recipe for costly satellite litigation). Legal Aid, Sentencing and Punishment of Offenders Bill 5. Comments onC lause 44—Recovery whereB odyU ndertakes toM eetC ostsL iabilities 5.1 We do not support this. It assumes that trade unions and other membership organisations are sufficiently wealthy so as to be able to afford the substantial costs risks of litigation. If this provision is implemented the practical effect is that many such organisations will feel unable to provide such benefits. They will, therefore, no longer offer them. Then, if a member wishes to bring or defend a claim, absent a viable ATE insurance system, he will not be able to do so without putting any home he has and/or other savings at risk. 6. Comments onC lause 51—Payment ofA dditionalA mount toS uccessfulC laimant—and on Offers toS ettle 6.1 Such a proposal should encourage the making and acceptance of what are termed “Part 36 Offers”, which should in turn aid settlement. 6.2 In paragraph 11, we would suggest “non-monetary claim” is defined to mean “a claim for a benefit other than an amount of money, including without limitation the vindication of the claimant’s reputation”. 6.3 The current Part 36 regime also works to the disadvantage of claimants in libel proceedings where a claimant makes a reasonable Part 36 offer early on in the action. In such cases defendants, as a practical matter, can escape the costs and interest consequences of their failure to accept the claimant’s earlier offer, by accepting it late on in the proceedings, although by then they may well have substantially aggravated the damages and will certainly have increased the costs of the action. 6.4 We suggest that this is addressed so that a defendant can once again only accept Part 36 offers within 21 days of the making of the offer without the leave of the court. Thereafter, if a defendant wishes to accept the Part 36 Offer, the court should have power to order an additional payment of damages and costs to compensate the claimant for the defendant’s failure to accept the Part 36 Offer within 21 days of the offer first being made. September 2011 APPENDIX A EXAMPLES OF CASES RUN ON “NO WIN–NO FEE” BASIS CaseS ynopsis:NegligentM iss-selling ofF inancialP roducts A class action by 45 individual claimants against two multi-national Banks for their part in the negligent miss-selling of a pension product that the claimants had purchased. The claim concerned a failed UK pension liberation scheme and offshore trust and administration services and was worth in excess on £20 million. The case took over four years to reach conclusion and only settled two weeks into the 12-week trial on confidential terms. The Claimants were represented on “no win–no fee” agreements by their solicitors and their junior and leading Counsel, coupled with After the Event (ATE) insurance totaling £6.5 million, believed to be a record for a commercial case. One Client has commented: “Before we found solicitors willing to act on our behalf on a no win-no fee basis an individual on the other side of the litigation told me that he wasn’t bothered about our claim because he knew he could out-resource us. The man in the street needs to have access to the law or else he becomes disenfranchised from society. No win-no fee agreements provide such access to justice and seeing how they work in practice has restored my faith in the law as a force for good to allow ordinary people to protect their rights and which deters corporate bullying of individuals. If we had not had “no win–no fee” legal representation I would have lost my entire life savings and my home. I would have been declared bankrupt in my late fifties without any form of pension despite having worked and saved all my adult life. In the circumstances it would not have been inconceivable that my marriage would also have ended and it is important to remember how far the fabric of life and society and the lives of innocent parties are affected when access to justice is taken away from the ordinary person.” CaseS ynopsis:Breach ofP rivacy The Claimant was a glamour model who had appeared in newspapers, magazines and websites and appeared in music videos, television commercials and on reality television shows. In 2007 the News of the World published an article containing the most sensitive and private material about her in hard copy and online. The Newspaper did not tell the Claimant how it obtained her private details nor did it seek her permission or warn her about what it intended to do. As a result of the newspaper breaching her privacy, the Claimant’s modelling work dried up and she suffered considerable financial difficulties. Legal Aid, Sentencing and Punishment of Offenders Bill Unsurprisingly, the story was picked up by other newspapers and magazines who republished the Claimant’s most sensitive and personal details throughout the media and online as a result of the News of the World’s wrongdoing. In addition to stalling her career publication also caused the Claimant considerable distress and indignity. As a consequence of publication the Claimant endured humiliating ridicule and threats of violence from strangers, both on the street and online, including messages posted on her “myspace” website telling her to watch her back, threatening to throw acid in her face and gloating that she would not get any more work. The Claimant suffered panic attacks and grew afraid to leave her home. Shortly after proceedings were issued the Newspaper sought to negotiate a settlement and the Claimant agreed to settle her claim for £50,000 in compensation and the payment of her legal costs and disbursements. The settlement, thought to be one of the largest settlements in a privacy action at that stage reflected the gross nature of the Newspaper’s breach of privacy. The Client has commented: “The Newspaper knew very well that it was publishing the most sensitive personal details about my life and that the publication of those details was an unlawful invasion of my privacy. There was no public interest in these details being published. The newspaper published because it assumed that, as a model just starting out in my career, there was no way that I could afford to sue and without the availability of a no win–no fee agreement I wouldn’t have been able to. I don’t think people realise the psychological impact it has on you to have the most private and confidential facts of your life published to the world in a newspaper and across the Internet. You feel isolated and powerless. As a result of the publication I was mocked and humiliated and no longer able to find work. When the Newspaper realised that I could sue, because I had solicitors and a Barrister acting for me on a “no win–no fee” basis, and that I was prepared to do so, it settled the claim quickly knowing that it was in the wrong. It was only when the Newspaper accepted that fact that I was able to begin rebuilding my life.” CaseS ynopsis:Libel In early 2009 the Sri Lankan army attacked Tamil communities in the north of Sri Lanka. These events caused Tamils resident in the United Kingdom to join together in mounting a spontaneous demonstration outside the Houses of Parliament. The demonstration commenced on 7 April 2009 as part of which the Claimant, a Tamil refugee, embarked on a 23-day hunger strike. After the hunger strike concluded, the Claimant was kept in hospital for five nights to recover. On 9 October 2009, the Daily Mail published false and defamatory allegations about the Claimant that he had been secretly eating takeaway burgers throughout his hunger strike and caused the police to waste a fortune in public money. The allegations were repeated by the Sun newspaper on line. Neither Newspaper made any attempt to contact the Claimant before publication to verify the truth of the allegations before deciding to publish them. The damage caused to the Claimant by publication of the libels was substantial, in part, because the articles alleged that supporting evidence was caught on camera by a police surveillance team and that police surveillance teams had observed the Claimant eating. The Metropolitan Police Superintendent who was in charge of the police operation in Parliament Square subsequently confirmed that the police did not see the Claimant eating and that these allegations were false. Both Newspapers were invited to apologise and compensate the Claimant for the harm done. Both Newspapers ignored that invitation. The Claimant had no means to vindicate himself and no ability to fund a legal claim against the Newspapers and so the Claimant’s solicitors and Barrister agreed to act on a “no win–no fee” basis and proceedings were issued. Eight months after publication both Newspapers finally agreed to set the record straight and apologise in their Newspapers and by way of a statement in open court as well as payment of substantial damages and his legal costs including disbursements. On the day that the statement in open court was read out the Claimant said: “I am relieved that this matter is now resolved and I can start to rebuild my life again. The past eight months have been an unbearable strain on my life, to the extent that at times I have even contemplated taking my own life. As a result of the lies that the Newspapers published about me, and through no fault of my own, I have lost friends, been shunned by family members and completely ostracised from the Tamil community. I felt I had a responsibility to all those who had supported me during the hunger strike, and were sullied by association with me, to take legal action against both newspapers to prove that the allegations that were published were false. Legal Aid, Sentencing and Punishment of Offenders Bill Now that both newspapers have declared that the allegations are completely untrue and apologised, I sincerely hope that those people will accept the newspapers’ apologies and understand that I have done nothing wrong. My sacrifice during the 23-day hunger strike was real and for the sake of my fellow Tamils who are suffering in Sri Lanka. I would like to thank all those who have stuck by me through this nightmare and have not doubted my integrity.” CaseS ynopsis:ProfessionalN egligence In late 2000, the Claimant, intending to secure funds for his retirement, invested the proceeds of the sale of his successful estate agency business in an Enterprise Investment Scheme run by a private bank. The funds, a large six-figure sum, were invested in the EIS but the investment was disastrous, leaving the Claimant with very significant losses. The Claimant instructed the Defendant firm of solicitors to make a claim against the bank and the managers of the investment. A claim was prepared, but the Defendant solicitors failed to serve proceedings within the prescribed period. Not only had the Claimant lost most of his savings, but he had lost the opportunity to sue the bank for those losses. The Claimant had wasted precious funds on the Defendant’s legal fees and had insufficient funds to pursue an entirely new, and very much more complicated, claim. Resources to defend that claim were not an issue for the Defendant firm, which was insured. Solicitors and Counsel agreed to act on a “no win, no fee” basis, coupled with After the Event insurance. The Defendant firm vigorously disputed quantum, which turned on the assessment of the merits of the original claim against the bank, and expert accountants were instructed. Following protracted negotiation, the case finally settled in September 2010 and the Claimant recovered a six-figure sum in damages. CaseS ynopsis:Breach ofC ontract The Claimant was an advertising salesman who had been employed by the Defendant in the United Kingdom. The Defendant was a publisher of specialist trade publications and organised trade exhibitions across Europe. By an agreement the Claimant was appointed as a sales agent of the Defendant for various European territories in respect of the Defendant’s products. In breach of express terms of the agreement the Defendant failed to pay the Claimant for outstanding commissions that the Claimant had earned. The Claimant made attempts to negotiate with the Defendant for the payment of the outstanding commissions but those negotiations were unsuccessful. The commission earned by the Claimant was the sole source of revenue for the Claimant and his wife. The Claimant had no alternative but to sue for breach of contract if he was to recover the sums owed to him but he did not have the financial resources to fund litigation. A fact that would not have been lost on the Defendant. The Solicitors and Barrister agreed to accept instructions on a “no win–no fee” basis and proceedings were issued. The case was eventually resolved on the basis that the outstanding sums owed to the Claimant were paid to him along with his legal costs and disbursements. Memorandum submitted by Centre for Mental Health (LA 89) Summary — We welcome provisions in the Bill which seek to introduce greater flexibility in delivering community sentences, in particular the removal of the requirement for a formal psychiatric report before a mental health treatment requirement (MHTR) can be made (Clause 62). However, a MHTR should not be made without a proper assessment of the offender’s mental health condition and should be used to target those with the highest level of need and risk or the weakest motivation for change. — We welcome provisions aimed at reducing the use of remand for people unlikely to receive a custodial sentence. The use of remand can be extremely disruptive to people’s lives and can have a negative impact on mental health and wellbeing. This should apply equally to children and young people as to adults. — We are concerned about an overall “toughening up” of sentencing and prison work regimes which fails to take into account the evidence base for what works to reduce reoffending and improve outcomes for offenders, many of whom have a complex mix of needs including poor mental health, homelessness and unemployment. Legal Aid, Sentencing and Punishment of Offenders Bill Introduction 1. The Centre is an independent charity working to improve the life chances of people with mental health problems. A large part of our work concerns the mental health of people in the criminal justice system. Through research and development work we have examined the management of people with mental health problems throughout the criminal justice system in England. With others, we have identified ways in which this could be improved and in so doing the justice system can work better. 2. This submission draws on evidence we have gathered over the past five years through our work in this area. We believe that improving the way the criminal justice system responds to mental health and related needs, it will become more efficient, more effective, more equitable and better value for public money. 3. Nine out of 10 prisoners have at least one mental health problem including depression, substance misuse and personality disorder. Around 70% will have two or more of these problems and approximately one in 10 will be affected by severe mental illness (psychosis). In addition, most have a complex mix of other needs including unemployment, low educational attainment, debt, and a history of abuse and trauma. 4. At present, large numbers of people with complex mental health needs end up in prison: a high-cost intervention which is inappropriate as a setting for mental health care and ineffective in reducing subsequent offending. It is crucial that health and justice services in police stations, courts and prisons identify people with mental health difficulties and divert them to appropriate treatment and support. Diversion can be within or outside the justice system and need not replace sanctions for any offence a person has committed. Part 3—Sentencing andP unishment ofO ffenders Clause 56—Breach of community order 5. Centre for Mental Health welcomes clause 56 which introduces greater flexibility for the court in responding to a breach of a community order. Currently, the court must respond to a breach by either varying the order to make the requirements more onerous or revoking the order and re-sentencing as if the offender had been reconvicted. Where the offender has wilfully and persistently failed to comply with an order, the court can impose a sentence of imprisonment even if the original offence was not serious enough to justify imprisonment. 6. Offenders given community orders often have multiple needs and are leading chaotic lives. Breach is important as a last resort where there is a need to boundary behaviour (for example with some people with personality disorders or conduct problems) or if there has been persistent non-compliance. However, if the overall context within which the breach occurs is general improvement and progress, then the professional should have the flexibility to take no action. There is an ethical difficulty in simplistically breaching someone for behaviours which are the result of their illness. This may also raise issues under the Equality Act 2010, as disability, including mental impairment and mental illness, is one of the protected characteristics. 7. For children and young people, we know that the signs of poor mental health can often be more subtle and hidden. We also know that Youth Offending Team practitioners under identify these difficulties and therefore are less likely to pick them up as a possible contributor to breach. More attention needs to be paid to this risk of more subtle and emerging poor mental health in children as early detection and treatment has been shown to both significantly improve outcomes and result in savings across government. 8. In relation to the Mental Health Treatment Requirement (MHTR), we have found that a widespread source of confusion is how to manage breach of the conditions of an order. Requiring the courts to impose a tougher sanction, including potentially a prison sentence, on people who breach a rehabilitative requirement such as the MHTR is problematic and undermines its potential to offer a robust alternative to custody. Clauses 60 and 67—Curfew requirements 9. The Centre is concerned about the extension in clauses 60 and 67 of the maximum curfew period available under a community order or youth rehabilitation order (YRO) to 16 hours per day. While curfew requirements can offer a punitive alternative to custody, a curfew of 16 hours per day could prevent a person from engaging in activities which are important in their rehabilitation. The role of employment in reducing reoffending is well-established, yet an onerous curfew order is likely to act as a significant barrier to finding employment. Moreover, many offenders have multiple and interrelated needs including mental health problems and alcohol and/or drug misuse, and a curfew order of 16 hours per day may prevent them from accessing appropriate treatment and support. For these offenders, who are often living chaotic lives, such a long curfew may ultimately be “setting them up to fail’. We are particularly concerned that clause 67 (which provides for a curfew requirement as part of the YRO) is a copy of clause 60 for adults, and therefore fails to take into account the different needs and circumstances of children. Clauses 62 and 68—Mental health treatment requirement 10. The Centre welcomes clause 62 which removes the requirement for a formal psychiatric report (a report by a registered medical practitioner approved under section 12 of the Mental Health Act 1983) before a MHTR can be made as a requirement of a community order. Clause 68 makes a similar amendment in relation to a MHTR as a requirement of a youth rehabilitation order (YRO). Legal Aid, Sentencing and Punishment of Offenders Bill 11. The MHTR is one of the least used of the 12 requirements available to sentencers under the Criminal Justice Act 2003. For example, only 686 MHTRs commenced in the year to 30 June 2008 out of a total of 221,700 requirements issued with community orders. This is particularly concerning given the large numbers of people on community sentences with mental health problems; some estimates show that over 40% of offenders supervised by probation have mental health problems. It is vital that the courts can divert offenders with mental health problems to community orders with the assurance that health services will be there to support them. 12. Currently an offender must consent to treatment before a MHTR is made, and we are pleased that the Bill does not make any amendments to remove this requirement. Evidence from across mental health services shows that consent is important if treatment is to be effective. Our research has found that the biggest barrier to the creation of an MHTR is the not the need for consent but the requirement for a formal psychiatric report. These are subject to lengthy delays as well as high costs. Removing this requirement could enable more efficient use of the MHTR. 13. However, it is crucial that the court does not make a MHTR without sufficient input from relevant experts. If section 207 of the Criminal Justice Act 2003 is amended as clause 62 proposes, the court will still have to be satisfied that the mental condition of the offender is such as requires and may be susceptible to treatment, but is not such as to warrant the making of a hospital order or guardianship order under the Mental Health Act 1983. The court must also be satisfied that arrangements have been or can be made for treatment. The removal of the requirement for a report from a section 12 approved practitioner should mean that a wider range of experts (such as community psychiatric nurses and psychologists) can provide the relevant information for the court; it should not mean that a MHTR is made without any proper assessment of a person’s mental health needs and appropriate treatment. 14. One of the current problems with the MHTR is that sentencers, probation staff and health professionals lack knowledge about the MHTR and when it can be used. Increased flexibility could exacerbate this uncertainty unless there is practical guidance for criminal justice and health professionals on how to construct and manage MHTRs. This includes training and support for professionals to produce adequate reports for court and probation that provide the necessary information to issue and manage a MHTR. 15. Any conditions for treatment must also be compatible with the Human Rights Act 1998 in that they should follow the principle of the least restrictive course of action in proportion with the crime. If health treatment orders are used too frequently, this has the potential to push people “up tariff” in that the next step following a breach is seen to be custody. The mental health treatment requirement, for example, should be targeted at those with the highest level of need and risk or the weakest motivation for change. Clauses 63 and 64—Drug rehabilitation requirement and alcohol treatment requirement 16. We welcome clauses 63 and 64 which remove the requirement for a DRR or an ATR to have effect for at least six months, giving greater discretion about length of treatment. The DRR and the ATR are effective interventions and this increased flexibility could further encourage their uptake. Clause 65—Referral orders for young offenders 17. Clause 65 introduces more flexibility around referral orders so that a court will now have the additional option of discharging a young person conditionally, and can also offer referral orders even if the young person has received a referral order in the past. 18. While we welcome this increased flexibility, it is crucial that there is increased access through referral orders to early identification and support for mental health and other support needs. Health resources are currently not always commissioned at this early stage when referral orders are made, despite evidence which shows that the earlier services intervene to address mental health difficulties, the better the outcomes for both children and their communities. Clause 66—Breach of detention and training order 19. Clause 66 extends the powers of the court to punish an offender who has breached their DTO, allowing the court to impose repeated further periods of supervision or custody as a sanction for breach. There is a clear risk that this could trap children and young people in a cycle of supervision orders and periods of detention. These children and young people are likely to have a range of needs including mental health difficulties which are only likely to be compounded by a continued cycle of supervision and detention. Legal Aid, Sentencing and Punishment of Offenders Bill Clause 69—Youth rehabilitation order: duration 20. Clause 69 would allow the YRO to be extended to a maximum duration of three and a half years. We are concerned that this period of time is too long given the amount of development that will take place in a child. Moreover, such a long term would be counter-productive in terms of encouraging compliance. Clause 73 and Schedule 10—Amendment of bail enactments 21. We welcome Clause 73 which gives effect to Schedule 10 which amends legislation concerning bail. We welcome the restriction on the exceptions to bail in cases where there is no real prospect that the defendant will receive a custodial sentence. A short spell in prison on remand can have a detrimental impact on a person’s mental health. Screening for mental health problems can be particularly difficult for remand prisoners and they are likely to have limited access to any support. Remand also makes continuity of care for people with mental health problems and/or substance misuse very difficult. The use of remand can also be very disruptive for other aspects of people’s lives, including resulting in the loss of employment and housing and family breakdown. There overuse of remand is particularly disruptive for women, who are often the primary carers for children. The Corston Report highlighted that more than half of women remanded to custody do not go on to receive a custodial sentence. Clauses 74, 81 and 82—Remands of children otherwise than on bail 22. We support the provisions in the Bill which restrict remand to custody for children—clause 74 provides that children not granted bail should be remanded to local authority accommodation unless certain conditions are met (clauses 81 and 82). We also welcome that clause 74 provides that all children under 18 will be included in the system for remands of children otherwise than on bail. We believe that the “no real prospect test” should apply as much to children as it would to adults and provide the same level of protection against the use of remand. Clause 103—Employment in prisons: deductions etc from payments to prisoners 23. Clause 103 makes amendments to the Prison Act 1952 in respect of the employment and payment of prisoners. This includes allowing the governor to make reductions from a prisoner’s earnings in prison to be used to make payments into an account (which, according to the explanatory notes, is envisaged to be for the prisoner’s benefit). However, page 81, lines 14–16 (clause 103) provide that payments out of the account to a prisoner before or after release can be dependent on the fulfilment by the prisoner of prescribed conditions. We are concerned that imposing addition conditions for prisoners to receive their earnings on release could be unfair and exploitative. Paid work not only reduces the chances of reoffending but also improves mental health. Clause 109—Youth cautions 24. We support clause 109 which abolishes the system of reprimands and warnings (the Final Warning Scheme) and replaces this with a new “youth caution”. Unlike reprimands and warnings, a youth caution will be available even if the young person has a previous conviction or has received a youth conditional caution. This could prevent the escalation of children towards prosecution and involvement with the youth justice system. September 2011 Memorandum submitted by JUSTICE (LA 90) Introduction 1. JUSTICE is a British-based human rights and law reform organisation, whose mission is to advance justice, human rights and the rule of law. JUSTICE is regularly consulted upon the policy and human rights implications of, amongst other areas, policing, criminal law and criminal justice reform. It is the British section of the International Commission of Jurists. 2. This document supplements JUSTICE’s Committee stage briefing on Part 3 of the Legal Aid, Sentencing and Punishment of Offenders Bill and suggests further amendments to Chapters 1 and 2 of Part 3 for Public Bill Committee stage. A separate JUSTICE briefing covering the Bill’s legal aid provisions is available from our website. Clause 54—Duty to give reasons for and to explain effect of sentence Page 39, line 19 [clause 54], leave out paragraph and insert— “(4) If the offender is not present when sentence is passed: (a) subsection (3) takes effect as if the words “to the offender” were omitted, and Legal Aid, Sentencing and Punishment of Offenders Bill (b) in addition, the court must provide a written version of both its statement given under subsection (2) and its explanation given under subsection (3). (c) A copy of both the written statement and explanation made under subsection (4)(b) must be sent to: (i) the offender at his current place of residence; (ii) the offender’s legal representative.” OR Page 39, line 19, [clause 54], leave out paragraph and insert— “(4) If the offender is not present when sentence is passed, subsection (3) takes effect as if the words “to the offender” were omitted. (4A) The court must provide written versions of any statement given under subsection (2) and any explanation given under subsection (3). (4B) Copies of the documents mentioned in subsection (4B) above must be given (if the relevant person is in court when sentence is passed) or sent by post (if the relevant person is not in court when sentence is passed) to: (a) the offender; (b) the offender’s legal representative; (c) the victim(s) of the offence; (d) family member(s) and/or representative(s) of the victim(s) of the offence; (e) the Crown Prosecution Service; (f) any co-defendant convicted in the case, whether or not at the same trial/hearing; (g) the legal representative of any person in (vi) above; (h) the probation service or, if the offender is under 18 years of age, the youth offending team; (i) if the offender is under 18 years of age, the offender’s parent/guardian; (j) Representatives of the media. (4C) The duty in subsection (4B) is subject to any reporting restrictions in force in the case. (4D) Where the offender is aged under 18, no details tending to identify him may be included in the written reasons provided under subsection (4B)(j).” AND Page 39, line 22 [Clause 54], leave out “(8)” and insert “(9)” Page 39, line 42 [Clause 54], leave out paragraph (b) Page 39, line 43 [Clause 54], at end insert— “( ) Where the court imposes a sentence that may only be imposed in the offender’s case if the court is of the opinion mentioned in— (a) section 148(1) of this Act (community sentence), or (b) section 152(2) of this Act (discretionary custodial sentence), the court must state why it is of that opinion. The first and second amendments above are alternatives. Both would remove the Lord Chancellor’s power to prescribe by regulations cases where the duty to give reasons for the sentence imposed and explain its effect in court should not apply. We believe that this duty should apply in all cases. However, we also believe that it is desirable for a written version of the reasons for and explanation of the sentence should be provided. The first amendment provides for the case where the offender is not present in court for sentence (for example, because he has chosen to absent himself). Under this amendment the judge or bench would still have the duty to explain to those in court the reasons for imposing the sentence and its effect but a written version would be provided to the offender. The second amendment would also provide for this but in addition, written versions would be distributed to the victim/victim’s family member(s) and/or representative(s) and others with an interest in the case, including media representatives. We hope that this would increase understanding of the reasons for imposing sentences and how they work and encourage more accurate reporting of the same, thus increasing public confidence in the criminal justice system. The third amendment would ensure that courts remain under specific duties to give reasons why it is of the opinion that an offence is so serious that only a custodial sentence is appropriate, or why it is sufficiently serious that a community sentence should be imposed. This would help to ensure that these considerations remain prominent in the court’s thinking and that the sentencing thresholds are not diluted. Legal Aid, Sentencing and Punishment of Offenders Bill Clauses 60 and 67—curfew requirements Page 45, clause 60, leave out clause Page 49, clause 67, leave out clause OR Page 45, line 4 [clause 60], leave out paragraph Page 50, line 1 [clause 67], leave out paragraph The first two amendments here would leave out clauses 60 and 67. Clause 60, which applies to adults, would lengthen the maximum period of a curfew requirement imposed under a community order or suspended sentence order from six to 12 months and the maximum number of hours per day under curfew from 12 to 16. Clause 67 would do the same for children subject to a youth rehabilitation order. JUSTICE has serious human rights concerns regarding the imposition of curfews up to 16 hours a day, as outlined in our Committee stage briefing. We also believe that they may limit the offender’s capacity to carry out positive rehabilitative activities and could contain him/her in premises where s/he may perpetuate or fall victim to domestic violence, abuse or neglect. This is of particular concern in relation to children. Further, increasing the extent of curfews in this way may result in a “ratcheting up” of curfew requirements and community sentences generally. We believe that these clauses should be removed from the Bill. However, we also include here alternative amendments that have been proposed by the Prison Reform Trust that would improve the clauses if they remain in the Bill. This second group of amendments would remove sub-clauses 60(2) and 67(2). They would therefore allow the maximum period of a curfew requirement to be increased to up to 12 months while keeping the maximum daily number of hours’ curfew at 12, as at present. Clauses 62 and 68—mental health treatment requirements Page 46, clause 62, leave out clause Page 50, clause 68, leave out clause Clauses 62 and 68 would remove the need for medical evidence before a mental health treatment requirement is imposed in an adult community order/suspended sentence (clause 62) or a youth rehabilitation order (clause 68). It is in our view wrong in principle to impose such requirements—when they might be medically inappropriate and/or when another disposal under the Mental Health Act 1983 could be warranted (matters which the registered medical practitioner (RMP) is currently required to address). These amendments would therefore remove these clauses from the Bill. Clause 65—referral orders for young offenders Page 46, line 28 [Clause 65], at end insert— “( ) in subsection (1) after “offence” insert “or having been convicted after trial, admits his responsibility for the offence and any connected offence and agrees to take part in the referral order process.” Page 46, line 29 [Clause 65], at end insert— “( ) in that subsection in paragraph (b) after “offences;” insert “or (ii) having been convicted after a trial, the offender admits his responsibility for the offence and any connected offence and agrees to take part in the referral order process.” (iii) JUSTICE welcomes clause 65, which will remove restrictions upon the youth court’s discretion to impose a referral order upon a child who has previous convictions and/or who has previously received one or more referral orders. We believe, however, that referral orders should be available to offenders who plead not guilty and are convicted after trial, provided that following conviction they admit their responsibility for the offence and agree to take part in the referral order process. Our suggested amendment above would provide for this. Clause 66—breach of detention and training order Page 47, line 11 [clause 66], at end insert “( ) But the power in subsection (3)(a) may only be exercised if the relevant failure to comply with requirements under section 103(6)(b) involved the commission of an offence punishable in the case of an adult with imprisonment” AND Page 49, line 31 [clause 66], leave out from “is” to “either” on line 32 and insert— “may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.” Legal Aid, Sentencing and Punishment of Offenders Bill Where a child has failed to comply with supervision requirements imposed for the period of supervision following release during a detention and training order (DTO), Clause 66 gives the court power to impose a further period of supervision, as an alternative to its existing powers to fine or imprison. We support this in principle as it provides a credible alternative to detention, which should always be a last resort and for the shortest appropriate period of time for children, as required under Article 37 of the UN Convention on the Rights of the Child. However, we retain concerns that children with the highest levels of welfare need may receive longer and more onerous supervision periods that are likely to be breached and result in detention; in order to prevent this, sentencers and youth offending teams will need to resist the temptation to load more requirements on those children with the most chaotic lives/highest levels of need. We are concerned that children can currently be imprisoned for minor and technical breaches of detention and training order supervision requirements; this is contrary to the last resort principle and the aim of the supervision period which is to facilitate the reintegration of the child into the community.Our first suggested amendment above would therefore prevent detention for breach of supervision requirements unless the breach involved the commission of an imprisonable offence. The second suggested amendment concerns the regulation-making power in relation to the interaction of periods of detention imposed for breach of DTO with other sentences. The Bill provides for such regulations to be made by statutory instrument coming into force by the negative resolution procedure. We believe that if a statutory instrument is made affecting the right to liberty it should be scrutinised by Parliament and therefore that the positive resolution procedure should be employed. Clause 69—Youth rehabilitation order: duration Page 50, line 21 [clause 69], at end of line insert “and for “3” substitute “2”” Page 51, line 1 [clause 69], leave out “three” and insert “two” Page 51, line 22 [clause 69], leave out “three” and insert “two” Clause 69 of the Bill would allow a youth or magistrates’ court to extend the duration of a youth rehabilitation order (YRO) by up to six months in the event of breach, meaning that a YRO could last for up to three and a half years. Three years is already an extremely long period in the development of a child, during which while on a YRO s/he will have to comply with requirements and is at risk of detention in the event of failure to comply. We believe that in order to facilitate the reintegration of children into the community and their assuming a constructive role in society, as required by Article 40 UN Convention on the Rights of the Child, that YROs should normally last no longer than 12 months (as is the case for youth conference orders in Northern Ireland). However, since we fear that to impose this change in England and Wales at present might result in more children being sentenced to custody, we suggest amendments here that would fix the maximum duration of a YRO at two years, subject to existing exceptions and the new power in the Bill to extend an order by up to six months. Clause 70—Youth rehabilitation order: fine for breach Page 52, line 26 [clause 70], leave out from “, for” to end of line and insert “(i), for “14” substitute “16”.” Page 52, line 28 [clause 70], leave out from “, for” to end of line and insert “(i), for “14” substitute “16”.” Page 52, line 32 [clause 70], leave out from beginning of line to “paragraph” in line 33. We believe that the massive rise in maximum fines for breach of YROs proposed in the Bill takes no account of the fact that fines received by children under 16 are likely to be paid by their parents/guardians and that 16 and 17 year olds are likely to have no or lower incomes than adults. These amendments would provide that the current £250 limit on fines for breach of a YRO for under—now apply to 16 and 17 year olds. The final amendment in this group is consequential. Clause 73 and Schedule 10—Amendment of enactments relating to bail Page 168, [Sched 10, para 12], leave out lines 26 to 29 and insert— (a) commit an offence on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to a person other than the defendant; or (b) interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person. Page 169, [Sched 10, para 23], leave out line 41 to end of line 4 on page 170 and insert— (2) For sub-paragraph (b) substitute: (b) interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person. Page 170, line 24 [Sched 10, para 27], leave out from “would” to end of line 33 and insert: “(i) commit an offence on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to a person other than the defendant; or Legal Aid, Sentencing and Punishment of Offenders Bill (ii) interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.” Schedule 10 to the Bill would subject bail in adult cases429 where a person has been accused or convicted of an imprisonable offence, or where a person has been released on bail but fails to surrender to custody, to a new test where bail could not be withheld if there were no real prospect that the person would receive a custodial sentence upon conviction, unless he might, if released on bail, commit an offence involving domestic violence. It would also remove the court’s power where an adult was accused or convicted of a non- imprisonable offence to remand them in custody on grounds of likelihood of failure to surrender to custody or previous arrest for breach of bail plus likelihood of failure to surrender, to commit offences or interfere with witnesses/obstruct the course of justice—but would create a new ground for withholding bail on the grounds that he might commit an offence involving domestic violence. JUSTICE is concerned that the new test leaves no residual discretion to the court to withhold bail even where there is strong evidence that a defendant will commit a violent offence, intimidate witnesses or otherwise interfere with the course of justice if released/if he remains at liberty. The exceptions in the Bill relating to domestic violence are, we believe, confined to too narrow a class of case, while in other cases— for example where there is a substantial risk of violent intimidation of a victim of crime not of the same household as the defendant—there is no equivalent protection. We further question the new “no real prospect” test: first, it may be very difficult for a court at an early stage in criminal proceedings (or even up to the end of a trial/guilty plea) effectively to assess any likely sentence in the case; and secondly, there may be a legitimate expectation created by its conclusion that there is no such real prospect. The sentencing court with full relevant information before it may, however, take a different view of the case and there should be no question of its being influenced or, particularly, bound by the court’s earlier view. We therefore believe that the reforms to the Bail Act proposed in the Bill are misconceived and that better changes could be made that would, for example, prevent bail from being withheld on the grounds of likelihood of failure to surrender to custody in minor cases while leaving other criteria for withholding bail unchanged. September 2011 Memorandum submitted by Hugh James Solicitors (LA 91) 1. Summary 1.1 Hugh James is a Cardiff law firm with a specialism in private environmental litigation ie cases brought by private individuals in relation to environmental blight. 1.2 We wish to help inform the Committee debate as to the proposed reforms concerning the funding of civil litigation that affect these cases. 1.3 We are principally concerned with proposals relating to the non-recoverability of success fees and ATE premiums and the related partial implementation of Lord Justice Jackson’s recommendations to introduce “Qualified One-way Costs Shifting” (“QOCS”). 1.4 In our view the combined effect of these proposals will result in such a significant barrier to access to justice in private environmental litigation that all but extremely wealthy Claimants will not be able to bring cases due to prohibitive cost and the UK will thus be in breach of the third limb of the Aarhus Convention. 1.5 We propose alternative amendments to the Bill to maintain access to justice in these important cases that also recognises the need for reform generally and accords with the overall objectives of the Bill. A copy of the proposed amendments is at Appendix 1. 2. OurE xpertise 2.1 Over the last 15 years we have developed a particular expertise in representing local communities across the UK affected by various forms of environmental blight caused by industrial operations. 2.2 We have dealt with over 40 cases representing over 5,000 households. At Appendix 2 we have set out summaries of some of the cases that we have dealt with. 2.3 The cases are often brought under the umbrella of a Group Litigation Order as provided for in Part 19 of the Civil Procedure Rules. 2.4 Cases are generally brought in private nuisance often involving allegations of negligence with claimants seeking damages for loss of enjoyment of property and injunctions to prevent future ongoing blight. 429 Except those to which s 25 Criminal Justice and Public Order Act 1994 applies, that is to say, a person charged with or convicted of homicide or rape after a previous conviction for such an offence. Legal Aid, Sentencing and Punishment of Offenders Bill 3. EssentialF eatures ofP rivateE nvironmentalL itigation 3.1 Cases generally involve the blighting of a local community by the industrial or commercial operations of a corporate body, usually a limited company, unchecked by the actions of the regulator. 3.2 It is rare for these types of cases to arise in affluent areas and typically claimants are working class residents with below average means. 3.3 In many cases claims are brought as a last resort, as residents will have made complaints and sought the assistance of the relevant regulator to no avail. 3.4 The Defendant may have been prosecuted for offences eg under the Environmental Protection Act 1990 but always for isolated incidents which the regulator can be confident about proving. 3.5 Even where enforcement action has been taken it is very rarely effective in resolving the nuisance being suffered by residents and never provides compensation for those affected. 3.6 Defendants are generally concerned to protect their profitable business and concerned about reputational issues. They therefore tend to be very well resourced and often represented by large London based solicitors and specialist leading Counsel. 3.7 Claimants are often faced with a “David v Goliath” type scenario with the Defendants able to considerably outspend them. Claimants will often seek cost capping orders usually to ensure that they can be confident that their cost risk is adequately insured. 3.8 Cases are often hard fought and complex involving arguments about permit compliance, reasonable user and the nature and character of the areas concerned. Expert evidence is a commonly required in relation to these issues as well as to model the impact of blight. 3.9 The cases place significant financial strain on solicitors acting on CFAs in terms of cash flow and the funding of disbursements. 3.10 Costs are commonly disproportionate to the amount of compensation awarded mainly because of the low level of damages in such cases, eg £1,000 pa in Barr & othersv Biffa Waste Services Limited [2011] EWHC 1003 (TCC) for odour nuisance from a landfill site. The approach of the Defendant’s solicitors in relation to procedural issues having regard to paragraph 3.6 above is also a significant factor that often affects the Claimants’ costs. 4. Funding ofC ases 4.1 Since the implementation of the Access to Justice Act 1999 and the demise of legal aid these cases have been funded under Conditional Fee Agreements in essentially the same way as personal injury actions are routinely funded. Initially ATE was difficult to find but it is now available from a small number of insurers. 4.2 Contrary to popular belief “Before the Event insurance” (“BTE”) is almost never available in these cases due to various policy restrictions and exclusions. In relation to the cases that we have handled to date BTE has only been available to 0.85% of the households concerned. 5. Importance ofE nvironmentalC ases 5.1 Ensuring access to justice in these cases is important for a number of reasons: 5.1.1 Private residents, usually in down-trodden areas, are able to enforce their long established common law legal rights to protect their home life and environment against a corporate Defendant. 5.1.2 The majority of our cases have settled under terms of confidentiality that provide for compensation for residents and detailed agreements with Defendants which have resulted in works to abatement the blight/ s of which the claimants complain. They are therefore truly effective in helping people protect their environment. 5.1.3 They help relieve hard-pressed regulators who are commonly unable or unwilling to take action in such cases. 5.1.4 They enable Claimants to enforce their Human Rights as enshrined in the European Convention of Human Rights, typically Article 6 (right to a fair trial), Article 1 of the First Protocol (the right to peaceful enjoyment of possessions and property) and Article 8 (the right to respect for private home and family life). 5.1.5 They give rise to important points of general public importance, see for example the Order of Lord Justice Aikens dated 30 June 2011 in Barr & othersv Biffa Services Limited set out at Appendix 3 and the Court of Appeal in Dobson & othersv Thames Water [2007] EWHC (TCC) [2008] Env LR 21, and [2009] EWCA Civ 28 [2009] HRLR 19. 5.2 Further, the fact that cases are successfully handled on CFAs is evidence that at present the requirements of the third pillar of the Aarhus Convention are met ie ensuring that the public have the right to recourse to procedures in cases where a party violates or fails to adhere to environmental or convention principles without prohibitive cost. The United Nations Economic Commission for Europe via the Aarhus Convention (to which the UK is a signatory) can commence proceedings against the UK in the ECJ, and has previously found the UK non-complaint with the Convention. Legal Aid, Sentencing and Punishment of Offenders Bill 6. TheA ffect of theP roposedR eforms 6.1 If the proposed reforms relating to the funding of civil litigation under clauses 41–42 of the Bill are implemented ie the non recovery of success fees and ATE premiums residents will be unable to bring cases of this nature as the cost of doing so will become prohibitively expensive. 6.2 Claimants in these cases are often of low or at best average means. If faced with the prospect of running the risk of adverse costs in a case against a limited company or having to meet a substantial ATE premium only the very wealthy are likely to be able to proceed. 6.3 The primary objective of these cases is to secure an abatement of blight. Damages in nuisance cases are at such a level that even if Claimants bring cases as part of a group action they can generally never expect to be in a position to meet even a fraction of the cost of an ATE policy from damages let alone any success fee that might be payable to their solicitor. 6.4 The proposed reforms would therefore mean that Claimants would be unable to enforce their long established legal rights, there would be additional pressures on regulators; Claimants would be unable to enforce their Human Rights, as set about above; and accordingly the UK would be in breach of Aarhus. 7. Proposals 7.1 We recognise that the cost of civil litigation in England and Wales is an issue where reform in certain areas is essential. 7.2 In general terms the proposed reforms seek to ensure that Claimants can still access justice in particular types of cases by addressing key issues that effect those case types eg preserving ATE for clinical negligence and introducing QOCS in personal injury cases. 7.3 There has however been no consideration of environmental cases (other than to incorrectly assume that BTE is generally available). 7.4 We are aware that a number of representations have been made to exclude certain categories of case from the proposed changes to recoverability of success fees and ATE premiums. 7.5 An exclusion would clearly be warranted in relation to environmental cases as there is no reason in principle to treat Claimants in these cases less favourably than foreign nationals pursuing toxic tort cases, or claimants seeking damages for whiplash or other personal injury. There are in fact important policy reasons to ensure access to justice in this area and to ensure compliance with Aarhus. 7.6 If such exclusions do not find favour it is however essential that any reform ensures that access to justice remains possible in environmental cases. 7.7 We therefore propose alternative amendments that seek to preserve access to justice in this important area of law. Both amendments define environmental cases by reference to the definition found in the Aarhus Convention and would exclude claims by a business carried on for profit. The benefit would thus be limited to private individuals/charitable NGOs. 7.8 The draft amendments appear at Appendix 1. The first amendment is to Part 2 and would exclude environmental cases from the provisions of clauses 41 and 42 and thereby preserve the entitlement to recover success fees and ATE premiums. This would provide continuing access to justice in this area as originally intended by the CFA legislation. 7.9 In the alternative we propose the introduction of a new rule to introduce QOCS in environmental cases. The objectives of the clause are twofold: 7.9.1.1 to limit the exposure of a claimant in respect of adverse costs save where two conditions are satisfied, namely that the claimant has conducted the litigation in an unreasonable manner, and the amount is such that it is reasonable to order him to pay; 7.9.1.2 in a case where the court is satisfied that interim relief pending trial, such as an interim stay/ injunction, should be granted, to ensure that this relief will be granted without the (prohibitive) pre-requisite that the claimant has to agree that he will if the court so orders indemnify the defendant in respect of all the financial consequences of such interim restraint. 7.10 The “includes a claim” formulation in subs (1) reflects the drafting of the Bill itself—see the definition of “clinical negligence proceedings” in Clause 43(1) (new s 43(5) Court and Legal Services Act 1990). The wording of interim relief is borrowed from s.12 of the Human Rights Act. 7.11 The proposed amendments would therefore ensure access to justice but would not run contrary to the objectives of the bill or the recommendations put forward by Lord Justice Jackson. In particular, he recommended that the use of QOCS would be an appropriate policy objective if the result would otherwise be a breach of the Aarhus Convention. September 2011 Legal Aid, Sentencing and Punishment of Offenders Bill APPENDIX 1 HughJ amesD raftA mendments toP art 2: EnvironmentalC laims Either Amendment (1) Environmental Cases Page 29, line 21 [Clause 41], at the end insert— () The amendments made by subsection (2) and (4) do not apply in relation to proceedings which include a claim by which a person (“the claimant”) seeks any remedy or relief in respect of an act, omission or decision relating to the environment provided that the proceedings do not relate to a business which the claimant carries on for profit. () For the purposes of this section, an act, omission or decision relates to the environment if information about it would be environmental information within the meaning of Article 2(3) of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998. Or: (1) Draft New Clause To move the following Clause— “Environmental cases Costs and financial undertakings in environmental cases (1) Subsections (3) and (4) apply to proceedings which include a claim by which a person (“the claimant”) seeks any remedy or relief in respect of an act, omission or decision relating to the environment. (2) But those subsections do not apply where the proceedings relate to a business which the claimant carries on for profit. (3) The court must not order the claimant to make a payment in respect of costs incurred by any other party to the proceedings unless— (a) those costs were incurred as a result of the claimant’s unreasonable conduct, and (b) the amount of the payment does not exceed such amount (if any) as it is reasonable for the claimant to pay. (4) A claimant who seeks relief before trial or hearing of the claim need not give an undertaking as to damages as a condition of the grant of that relief. (5) For the purposes of this section, an act, omission or decision relates to the environment if information about it would be environmental information within the meaning of Article 2(3) of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998. Note—Article 2(3) refers to: (a) The state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (b) Factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment within the scope of subparagraph (a) above, and cost-benefit and other economic analyses and assumptions used in environmental decision-making; (c) The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures referred to in subparagraph (b) above; Legal Aid, Sentencing and Punishment of Offenders Bill APPENDIX 2 SectionA Cases not covered by Confidentially Agreements Eileen Anthony & othersv The Coal Authority [2005] EWHC 1654 (QB)—Judgment for claimants and indemnity costs award—claim in nuisance for blight caused by sulphurous fumes from a burning coal spoil tip formally owned by the defendant. Dobson & othersv Thames Water Utilities Limited—Group Litigation Order No.52 [2005] Mogden Group Litigation—1335—claim by over 1,000 residents for nuisance caused by odour and mosquitos from the Mogden Sewage Treatment Works. The full trial concluded in May 2010 and Judgment is awaited. Dobsonv Thames Water Utilities Ltd [2007] EWHC 2021 Judgment on preliminary issues including whether the “Marcic” defence applied to claims in negligence relating to the operation of the Mogden sewage treatment works. Dobsonv Thames Water Utilities Ltd [2009] EWCA Civ 28 Principles for considering award of damages to occupiers and to other residents of same household— Human Rights Act 1998, s 8, Sch 1, Pt I, art 8. Thomas & Othersv Bridgend County Borough Council [2011] EWCA Civ 862 Interpretation of section 19(3) of the Land Compensation Act 1973 Judgment for the claimants declaring that the three year proviso under section 19(3) of the Land Compensation Act 1973 was incompatible with the claimants’ convention rights under Article 1 of Protocol 1. Ruling that the subsection should be interpreted under section 3 of the Human Rights Act 1998 so as to be compatible with the claimants convention rights so that the claims for compensation for nuisance effects of a new road could proceed. Hobart & Othersv Manchester Airport—LCA/485—605/2007 & LCA2—265/2008 Claim for damages for property depreciation by 325 Claimants relating to the second runway at Manchester Airport. Barr & Othersv Biffa Waste Services Limited [2011] EWHC 1003 (TCC) Westmill Landfill Group Litigation Over 150 claimants seeking damages for loss of amenity for odour nuisance allegedly caused by the Defendant’s landfill site near Ware, Hertfordshire. Judgment for the Defendant at first instance on the basis that there can be no liability in nuisance without negligence or default in the management or operation of the site. Defendant failed on the basis that the existence of an environmental permit constituted statutory authority and thus were immune from a common law nuisance claim. The Claimants have appealed and the Defendant has cross-appealed. The case will be heard by the Court of Appeal in January 2012. Anslow & Othersv Norton Aluminium Limited (Claim No: 0BM90055) Norton Aluminium Group Litigation Over 130 claimants seeking damages for loss of amenity for odour, noise and dust nuisance allegedly caused by the Defendant’s castings foundry in Norton Canes, Cannock. Trial adjourned in July 2011 and currently listed to reconvene in May 2012. Parkin & Othersv Alba Proteins (Penrith) Limited (Claim No: 0CA90012) Wildriggs Rendering Site Group Litigation Claimants seeking damages for loss of amenity for odour nuisance allegedly caused by the Defendant’s animal rendering site in Penrith, Cumbria. Group Litigation Order allows for a cut-off date at the end of September 2011. The trial is expected to be listed at the next case management conference. SectionB Cases covered by Confidentiality 1. June Bacon & othersv 3C Waste [Nantygwyddon Group Litigation GLO No 13 2001]—brought in 2003 by over 200 residents in relation to nuisance and personal injury relating to a landfill site in Gelli, Rhondda—settled at mediation. 2. Newton Longville Group Litigation—brought in 2004 by over 400 residents in relation to pollution from a landfill site in Bletchley, Buckinghamshire—settled at mediation. 3. Case brought by 263 residents in 2006 in relation to odour from a landfill site—settled. 4. Case brought by 179 residents in 2008 in relation to odour from a landfill site—settled. 5. Parkwood Group Litigation—brought in 2007 by 155 households in relation to pollution from a landfill site in Sheffield—settled at mediation. 6. 7. Case brought in 2008 by five households in relation to blight caused by foundry—settled at mediation. Legal Aid, Sentencing and Punishment of Offenders Bill 8. Case brought in 2008 by 179 households in relation to blight caused by a landfill site—settled at mediation. 9. Case brought in 2009 by six households in relation to blight caused by a landfill site—settled the day before the trial. 10. Case brought in 2009 by 43 households in relation to odour and other nuisance from two food factories—settled at mediation. 11. Case brought in 2009 by 23 households in relation to odour nuisance from a food factory—settled. 12. Case brought in 2010 by 56 households in relation to odour, dust and noise nuisance from a foundry— settled at mediation. 13. Case brought in 2010 by 33 households in relation to odour nuisance from a pet food factory—settled. APPENDIX 3 Order made by theR tH onL ordJ usticeA ikens Decision Granting Permission to Appeal Reasons This case raises important issues of general public importance in the question of whether a company that has a permit to engage in landfill near a residential area and who complies with its permit and is not negligent in its work can be liable in nuisance by private landowners who assert that the odour inevitably resulting from deposing waste in the landfill is a nuisance. The Judge concluded (at para 257) that there was no authority which addresses that issue. The arguments raised by the applicants have a reasonable prospect of success overall. September 2011 Memorandum submitted by Keoghs LLP (LA 92) 1. Introduction 1.2 Keoghs is the only “top 100 law firm” to focus exclusively on the insurance sector and offers an “end to end” claims service for the handling and defence of both mainstream and specialist insurance claims. This includes pre-litigation, litigation and costs negotiation activities. We represent insurers who between them provide around 70% of the motor insurance purchased in the UK. 1.3 With more than 850 dedicated staff, Keoghs are recognised leaders in the field. In the last 12 months we have been instructed to handle in excess of 31,000 claims. We also host the “Jackson Working Group”— a broad coalition of compensators who meet to discuss personal injury compensation reform and lobby Government on driving change. 1.4 Given the firm’s clear focus, our written response is in relation to the so-called “Jackson Clauses” in Part 2 of the Bill, “Litigation Funding and Costs”—namely Sections 41, 42, 43, 44 and 51. Our views are limited to those sections only. 2. Summary 2.1 We welcome these Sections of the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO). We have been highly engaged in the overall “Jackson” debate since its genesis and support the impetus that the Government has now placed on this issue. 2.2 Whilst recognising that primary legislation is not required for certain elements of Jackson’s proposals, we were surprised that LASPO makes no reference to the proposed 10% uplift in PSLA nor brings forwards any proposals on qualified one way costs shifting (QOCS). Our view is that Jackson’s recommendations were, and remain, an interlocking package. We would urge that, by whatever mechanism necessary, these important aspects are delivered as part of the overall package of reform. 2.3 We were also disappointed not to see any provision within the Bill to ban the payment/receipt of referral fees. We do appreciate however, that the debate around these has moved on since the publication of the Bill and we understand that the Transport Select Committee is to be re-convened to re-visit this issue following the intervention of Jack Straw MP.We support a ban but strongly suggest that this has to be linked to an appropriate reduction in the fixed fee and guideline hourly rates in order to realise the full impact and benefits sought from it. 2.4 We set out below our specific responses to each relevant Section, namely 41, 42, 43, 44 and 51. We would be delighted to provide further detail to the Committee as appropriate on request and to help further in your deliberations. Legal Aid, Sentencing and Punishment of Offenders Bill 3. Section 41 3.1 We would refer the Committee specifically to 41(4): A costs order . . . may not include provision requiring payment by one party of all or part of a success fee payable by another party. It has been suggested by some claimant lawyers (or charities on their behalf) that this reform ought not to apply to clinical negligence or catastrophic injury claims. We wish to emphasise that this provision should not be watered down despite such special pleading on behalf of seriously injured claimants who (we agree) must have proper, unfettered access to justice. The reasons for this are as follows. 3.2 Firstly,high value personal injury claims are a very valuable commodity for claimant lawyers. Success fees merely augment what are already inherently lucrative and highly profitable claims In London a partner can seek an hourly rate of £409 per hour for all recoverable time and a paralegal in the same firm will recover £138 per hour. The rates are not much lower in the provinces. Compare these rates to a recent announcement by the NHS that they will be tendering for non PI related work and do not expect to pay Partner rates in excess of £130 per hour. These cases are increasingly “record heavy” but comprise the same essential components as lower value claims, albeit with a higher “price tag” in damages. As a defendant firm, it is not uncommon to see a bill of costs from claimant solicitors in a quantum only action claiming over 400 hours (or 10 man weeks of effort) relating to the review of records and documents. These records and documents are commonly limited to medical evidence, which is reviewed by the relevant experts in any event. At £200 per hour—a typically low rate for London based firms—this equates to an £80,000 cost for this element of handling alone. An example bill can be produced if required in evidence. The current rules allow a discretionary success fee, which at 25% would produce an uplift of £20,000 on this work, much of which is actually done by “lower grade”—and hence low cost—personnel and which therefore already generates a significant margin. 3.3 Secondly, the only “brake” available at the moment on potential cost excesses are the Courts via detailed assessment. This takes time, court resource and increases the overall costs of the process through the need for “industrial” cost reviews on assessments long after the actual time claimed was ever incurred. The claimant currently has no financial interest in the time spent, and therefore the costs incurred, by their representatives No other civil justice system we can identify leaves the Claimant ring fenced from any liability for some of their costs In the proposed reforms the claimant will have to pay any success fee agreed from the damages awarded. However this means that the claimant for whom the work is done will be interested in: — The time claimed by their lawyer. In any other commercial or consumer transaction would it not be usual to want to want to make sure that there is no overcharging? — Negotiating a success fee at the outset before agreeing to use lawyer A in preference to lawyer B. As a result we should see a more competitive market emerge offering claimant’s choice on the basis of a combination of price and service. Is this a novel concept or do claimant lawyers have a right to charge what they like or what they can get away with? 3.4 Most importantly, and considering the reforms in the round, a claimant will not necessarily pay a significant proportion of their damages through the payment of success fees nor will they necessarily have to pay the maximum 25% uplift proposed (see below). They will pay the level agreed to when selecting from competing claimant lawyers offering services. In any other market this premise would not be met with special pleading. This is already a specialised sector of the law. Whilst there are some high street lawyers doing this type of work, but there are only small number of firms who do the majority of the very high value cases. We have reviewed a small sample of bills from 3 firms who do catastrophic work on a very regular basis. These were cases that settled recently for in excess of £500,000 damages. They reveal total base costs of £462,955 and success fees paid on top of £72,113. In this small sample, claimant lawyers are already operating on an average success fee of 15.58% so why do they lobby on the basis that they will need to take 25% post reforms? Please also bear in mind that the claimant will receive in the future a 10% uplift on PSLA and so this further dilutes the cost to the claimant of the success fee if indeed, they end up paying anything at all. There is no doubt that many of those firms which specialise in this area of personal injury work will adapt their business models to respond commercially to the needs of claimants and a more competitive environment. 3.5 In conclusion the Committee should therefore be very wary of any move to suggest certain types or value of claims ought to be ring fenced without far greater scrutiny. Lord Jackson in his comprehensive review was concerned at the excessive hourly rates for personal injury work. Defendant firms doing the same work already do so for rates far below the guideline hourly rates. Why? Because they work in the real “competitive world” where they are held to account for the time spent, delegate effectively and work to a generally more business like model. Defendant firms have also had to address their cost base (not least accommodation costs) to reflect commercial realities. Legal Aid, Sentencing and Punishment of Offenders Bill It is also a concern that despite all the rhetoric over access to justice a simple data set to support the claimant lobby’s position is not available. The claimed logic behind maintaining success fees within the CFA system is that that they help subsidise the pursuit of more marginal cases and hence provide greater access to justice. Claimant practitioners have, however, been “coy” over the production of data to establish the “net” success fees recovered after deducing unrecovered cost on cases lost. In higher value claims the success fees recovered are very substantial indeed and we venture to suggest will probably dwarf unrecovered costs. If that is not the case why was the data not provided to Lord Justice Jackson when he requested it? 4. Section 42 4.1 Clause 42 will enable the use of DBAs in most civil litigation by persons providing advocacy services, litigation services, or claims management services. 4.2 Possible consequences: — Claimant’s representatives will have to properly advise claimants on the appropriate means of funding. — Claimant may not receive damages in entirety. — Claimant will have a vested interest in its costs incurred on their behalf in the bringing of an action. — Claimant’s fees will become open and transparent to the party on whose behalf the representative is acting. 4.3 Responses. Representatives are currently under an obligation to properly advise their client. However it is agreed that through giving a party an interest in litigation costs (which currently in most cases does not exist) this obligation will become a significant factor when a representative is chosen. 4.4 It is noted that Lord Justice Jackson in his report confirmed regulations relating to the advice on funding should: — Introduce the requirement of a clear and transparent advice and information be provided to consumers on costs, other expenses and other funding available. — Provide a maximum percentage of the damages that can be recovered in fees from the award; and — Control the use of unfair terms and conditions. 4.5 A consequence of the proposed changes means that the claimant’s damages will not remain “sacrosanct”. However this will be considered when advice is offered in relation to funding and the evidence of Professor Fenn is that most claimants will be better off under the new regime. 4.6 Effective regulation must provide sufficient safeguards for a Claimant. The personal injury Trade Union firm Thompsons state that stringent regulation in this area is imperative to ensure the protection of consumers and that there should be prescribed requirements for all DBAs consistent with the protection of users of Conditional Fee Agreement. 4.7 In the event that those stringent requirements are not complied with, we believe that the DBA should be “unenforceable”. Such a sanction would ensure that the Claimant’s representatives which do not pay careful attention to the use of DBAs will be penalised by their actions. 4.8 It will of course be noted that Employment Lawyers have worked to good effect in the use of DBAs for a number of years. An open and transparent method of funding litigation should be embraced by the legal profession. Giving Claimants a vested interest in their costs preserves access to justice for both Claimant and Defendants and enables a “level playing field” for the parties rather than the current situation where a claimant (in many cases) can proceed with impunity. 4.9 Through ensuring an open and transparent approach to the fees associated with a claimants funding of a claim it will avoid the issues highlighted by the former Justice Secretary Jack Straw who stated “Unregulated contingency fee arrangements have been exploited to breaking point by some no win no fee lawyers who have exploited vulnerable clients by taking a few slices out of their damages, failed to provide them with proper information, and imposed unfair terms and conditions which have locked them into unreasonable deals. The time has come for these arrangements to be subject to proper regulation to protect the interest of consumers, and that is what the Government will legislate to do”. 5. Sections 43 andS ection 44 5.1 We welcome and fully support clauses 43 and 44 of LAPSO, which abolish the recoverability of the costs of ATE and notional premiums from a losing party except for clinical negligence cases. 5.2 These clauses mark a return to the position that existed in the 1990s when claimants met their own financial risk for funding methods such as BTE, ATE or membership funding. This will alleviate the injustice caused by the current “recoverability regime” that means defendants have to pay ATE premiums if unsuccessful, but have no guaranteed of being able to recover costs from an ATE insurer if successful. Legal Aid, Sentencing and Punishment of Offenders Bill 5.3 The current regime has allowed ATE insurers to take full advantage of the recoverability provisions to charge significant levels of the premium. This is especially prevalent in higher value claims where staged premium policies allow for fixed premiums pre and post issue but a bespoke premium for the final stage. Hence, at the time that the policy is taken out the amount of the premium to be charged is not known. In one catastrophic injury claim, where liability was admitted before the conditional fee agreement and the ATE policy had been taken out, the final stage premium claimed was in excess of £300,000. Claimants using these policies in high value cases use the threat of incurring the final stage premium as a weapon to force settlement even in cases where a defendant has a strong arguable case. The “blackmail” of this threatened costs burden amounts to a denial of access to justice for the defendant which the recoverability regime clearly did not intend. We would refer the Committee to the recent Court of Appeal case of Pankhurstv White & MIB where the Lord Chancellor said . . . “I regard the situation, as described by Jackson LJ, as a criticism of the system for which Part 36, CFA’s and ATE provides. That such a system increases the costs involved is obvious. That it does so to such an extent may not be so well known . . . The facts of this case appear to show that access to justice for one party may well lead to a substantial denial of justice to the other.” 5.4 The introduction of the recoverability regime has effectively transferred much of the burden of financing claims from both parties to the defendant alone—which in many cases is a public body such as a Government department, local authority, “blue light;” service or the NHS. Hence, in many cases it is the taxpayer who has to carry the burden. Membership organisations such as trade unions traditionally funded members’ personal injury claims through the membership fees that they received. As a result of the “recoverability regime” trade unions are reimbursed the costs of unsuccessful actions by defendants in successful claims. Indeed, they are now a significant source of profit. Thus at a stroke, the substantial costs burden was transferred from trade union to the public purse. 6. Section 51 6.1 We would draw the Committee’s attention to clauses 51(1) to 51(3) inclusive (Part 36 provisions in civil claims). The intention behind the legislation is to provide a mechanism whereby Claimants may recover an uplift on all damages where they “beat” their offer to settle at trial. The aim of this reform was to encourage earlier settlement. 6.2 As the legislation is drafted the provision will extend to all personal injury claims of any value. Whilst 90% or more of all such claims have a value of less than £10,000, the residual 10% of claims carry a very high aggregate value by comparison. 6.3 We believe that Part 36 has less of a part to play in higher value claims where the focus ought to be on rehabilitation and maximising functional recovery. Excessive reward for a successful part 36 might cause adverse behaviour such as: (a) More trials due to a wish to secure the “bonus” on damages. (b) Delayed access to records and medical facilities to facilitate legitimate enquiry by the compensator. (c) Late offers a short time before trial with a view to securing a boost on damages after all the costs have been incurred. 6.4 We endorse the thrust of the proposal by Lord Justice Jackson that the penalty provisions should be subject to a scale and a cap. In his last paper responding to consultation he sets out a proposal at paragraph 5.3: Total damages! value of non-monetary award Percentage increase 1. Up to £500,000 10% 2. £500,001 to £1 million £50,000! 5% of excess over £500,000 3. Above £1 million £75,000 (with no further increase) 6.5 Whilst we agree this approach of a cap and a scale, the defined thresholds will be for debate in another forum. We would urge the Committee to adopt the scale approach however. A simple % approach to all claims regardless of value could produce a disproportionate outcome for claimants—perhaps in excess of £1,000,000 for simply beating their own offer by a few pounds. We submit that this is too onerous a burden for the defendant whether they be an insurer, a public authority or the NHS. 6.6 Drafting concern. Section 51(3) states “In subsection (1) ‘additional amount’ means an amount not exceeding a prescribed percentage of the amount awarded to the claimant by the court (excluding any amount awarded in respect of the claimant’s costs).” This draft does not permit the Rules Committee to set a cap to limit the penalty award. Legal Aid, Sentencing and Punishment of Offenders Bill 6.7 Proposal. Section 51(3) In subsection (1) “additional amount” means an amount not exceeding either a prescribed percentage of the amount awarded to the claimant by the court (excluding any amount awarded in respect of the claimant’s costs) or such other prescribed maximum sum that may be awarded by way of an additional sum. September 2011 Memorandum submitted by Manley Turnbull Solicitors (LA 93) We have considered the submissions to the Scrutiny Committee and have as yet not seen one submission which highlights the extraordinarily wide impact of the proposed reforms in sections 41 and 43 as set out below. The point is: The entire nation—you, your family,your friends, your business—all currently have the benefit of funding ANY civil litigation case by: (a) Conditional Fee Agreement (CFA/“no win no fee”) and the “success fee” is recoverable from the losing opponent; and (b) After the Event insurance (ATE) against the costs of losing the case and the “premium” is recoverable against the losing opponent. Recovery of success fees and ATE premiums will be abolished under Part 2 of the Government’s proposed Legal Aid Sentencing and Punishment of Offenders Bill. Many will lose the ability to fund their cases after the law is changed because they will need to pay their own success fees and ATE premium which could add up to more than the damages recovered even if the case succeeds. The previous PNLA submission to the Scrutiny Committee is referred to as attached which explains the types of typical professional negligence claims that arise. This area is of particular concern for recovery of success fees and ATE funding because it is often the case that there are claimants of vastly inferior financial and legal resources to the professional indemnity insurer and professional defendants. Many claimants are elderly or disabled. Furthermore the solvency of the claimants frequently depends upon such claimants having the ability to afford the financial risk in litigation costs in the same way as their opponents. Adding the proposed amendments as set out below will not affect the tax payer nor ordinary people as to their insurance premiums—professionals pay their indemnity insurance premiums normally as a professional conduct requirement from their professional bodies. Underwriters currently can base the level of premium on the risk of claims using the current legal system and judicial process. Civil claims arise in this area of practice in highly unpredictable and unpredicted situations and in all cases a trusted professional has let down their client. Cases are only brought if lawyers for the claimant assess the chance of success at 60% or more which is the normal minimum requirement for ATE cover to be obtained. Professionals and their indemnity insurers frequently vigorously defend claims even if their defence is weak perhaps for reputational or other reasons. It is only if they are found liable that the claimant’s success fees and ATE premiums are payable by the wrong doing defendant. It is an area where claims can cause considerable friction in local communities to the detriment of both the claimant and the professional concerned. There is a need for an efficient dispute resolution process for the protection of the professional and his/her practice as much as for the claimants funding their claims. Professionals and their indemnity insurers are highly skilled at defending claims and for claimants to be unable to fund a claim—even with a 60% or more chance of success—is likely to cause considerable injustice with predictable consequences in local communities—whether geographic or niche business communities. This is very much an area of practice where claimant lawyers and ATE insurers take on a genuine considerable risk of non payment when faced with highly novel claims against experienced and well resourced professional defendants and their insurers which may well be found to be weaker than originally thought after the case has travelled for some time and evidence has been scrutinised. It is an area of practice which generally is a long way from the type of volume low value claims which interest claims management companies in the personal injury sector. Ordinary people and small businesses can have high value claims eg a first time buyer purchasing a ‘home from hell’ based on negligent advice from a surveyor or conveyancing solicitor. Technical legal defences are common—eg “causation” where it is a defence that the loss claimed in damages was not caused by the negligence. Legal arguments such as “failure to mitigate” and “contributory negligence” are also frequently raised. The quantum of the claim is therefore highly uncertain to predict at the outset and itself can cause many hours in legal costs for both parties to address. Legal Aid, Sentencing and Punishment of Offenders Bill The Scrutiny Committee should ask itself whether or not it is a good thing for claimants to be unable to afford to bring a strong professional negligence claim?—what benefit is professional indemnity insurance if not?—surely the reasoning behind the use of professional indemnity insurance as required by most professional bodies is to ensure that when negligence, incompetence and/or dishonesty happens then there is insurance cover in place. This promotes confidence in the professions themselves. If there is no funding for claims then how can a professional justify the value of its service to clients? What alternative dispute resolution process is suggested to replace the use of the existing law and judicial processes? The advantage to both professionals, insurers and claimants of using the law, the existing pre action protocol and Court procedure is that there is some certainty in the process for the professionals and their clients—use of non legal processes like the Legal Ombudsman provide uncertain outcomes which may well prove to be wrong in law or as a matter of professional conduct. There may be some justification for using a non legal process in lower value and less complex complaints of poor and inadequate service but also there should be an option for claimants to use the proper judicial process if it is appropriate in their particular case and complex issues of professional negligence and liability are involved. The impact of a restricted Civil Legal Aid system and abolition of recovery of success fees and ATE premiums is likely to encourage those very professionals who are negligent/incompetent/dishonest. The Government is surely not intending to create a society where those seeking professional advice must do so in the knowledge that if they are let down by such conduct then they have no affordable recourse? It is also separately submitted that the Government should require appropriate warnings and publicity of the true impact of these reforms on all of us in any civil claim in good time before the Bill comes into force. If there are those with civil claims that can be funded now but not after the reforms take effect—then they should be informed and advised to take legal advice in good time. MPs as elected representatives could be regarded as having a professional duty to their constituents to provide such a warning in particular in the absence of press or media interest. ProposedA mendments to theB ill Legal Aid Sentencing and Punishment of Offenders Bill Part 2 41 Conditional fee agreements: success fees (1) In section 58 of the Courts and Legal Services Act 1990 (conditional fee agreements) . . . (4) For subsection (6) of that section substitute— “(6) A costs order made in proceedings may not include provision requiring the payment by one party of all or part of a success fee payable by another party under a conditional fee agreement.”. . . (6) The amendment made by subsection (4) does not apply in relation to a success fee payable under a conditional fee agreement entered into before that subsection comes into force. (6A)This section does not apply to non medical professional negligence and liability claims. 43 Recovery of insurance premiums by way of costs (1) In the Courts and Legal Services Act 1990, after section 58B insert— “58C Recovery of insurance premiums by way of costs (1) A costs order made in favour of a party to proceedings who has taken out a costs insurance policy may not include provision requiring the payment of an amount in respect of all or part of the premium of the policy, unless such provision is permitted by regulations under subsection (2) . . . (2) In the Access to Justice Act 1999, omit section 29 (recovery of insurance premiums by way of costs). (3) The amendments made by this section do not apply in relation to a costs order made in favour of a party to proceedings who took out a costs insurance policy in relation to the proceedings before the day on which this section comes into force. (6A) This section does not apply to non medical professional negligence and liability claims. September 2011 Legal Aid, Sentencing and Punishment of Offenders Bill Memorandum submitted by The Association of British Insurers (LA 94) The ABI is the voice of insurance, representing the general insurance, investment and long-term savings industry. It was formed in 1985 to represent the whole of the industry and today has over 300 members, accounting for some 90% of premiums in the UK. Introduction — The ABI is pleased with the Government’s announcement that they will ban the selling on of personal injury details—referral fees—which the insurance industry has been campaigning to ban for some time. — Banning referral fees is an important first step in tackling our dysfunctional compensation system. In order for consumers to benefit fixed fees and hourly rates must be reduced accordingly. — A ban must be implemented properly to ensure that the problem does not emerge elsewhere (bearing in mind the impending introduction of ABS’); — A ban is necessary to stamp down on fraudulent whiplash claims, which are becoming increasingly problematic. Nearly 1,200 whiplash claims are made every day in the UK. This is far higher than the rest of Europe but people in the UK do not have weaker necks than those on the Continent. — The ABI wants the Jackson reforms implemented in full and as a comprehensive package. The danger of not implementing all elements of Jackson is that a piecemeal approach could lead to unforeseen consequences. The most undesirable of these would be increased costs for insurers and claimants and increased premiums for consumers. Reduction in theL evel ofF ixedC osts andG uidelineH ourlyR ates — The ban on referral fees needs to be introduced alongside a corresponding reduction in the level of fixed costs and guideline hourly rates in order for a ban to have any benefit for claimants and consumers. — Fixed costs and solicitors’ guideline hourly rates currently take into account the costs of these referral fees and so with a ban on referral fees there will be no need to have costs set artificially high as they are now. — The current fixed costs in low-value car accident claims (not including success fees) are £1,200— with referral fees often £800 claimant lawyers are still able to make a net income of £400. If they are able to run claims at £400 for a profit the current fixed costs need to be substantially reduced. InternationalE xamples — Motor premiums fell by 16% in Ireland in the two years after reforms were implemented which included speeding up compensation payments and reducing claimants’ costs. — In Germany fixed costs areƒ 300, it is a system that works efficiently to deliver justice and proper compensation without adding unnecessary costs. We urge the Government to implement Lord Justice Jackson’s recommendations in full. A substantial reduction in legal costs and action to tackle fraudulent whiplash claims will help to achieve the Government’s objective to reduce the costs of civil litigation. September 2011 Memorandum submitted by The Consortium of Expert Witnesses to the Family Courts (LA 95) Summary: Expert Medico-Legal reports are a central aspect of Family Court decision-making. However, our ability to continue to work in the Family Courts is increasingly undermined by a funding order which is hidden in the Legal Aid bill. Although the Government seeks to save £10 million by reforming our fees,430 the means by which they are implementing these changes are not transparent and not available for public scrutiny in this bill. The impact on children and families of restricting this work will be significant. The House of Commons Justice Committee investigated the working of Expert Witnesses in the Family Courts and made suggestions for improvement, but the Government has ignored these. — If the Government’s funding plans are implemented, there will be a significant drop in the availability of experienced clinicians to offer their expertise in the Family Courts. — Perversely, the Government’s plan is to reduce the fees for expert witnesses working in London, which is the very reverse of what it should be. This is for the obvious reason that the cost of running a practice in London is significantly higher than elsewhere. 430 Legal Aid, Sentencing and Punishment of Offers Bill, Research Paper 11/53, 27 June 2011, page 9. Legal Aid, Sentencing and Punishment of Offenders Bill — Clinicians trying to get paid for their work is at present hazardous and chaotic. We need to deal directly with those who pay us—at present the LSC. — The Public Bill Committee needs to stop the Lord Chancellor from implementing funding cuts, based on little or no data, before Parliament enacts this bill. 1. The Consortium of Expert Witnesses to the Family Courts is comprised of 500 experienced professionals who prepare Medico-Legal reports. We are clinicians from a range of disciplines, including paediatricians and other medical and surgical specialists, forensic physicians, adult psychiatrists, including forensic and perinatal psychiatrists, child and adolescent psychiatrists, psycho-analysts, clinical psychologists, forensic psychologists, clinical neuropsychologists, educational psychologists, child and adolescent psychotherapists, adult psychotherapists and social workers. We work throughout England and Wales. We provide expert input to Family Court proceedings, both public law child care and private law proceedings. 2. We provide evidence and opinions for the Courts on matters of child sexual and physical abuse, the level of neglect and/or emotional abuse to which children have been subjected, and the damage done to a child and the available treatment. We also assess parents’ capacity to care for and protect children and their potential for change. Our members have expertise in areas that include: — physical evidence of non-accidental injury; — the effect of domestic strife and violence on children; — the harm inflicted on children by physical and sexual abuse; — investigation of emotional abuse and harm; — the aftermath of incest within families; — how substance abuse and criminality affect parenting; — children with a parent in prison; and — homicide within the family. We are a group of clinical experts who provide evidence-based expertise for the Family Courts. 3. The children in the families we assess are invariably traumatised and at risk of suffering further harm. Our contributions to the Family Courts help children towards a path of recovery, either with their families or permanently separated. The Family Courts cost money, but they protect children’s lives. They also help set children towards completing education and, hence, posing less risk later for delinquency and early child birth, which cost the country more. These cases are often medically and emotionally complex; they need careful analysis and cannot be simplified. 4. The Courts also have to decide whether or not parents will retain the care of their children. To leave children with harmful parents or to remove children from adequate parents are appalling outcomes. For the Family Courts to reach as informed decisions as possible is vital. We cannot see how Judges, who are legally trained, can have the information they need to inform their decisions without the input of medical and mental health expertise. These matters are not decidable on the basis of common sense. 5. We have previously made recommendations to the Government about how to reduce costs,431 without undermining the work of clinicians in the Family Courts, which would preserve the centrality of the child’s well being. We cannot see how disadvantaging the ability of expert clinicians to work can be consistent with the first lines of the Children Act 1989 which stipulate: “(1) When a court determines any question with respect to— (a) the upbringing of a child; or (b) the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.”432 6. In the last two years, we have made representations to the Ministry of Justice in response to their consultations, and we have sat on their Central Working Group. The Ministry of Justice has entirely ignored our submissions, including the suggestions we made about more effective ways to limit costs. In The 431 Our submission to the Consultation from the Ministry of Justice made these recommendations: — Appointing only one expert witness per case in most matters. — Selecting the number of papers experts are asked to read, which would cut a significant amount of our cost for reading time. — Refining the number of questions we are asked, rather than giving us multiple, repetitive questions. — Direct contracts between experts and the LSC, with granting of prior authority and prompt payment of bills when reports are submitted. Experts could then lower their fees, since we would no longer have to maintain costly accountancy staff to chase bad debts. — Better Court time-tabling, so that expert witnesses do not spend hours waiting to give evidence. 432 Part I, Children Act 1989. Legal Aid, Sentencing and Punishment of Offenders Bill Government Response to their own consultation, they acknowledged that the data on which they based their decisions had “limitations”,433 which is an under-statement. Despite the lack of data, the Government has held to their “benchmark rates” and to their bizarre decision to institute lower rates for London-based cases, as well as overall to reduce rates by 10%. 7. In fact, the Lord Chancellor has already issued an order,434 to take effect on 3 October 2001, which will institute rates for Expert Witnesses reporting to London Courts that are one third lower than rates elsewhere in the country. How he has reached this conclusion is unfathomable. More logically, all legal professionals will be paid either at the same rate across the country or at a higher rate for working in London.435 8. All this is now happening before Parliament has concluded its deliberations on the Legal Aid, Sentencing and Punishment of Offenders Bill. 9. The Government appears to believe that there is surplus of expert witnesses working in London. The reality is, as the Justice Committee of the House of Commons reported, that the exact opposite is the case.436 10. These changes follow on from the Community Legal Service Order 2011, which came into force on 9 May 2011. This reduced expert witness travel rates to £40 per hour. Whilst the Government argued that this rate is in keeping with the rates paid to legal professionals, they fail to see that expert clinicians, who are asked to travel to see families, not just to Courts, need to spend far more time travelling. The lowered rate, which means that many expert clinicians no longer find travel viable, impacts negatively on children and families who now must bear the brunt of travelling, even if it disrupts children’s lives. Many of the families who come before the Family Courts are incapable of travelling, and so they will be disadvantaged when their case comes before the Court. One of our members recently requested that a child be brought to his office because there was inadequate funding for him to travel to see the child. The three-year-old child arrived traumatised, after a long journey with a Social Worker, and promptly fell asleep in the interview room. 11. What will be the impact of these changes? We surveyed our members to ask them about their working practice. A quarter of our membership responded. Over half said that they would not continue at the rates proposed. Additionally, over half of experts based in London said that they would not continue to engage in publicly funded expert witness work. The Family Courts will not have the needed expertise in London. 12. Experienced clinicians will be lost to the Courts, both as expert witnesses and as trainers for the next generation. The Court will lose the needed understanding of the complex psychological, social, educational and ethical problems with which it is confronted daily. 13. The likelihood of clinicians continuing to work for the Family Courts is lowered by the appalling system that the Legal Services Commission uses to pay us. We need direct contracts with the Legal Services Commission, who in fact pay us. Instead, we have solicitors instructing us and requesting estimates in advance of our starting work. Although they accept fee estimates and agree on the amount of work required, they lack the authority to ensure that our bills are paid. Rather, the Legal Services Commission decides if they will pay our bills, after the work is completed. At present, if they decide not to do so, they give no reason for their decisions, apart from sometimes using the single word, “excessive”. The clinician has no idea of the criteria the Legal Services Commission uses. 14. Legal Services Commission staff have little or no knowledge of the clinician’s work, its purpose or its importance. All the same, they reduce expert fees without giving a reason. If this was cardiac surgery, it would be absurd for bureaucrats, rather than clinicians, to determine the amount of time required to perform a procedure. 15. As the LSC pays solicitors rather than paying experts directly for their work, we face hazards in getting paid for our work—some solicitors evade payment, some delay, and increasingly, solicitors go bankrupt. In addition, solicitors now tell us that the LSC is delaying payment to them, so they cannot pay our bills. Many solicitors do not pay our bills for a year or longer, so we run our practices with large debts owed and overdrafts. For some unpaid bills, we apply to the County Court or use debt collects. Some bills are never paid. 16. We are professionals, undertaking serious work, and all we ask is that we are paid in a timely fashion for work that is agreed. At present, neither of these reasonable conditions is met. Expert witnesses are being forced out of business by these Governmental practices, which do not exist in any other area of work. 17. The Government’s response has been to ignore our requests and instead to simply announce lowered fees. 433 Reform of Legal Aid in England and Wales, the Government Response, June 2011, page 240, paragraph 10. 434 The Community Legal Service (Funding) (Amendment No. 2) Order 2011. 435 For example, Schedule 7 of the Community Legal Service (Funding) (Amendment No. 2) Order 2011 offers remunerations to Junior counsel in the County Court at £112.50 (Non-London Rate) and £135 (London rate). 436 House of Commons Justice Committee, Operation of the Family Courts, Sixth Report of Sessions 2010-2012, Volume I, page 76. Legal Aid, Sentencing and Punishment of Offenders Bill 18. Apart from some mention by the Justice Committee, there is no-one who has any interest in how clinicians, who have to carry the costs of their practices, can continue without payment. The Justice Committee’s final report said, “We recommend that the Legal Services Commission moves to paying expert witnesses directly. We understanding that this would be an administrative burden for the LSC, but it needs to be balanced against the potential savings.”437 19. The Legal Services Commission are now iniquitously demanding return of money for cases completely years ago. They give no criteria for this, but simply deem it excessive. They call this “claw back”; they are demanding this money from solicitors, who then demand it from expert witnesses. 20. Will children and families be disadvantaged if expert clinicians are no longer available? The reader can decide this from the following case vignettes that we prepared from our practices. September 2011 CaseV ignettes ofE xpertW itnessW ork Father-daughter incest A psychologist assessed a father who had recently resumed contact with his 12-year-old daughter and was requesting overnight stays. The assessment revealed strong paedophilic urges, incest fantasies and grooming behaviour, none of which had been recognised before. The psychologist recommended no further unsupervised contact and counselling for the child. She requested that the Judge direct Social Services to see her report, so that they could warn the extended family of the man’s potential risk to other children. Sadly, a few sessions into the counselling, the daughter revealed that her father had already abused her. All contact stopped then. Burnt child A toddler had had unexplained burns to both feet. The paediatricians and plastic surgeons who first saw the child suspected non-accidental injury, but they were not sure. The parties instructed an independent plastic surgeon, who recognised that the burns had been caused by a hot object. He bought several cigarette lighters until he found the one that exactly fitted the shape and size of the burn. The child was removed from the parents. Secret alcohol dependence A man claimed to have stopped drinking, despite a history of alcohol dependence. Liver function tests were essentially normal. The independent adult psychiatrist pointed out that essentially normal liver function tests can be present despite active alcohol dependence. He ordered hair-strand tests, which revealed hitherto unsuspected heavy regular drinking in the previous three months. A deceptive father A Local Authority offered much assistance over several years to a single father who was looking after five children. The father appeared not to learn from the help he was offered, and his care deteriorated whenever the workers withdrew. The children remained in a household that was chaotic and neglectful; at the same time, the father had a cold attitude towards the children. The father always agreed with the suggestions that were offered, but then ignored them. The psychiatrist found that the father had a paranoid personality disorder and that whilst he appeared to accept advice, he did not agree with it and had submerged contempt for those who were trying to help him. The children were removed from his care and thrived. Serious sexual abuse During care proceedings, a clinician made a home visit to a large, chaotic household. He remained with the family for about two hours. He noticed not only that the children were physically abusive to each other, and that over the two hours of the visit, the father became increasingly sexual with his young daughters. The report to the Court highlighted concerns about this father, who had a history of impregnating teenagers. Subsequently, the police became involved. The father was tried and convicted of sexually abusing several of his daughters. A mother who lied A psychiatrist was asked to assess a young mother with a history of volatile relationships. When the psychiatrist studied the woman’s medical records, she found numerous instances of her fabricating illnesses and lying about her personal history. The psychiatrist diagnosed that the mother had a personality disorder and recommended further assessment. The further assessment showed serious parenting problems, and the child was not returned to her care. 437 Ibid, page 83. Legal Aid, Sentencing and Punishment of Offenders Bill Missed diagnosis A teenager had been mute at times for some years and was removed from his mother’s care because she was thought to be mentally ill, and also he had turned against her. To the Court-appointed clinician, it was apparent that mother and son were autistic. Hence, it was possible to recommend more appropriate treatment, which enabled mother and son to resume meaningful contact. A false allegation of child sexual abuse Two children, a three and a four-year-old, were seriously neglected and exposed to violence. Their behaviour was disorganised and sexualised. After a long period in Foster Care, an expert assessment recommended the best placement was with Grandparents. At the point of placement, the Foster Carer alleged that one of the children had talked about being abused when in care of the Grandparents. Extensive investigations commenced. The child psychiatrist was able to state clearly that the child would have no memory of the time when the abuse was alleged to have occurred and could demonstrate that the child had been influenced by the Foster Carer. Disguised drug use A father was convicted of assaulting his two-month-old child in 2005. At the time, he was abusing drugs and suffered from paranoia and psychosis. Previous psychiatric opinion said that if he returned to substance abuse, he would again be unstable. The father had a new baby recently and claimed that he had been drug- free for five years. He had not offended and was employed. “Common sense” would conclude that the father had resolved his difficulties. The psychologist demonstrated marked inconsistencies in the father’s psychological tests. He challenged the father, who then admitted to using drugs recently. This was important information that showed that the father was still unstable and posed a risk to the child. Not lying, but learning disabled A psychologist assessed a mother to determine if she had sufficient mental capacity to participate in proceedings about her child having suffered a non accidental injury. The Police and Local Authority were confident that she was lying. However, the cognitive assessment revealed that she had significant learning disabilities, probably acquired when she had meningitis as a child. Her disabilities were masked by well- established social skills, but her account of her own history and of the child’s injury were vague. She appeared to be deliberately misleading professionals, but she was in fact a vulnerable and damaged woman, struggling to cope with pervasive cognitive difficulties. Unexplained change in behaviour A woman’s parenting and relationships deteriorated dramatically over two years. Her children were removed into care, and her husband left her. A psychologist assessed the risk of the children having direct contact with their mother. Based on her clinical presentation and GP records, the psychologist suspected an organic disorder. He referred her to a specialist, who confirmed that she had chronic hyperthyroidism, which was the cause of the change in her behaviour. She received the appropriate treatment, and her behaviour improved. Fabricated autism A very bright 10-year-old girl presents with behaviour that the mother insists is due to autism. The girl hates change, is oppositional, and does not make friends easily. Local clinicians accepted the mother’s insistence that her daughter had autism. The Local Authority instructed an independent child psychiatrist. He made a careful investigation and demonstrated that the child interacted normally with him and others. He showed that her symptoms were due to emotional pressure from the mother, along with lies about her father. She was not autistic, but due to her mother’s inappropriate parenting, she had serious attachment difficulties which were causing her difficult behaviour with her mother. Memorandum submitted by The Law Society (LA 96) When my predecessor as President of the Law Society, Linda Lee, appeared before the Public Bill Committee on 12 July, she undertook (Columns 53 and 54) to provide the Committee with further written evidence regarding legal aid eligibility in New Zealand and Canada, and evidence (Column 61) concerning the “drivers” of cost differences for the legal aid system in Canada and New Zealand compared with the UK. I now enclose with this letter an additional memorandum of written evidence from the Law Society containing the comparative information about New Zealand and Canada. A further memorandum of evidence providing evidence in response to comments by Members and other witnesses questioning the alternative savings for the justice system proposed by the Law Society will be submitted separately. Legal Aid, Sentencing and Punishment of Offenders Bill Evidence in the memorandum is provided for: 1. Comparison of eligibility for legal aid in England & Wales, Canada and New Zealand, showing broadly similar qualifying levels of income and assets in all three jurisdictions. The means tests in New Zealand are slightly more generous than in the UK. 2. Analysis of the “drivers” of cost differences for the legal aid systems in England & Wales, Canada and New Zealand, showing that the biggest contributor is the cost of criminal legal aid, not the categories of civil law and family law where legal aid is being withdrawn under the proposals in the Bill. The number of legally- aided criminal defence cases in England and Wales is 298 per 10,000 population, compared with 102 in New Zealand and 79 in Canada. Civil legal aid costs in England & Wales have fallen by 6% since 2000–01 while criminal legal aid costs have risen by 9% (Justice Select Committee, March 2011). 3. A summary of the findings of a report on cuts to “poverty law” legal aid in British Columbia, which found that the system there is now “failing to meet even the most basic needs of British Columbians”. Linda Lee undertook to provide this report to the committee and a copy of the report is provided (Foundation for Change: Report of the Public Commission on Legal Aid in British Columbia, Leonard T Doust QC, March 2011). LegalA id,Sentencing andP unishment ofO ffendersB illC ommittee Law Society note on International comparisons on legal aid spending Following the oral evidence session on 12 July, The Law Society agreed to provide the Public Bill Committee with further information about legal aid eligibility in other common law jurisdictions such as New Zealand and Canada. In Canada each province has it’s own legal aid system so we will look at the system in British Columbia (BC) which has been the subject of a recent report.438 Financial eligibility Different jurisdictions have different ways of means testing which makes exact comparison difficult, but overall we do not think the civil financial eligibility test for England and Wales is significantly more or less generous than BC or New Zealand. In England and Wales the maximum gross income for an average size family to be eligible is around £31,000 per annum, and it should be emphasised that for Licensed Work (ie work carried out under a legal aid certificate) a substantial contribution is payable by the applicant where gross income approaches the higher end of the eligibility range. In New Zealand the maximum income for the same size family unit to be eligible is $64,678 NZD (c £34,000) which makes the New Zealand test slightly more generous. In BC the maximum annual income for eligibility is $43,920 CD (c £28,300). However, this figure is the maximum net income after allowable deductions are applied which suggests that the gross income figure would be significantly higher. We should also point out that in the recent Report of the Public Commission on Legal Aid in British Columbia the financial eligibility test was criticised for excluding too many low income working households. Comparative spend Much interest has been generated by figures that indicate that per capital legal aid spending in England and Wales is higher than in most other jurisdictions. It is probably now generally accepted that there is little to be gained by comparisons with continental European jurisdictions operating an inquisitorial system because of the significantly different nature of those systems where costs are more likely to be focussed on the investigative role of the courts rather than on legal representation. Comparisons with other common law jurisdiction countries is arguably a more useful exercise. Annual per capita spend on legal aid in England and Wales is approximately £38. In New Zealand it is around £20 according to the most recent research and, approximately £8 in BC. It should also be noted that BC has one of the lowest per capita spends of all the Canadian provinces. It has been argued by some that too much is spent on legal aid in England and Wales, that cuts are not only necessary but desirable, and can be implemented without harming essential access to justice. We do not accept this argument. Currently our legal aid system is one of the most comprehensive in the world, but this is something to be welcomed rather than lamented in a country that is supposed to value access to justice for all and equality before the law. We should aim to be among the best rather than trying to emulate the worst. In some common law jurisdictions where spending is low, legal aid provision is woefully inadequate all we will say more about this later. There are many factors which may explain the higher cost of legal aid in England and Wales. Some of them have been identified by Bowles and Perry439 in their 2009 report commissioned by the Ministry of Justice. — A higher crime rate in England and Wales than New Zealand and Canada. 438 Foundation for Change: Report of the Public Commission on Legal Aid in British Columbia by Leonard T Doust QC, March 2011. 439 Bowles and Perry: International comparison of publicly funded legal services and justice systems, MoJ research series 14/09, October 2009. Legal Aid, Sentencing and Punishment of Offenders Bill — A higher number of legal aid criminal legal aid cases per capita than any other jurisdiction in their survey. England and Wales had 298 cases per 10,000 population compared to 102 in New Zealand and 79 in Canada. Bowles and Perry also took the view that this higher number of cases is unlikely to arise from more generous financial eligibility as eligibility in England and Wales is in line with other countries with well developed legal aid systems and “thus unlikely of itself to be a major source of variation in legal aid spending per capita”. — For non-criminal cases the number of supported cases per capita was also higher for England and Wales than for New Zealand and Canada. — One factor that could explain the above is the higher divorce rate in England and Wales (31 per 10,000) compared to 26 in New Zealand and 24 in Canada. Bowles and Perry also point out that whilst legal aid costs are higher in England and Wales than in other countries surveyed, this did not hold true for the overall costs of the justice system where spending in England and Wales on courts and public prosecutions is “comparatively low”. Risks of reducing the legal aid budget: lessons from British Columbia The legal aid budget in BC has been subject to a series of cuts over the last decade. These cuts have included substantial cuts to “poverty law” cases which includes similar areas of law to those categories of law that will be significantly cut or removed from scope by the Legal Aid Bill. The recent report by Leonard Doust QC440 finds that the legal aid system in BC is now “failing to meet even the most basic needs of British Columbians”. The report also finds that timely intervention of legal aid helps to prevent downstream costs such as “the additional healthcare costs, the commission of criminal offences as a response to the failure to properly access welfare benefits, and further burden on the social welfare system”. Doust places “poverty law” at the heart of his recommendations for reconstructing legal aid in BC. In view of this evidence we believe it would be tragic to make the same mistakes in England and Wales. September 2011 Memorandum submitted by The Mary Ward Legal Centre (LA 97) Introduction 1. The Mary Ward Legal Centre was established more than 100 years ago as the Poor Man’s Lawyer Service, a precursor to the post-war legal aid scheme. The Legal Centre has a long history of helping people who are disadvantaged. It is part of the Mary Ward Settlement, which was established in the late 19th century to provide education and social services for the local community. The Mary Ward Legal Centre is a pan-London independent legal advice centre based in Holborn. It is a registered charity and gives free legal advice to people living or working in London. The service is targeted at people on a low income and specialises in casework and representation in debt, housing, welfare benefits and employment. 2. We deal only with casework at a specialist level. In the last year legal aid enabled the Mary Ward legal Centre’s specialist lawyers and caseworkers to provide free advice and representation in complex cases to over 3,000 Londoners in the areas of debt, employment, housing and welfare benefits. By doing this we reduced homelessness, indebtedness and poverty and increased job retention. 3. If these proposals go ahead the Legal Centre is likely to close. Summary 4. We fundamentally oppose the proposals in terms of access to justice. In addition, we do not believe the proposals will bring sufficient savings to outweigh the social cost these proposals will create. In fact, research by Citizens Advice shows that legal aid expenditure saves money (Towards a Business Case for Legal Aid, July 2010). 5. There is an implication that legal aid is being spent on general advice. This is not accurate—legal aid funding is only available where there is a legal issue and the case has sufficient merit. Furthermore, access to legal advice includes assessing whether a case has merit and we help stop claims that have no merit from entering the court and tribunal systems and wasting valuable time and resources. 6. Working within the fixed fee scheme requires a great deal of efficiency—there is no room for waste. 7. The proposals remove the potential for early intervention and create a legal aid system based on help only at the point of emergency. This is a false economy. Early resolution saves money. Often, after considering the facts of the case, we are able to achieve a positive resolution without resorting to costly hearings at court and tribunal, saving time and money for the court and tribunals service and also on wider societal costs associated with poverty and social exclusion. Furthermore, leaving clients with no access to 440 Doust (2011) ibid. Legal Aid, Sentencing and Punishment of Offenders Bill help prepare their case will lead to longer hearings—we had an example of someone who had conducted their own employment case without help and the hearing was listed for 15 days as compared to an estimated five days had they had help. 8. The proposals will impact the most on vulnerable people. Our clients are on a very low income. Many have poor literacy and numeracy. Over 60% have a disability, many a mental health issue. Many speak little or no English. In other words, the majority are vulnerable. 9. Alternative approaches to resolving legal issues, such as ADR or mediation are not suited to social welfare law, especially where the case is against the state. In any case, these methods also cost money. ADR and mediation have been encouraged as a way of avoiding costly court action. A great deal of our legal aid work is about intervening early to do just that—avoid costly tribunal and court proceedings. 10. We provide specialist legal advice and representation in the areas of employment, welfare benefits, housing and debt to people on a low income living in London. It has long been accepted that clients often present with a cluster of problems—for instance, clients with a welfare benefit problem are likely to also have a housing and debt problem. This led to the Legal Services Commission requiring providers, from November 2010, to offer legal advice in all three areas of housing, debt and welfare benefits. The proposals set out in the Bill completely undermine this holistic approach and will, inevitably, lead to a huge reduction in the supplier base of social welfare law. The loss of expertise will be on a grand scale and will be extremely hard to regain. Ultimately, society will pay the price for this loss. We have focussed our submission on the areas in which we specialise: debt, housing, employment and welfare benefits law. In particular, the proposals to exclude certain areas from the scope of legal aid funding. Employment 11. The Bill proposes to take all of employment out of scope, except for discrimination. Whilst we welcome the fact that discrimination in employment will be retained we strongly oppose the removal of all other employment issues. This will mean that people without the means to pay for a solicitor would no longer be able to get help with enforcing the following employment rights: unfair dismissal, wages, health and safety, whistle-blowing, National Minimum Wage, Protection from Harassment Act, part-time working, fixed term contracts, redundancy, parental and maternity leave, Sunday working, Working Time, public duties and general contractual claims arising out of employment through the common law. 12. Furthermore, most discrimination claims are brought together with other claims, for example unfair or wrongful dismissal, unpaid holiday pay etc. The Tribunals Service “Employment Tribunal and EAT Statistics (GB)1 April 2008 to 31 March 2009” confirm that the average number of jurisdictions per claim form received is 1.8, ie more than one claim per form is the norm. Will Legal Help be available for these mixed cases? If not, how is this supposed to work? The other claims are likely to be so inextricably linked with the discrimination claims that it would place claimants and advisers in an impossible situation—without the funding advisers would not be able to advise on the non-discrimination claim(s) and the claimant—without the means to pay for the advice—would face having to drop these other claim(s) or lodge them without legal advice on a separate claim form to the discrimination claims. This would be totally impractical and likely to result in confusion for clients and Tribunals and lead to more Tribunal time and resources. In the normal course of events, the Tribunal would naturally seek to save time and resources by consolidating claims arising out of the same employment relationship and between the same parties. 13. There is the public importance of whistle-blowing and health and safety claims. An employee who is dismissed or subjected to a detriment for bringing criminal conduct to the attention of a third party would no longer have the protection of the right to obtain legal advice on employment through the legal help scheme or legal aid. This is likely to discourage whistleblowers from coming forward. An employee who reports an employer to a third party for breaking health and safety law would no longer be able to access free legal advice. This could have disastrous consequences from a public policy point of view. Employees currently have the right at present if subjected to extreme harassment to use the Protection of Harassment Act. This right will be removed. 14. The Government has defended these proposals by claiming that clients can present cases themselves and that matters are not complex. This misrepresents the reality of employment law and tribunals. Butterworth’s Employment Law Handbook contains over 80 Acts, nearly 150 statutory instruments, over 30 main European directives and around 25 statutory codes of practice dealing with employment law. The practice and procedure of the Employment Tribunal and Employment Appeal Tribunal is exceptionally complex for a lay person. Issues often also involve European law. Employment Tribunals are now effectively courts in all but name. This has been recognised by government by the changing of the name of Tribunal chairs to Employment Judges, by providing cost awarding powers, by introducing the over-ridding objective into employment law and by having very similar interlocutory processes and hearings to a Court. There is a serious issue of equality of arms with most employers having legal representation and employees not. Employers are often represented by Counsel, sometimes by a QC—why would this be the case if matters are so straightforward? Legal Aid, Sentencing and Punishment of Offenders Bill 15. The proposal is to remove Employment entirely from scope—this means there will be no legal aid for appeals to go to the Employment Appeal Tribunal, Court of Appeal and Supreme Court or Europe. These appeals are solely on points of law. How is a lay person supposed to find errors of law, formulate grounds of appeal on law and represent themselves against Counsel in these Tribunals? This is an infringement of their Article 6 rights. 16. Tribunals are specifically prohibited from finding legal arguments that clients have not considered or helping them to bring up claims, which they may have but be ignorant from a lack of knowledge of the law. Lack of advice means that clients are likely to leave out claims they could have made from their applications. 17. In its response to the consultation the Government states it does not consider that applicants in these cases are likely to be particularly vulnerable. This is not our experience. The majority of our clients are vulnerable. Many of our clients do not speak English and many have a disability, often a mental health issue. 18. The Government claims that damages based agreements can deal with employment claims. The value of most employment claims means that such claims are not viable for no win no fee agreements. Furthermore, we have experience of problems with unscrupulous and inexperienced consultants messing up claims. 19. The Government’s own Equality Impact Assessment states that the removal of non discrimination employment claims from scope is likely to have an adverse indirectly discriminatory effect on Black and Minority Ethnic clients. They attempt to justify this on the grounds of a proportionate means of achieving a legitimate aim but this seems to be based in reality only on cost, although it is claimed that reform is involved. European case law states that indirect discrimination cannot be justified on cost alone. We would contend the removal of non-discrimination employment claims from scope is neither proportionate nor legitimate and breaches discrimination law and human rights law. WelfareB enefits 20. The Government states that these issues are of lower objective importance because they are essentially about financial entitlement. The welfare state is a pillar of a civilised society. It exists to provide financial protection at key times in people’s lives: ill health, disability, caring for children and adults, unemployment, retirement etc. It is a fundamental right. As with other areas of law, these rights mean nothing without access to help to enforce them. 21. The Government states that whilst it recognises that the class of individuals bringing these cases is more likely to report being ill or disabled than with the legal aid client base as a whole the accessible nature of Tribunals mean clients can generally present their case without assistance. This misrepresents the reality of social security law and of Tribunal appeals. It also dismisses, without adequate justification, the disproportionate impact on the vulnerable in our society. The majority of the clients bringing these cases are vulnerable. The Government accepts this. Its own impact assessment shows that there is a potential significant disproportionate impact on ill or disabled people, female clients and BAME clients. In our view, the reasons given to disregard this disproportionate impact are not justified. This area of law is complex even for those with years of experience advising on welfare benefits. Many of our clients have mental health issues, problems with literacy or speak no English. These clients will have no way of bringing a case without funding for specialist advice. 22. In its response to the consultation the Government states it accepts that there are some complex cases brought before the tribunal concerning the interaction between, for example, entitlement to benefits and nationality issues and that it does not consider that most cases before the tribunal are this complex. This is a misrepresentation. Social security law is one of the most complex areas of law—often put on a par with tax law in terms of its complexity. For example, one regulation alone with regard to when a superseded decision takes effect runs to ten pages in the Sweet and Maxwell Social Security Legislation volumes—to 12 pages with the analysis. At present claimants can get Legal Help funding for preparing the appeal—no funding is available for representing the claimant at the Tribunal hearing. Due to the complexity of this area of law legal help funding is essential for claimants to be given a fair chance to challenge decisions; many of which are about securing a basic level of subsistence. Statistically claimants are more likely to have an appeal upheld where they have a representative. Tribunal Judges are more likely to reach the right decision where the claimant has a representative. Claimants will not know the Tribunal procedural rules—when and how they can request a postponement or an adjournment or that they can withdraw their appeal if they decide to do so. 23. The proposals also mean that there will be no legal help for appeals to the Upper Tribunal—these are solely on points of law. In our experience claimants will not stand a chance at appealing on a point of law without legal advice. This will place claimants at a huge disadvantage—the Department for Work and Pensions will have access to representation, often Counsel, and the claimant will be left unrepresented. 24. Furthermore, clients will no longer have access to obtain reports (currently claimable as disbursements) that are often essential to help argue their case, eg—a medical report to support an appeal against withdrawal of a disability benefit—these cost on average £80, rising to £250 for consultant reports. Legal Aid, Sentencing and Punishment of Offenders Bill 25. The proposals suggest that Tribunals are user-friendly and inquisitorial in nature. However, Tribunal judges are increasingly adjourning proceedings with directions that specialist advice be sought about the appeal before it can be heard. 26. The Government states that whilst it acknowledges that respondents have said that other sources of advice, particularly the voluntary sector, may not be able to meet the demand for welfare benefit services because of factors such as local authority cuts, it remains the case that Job Centre Plus and the Benefits Advice line will continue to be available to assist applicants. Firstly, Jobcentre Plus cannot help a claimant appeal against its own decision (claimants need access to independent advice). The Benefits Enquiry Line is just that—an enquiry line—it is not able to provide specialist help, such as challenging decisions. Local Citizens Advice Bureaux generally do not take on cases at a specialist level—they refer claimants to organisations like ours, as do other voluntary organisations. Claimants will have nowhere else to go if funding is removed from the Legal Help scheme. 27. There is a large amount of poor departmental decision making in this area of law—borne out by the high rate of appeals that are found in the favour of the claimant. A large amount of our work is helping people with appeals against refusals to pay sickness and disability benefits. Over 90% of these cases are decided in the claimant’s favour. It is unjust to take away the means for claimants to challenge these decisions when so many of them have been made in error. 28. These proposals are coming at a time when there will be more demand for welfare benefits advice. The Government is proposing a huge overhaul of the benefits system through the introduction of the Universal Credit, changes to Housing Benefit and significant changes to Disability Benefits. Previous welfare reform has resulted in increased demand for advice. When the Employment and Support Allowance was introduced the Government predicted that there would be a considerable increase in appeals in respect of the work capability assessment. This has been borne out in reality—there has been a 56% increase in the number of ESA/IB appeals received at the Tribunals Service between quarter two of 2009–10 and 2010–11 (Quarterly Statistics for the Tribunals Service, 2nd quarter 2010–11). These are small changes compared to the scale proposed in the plans for a new Universal Credit. 29. The proposals suggest that Welfare Benefits is an area of law that is of lower objective importance. However, we would argue that securing welfare benefit entitlement is of vital importance and is inextricably linked to other areas of law that are to remain in scope. If a client has access to their correct welfare benefit entitlement at the time that they most need it, this is much more likely to prevent serious consequences like increased debts, homelessness, ill health and crime. The Government states it has considered the concerns raised about the risk that the loss of benefits could later lead to homelessness and implies that its intention to retain legal aid for debt cases where the home is at immediate risk due to rent or mortgage arrears should suffice. This misses the point being made. Without access to help with preparing the appeal claimants may not be able to obtain their entitlements, leading to a reduction in income and in turn an inability to pay the rent. Claimants may be faced with no way of challenging the benefit decision further, either because they have not appealed in time (we often see clients who have missed the deadline) or because they have lost their appeal and have no idea how to appeal on a point of law. With a reduced income they will find it impossible to show a Court they can pay the rent plus something towards the arrears so will inevitably be evicted. Debt 30. We strongly oppose the proposal to take all of debt out of scope except for cases where there is imminent risk of the loss of home. This is a false economy. A vast amount of our debt work focuses on early intervention to avoid emergency action and the costs associated with going to court. All of this would be lost. We submit that the Government has failed to properly deal with this very important point. It says it notes the points made about early advice but that it needs to make substantial financial savings within the spending review period. This is shortsighted as the costs will come further down the line and will be higher than they needed to be. 31. The Government states that many of these cases are about practical rather than legal problems. This is a misrepresentation. It implies that legal aid is available for practical advice when in fact legal aid is only payable where there is a legal issue. It also ignores the fact that debt law is highly complex, requiring specialist knowledge—often leading to the need to seek Counsel opinion. 32. We are pleased that the Government has conceded to allow legal aid in relation to a statutory demand or bankruptcy proceedings against an individual whose estate includes their home. However, in not allowing it in cases of voluntary bankruptcy it is closing off a remedy for clients who have no means of paying off their debts or obtaining advice prior to the debtor petitioning for their bankruptcy and inadvertently using an unsuitable option for dealing with their debts. Legal aid will not be retained to contest an application for a charging order, leaving clients no access to advice to challenge such an order. The Government seems satisfied with this since it will be available at the order for sale stage. But for many cases this will be too late—the moment to challenge the debt would have been lost and clients may have little defence to stop the possession, resulting in homelessness. People who dispute debts without specialist advice can find themselves subject to a county court judgement, charging order and order for sale due to not being able to obtain specialist advice at an early stage. Early intervention can mean that a case never has to reach the courts thereby making huge savings to the public purse. Legal Aid, Sentencing and Punishment of Offenders Bill 33. We were pleased that in its response to the consultation the Government recognised that many respondents told them that alternative sources of advice will no longer be available in the future and now refers only to the extension of the face-to-face (previously FIF) funding for debt advice. This funding is until 31 March 2012. We are hopeful that this will be extended further but there is, as yet, no guarantee it will be. In any case, this will not plug the gap left by legal aid funding and the Money Advice Trust is predicting a growth in the need for debt. Housing 34. The proposals mean that, in many important areas tenants without the means to pay for a solicitor will be excluded from accessing legal help to enforce their rights. Clients will no longer have access to free legal advice on the following actions: — to enforce a Right to Buy; — to enforce a right to buy a freehold or extend the lease; — to set aside a legal charge (for example, mortgage) or the transfer of a property; — for damages and/or an injunction for unauthorised change of use of premises; — under the Housing Grants, Construction and Regeneration Act 1996; — for re-housing (apart from where there would be a contravention of the Equality Act and Judicial Reviews—so we would be able to deal with potential JR cases on transfers but it may be practically impossible to take on any transfer cases because such cases may not be immediately recognisable as being JR cases and it can take some work before it might become a JR case); — wrongful breach of quiet enjoyment (although actual unlawful eviction is now covered). Breach of quite enjoyment can be very severe leading to a situation where a tenant is being harassed in their own home and often they are then unlawfully evicted by the landlord or the tenant is unable to return to the premises. We could not seek remedy against landlords to prevent them from such harassment at a stage before it becomes an unlawful eviction case. — housing disrepair proceedings where the primary remedy sought is damages, including damages for personal injury. Often tenants have been living in terrible conditions for long periods of time but may at the last minute commence works so that a tenant is unable to apply for an injunction. We would no longer be able to apply for compensation only on behalf of such tenants. Landlords may well take a view that it is worth taking the risk of not undertaking repair works unless they are under threat of injunctive proceedings and then commence works before the issue of proceedings to prevent tenants from obtaining any redress against them; — applications for a new tenancy under the Landlord and Tenant Act 1954. 35. Many rent arrears cases involve housing benefit issues. After looking into the housing benefit issues, quite often the rent arrears are reduced in part or entirely by housing benefit backdating. The Government has made it clear that no legal aid will be available for resolving the benefits aspect of this case, giving the justification that it there is a user-accessible tribunal to resolve welfare benefits problems and it does not believe that legal aid is justified for such matters. This shows a total misunderstanding of the process involved in such cases. A housing caseworker faced with a client with rent arrears will logically need to explore the cause(s) of the arrears and this needs to include looking into housing benefit entitlement. Without the funding advisers would not be able to advise on this crucial aspect of the case and the client’s case could not progress, leaving the client without help. The Government suggests that clients pursue (by themselves) the welfare benefits issue by appealing and once this is dealt with the housing issue should be resolved or if the appeal is unsuccessful and the client subsequently faces action for rent arrears legal aid will become available to deal with the housing dispute (not the benefits issue). This assumes that when clients seek help due to rent arrears that they also present with a housing benefit decision against which they can appeal. This is not the case—the benefits issue invariably arises out of the exploration of the cause of the rent arrears and often this comes up at the stage of eviction and needs to be dealt with urgently. These proposals place legal aid advisers in an impossible position. They will not be able to continue with the case due to lack of funding and clients would face being made homeless—the very thing that the Government says is a priority to fund. September 2011 Annex CaseS tudies The following cases would not be covered under the current proposals. 1. Mr F a carpenter in his 70s was dismissed. He went to a CAB and his claim was filed prematurely and claims missed out. We assisted him to bring a second claim to the Tribunal within the limitation period. There was a further res judicata hearing where we represented him against Counsel and part of the new claim was Legal Aid, Sentencing and Punishment of Offenders Bill allowed through but part not. This is now on appeal to the Employment Appeal Tribunal and involves complex legal issues involving res judicata. It would be wholly impossible for the client to deal with these legal arguments on his own without public funding. 2. Ms G a cleaner speaks virtually no English and has two young children. She had a small claim for unpaid wages and unfair dismissal. It would be virtually impossible for her to bring a claim on her own given her language problems and lack of understanding of procedures. We assisted her to bring a claim to the Tribunal, which resulted in an agreed settlement and payment of compensation. The sums involved were small but of considerable importance to the client given her very low earnings. 3. Ms W a doctor of Chinese medicine worked in the UK for Chinese employers for seven years. She does not speak English and had been isolated and sick with TB. She was dismissed without a fair procedure and not paid sums she was owed. We represented her pro bono in a four-day hearing with Counsel appearing for the employer. We won the case for her at hearing and she was awarded £39,778.05. The case went on appeal to the Employment Appeal Tribunal where we obtained pro bono assistance for her and instructed a barrister. We also won the EAT appeal for her. This client would not have been able to bring a case without our assistance given her lack of English and without assistance from public funding. 4. Mr M had mental health problems and submitted his claim for unfair dismissal out of time. We assisted him to obtain medical evidence to persuade the Tribunal to allow the claim out of time and the case was settled before hearing. He would not have been able to present his case without legal assistance. 5. We are dealing with a discrimination and general employment claim where a consultant filed a claim several months outside a deadline preventing a client proceeding with important aspects of her claim. The same adviser charged the client a cancellation fee of over £3,000 for cancelling a no win no fee agreement after claiming only £30 worth of work on that aspect of the claim. This has resulted in a complaint to the Ministry of Justice and an investigation by Trading Standards. The consultant had employed debt solicitors to threaten the client with proceedings for non-payment of costs. We resisted their letter before action and got them to drop the threat. 6. Ms P is 21 years old and has been diagnosed with Borderline Personality Disorder. She had a traumatic childhood and was sexually abused by a close family member as a teenager. Due to the nature of her mental health condition, she has difficulty regulating her emotions and behaviour and as a result presents as being aggressive. She has difficulty communicating with others especially with official bodies such as DWP and the Council and has a low level of literacy. 7. She made a claim for Employment and Support Allowance (ESA), attended a medical assessment and was found to be fit for work. She was advised by Jobcentre plus that she could appeal against this decision but was told that the appeal was unlikely to succeed and that she should claim Jobseeker’s Allowance instead. She was not given any advice regarding the procedure related to the appeal and consequently she lost the appeal. 8. We are now assisting her to have the appeal heard again by another Tribunal as she was not sent the papers relating to her appeal beforehand and was not given the opportunity to attend in person. Had she received advice about her appeal, she would have known the criteria that is used in making these types of decisions, have been given assistance in gathering medical evidence and presenting her case to the appeal Tribunal with reference to the regulations that apply to ESA. She would also have been advised that she could continue to be paid ESA until her appeal was heard by a Tribunal and that she is likely to meet the qualifying conditions for Disability Living Allowance as well. 9. Mr T suffers with post-traumatic stress disorder, anxiety and depression as a result of horrific events that he witnessed when he was in the army in Lebanon. His English is very limited and as a result struggles to deal with correspondence and with government departments including DWP. He claims Income Support, as he is currently too ill to work due to the debilitating effect of his mental health conditions. He attended a DWP medical assessment and was found to be fit for work. As a result his Income Support stopped, his Housing Benefit was also suspended and he started to accrue rent arrears. He had no income to pay for food, electric or water and does not have a family in the UK that can support him. We successfully assisted him in appealing against the decision that he was fit for work by gathering medical evidence and preparing a written submission for the appeal Tribunal. His benefit has now been re-instated, his Housing Benefit is in payment again and we have also increased his income by securing his entitlement to Disability Living Allowance. 10. Mr K is deaf. He cannot use the phone and he relies on lip-reading and hearing aids to communicate. He is a leaseholder, living in a block of flats maintained by a management company. He is no longer able to work, and gets Income Support because he is accepted as being medically unfit for work. His Income Support covers his service charges, and certain repair bills. In 2006 he went to his local CAB because Jobcentre Plus had declined to cover the cost of the most recent repair bill of £3,700 (his pro-rata share of block repairs), when they had accepted all previous similar bills. The CAB contacted Jobcentre Plus, but after two years were unable to resolve the matter, and referred Mr K to our Legal Centre. 11. We had similar difficulties dealing with Jobcentre Plus, having to send the same documents at least twice, with one official agreeing that the repair bill should be covered, and then the next refusing to pay the bill. An appeal was lodged, which we attended with Mr K, since the outcome of the appeal depended on Legal Aid, Sentencing and Punishment of Offenders Bill complex legal argument and case law involving the definition of major and minor repairs. This, it turned out, was particularly important, as Mr K was unable to lip-read the Tribunal Judge or the DWP’s Presenting Officer, and relied on his caseworker to relay their comments. 12. The appeal was successful, but there was a long delay before the housing costs were correctly paid. The matter was only resolved when a Letter Before Action was issued, threatening Judicial Review. Jobcentre Plus then also paid compensation of £880 plus an ex-gratia payment of £800 to cover the legal fees incurred by Mr K, because of the late payment of the housing costs. Example ofE rroneousA dvice fromJ obcentreP lus 13. Mr M is a victim of torture, suffering from Post Traumatic Stress Disorder, with depression and anxiety. The Mary Ward Legal Centre was helping him with his appeal against the decision that he was not entitled to Employment and Support Allowance, because he was fit to work, and as part of this advice had ensured that his claim for JSA was withdrawn and that he was paid ESA pending the outcome of the appeal. Some time later, before the appeal had been heard, it came to light during an appointment to prepare for the appeal that Mr M had made another new claim for JSA. He had called Jobcentre Plus to chase payment of his ESA, and was told that he would not be paid any more ESA after the next giro was issued, and instead would have to claim JSA, despite the fact that he had a medical certificate that was valid for a further two months, and his appeal had yet to be decided. Due to his mental health problems and past experiences, Mr M is by nature compliant, and accepted the instructions given to him, making a claim for JSA. Although the amount of money he received would be the same, he now faced the burden of satisfying the jobseeking requirements. Further, at the time that Mr M claimed JSA, Jobcentre Plus had issued new guidance, which would have prevented reinstatement of ESA following a new claim for JSA, if his ESA appeal succeeded. (Mary Ward Legal Centre was already, along with other specialist organisations, challenging this guidance). 14. We contacted Jobcentre Plus and they confidently stated that the ESA appeal had lapsed now that Mr M had claimed JSA, but conceded that this was not the case once we had challenged their statement and they had checked their records. They then stated that the appeal would not succeed because Mr M was now claiming JSA, and refused to accept our assertion that the appeal decision would be based on Mr M’s capability for work at the time of the decision to refuse ESA, not on his current condition or his current benefit claim. We wrote a letter of complaint to Jobcentre Plus. They replied with uncharacteristic speed, within a week, to confirm that the JSA claim had been cancelled, and the ESA claim reinstated. 15. Mr M’s ESA appeal, heard 3 months later, was successful. In the meantime the JCP guidance on reinstatement of ESA when JSA had been claimed pending an ESA appeal has been revised to avoid the problems Mr M and other claimants would otherwise have faced. Due to his mental health problems and his limited English, Mr M was not capable of challenging the “advice” of JCP. In fact, he would not even have realised that their instructions were wrong. Without the intervention of a specialist adviser, with up- to-date knowledge of JCP guidance, as well as a detailed understanding of the law relating to appeals the matter would not have been resolved. 16. Ms B had been refused a backdated award of housing and council tax benefit. We helped her successfully appeal to a first-tier tribunal, on the basis that she did have “continuing good cause” for not claiming sooner, as her tax credits award had been so confusing at the time in question that she did not know what her weekly income was. The tribunal accepted our submissions and evidence, and directed that a backdated award should be calculated and made for the six-month period in question. The local authority then decided that she was not entitled to housing and council tax benefit for the final five months of this period, as it was believed that her income was too high. This was because they treated an arrears payment of tax credits paid to her one month into the six-month period as income. If this was correct, it would have meant that her income was too high to qualify. We submitted that this was wrong in law—they should be treated as capital rather than income when assessing entitlement to housing and council tax benefit. 17. The local authority then refused to make a decision to treat the payment as capital until it had specific confirmation from the Tax Credit Office that the payment in question was in fact an arrears payment. We obtained this evidence, but they further delayed making a decision because they quibbled about the wording of the letter we had obtained from the Tax Credit Office, and said they wanted to liaise directly with The Tax Credit Office about this. As several months had passed since the first tier tribunal decision, and Ms B Had substantial rent arrears that were the subject of possession proceedings, we wrote to the local authority on Ms B’s behalf threatening to issue judicial review proceedings unless they revised their decision and accepted that it was an arrears payment. They then conceded, accepted that the payment should be treated as capital, and made a further backdated award that helped significantly reduce Ms B’s rent arrears. 18. Mr S owned his home jointly with his wife. They divorced and under the divorce settlement the client signed forms transferring the property and the mortgage to his wife in 1995. The property was repossessed in 1996. The client bought a new property. Around 2002 the bank contacted the client and informed him that his name had not been taken off the mortgage because the account was in arrears. The client was contacted by debt collectors in 2005 and on advice from a CAB he started making token repayments for a short time. It would appear that he was wrongly advised, as the limitation period may not have quite expired. Legal Aid, Sentencing and Punishment of Offenders Bill 19. Earlier this year the bank issued a claim for £122,000 in respect of an alleged mortgage shortfall. The particulars of claim state that at the time the property was sold in 1996 the shortfall was £57,000. When the client first came to us he was working so was not eligible for legal help; we drafted the defence based on the Limitation Act 1980 and then referred him to private solicitors; he was advised by them for a few months but he could no longer afford to pay them; in addition the claimant asked the client to pay £300 for the documents he wanted see before disclosure had been ordered (including the statement of account to show whether the limitation period had expired) and he could not afford to pay this. The claimant issued an application for summary judgement. 20. He is now too ill to work. He gets employment and support allowance and eligible for legal help, so we have been able to advise him. The case was listed for hearing. We obtained a barrister’s opinion that his case had merits. With the help of legal aid we managed to get the case settled for £10,000. This started out as a large claim; if judgement had been entered the claimant may have enforced with a charging order and application for order for sale of his home or they may have enforced with a bankruptcy petition. In which case he may have lost his home. Whilst the proposal is to retain legal aid for defending an order for sale or bankruptcy where the client is a home owner current legal aid funding arrangements enabled us to negotiate a settlement and avoid the time and expense of further court proceedings and avoid the threat of homelessness and the need to with the matter at the most urgent stage. Moreover, making legal aid only available at the order for sale or bankruptcy stage—and not at the charging order stage—will be too late in many cases as the moment to challenge the debt would have been lost and clients may have little defence to stop the possession, resulting in homelessness. 21. Ms G is a pensioner in receipt of pension credit. She met someone who subjected her to violence and made her a prisoner in her own home. She was so intimidated by him that she did not try to seek help from anyone. He made her take extra medication rendering her unable to realise what was happening to her. In the end the police were involved and eventually he was made to leave. He only did so after setting fire to her home thus destroying all evidence of a large amount of credit agreements he had either signed himself forging her signature, or had made her sign under threat. She had a judgment entered against her for £4,000, by a high street bank. We explained the fraud issue to the bank and they agreed to set aside the judgment. Then another company specialising in purchasing debts, also issued a claim for £6,000. This company could not be persuaded about our client’s situation and continued with the court action. A legal aid certificate was obtained that enabled our client to receive help from Counsel specialising in credit debts. The defence that Counsel drafted was sufficient to make the company agree to a Consent Order in which the company agreed not to pursue or sell the claim. If legal aid had not been obtained our client would have had a judgment against her followed by a charging order as she is a home-owner. 22. Ms A had a possession order made recently on the basis of rent arrears accrued over the last 6 months, because her ESA and HB stopped and there is some muddle about why they have stopped. She has a brain injury and finds it difficult to deal with forms etc. and she has no other support. We can apply to set aside the possession order or to suspend the warrant, but clearly the issue is the arrears. She needs help with looking into what has happened with her HB. It may be necessary to get the HB file to check if any applications were in fact made as the HB claim history seems unclear. From the initial look at the case it seems possible that a fresh application and a request for backdating may be necessary,in such cases we would seek to obtain medical evidence in support of such a request. None of this is a tribunal appeal and although it is reasonably straightforward for us to deal with, it is not for her. If these plans go ahead we could make the application to the court, but would have to tell her that she needs to sort out her HB issue by herself as we would not be funded for this aspect of her case. She is then highly likely to be evicted. Whereas with access to our advice we can almost certainly get the arrears paid off and she can keep her home. Memorandum submitted by Stephensons Solicitors (LA 98) 1. The following submissions are made on behalf of the clinical negligence department of Stephensons Solicitors LLP, a UK top 100 law firm based in the North West of England. We are one of the largest teams of clinical negligence solicitors in Greater Manchester, Merseyside and Lancashire and have extensive experience in representing Claimants across England and Wales. 2. As a firm, we have been undertaking legally aided work for around 25 years and we have held a Legal Aid franchise since 1999. We therefore feel we are suitably qualified to comment on the likely implications of the Legal Aid, Sentencing and Punishment of Offenders Bill becoming law. 3. We have considered the Bill and the Government response to consultation CP12/10 in detail. We note that the government proposes to press on with the reforms largely as set out in the consultation. 4. We agree with the Law Society that the Bill represents “the single biggest attack on state-funded legal advice for the poor and vulnerable since the legal aid system was introduced”. Legal Aid, Sentencing and Punishment of Offenders Bill 5. We believe that the Bill, as drafted, is fundamentally flawed and will result not only in the denial of access to justice to many of society’s poorest and most vulnerable citizens, but will also give rise to a number of inadvertent consequences. We feel that these consequences have not been properly considered by the government. 6. We therefore urge the Government to reconsider implementation of the Bill and hereby make the following submissions: Part 1: LegalA id 7. We note that the Government intends to continue with its proposal to remove clinical negligence from scope for Legal Aid. We would urge the Government to reconsider this proposal, not only to ensure that the poorest and most vulnerable people in society have access to justice but also as the proposal would result in an increase in public expenditure, not the decrease which the Government envisages. 8. It is our opinion that Legal Aid is of fundamental importance to the fairness of the justice system, affording all citizens with the right to gain access to justice. In a civilised democratic society, Legal Aid should not only be provided in cases where life or liberty is at stake or where there is a risk of harm or immediate loss of a citizen’s home. We strongly believe that Legal Aid should enable those who would not otherwise have the means, to have access to justice, particularly in cases where they have been seriously injured through no fault of their own, as in clinical negligence cases. 9. This view is shared by Lord Justice Jackson whose report entitled “Review of Civil Litigation Costs Final Report” states: “Legal Aid is still available for some key areas of litigation, in particular clinical negligence, housing cases and judicial review. It is vital that Legal Aid remains in these cases. However, the continued tightening of financial eligibility criteria, serves to exclude people who could not possibly afford to litigate, inhibits access to justice in those key areas. In my view any further tightening of the financial eligibility criteria would be unacceptable.” 10. The Jackson review makes it clear that, at the very least, the current Legal Aid system must be maintained to ensure that the poor and vulnerable continue to have access to justice. 11. It is widely accepted that the Legal Aid system promotes access to justice and, by cutting the current provision in whole or in part, the Government would be at risk of breaching its obligations under the ECHR. 12. We urge the Government not to ignore the recommendations of Lord Jackson with regards to maintaining Legal Aid in its current form. 13. As specialist clinical negligence solicitors, it is our experience that Legal Aid is rarely granted as the eligibility criteria has become increasingly difficult to meet over recent years. For instance, the current eligibility criteria means that potential damages in a case must be assessed as being around £75,000 or greater, which rules out a large number of claims from Legal Aid funding at the outset. In addition, only 36% of the population are currently entitled to Legal Aid which has reduced from 90% when the scheme was originally introduced. 14. We therefore believe that the current eligibility criteria means that, in practice, only the poorest and most deserving clients are entitled to Legal Aid and the system is therefore achieving its purpose. Making further cuts would be unwarranted and would remove access to justice from the most needy. 15. The Government summarises its position regarding the provision of Legal Aid at paragraph 4.166 of the consultation. The Government does not believe that Legal Aid funding is justified for clinical negligence cases because “there is a viable alternative source of funding”. The proposal is therefore to exclude clinical negligence cases from Legal Aid on the basis that Conditional Fee Agreements (CFAs) are more likely to be readily available for these cases than in other types of claim. 16. If the Government implements its proposals for reform of Legal Aid as drafted, many people will be denied their fundamental right to access to justice. It is simply misguided to suggest that there is a viable alternative source of funding for such cases. 17. The majority of cases which currently receive Legal Aid funding are complex and require extensive investigation in the early stages of the claim in order to prove both breach of duty and causation. This includes paying for substantial disbursements upfront, including medical records and medical reports from experts in various medical fields, which can cost tens of thousands of pounds. As these cases are so risky, it is unlikely that solicitors will be able to fund them with Conditional Fee Agreements. 18. We note that at paragraph 4.167 of the Consultation, the Government concedes that there are cases, such as obstetric cases, with high disbursement costs, which are currently funded by Legal Aid for which clients might find it difficult to obtain funding under a Conditional Fee Agreement. We would like to point out that obstetric cases are just one example of where clients would struggle to obtain funding if Legal Aid were to be withdrawn. 19. We have represented clients who have suffered very serious injuries or even death as a result of the negligence of practitioners in many other fields of medicine. We strongly believe that these clients should be entitled to pursue the compensation that they deserve and such cases should therefore continue to be included in scope for Legal Aid funding. Legal Aid, Sentencing and Punishment of Offenders Bill 20. Many of our clients require ongoing medical treatment and lifelong care as a result of their injuries. We have achieved settlements for numerous clients, including severely brain damaged children and adults, which will fund the care they so desperately need for the rest of their lives. The compensation awarded has made a huge difference to the quality of life of these clients and that of their families, many of whom would not have been able to pursue their claims without the benefit of Legal Aid. These clients and their families are always very grateful for the assistance that Legal Aid offers them in extremely difficult circumstances. 21. We note that a survey of Action Against Medical Accidents (AvMA)’s specialist panel solicitors suggests that at least 50% less cases will be taken on if the legal aid reforms go ahead. We are also interested to note the response of the NHS Litigation Authority (NHSLA) to the consultation which acknowledges that many cases would not be taken on under the new system. 22. Paragraph 4.165 of the consultation is correct in stating that Legal Aid has helped to limit NHS legal costs. 23. While the Ministry of Justice estimates it will save £10 million a year by removing clinical negligence from scope for legal aid, AvMA estimates that if all cases which are currently successful under Legal Aid were successful under the new CFA arrangements, “the cost to the NHS of investigating new claims and settling previously legally aided cases under the reformed system would amount to at least as much”. This would result from the NHS having to pay for expensive insurance premiums to cover the fees for expert reports. 24. In addition, by losing the controls and protection offered by the current Legal Aid system, the NHS would spend more money investigating and defending spurious claims generated by non-specialist solicitors. At present, all solicitors who undertake legally aided clinical negligence work are specialists in the field and have sufficient experience to be able to identify claims without merit at an early stage, thus reducing costs. 25. Defending claims brought by litigants in person and claimants represented by non-specialist solicitors will require additional work which will result in a significant increase in NHS costs. Therefore, despite the likely reduction in some claims volumes, the corresponding reduction in costs, which the government anticipates, will not be achieved. 26. The increase in NHS costs is therefore likely to far outweigh any savings made by the Ministry of Justice. As fewer claims would be brought under the new arrangements, the NHS would also lose out on valuable learning which arises from reported clinical negligence incidents. As the NHS would be required to investigate less claims, patient safety may therefore be compromised, resulting in further injuries and deaths as a result of avoidable medical errors. 27. We note that AvMA estimates “just one additional successful clinical negligence case a year as a result of weaker patient safety could wipe out the estimated “savings” from scrapping Legal Aid”. 28. Cutting Legal Aid would also have inadvertent knock-on effects for expenditure in other government departments. For instance, we believe that resolving clinical negligence cases at an early stage often reduces the costs paid out by the NHS for medical treatment and also the amount a client is paid in welfare benefits. Withdrawing Legal Aid from clinical negligence work will therefore be a false economy. 29. We note that the NHSLA unequivocally support the retention of Legal Aid for clinical negligence cases using current eligibility criteria. 30. We also note that Lord Jackson is strongly opposed to the withdrawal of Legal Aid from clinical negligence, stating that the proposed cuts are “contrary to his recommendations” and its withdrawal from clinical negligence is the “most unfortunate” of all the proposals. 31. Cutting Legal Aid will create a legal system with two tiers where only the rich, who have the means to pay for legal representation, will have access to justice. This is fundamentally wrong in a modern society. 32. For the reasons set out above, we strongly oppose the proposal to abolish Legal Aid funding in clinical negligence cases. 33. We do not agree with the Government’s proposals to introduce a new scheme for funding individual cases excluded from the proposed scope, which will only generally provide funding where the provision of some level of legal aid is necessary to meet domestic and international legal obligations or where there is a significant wider public interest. 34. We note the concerns of the NHSLA regarding the operation of such a scheme and the lack of details regarding eligibility criteria. We share the concerns regarding the proposal that “very serious cases of negligence” would receive funding. We believe the criteria for such funding would need to be clearly defined before such a proposal could be properly considered as the current lack of clarity is likely to prove difficult in practice. 35. We believe that granting Legal Aid in such cases would be subject to the wide discretion of the Legal Services Commission and, in reality, it would be rarely granted. Similar criteria are currently used to assess whether public funding can be granted for certain personal injury cases. However, in practice, it is our experience that it is virtually impossible to obtain Legal Aid to fund personal injury claims and we fear this would also be the case for clinical negligence cases. Legal Aid, Sentencing and Punishment of Offenders Bill 36. We do not agree with the Government’s proposal to amend the merits criteria for civil legal aid so that funding can be refused in any individual civil case which is suitable for an alternative source of funding, such as a Conditional Fee Agreement. This would simply mean that the Legal Services Commission would be able to refuse Legal Aid for all clinical negligence cases, arguing that other funding arrangements are always available, even though it is often not possible to offer alternative funding for the reasons set out above. 37. If public funding is abolished or reduced, solicitors will be more selective in the cases they take on so the number of litigants in person will increase as they are refused legal representation. This will have a significant impact on the resources required by the Court service, Defendant solicitors and organisations such as the NHSLA, Medical Defence Union (MDU) and Medical Protection Society (MPS) due to the increase in time required to deal with these cases. 38. Due to the complexity of clinical negligence litigation, we believe that the majority of litigants in person would struggle to pursue their claims, making it almost impossible for the severely injured and disabled to manage without representation. 39. In addition, the proposed cuts to voluntary and charitable organisations will limit the assistance that litigants in person will have access to. 40. The Community Legal Advice Telephone Helpline is a reasonable idea in principle. However, we believe this would need to be granted sufficient funding and be entirely independent of the Legal Services Commission. 41. In clinical negligence cases, we do not believe that legal advice can adequately be given over the telephone. Clinical negligence cases are complex and require thorough investigation, both from a legal and a medical perspective. Medical records and expert reports usually need to be obtained and considered before clients can be correctly advised. It is therefore misguided for the Government to suggest that “cases can be dealt with through a community services helpline”. 42. We also believe it is not in the government’s best interests to reduce the fees of medical experts instructed in clinical negligence cases. 43. We note the Government acknowledges that Very High Cost Cases are usually successful, the current success rate being 91%. This is due to the solicitors franchised by the Legal Services Commission being highly experienced in conducting clinical negligence cases and selecting the appropriate experts. 44. The Government scheme to reduce experts’ fees will limit the choice of experts available and some of the best experts will be unavailable. This will be detrimental to the success of many cases in a field of law which relies heavily on expert evidence. This will reduce the success rate of cases funded by Legal Aid and increase the overall clinical negligence costs for the Government rather than reduce them. Pressing ahead with the proposal will therefore be counter-productive. 45. It is already a requirement of the Legal Services Commission that experts are transparent with their fees and have to provide a breakdown of the work carried out and time spent on a case. 46. Experts’ fees are largely recovered from the Defendants in successful cases and, in the vast majority of cases, these fees are deemed to be reasonable and recoverable, both on the standard basis and on the objective opinion of the Court. 47. In civil litigation, equality of arms is an important principle to ensure both parties are on an even footing. The NHSLA and the Medical Defence Unions currently pay their medical experts more than is allowable under the present Legal Aid regime and they do this in order to secure the best experts. This practice limits the Claimant’s right to access to justice and the gap between Claimants and Defendants will widen further if the proposals to reduce experts’ fees go ahead. 48. We agree that experts should charge a fair and reasonable fee. However, the proposed 10% reduction in experts’ fees would limit the choice of experts available and restrict access to justice for Claimants. Part 2: LitigationF unding andC osts 49. We strongly oppose Lord Jackson’s proposal to prevent the recovery of success fees and ATE premiums from Defendants. 50. We believe the proposal for solicitors to claim success fees from clients’ general damages is fundamentally flawed. 51. It is proposed that the level of general damages would be increased by 10% to compensate Claimants for this. However, it is unclear how this increase would be guaranteed in practice as the level of general damages is not always explicit, for example in global out of court settlements. In addition, it is not clear whether “general damages” would include only pain, suffering and loss of amenity or other types of damages which are sometimes included under this heading as well. Further clarification is therefore needed. 52. In any event, a 10% increase in general damages is likely to be very minor compared with the cost of the success fees claimed and therefore Claimants are likely to lose a significant amount of the compensation they so desperately need. This is simply unfair and unacceptable and removes the incentive from Defendants to fully investigate and settle claims promptly if appropriate. Legal Aid, Sentencing and Punishment of Offenders Bill 53. The proposal to limit the success fees claimed by Claimant’s solicitors to 25% of past losses and general damages will have a significant impact on the number of clinical negligence cases pursued. 54. The limit on success fees will mean that solicitors will have little incentive to investigate risky clinical negligence cases. As stated above, investigating a potential clinical negligence claim is often expensive and, under the new regime, many solicitors will simply not be able to afford to do so. This will prevent access to justice for many clients. 55. The Government has proposed that “one-way costs shifting” should apply in order that Claimants are not responsible for the costs of Defendants should their claims be unsuccessful. It is proposed that all but the very rich would benefit from this scheme but further details regarding eligibility criteria are essential. If access to justice is to be preserved using Conditional Fee Arrangements, the position needs to be clarified. Part 3: Sentencing andP unishment ofO ffenders 56. As clinical negligence solicitors, we are not qualified to comment. Conclusion 57. In conclusion, the current funding system using a mixture of Legal Aid and Conditional Fee Agreements allows the majority of clinical negligence cases to receive appropriate investigation. 58. The proposal to remove clinical negligence from the scope of Legal Aid combined with the reduction in recoverability of success fees in CFA funded cases will be detrimental to the fundamental rights of citizens on a moral and financial level. We agree with AvMA that the proposals are also likely to be detrimental to patient safety. 59. We therefore urge the Government to treat clinical negligence as a special case in order to protect access to justice for some of the poorest and most vulnerable members of society who have suffered devastating injuries through no fault of their own. September 2011 Memorandum submitted by Carol Laidlaw and Ellen Lee (LA 99) My name is Carol Laidlaw. I have previously worked for 10 years for the Citizens Advice Bureau, and for two years for Platt Halpern solicitors, dealing with social welfare law and housing matters under legal aid contracts. This submission includes a contribution from my colleague Ellen Lee, who has provided the first four case studies. She is a family solicitor and has worked for Platt Halpern since 1994. We oppose the removal of any matters from the scope of legal aid, but in particular family, housing, welfare rights and debt matters. These are matters we both have long experience of. Not many of the previous published submissions to the committee have included case studies, but we think the need for legal aid to continue can only be appreciated by looking at the situations of the people who benefit from it. We are presenting a series of case studies to illustrate this. The case outlines also demonstrate how the different types of matter are frequently interlinked. FamilyC ases Case 1 Wife was brought to England to live with her husband and his family. She was not allowed to leave the house or meet others without husband or members of his family.She was raped by her husband and regularly verbally and physically abused by various members of his family. Wife’s mother was concerned when no communication was received from her daughter and contacted the British police. They removed wife and child to a refuge in Manchester. She did not want to obtain any orders against her husband and his family for fear of long lasting reprisals. Her husband made an application for return of child and a residence order and traced our client’s whereabouts to Manchester. Wife opposed the application for residence. After long and distressing proceedings, findings were made against husband and family, and a prohibited steps order was made against them together with an order for indirect contact only for the father. We have represented a number of clients in this and similar situations. Case 2 Wife was brought to England under a spouse visa, to live with her parents in law. Her husband had a long- standing relationship with an English woman and he rejected our client, who was thrown out of the house with no resources. She did not have indefinite leave to remain in the UK and was not entitled to claim any welfare benefits. She was supported initially by a local women’s refuge. An application for a maintenance order was issued, which, after a contested hearing, was granted. The level of maintenance allowed wife to pay for very modest accommodation and to develop her language and other skills to become independent. We have represented many clients in this situation. Legal Aid, Sentencing and Punishment of Offenders Bill If the MoJ proposals for are implemented, these clients’ applications for legal aid would not come within scope and we believe this would give rise to grave injustices: — These groups of clients would not be in a position to properly represent themselves. — There would be no equality of arms in the proceedings where the abuser is represented. — The victim of abuse may be exposed to cross examination by the abuser. This is not allowed in the criminal court where an advocate is paid for by the state to carry out cross-examination (S38 Youth Justice and Criminal Evidence Act 1999). The Vulnerable Parties Working Group of the Family- Criminal Interface Steering Committee has recommended that this be extended to all family proceedings. — It is highly unlikely that clients in example two. would be aware of their right to claim maintenance or how to achieve this. Case 3 One young women seeking asylum with her two younger brothers from an East African country who had been through rape and a huge amount of trauma at an early age including witnessing the death of close family members during the conflict. I applied for her to receive “Section Four” support because she was pregnant and she and her brothers had made a fresh claim for asylum after initial rejection. I applied for both her and her brothers to receive support from UKBA but support was granted only to her and not her brothers and only after an appeal at the asylum support tribunal. She was also given accommodation in Liverpool even though she was receiving counselling and treatment for depression in Manchester and she had a strong support network in Manchester. I asked UKBA to accommodate her in Manchester due to her Post Traumatic Stress Syndrome and the risk of her suffering from Post-Natal depression due to isolation in Liverpool but UKBA said that if she needed support she had to move to Liverpool or she would be destitute. She was very distressed and fearful of what would happen to her and the medical evidence we had provided had not been taken in to account and several support agencies had tried to help her. She went to see solicitors and she issued a Letter before Action to UKBA who within a couple of days granted her accommodation in Manchester sharing a house with her brothers. Case 4. Another woman supported an asylum seeker from West Africa who suffered from mental health problems. Her child had been taken in to foster care temporarily partly because she didn’t have suitable accommodation for her daughter. Since she had been refused asylum and due to her mental health problems she was homeless but she was expected to attend the contact centre at social services three times a week to see her child. When I met her she stayed with a friend from the church for a short time over the other side of Manchester and had to travel very long distances to the contact centre including walking far which caused her a lot of suffering especially since she had mobility problems. She had nowhere to stay and had to keep asking for extensions from the church with my help and was becoming increasingly desperate since they told her she had to leave repeatedly. She had no means to support herself and was barely eating some days and she struggled to attend the contact centre and didn’t always make it there three times a week which impacted on her relationship with her daughter. She had tried to find support from mental health services but they refused to find her accommodation and Children and Families also said it was not possible even though they were putting her through a rigorous assessment process. Solicitors wrote to Social Services and they found her accommodation reasonably close to the contact centre and give her a maintenance allowance. SocialW elfareL awC ases When I worked for Platt Halpern, I was often asked to deal with further issues for clients for whom the firm had first dealt with family matters. Cases 5 and 6 are examples: Case 5 We helped a woman obtain a divorce from her abusive husband. She had had to stay in a women’s refuge, the address of which had to be kept confidential so that her husband or any of his relatives could not find her. One of the forms of abuse was that he had forced her to sign credit card agreements in her name, as he was unable to get credit. He then drew out the maximum amount of cash on each card, and did not make any repayments. Eventually, he used this money to arrange a marriage abroad to a second wife. His mother assisted the abuse by threatening to separate the woman from her child and take him abroad if she did not sign everything she was told to. When I saw this woman, she was being harassed by eight different creditors for thousands of pounds worth of debts that her husband had fraudulently applied for. She did not read and write English well enough, or know enough about debt collection procedures, to be able to tackle this problem herself. I was able to persuade all eight creditors eventually to agree that she was not liable for the debts. Legal Aid, Sentencing and Punishment of Offenders Bill Case 6 I helped another woman who had been abused by her husband and had to go into a women’s refuge, to obtain a community care grant for furniture when she was permanently rehoused. She had originally come from Bangladesh on a spouse visa, and had no family or personal contacts in Britain. A community care grant can only be awarded in particular circumstances, and a claimant’s circumstances often need careful explanation to demonstrate that they fit the criteria. This client was fluent in English but would still have had difficulty understanding the rules and explaining her situation. She was not awarded enough to buy sufficient basic furniture for herself and her children on the first application, so I also had to ask for a review to get the award increased. If I had not helped, the woman would have been faced with living in a house with no furniture at all and no cooking facilities, and no good means of getting any. That is, she would have had an entirely empty house with bare floorboards. Her status as a foreign spouse meant that she was barred from claiming benefits. Up to the point when she was given leave to remain as a victim of domestic violence, Social services had been providing for her children under the Children Act while she was in the women’s refuge. This client had combined immigration, family, and welfare benefits issues. Her situation would not have been improved if there had only been funding available to tackle one issue in isolation from the others. Platt Halpern also deals with criminal cases. Where these concerned benefits fraud, I was often asked to deal with an appeal against the overpayment of benefit as a separate matter. This could have an influence on the client’s sentence, or their prospects of getting a convicted. It is not unknown for the Department for Work and Pensions (DWP) to exceed their remit in pursuing prosecutions. I offer this case as the most glaring example I have come across: Case 7 My client, a woman, was being prosecuted for benefit fraud because the DWP believed she had been claiming benefits for many years as a single person when she had been living with her partner. The only evidence they had was that her husband, from whom she had long been separated but had never divorced, had used her address for some of his mail and to obtain a bank loan. One of my colleagues dealt with the criminal case. I dealt with an appeal to the Tribunal Service against the decision that she was not entitled to benefits. My colleague knew little about social security law and believed the DWP had a sound case, to which there was no good defence. In fact, in cases such as these, the DWP has to prove that a couple were “living together as husband and wife”. There is rather more to such a relationship than using some-one’s address for mail, and the benefit regulations set out that the DWP has to consider a range of points to establish whether there probably is such a relationship. DWP fraud investigators, in my experience, regularly ignore this guidance. In this case, they had no good evidence that the couple had been cohabiting. For the purposes of the benefit appeal, I obtained a statement from the woman’s sons that she had been living alone for years. And I obtained a statement from her mother-in-law that her son (my client’s husband) had lived with her for the past twelve years, had his own room, and was picked up for work from her address every weekday by one of his friends. The first tribunal hearing was adjourned, I cannot now remember the reason. While we were waiting for a new hearing, fraud officials investigated my client’s witnesses. They discovered that the mother-in-law had not declared her son as living with her on her last housing benefit form, which she had filled in four years previously. They called on the mother-in-law, who was elderly, disabled and housebound, and threatened to have her jailed for housing benefit fraud. When they had her sufficiently upset, they wrote out a statement and told her that “everything would be all right” if she signed it. She was not allowed to read the statement and was not given a copy. They had written, among other things, that “George [the son] has never lived with me permanently”. The DWP investigators then submitted the statement both to the tribunal and to the magistrates court for the fraud prosecution, knowing it to be false. I re-interviewed the mother-in-law before the next tribunal hearing, and since she was too disabled to travel, I made a video recording of the interview so that the Tribunal could be sure I had not put my own interpretation on her statement. She gave me the above account, and reiterated that her son had had his own room in her house for twelve years. The result was that the Tribunal found that there had been no fraud and that my client had not been cohabiting with her husband. My colleague persuaded the DWP to withdraw the criminal prosecution. However, he told me that he had worked for the DWP before becoming a solicitor and that it was common for the fraud investigators to use dubious methods and take advantage of vulnerable claimants. If legal aid had not been available for me to pursue this appeal for this woman, she would almost certainly have been wrongly convicted of fraud. Incidentally, benefits cases are funded only by a fixed fee which is £164 per case. This is all that is paid regardless of how much work has to be done. It does not pay for representation at the actual appeal hearing, and never has done. Some advisers will nonetheless represent clients at hearings, even though in effect their organisation is losing money when they do so. Legal Aid, Sentencing and Punishment of Offenders Bill DebtC ases Case 8 I represented a woman in the county court who was in arrears with her mortgage. She had two mortgages on her property and had kept up payments on both of them originally. But then she lost one of her part time jobs and could pay the first but could not afford the second. She had originally been a private tenant. The landlord, a company, owned a number of flats above a row of shops, but did not look after the properties and did not carry out repairs. The company allowed them to become run down, thus encouraging vandals to set fire to them and teenagers to break in and use them for drinking dens. It became unsafe to live there and the woman eventually got rehoused by the local authority. She posted the keys to her flat back to the company but did not give them written notice. After living in her council house for a few years, she exercised her right to buy. Her original landlord then traced her and took court proceedings against her, claiming thousands of pounds in accumulated interest and rent arrears. Our client could not afford to pay a solicitor for representation and was not aware that free advice might be available. Her former landlord got a charging order on her house. She did not understand what a charging order is and thought she might lose her home. She borrowed a secured loan from a subprime lender, the only type of company that would consider her as she was on a low income, to pay off the landlord. She was able to pay her first mortgage, but struggled to pay the second. She lost one of her two part-time jobs and then could not afford to pay the second loan. This case is a good example of how taking housing cases out of scope unless the client’s home is at risk is a false economy. If this woman had been able to get publicly funded advice early on, an adviser would have advised her to give written notice so as to avoid issues with the landlord. They could also have advised her how to enforce her statutory right to repair. Such advice would have cost the fixed fee of £174. Even at the point where the landlord was claiming a huge amount of backdated rent arrears, a publicly funded adviser could have challenged the validity of the claim, probably successfully, and/or had it offset by a counterclaim for disrepair. The client would also have had advice about what a charging order is and so would have known that her home was not at immediate risk. This might have involved one county court hearing, and cost the fixed fee plus perhaps a further £300–£450. By the time I got to deal with the mortgage arrears issue, the case ended up costing more than £1,000. This was because the first county court hearing had to be adjourned while I investigated the case. It seemed that the secured loan agreement with the subprime lender might be invalid, so I applied for a barrister’s opinion to see if this could be confirmed. It turned out that the agreement was valid (just) but the lender had charged more in arrears charges and interest than they were lawfully entitled to do. I was able to get the surplus amount refunded to the client, thus significantly reducing her debt. A second court hearing was then required to get a court order for a suspended possession agreement. Incidentally, once I had the barrister’s opinion, the subprime lender’s solicitor co-operated in getting a satisfactory settlement of the case quite quickly. Legal representatives do not promote contentious litigation. If certain government ministers cared to read Civil Procedure Rule 1, they would know that legal advisers are enjoined to assist the court by trying to reach a settlement before a case needs to go to a full court hearing. I could offer more examples, but only these few are possible within the recommended word limit for a submission to the Committee. There is no justification for removing any matter from the scope of legal aid. There is no budget crisis. The national debt was 68.6% when the Conservative Party formed a government and is currently 67.4% of the Gross Domestic Product. This is a lot less than it has been for some decades. Between 1945 and 1960, when the country was building council houses and establishing the NHS, it was 200%. It is also a lot less as a proportion of GDP than the national debt of any other developed country. Whatever the Government’s motives for removing these matters from legal aid, and for reducing other forms of public spending, it is nothing to do with the level of the national debt. September 2011 Memorandum submitted by Coram Children’s Legal Centre (CCLC) (LA 100) A. Introduction 1. Coram Children’s Legal Centre (CCLC) is a unique independent NGO concerned with law and policy affecting children. The Centre works in the United Kingdom and around the world to promote the rights of children through the reform of law, policy and practice and through the provision of direct legal assistance to young people, parents and professionals. Legal Aid, Sentencing and Punishment of Offenders Bill 2. CCLC has extensive experience working to reform legal systems around the world. Staffed by a core team of child rights lawyers and researchers, the CCLC engages in research, implements reform programmes, undertakes consultancies and delivers training for government, UN agencies and NGOs to reduce youth offending and to improve outcomes for children in conflict with the law. The organisation has a comprehensive understanding of international child rights and juvenile justice standards, as well as a practical knowledge of how to implement these standards in practice in a wide variety of social, political and cultural contexts. 3. CCLC welcomes the opportunity to submit evidence to the Committee for the Legal Aid, Sentencing, and Punishment of Offenders Bill. This briefing outlines our principle concerns respecting part 3 of the Bill and how it impacts on the sentencing of children. We have also prepared a separate briefing on the provisions of the Bill that relate to legal aid. 4. CCLC welcomes a number of the Bill’s reforms, in particular those that relate to referral orders and youth cautions, and the remand of children awaiting trial. We do, however, have serious concerns about other aspects of the Bill, such as the extension of maximum curfew orders for children to 16 hours per day, and the provisions that cover penalties for children in breach of a detention and training order. B. ReferralO rders 5. Coram Children’s Legal Centre (CCLC) welcomes the reforms under clause 65 that reduce the number of conditions that must be met before a court must or may refer a child to a youth offending panel. We also welcome the new provision that a court has the option to conditionally discharge a young offender for a first offence. These reforms provide the courts with more flexibility to choose the most appropriate course of action for a child based on the particularities of each case and the background and needs of each child. 6. We recommend that the conditions for discretionary referral be relaxed further so that a child may be referred to a youth offending panel after conviction even where they did not plead guilty, provided that they subsequently admit to the offence and consent to the referral. C. Breaches ofD etention andT rainingO rders 7. The CCLC shares JUSTICE’s concerns about the provisions contained under clause 66 regarding penalties for youth offenders who are in breach of a detention or training order (DTO).441 The rules allow the court to order an extra period of detention or supervision in addition to the period already imposed at sentencing. We worry that children who come into conflict with the law, particularly those in the most vulnerable situations, who are also likely to be those with the least capacity to fulfil the conditions of their DTO, are at risk of exposing themselves to an indefinite cycle of detention and supervision. 8. It is generally understood that children differ from adults in terms of their physical and psychological development, and that these differences constitute the basis for their reduced culpability within the criminal justice system. Children, particularly younger children, are generally less able than adults to realise that their actions may have long term and far reaching consequences. It is important to bear in mind when designing penalties for breaches of DTOs that they could be issued to children as young as twelve. Furthermore, children subject to a DTO are likely to suffer from some degree of developmental disability or mental illness, reducing their capacity to make rational choices about their behaviour. Finally, children in conflict with the law often come from disadvantaged backgrounds and have not been provided the support, structure and stability they need in order to achieve compliance with their DTO. It has been demonstrated that children with the highest level of welfare need are those who are most likely to breach their DTO; under these new rules, such children may be subjected to ongoing periods of detention and supervision. This is only likely to strengthen structures of inequality and disadvantage, “up-tariffing” vulnerable children through the criminal justice system so that they are at an increased risk of reoffending. 9. The CCLC agrees with the recommendations made by the Standing Committee for Youth Justice that alternative measures such as imposing a fine, changing the conditions of the supervision arrangements, or providing further periods of supervision for children through welfare services (rather than through criminal sentencing) would be a more effective way of promoting the rehabilitation of children in breach of a DTO.442 D. CurfewR equirements 10. The CCLC is very concerned about the extension of the maximum hours of curfew from 12 hours to 16 hours per day. We are not aware of any evidence that suggests that more restrictive curfews for children are likely to reduce rates of reoffending. Furthermore, there are serious rights implications of imposing such heavy restrictions on a child’s liberty as part of a community order. 11. These new rules are likely to have a negative effect on children’s wellbeing and compromise rehabilitation efforts. Children who come into conflict with the law often have a high level of protection or welfare need. There is a risk that under these rules such children will find themselves confined within an environment where they are exposed to domestic violence, abuse or neglect. Furthermore, keeping children 441 Available at http://www.justice.org.uk/data/files/resources/284/LASB-HCCS.pdf 442 Available at http://www.scyj.org.uk/files/SCYJ briefing LASB HC2R.pdf Legal Aid, Sentencing and Punishment of Offenders Bill under curfew for so many hours of the day will hamper their ability to participate in educational activities and limit their access to a range of support services such as drug, alcohol or mental health treatment programs that could aid their rehabilitation. 12. We believe that these provisions have simply been copied from the new provisions that are to apply to adults under clause 60, without attention as to whether they would be appropriate for children. The Prison Reform Trust recently published research that found that children already have trouble adhering to their curfews due to a “complicated set of factors” including a chaotic home.443 Making curfew conditions tougher for children is likely to increase rates of breach. 13. We do not disagree with the provision that extends the maximum period of curfew from 6 months to 12 months, as we are hopeful that this may have the welcome effect of reducing the number of children who are sentenced to custody. E. YouthR ehabilitationO rders 14. The CCLC is concerned about provisions under clause 69 which extend the maximum period of a Youth Rehabilitation Order from three to three and a half years. Three years is already an exceptionally long period of time from the perspective of a child, who is likely to feel overwhelmed by, and have difficulty comprehending, an order of this length. By way of comparison, Youth Conference Orders in Northern Ireland are currently set at a maximum of twelve months.444 15. We are also opposed to provisions under clause 70 which raise the maximum fine for the breach of a Youth Rehabilitation Order to £2,500. Given that the majority of children have very limited or no independent income we do not think that fines of this amount are appropriate or reasonable. We recommend that they remain as they are at a maximum of £250 for children under 14 years, and £1,000 for children over 14 years. G. Remand toY outhD etentionA ccommodation 16. The CCLC is very pleased with the reforms contained under clauses 81 and 82 which tighten the conditions under which a child may be remanded in custody awaiting trial. This brings the youth justice system into closer compliance with international law, which provides that children must only be deprived of their liberty as a measure of last resort.445 We would, however, recommend that the age condition under subsection 2 of clauses 81 and 82 be raised from 12 to 14 years. As pointed out by the Prison Reform Trust, in cases where a child aged 12 or 13 poses a serious risk to the public, the court can request that they are placed in secure accommodation under welfare legislation, as is the practice for children aged 10 and 11.446 September 2011 Memorandum submitted by Ismail Abdulhai Bhamjee (LA 101) I, Ismail Abdulhai Bhamjee of 196 Tiptree Crescent, Ilford, Essex IG5 OST, Tell 020-8252-6462, do hereby make a complaint and persuant to Section 13 of the Statutory Declarations Act 1835. 1. I request that Legal Aid Funding should be given to any person to be represented by a Counsel- Barrister when the HM Attorney General or HM Solicitor General authorises an Application for an Order under Section 42 of the SCA 1981. 2. I request that Section 42 (4) of the SCA 1981 should be repealed, as this is a Breach of Article 13 of the Convention Treaties. 3. Section 11 of the Courts and Legal Services Act 1990 Any County Court Judge does have the Power to ban any person when any person is misleading the Court or behaving in an unreasonable behaviour. The High Court Judge should not have Jurisdiction Power to ban any person from taking and defending any proceedings before any County Court, as they have equal powers but only the amount that is involved. Say if the Amount claimed is less than £10,000.00 than this should be commenced in the County Court, and should include for Permission of the Circuit Judge to bring and continue any legal proceedings. 4. Section 42 Orders which are for Indefinate Period- without time limit 443 Hart, D. (2001), Into the Breach: The Enforcement of statutory orders in the youth justice system, London: Prison Reform Trust, National Children’s Bureau. Available at: http://www.outoftrouble.org.uk/sites/default/files/Into the Breach low res.pdf 444 JUSTICE/The Police Foundation, Time for a New Hearing, December 2010. 445 International Convention of the Rights of the Child (adopted 20th November 1989, entered into force 2nd September 1990) 1577 UNTS 3, art 37. 446 Accessible at: http://www.prisonreformtrust.org.uk/Portals/0/Documents/Justice%20Bill%20Committee%20Submission%20July%202011.pdf Legal Aid, Sentencing and Punishment of Offenders Bill This should be replaced as between two and five years since the Legislation does change every year which the Attorney General/Solicitor General and their Legal Representatives should take into consideration and inform the Court of Change of Legislation. 5. There is a Judgment given in the Supreme Court of the United Kingdom—Experts Immunity should be abolished. The Barristers and Solicitors who are insured with the Insurance Company—They should be prohibited and restrained from making any Application to have a claim form strike out—either because they were not instructed by the person bringing the claim. As the Barrister or Solicitor might have misled the High Court in previous proceedings which causes miscarriage of justice, and unnecessary costs on any other third party person. 6. Striking out a barrister, solicitor from the roll of barrister or solicitor Any person can make an application before any court of law in any part of the United Kingdom to have the solicitor, barrister answer the allegations that he/she should be strike out from the roll of barrister or solicitor and funding should be given for a barrister. 7. In the Proceedings Number HC 02 CO 2183, HC 02 CO 3111 AND HC 02 CO 3112—High Court of Justice. I did lodge the list of Authority Dunoon Developments Ltdv the Secretary of State and Poole District Council which was decided in the Court of Appeal in 1992. I have provided the list of Authority to the Parliamentary Ombudsman Commissioner when making a complaint for Maladministration by the Government Department. The Parliamentary Ombudsman Commissioner had refused to carry out the Investigation when evidence had been provided to them. The Information Commissioner Office had been given a copy of the list of Authority but they do not admit the facts which does amount to Official Misconduct in Public Office. 8. If the Commitee does require a copy of Bundle 3 of the Document which was lodged in the High Court of Justice and in the Court of Appeal, than I am prepared and willing to send copy of the bundle 3 of the document. 9. Civil restraint orders in the United Kingdom—CPR 3-11 This should be abolished as only HM Attorney General or Solicitor General should be authorised to issue an application to ban any person, and cross-examination and jury trial should be allowed. September 2011 Memorandum submitted by David Glasgow, Dr Kari Carstairs, Dr Bernard Horsford, Prof Helen Dent, Joanna Beazley Richards, Kirsty Lowe and Peter Ludlow (LA 102) We are writing to you as a group of psychologists in private practice who do Court reports. The British Psychological Society (BPS) provided a response in February 2011 to the Ministry of Justice consultation on legal aid funding reform. In that response, the BPS pointed out that the proposed Legal Services Commission (LSC) benchmark rates for experts’ fees were markedly lower than the going rates, particularly in London where they represented a cut of 30% or more. Concerns about the impact on the supply of experienced experts were raised. Since then, the Lord Chancellor has planned to bring into effect on 3 October the Community Legal Service (Funding) (Amendment No. 2) Order 2011 which confirms the lower rates. At the same time, experts are now being asked to accept a clause in the contract to the effect that any sum of money can be requested for repayment upon assessment. This “claw back” clause is unworkable for a small business. We have to pay VAT, corporation tax, PAYE and other expenses. Such a clause makes a mockery of any financial business planning. Furthermore, this term is grossly unfair and is unheard of in any other sector of the economy. No service provider can possibly agree that the customer has the right to ask for money back long after that service has been delivered satisfactorily and paid for. On top of the lower rates and the “claw back” clause, our members are finding that payments from the LSC are being delayed by increasingly longer periods. One member found that the amounts that were delayed beyond 90 days had doubled from June to September 2011. Another member found that in 2009–10, fees were unpaid after 90 days in 22% of legally aided cases, amounting to 16% of income from legal work for the year and in 2010–11, the figure stands at 24% of invoices unpaid after 90 days, amounting to 22% of legal work for the year. In all of these cases, prior authority had been granted for the fees and in none of these cases did the total exceed the original estimate. For both members, instructing solicitors report increasing delays in the processing of claims by the LSC. Legal Aid, Sentencing and Punishment of Offenders Bill We are in receipt of the most recent newsletter from the UK Register of Expert Witnesses informing us that the LSC is to consider abolishing prior authority altogether. This raises grave concerns for all of us. Without prior authority, we have no contractual basis for the funding of our work and we will find it impossible to have any sense of what fees we might eventually receive. The third factor is that even when we are finally paid, we are never able to claim back interest and late compensation because we are told that the LSC will not pay this. Why not? Is the LSC exempt from adhering to acceptable business practices and legislation, and if so, why? One member calculated what the interest would come to for all the bills currently overdue in her practice and it was nearly £2,000. She is a sole trader and is owed nearly £20,000 at the moment, making it very difficult for her to meet her financial obligations such as paying her tax. We fail to see why we should be providing an interest free loan to the government when we are of course at the same time required to pay our tax bills to the Government on time. The combination of the lower hourly rates, delayed payments, the inability to get interest when payment is delayed and the uncertainty generated by the “claw back” clause threatens to put us out of business. As psychologists, we all can seek to gain a living providing other services, such as consultation and psychotherapy, services that do not carry the high level of scrutiny and professional accountability involved in writing reports for the Courts. Furthermore, providing psychotherapy through private insurance companies offers a higher hourly rate, there is no “claw back” clause, and payment is provided within 30 days. One member has reported that 100% of his legally aided fees remain outstanding over 190 days. He never has this problem with private clients or insurance companies who settle their invoices within 30 days. The situation is so grave now that we question whether there is a hidden agenda here of abolishing legal aid for expert witnesses by the back door. We want to provide a service to the legal system, our skills are in high demand and we are willing to work with the lower hourly rate. What we cannot do is to wait indefinitely for large sums of money that the Government owes us, with no compensation for the delay in payment when we are finally paid and on top of that, the prospect that we may be asked to pay money back! What we are asking for is (1) removal of the “claw back” clause, (2) agreement that payment of invoices within 90 days is reasonable, and (3) for invoices that are not paid within 90 days, interest and compensation as outlined in existing legislation will apply. September 2011 Memorandum submitted by Patricia Thomas (LA 103) I am writing to you as I understand that you are co-Chairman of the Parliamentary Committee currently considering the provisions of the proposed legislation. Please would you ensure that this letter and attachment are copied to all members of the committee for their information. I wish to express my serious concerns about the proposed changes outlined in this Bill, that relate to the withdrawal of legal aid provision in a number of areas—particularly with regard to advice relating to the benefits system, a complex area and the effect of that on the Law Centres and their clients. The impact that that will have on those who cannot afford legal fees, particularly those vulnerable individuals who suffer with mental illness or learning disability,is likely to have dreadful consequences which in all probability will prove even more costly to the public finances. I have enclosed a copy of my recent email to our constituency MP, Richard Graham, setting out my daughter’s experiences and why the continued provision from the Law Centre is so important. I have had contact with our MP not just in relation to my concerns about my daughter’s situation—I will not always be here to support her—but also relating to the work I am involved in. as Chairman of the Gloucester group of Survivors of Bereavement by Suicide. This work, both locally and nationally, in which I have been engaged for over 14 years has provided knowledge that raises my concerns on an informed basis. I hope that you will be able to include these considerations in your discussions on this legislation, if you would like any further information do not hesitate to contact me. I look forward to your responses. September 2011 Carer’s experience 1974 Married—age 25, husband 27. 1975 Birth first child. 1977 Husband—1st disappearance (overnight). 1978 Birth second child. 1981 Husband overdose—went to GP—brought home after treatment. Legal Aid, Sentencing and Punishment of Offenders Bill 1983 Husband—2nd disappearance (3 days)—overdose—hospital treatment (3 days). Moved (180 miles)—husband new job. 1985 Birth third child 1987 Husband—3rd disappearance (2 weeks)—attempted gassing (car). GP referred him to consultant psychologist—therapy started. 1988 Moved (90 miles)—husband new job. 3 months after move—4th disappearance (3 days) another suicide attempt. New GP refused consultant referral for continuation of psych therapy told wife “not available on the NHS”—not true—(NB GP’s—control own budgets at this time). 1990 Husband 5th disappearance (5 days)—wife “talked him down” in middle of the night (1.30 am) phone call with police officer listening on extension. 1994 Husband 6th disappearance (5 days)—suicide by gassing—left wife (45) and 3. Children (18, 15 and 8). GP advice re support for children—“Wait and see”. 2000 Daughter (14) self-harming—subjected to bullying at school—mother requested involvement of Educational Psychologist—no referral made. 2003 Daughter (17)—new GP diagnosed depression and anxiety medication prescribed. 2004 Daughter—diagnosis of Dyslexia. Started at College—self-harming continued. Considerable support needed. 2006 Mother requested CPN support for daughter—GP referred. Mother is told she is a Carer who needs support in her own right. 2007 CPN support at first good (6 mths)—then “system improvements” lead to complete breakdown in service—no further support for daughter. 2008 Daughter leaves College—unemployed and (despite excellent Disability adviser at JobCentre, whose efforts are limited by the bureaucratic pigeon-holes available), need for continuity of support that is not there. 2010 Daughter wins ESA Tribunal after 7 months unnecessary stress and anxiety. What has this cost these individuals (and the country) in wasted potential? Daughter’s experience 1985 Born—a girl after 2 boys—whole family thrilled. 1994 Age 8 yrs 3 months—father died—suicide. 1997 Sept—Moved up to secondary school. Oct—emergency admission to hospital—middle of night life-saving surgery. Extra support at school—literacy/numeracy—discontinued very soon. 1998 Mother had to explain at Yr 8 Parents Evening (to 4 teachers) why daughter very withdrawn and reluctant to speak in lessons—teachers had not been briefed beginning of year. 2000 May—discovered self-harming at school—bullying had started the previous year. Mother requested referral to Ed Psych service—still waiting for appointment. 2003 Spring—Lwr VI—2 occasions—police involved following bullying incidents. May—mother hospital seriously ill—surgery. Summer—17 yrs old—diagnosed with Depression/Anxiety. Autumn—tried to return to school—spent year working at home—very isolated. 2004 Charitable funding accessed for private Ed Psych assessment—dyslexic. Autumn—started course at Harlpury College—special needs support provided—self-harming continued. 2006 Referred for CPN support from NHS mental health trust— v good 1st CPN—begins to build trust and make therapeutic relationship (5 months). 2007 Trust re-structured—abrupt change of CPN—2nd CPN disastrous. Summer—3rd CPN gave care plan offering “minimal support”. No further contact for 8 months—then letter referring her back to GP. Only support—from home throughout all of the above. 2008 Summer left college with certificate at distinction/merit level. Signed on at JCP—referred to disability adviser. 2009 Jan-Feb—work trial with major retail company—fiasco—subsequently received letter of apology and admission of their responsibility for outcome. Shaw Trust support worker—wrote critical report to Ofsted. Damage to health considerable—DA advised claim ESA—obviously not fit for job/job-seeking. Self-harming again. Summer—Atos Medical Questionnaire completed—questions only relevant to physical disability Assessment—GP sent note giving contact details—but no contact for additional info made.She became distressed during assessment—Dr (?) refused to ask mother to join them. Found fit for work. Appeal submitted— ignored. Summer—mother—letter of concern to 2gether NHS Trust—re lack of care. October— mother—hospital 36 hrs—Cardiac Assessment unit. December—Gloucester Law Centre— completed paperwork re Tribunal. Legal Aid, Sentencing and Punishment of Offenders Bill 2010 Feb—Law Centre solicitor accompanied her to Tribunal—she became very distressed—panic attack. Tribunal judge found in her favour—expressed incredulity that she was found fit for work. 2010 Referral for Psychotherapy—interruptions—prematurely ended. 2011 Referred by DA to People and Places—started to meet with support worker connected building trust and confidence in her. 2011 Feb—letter of apology from Trust director: “It is quite clear that following the transfer of K’s care from CPN until her recent referral to Psychotherapy that the experience that K had fell short of what is reasonable to expect from the Trust.” Medical assessment questionnaire from Atos—questions—no change—why? Law Centre solicitor—helped her to complete the form. 2011 March—saw specialist from Frenchay Hospital—diagnosed with ME. Sent letter to Atos—still required to attend for assessment. May—support worker accompanied her to assessment—took detailed notes—very surprised by some of questions—letter from specialist provided and reluctantly accepted. This time correct outcome—put in work-related activity group (as before). 2011 July—support worker’s contract not renewed—lack of funding— yet another source of support removed. Memorandum submitted by Howells Solicitors (LA 104) FamilyL aw If the present Bill proceeds without amendment the poorest and most vulnerable members of our society will no longer be eligible for legal aid to help them sort out divorce proceedings, disputes relating to children including absent parents who are seeking contact with their children, wider members of the family who are applying for contact or in some cases residence of a child who may live with them, people who need advice on sorting out financial matters when divorcing or separating unless there is “objective evidence of domestic violence”. In 2009–10 95% of civil and family legal help recipients were in the bottom two income quintiles. These people are often the most vulnerable yet will lose the right to get legal advice even if their opponent is privately paying. There will be a two tier justice system. Those with money will be able to afford to instruct a solicitor whereas those without will be left to represent themselves in complex and difficult proceedings. Legal advice early in a case can prevent court proceedings, manage people’s expectations and resolve disputes leading to less stress for both the parents and children and a better understanding between the parties which may prevent further dispute. At the moment 90% of family law cases are resolved out of court. 88% of the work that we do in these areas will go out of scope. There will be 34,000 fewer Children Act cases (75% of existing cases). Parents or carers will struggle to get legal advice creating a society where children miss out on the opportunity of having a relationship with both parents, the opportunity of having the stability provided by a residence order and financial security as the Bill proposes to take out of scope advice in financial matters where there is no objective evidence of domestic violence. This applies to cases where urgent court action is necessary to prevent one of the parties dissipating the assets. Mediation Almost all our cases are referred to mediation. A mediator can only give information not legal advice. We continue to support parties through the mediation process by providing tailored legal advice—often at the suggestion of the mediator who is not qualified to do this and this helps to facilitate an agreement and avoid court action. The legal advice guards against unfairness. Mediation is not suitable for all cases and often fails. Where mediation fails under these proposals many people will be left to navigate their way through the court process without the guidance and advice of a solicitor putting a huge strain on the courts. Cases will take far longer when a Judge is dealing with litigants in person and is left to explain the law and procedure to them in full. OurS uggestion Increase the proposed funding for advice through the mediation process—the present proposal to provide a fixed fee of £150 for help with mediation will lead to even more firms deciding to ditch legal aid and advice deserts for face to face work. Allow legal aid to be granted by a solicitor without a referral to mediation where there is an urgent need eg finances are being dissipated by one of the parties or a child is at risk of abduction in the UK. Legal Aid, Sentencing and Punishment of Offenders Bill DomesticV iolence At the moment legal aid is available to advise the victims of domestic violence and send out warning letters which sometimes prevent court action. This work would no longer be covered under those present proposals. Whilst the definition of domestic violence has been extended slightly it does not cover victims of abuse or those who have no objective evidence of the domestic violence. It does not cover representation for the alleged abuser who may have their relationship with their children curtailed or stopped if adverse court findings are made against them. Many victims of domestic violence choose not to report it so would not qualify under this legislation. Others may be encouraged by the promise of legal aid in future contact and financial proceedings to press for findings when they would otherwise have chosen not to inflame what is already a very volatile relationship. At present injunction proceedings are often compromised by one party giving an undertaking which is a promise to the court which can be enforced if it is broken but does not amount to an admission of wrong doing. Many cases which would otherwise have gone to a long and traumatic court hearing are disposed of in this way and often enable the parties to move on with their lives and concentrate on other pressing issues. Under the proposed legislation undertakings will not be sufficient objective evidence of violence so full, contested hearings will be more prevalent, increasing the strain on the judicial process and inflating legal costs. At the moment the cost to the legal aid system of proceeding with a domestic violence injunction which is concluded by undertaking is approximately £800. The cost of a one or two day fully contested hearing would be approximately £5,000. It will also heighten the animosity between the parties, adversely affect their ability to communicate directly in future and make the absent parent’s contact more difficult. Under these proposals only the victim would be represented and would be subjected to cross examination by the abuser. OurS uggestion Extend the definition of domestic violence so that a mediator can determine that mediation is not suitable because one of the parties is at risk of abuse. This will avoid many unnecessary contested hearings on the issue of domestic violence. Make legal aid available to those who are the alleged abuser to ensure that there is equal representation in domestic violence proceedings. StatutoryC harge At the moment almost all our financial cases which are funded by legal aid result in the repayment of the costs in full from the money the party “recovers or preserves”. Experiences and specialist lawyers do not allow cases with few assets or no chance of success to trouble the Courts. AlternativeP ayments forL egalS ervices The Bill proposes to introduce interim orders for costs. This scheme may work but potential applicants need detailed advice on how to proceed to this point and advice on the likelihood of success which will involve detailed analysis of the other side’s financial affairs and under the present proposal this preparatory work will not be funded. It is likely therefore to be rarely used in practice. Our Suggestion—make legal aid available for advice in connection with the new interim lump sum proposals at an early stage. CivilL aw Early advice on debt, welfare benefits and housing issues resolves issues, prevents court or tribunal proceedings and saves costs. These proposals simply pass the burden of expense onto other agencies eg homeless services, social services, court and tribunal services, health services, MPs etc. A successful housing benefit appeal will cost a fixed fee of £167 and may prevent a tenant falling into arrears and being evicted. Lack of early intervention may lead to eviction, homelessness, social services involvement with children at the very least and at a vastly greater expense to the public purse. These proposals threaten to destroy legal aid provision on a scale that will create huge advice deserts and will damage the market irreparably. 10% Cuts Even the largest and most dedicated suppliers who are determined to try and continue will find it difficult to do so. Those not committed to legal aid have already pulled out and others have become insolvent. Legal aid firms have already reduced overheads to a minimum. There are no further savings that can be made. A further 10% reduction in current remuneration cuts margins tighter in an already difficult environment and requires providers to assess their future business plans. Most legal aid firm’s profit margins already too tired to tolerate the fee cut and this may tip many legal aid firms into unprofitability. The Otterburn report shows that the profit margin across all firms is 10%. These cuts will effectively eliminate profit and inevitably mean that some firms stop doing legal aid altogether leading to advice deserts. Legal Aid, Sentencing and Punishment of Offenders Bill In family land civil law the 10% cuts will wipe out our profit. Attached are case studies we have drawn up which are based on our experience, working in practice for many years and predicting what could happen as a result of these proposals. September 2011 Memorandum submitted by Walker Smith Way Solicitors (LA 105) OurC oncerns — The removal of Clinical Negligence from scope goes directly against the very strong advice of Lord Justice Jackson in his report that there be no further restriction on either scope or eligibility for Legal Aid in civil litigation. — The proposals exhibit a lack of real understanding as to the immense difference in complexity between road traffic accident and pavement tripping claims on the one hand and Clinical Negligence claims on the other. — The proposals erroneously equate “complexity” with “high value” when a low or modest value claim may in fact possess greater complexity in terms of law, fact and medical opinion as to liability than does a high value claim. — The “double whammy” of both withdrawal of Clinical Negligence from Legal Aid scope and the abolition of recoverable success fees and ATE insurance premiums in particular will serve to dramatically restrict access to justice. — The impact studies upon which the Jackson Report and the Consultation Paper relies for their conclusions are inadequate and flawed when it comes to data in relation to Clinical Negligence claims eg the studies performed by Professor Fenn did not include Clinical Negligence claims as a specific type of claim and a 10% increase in damages will be inadequate to compensate injured persons for the impact of success fees. — Most Claimants currently eligible for Legal Aid funding are unable to afford BTE insurance premiums at their current level let alone at such higher level as would be required if Clinical Negligence were to be fully covered by these policies. Currently most such policies are very restrictive in terms of the nature of the negligence alleged. — A substantial number of Clinical negligence claims involve the poorest/most deprived sector of the community because almost by definition they exhibit the greater number of health problems overall. — The removal of Legal Aid funding will impose a higher costs burden on the NHSLA. The NHSLA oppose the withdrawal of Clinical Negligence from scope. — This is complex litigation which most lay individuals would be unable to conduct without specialist legal support and representation. It requires specialist legal knowledge and experience. Currently to conduct legally aided work the solicitor’s firm must adhere to strict quality standards. Withdrawal of Legal Aid will uncontrollably open the market up to the ambulance chaser breed of lawyer/claims managers. The above is by no means an exhaustive list of our concerns but we do clearly recognise that in the current financial climate there is a need to restrict public expenditure and make more effective use of such expenditure. With that in mind we advance and support the following proposals to achieve an efficient and cost effective use of resources whilst maintaining a proper and equitable access to justice for Clinical Negligence claimants. Recommendations 1. In each successful Clinical Negligence claim both Solicitor and Counsel to pay into a fund (specially designated for Clinical Negligence work only) 10% of their recovered fees. Based on statistics provided by the NHSLA and LSC we believe that this is likely to produce upwards of £6 million per annum if Legal Aid funding is maintained at its current level. Such a scheme was in place until around 12 years ago and is eminently feasible and simple to administer. 2. Restrict Legal Aid funding to the “investigation stage” of a case only. Cases to be pursued thereafter on a Conditional Fee Agreement with recoverable but staged success fees and insurance. 3. Solicitor’s and Counsel’s hourly charging rates to be limited to a maximum of the Outer London rate (London 3) currently £267.00. There is no justification in our view for Clinical Negligence Claims to be dealt with by City of London firms at City of London hourly rates (£409.00). The application of such Central London rates has resulted in unconscionably high levels of legal costs when success fees have been applied in addition. Legal Aid, Sentencing and Punishment of Offenders Bill 4. A clearly defined and fixed but staged success fee structure be put in place through a mediated agreement between Claimant Clinical Negligence Solicitors and the NHSLA. This would encourage early consideration of the issues and early settlements. 5. The equivalent of the “Putting Things Right”/NHS Redress in Wales Scheme be put in place in England for claims valued up to £25,000. This will include joint instruction of experts and fixed fees. 6. Conditional Fee Agreements in Clinical Negligence Claims to retain fully recoverable success fees and ATE insurance premiums. 7. Abolish referral fees for Clinical Negligence and make it a criminal offence to seek or offer such fees. GeneralC ivilF unding Our proposals are: 1. Let existing initiatives, designed to progress cases more efficiently and cheaply, bed in and subject them to detailed assessment before introducing any further wide-ranging changes. 2. Restrict and control “Credit Hire” at the very least. Complete abolition would in our opinion be appropriate. Walker Smith Way is a large regional firm undertaking a wide range of “High Street” practice work but specialising in Employers Liability and Clinical Negligence personal injury claims. We hold the LSC Quality Mark for Clinical Negligence and were founded over 150 years ago. October 2011 Memorandum submitted by Rethink Mental Illness (LA 106) Who weA re Rethink Mental Illness is a charity that believes a better life is possible for millions of people affected by mental illness. For 40 years we have brought people together to support each other. We run services and support groups that change people’s lives and challenge attitudes about mental illness. We directly support almost 60,000 people every year across England to get through crises, to live independently and to realise they are not alone. We give information and advice to 500,000 more and we change policy for millions. 1. Summary 1.1 This call for evidence highlights some of the key areas of concern for Rethink Mental Illness in regard to the Legal Aid, Sentencing and Punishment of Offenders Bill. Rethink Mental Illness has varied experience of mental health and the criminal justice system. We were commissioned to set up a Service User and Carer Review Panel to assist with the work of Lord Bradley’s independent review of people with mental health problems in the criminal justice system. We have also been involved with the Health and Criminal Justice Programme Board on the Delivery Plan of Lord Bradley’s recommendations. 1.2 In addition to this, Rethink Mental Illness delivers a number of criminal justice services. We provide advice and support services in courts, work with Nottinghamshire Healthcare NHS Trust to support prisoners identified as having a mental health problems prior to release and facilitate their reintegration into the community. As the largest provider of primary care psychological therapy services in the country after the NHS, we also deliver services across five prisons in Doncaster and two in Wakefield. 1.3 Rethink Mental Illness supports the Government’s aims of a “rehabilitation revolution” and the commitment to reduce reoffending. Many people affected by mental illness get caught up in a cycle of reoffending and we are encouraged by the Government’s intention to meet the needs of vulnerable offenders with mental health problems. However, we are concerned that some elements of the Bill might actually prove detrimental to these aims. For example, people serving short prison sentences are two to three times more likely to reoffend if they do not have suitable housing.447 Removing timely access to advice by reducing the scope of legal aid provision could exacerbate this problem. Equally, onerous or inappropriate conditions on cautions or treatment requirements could hamper rehabilitation. 1.4 Rethink Mental Illness therefore recommends the following points for consideration in order that barriers to rehabilitation for people affected by mental illness will not be inadvertently imposed by the Bill: — The legal issues that people with mental health problems face are often complex and cannot be delineated easily into areas that will and will not be covered by the new legal aid provisions. Leaving people with mental health problems to reach crisis point before support is available will have a significantly detrimental affect on their health. — We are particularly concerned about the impact of removing legal aid from complex areas of legislation, such as welfare benefits advice. 447 Homeless Link (2009) Criminal justice policy briefing London: Homeless Link. Legal Aid, Sentencing and Punishment of Offenders Bill — We oppose the extension of the curfew requirement from 12 to 16 hours as it could severely hamper someone’s access to services and employment, which would be damaging to rehabilitation. — Removing the need for a psychiatric report before issuing a mental health treatment requirement will reduce delays and remove a significant practical barrier to the treatment requirement. While we welcome this, we would stress the importance of an accurate and thorough assessment so the treatment specified is as effective and appropriate as possible. We would ask for clarification on what guidance will be given to courts on this issue. — We welcome the promotion of the use of bail for offenders unlikely to receive a custodial sentence. Being placed on remand can cause a considerable deterioration in a person’s mental health and we are pleased that the use of remand will be limited by these proposals. 2. LegalA id 2.1 Rethink Mental Illness welcomes the continuation of legal aid for issues around the Mental Health Act, the Mental Capacity Act and community care. This retention is vital to protect people with mental health problems who would otherwise be in an extremely vulnerable position. However, we are concerned about the removal of other areas of civil law from the scope of legal aid provision. These proposals could have a disproportionate impact on people with mental illness as they are often more likely to experience civil justice issues. The increased anxiety caused by dealing with these issues could exacerbate mental illness and people may struggle to represent themselves in any proceedings. In addition, limiting advice to crisis situations such as imminent homelessness is less effective and could potentially prove more costly in the long run. 2.2 Often people with mental health problems require legal aid for issues that are complex and can not be easily separated into different topics. While we are pleased that people in inpatient mental health settings will have access to legal aid for issues relating to mental health law, the difficulties do not end when people are discharged from hospital or compulsory treatment in the community. A lack of adequate and timely advice on discharge could have a devastating impact on people’s recovery, which could be severely impeded by the lack of available advice on issues such as debt, housing, welfare benefits and employment. These issues are all inter-connected and providing legal aid for only certain parts could exacerbate mental health problems and have unintended negative consequences. Clause 12: Advice and assistance for individuals in custody 2.3 Rethink Mental Illness is concerned by the proposal in Clause 12 that decisions about free advice and assistance for individuals in custody will be at the determination of a Director of Legal Aid Casework. This will presumably result in a delay as decisions are made about what is to be made available. This uncertainty could cause a lot of anxiety and could be especially harmful to those who are already vulnerable, such as people with mental illness. It could lengthen someone’s time in police custody,which would not be conducive to a person’s mental health. If advice and assistance is not offered at an initial stage, it could also be detrimental to a person’s case if they are not in a position to engage with the necessary processes due to mental distress. We are concerned that this proposal could disproportionately affect the most vulnerable and have very damaging consequences. Clause 26: Choice of provider of services etc. 2.4 Under clause 26 of the Bill, the Lord Chancellor does not have a duty to provide legal aid services by means selected by the individual. It goes on to highlight that the Lord Chancellor may, in particular, arrange for services to be provided by telephone or by other electronic means. If a telephone gateway is the only way of accessing all areas or any area of civil legal aid advice, we have serious concerns about the implications of this for people with mental health problems. In a survey carried out by Rethink Mental Illness, 90% of respondents indicated that they would prefer to get advice face-to-face rather than by telephone or online.448 Many respondents indicated that, due to mental health problems, they would have particular difficulty with taking in information and explaining situations over the telephone. This is especially the case when complex civil justice issues are being discussed 2.5 While we know that telephone-based services are a very useful source of advice, we believe it should only be one of a range of ways. There are a number of reasons that telephone communication can be difficult for people affected by mental illness. Often people rely on face-to-face services where they can discuss their concerns with specialists they have worked with before or with whom they can start to build a trusting relationship. A face-to-face service also gives the option that someone would be able to bring an advocate or other supporter along. An advocate can be crucial in supporting and empowering people, assisting in the preparation of statements and key documents and ensuring that the adviser or specialist can understand the issues at stake. Reliance on a third party or advocate to obtain advice over the phone could lead to confusion of the facts, problems around confidentiality and also limits the affected person’s independence. 448 Rethink Mental Illness “Proposals to cut legal aid” survey, SurveyMonkey, Jan 2011; 70 respondents. Legal Aid, Sentencing and Punishment of Offenders Bill 2.6 Communication can be further complicated by a person being in distress at the point of seeking advice. They might find it difficult to explain clearly the details of their legal problem and this might limit the possibility of meaningful and accurate advice being given. Communication via telephone may be particularly difficult for someone who might be hearing voices or suffering from psychosis. Schizophrenia, the most common form of psychotic disorder, affects 1-in-100 people it is important that access to advice is not denied to this group.449 2.7 We are also concerned that the costs related to any telephone service could be a disincentive for people. This is particularly true of those on the lowest incomes, the very people for whom the legal aid system is designed. 2.8 If telephone services are used more extensively in providing legal aid advice, Rethink Mental Illness recommends it is not the only means available, that any criteria to determine the need for face-to-face advice does not further penalise people with mental health problems by virtue of their difficulties being “hidden” and that it is a freephone service. Schedule 1: ExcludedS ervices 2.9 We are particularly concerned about the removal of welfare benefit advice from the scope of legal aid provision. This is an especially complex system, further complicated by the imminent changes if the Welfare Reform Bill is passed. It is impossible to separate this advice from other areas that are being retained by the Legal Aid, Sentencing and Punishment of Offenders Bill. Timely advice on housing benefit, for example, could prevent someone being in a position of imminently losing their home and could also reduce the amount of distress and anxiety caused to the individual. This in turn could prevent the deterioration of a mental health condition, avoiding the need for crisis services or hospital admission. Trying to define discrete areas that will or will not be included under legal aid ignores the complexity of these issues and could result in incredibly vulnerable people being unable to access the support they need. This approach also stands in opposition to the more preventative measures being promoted by the Department of Health.450 3. Clause 60: Curfew requirement 3.1 Rethink Mental Illness is concerned about the proposal in the Bill to extend the maximum hours of curfew in any day from 12 to 16. This extension could severely restrict access to services, employment and could cause disruption to caring responsibilities. 3.2 Rethink Mental Illness is keen to see the effective diversion of people with mental health problems from the criminal justice system as time spent in prison can be extremely detrimental to a person’s mental health. Non-custodial sentences can offer a real opportunity for rehabilitation and also have a role in reducing recidivism. Recent Ministry of Justice figures suggest that community orders lead to a statistically significant reduction in the reoffending rate compared to short term jail sentences.451 However, these positive outcomes could be negatively impacted if the maximum curfew is extended. It will be almost impossible for anyone to enter in to, or maintain, full time employment with a maximum curfew requirement. Employment is a key element of social inclusion and wellbeing and research suggests that being in employment reduces the risk of re-offending by between a third and a half.452 People with mental health problems already have some of the worst employment outcomes of any group and therefore making it even more difficult to get work by imposing onerous requirements could result in an already vulnerable group of people becoming increasingly socially excluded. 3.3 We are also concerned a curfew requirement of maximum length could make it difficult for people to access services and support crucial to managing their mental health condition. This support is wider than simply keeping appointments with healthcare professionals and could include peer support groups, complementary therapies or social activities, some of which might not be accessible within the available hours dictated by the requirement. In addition, if people are living on their own, long periods of enforced solitude could also have a negative effect on their mental health and lead to increased isolation. 4. Clause 62: Mental health treatment requirement 4.1 Rethink Mental Illness acknowledges that the current need for a Section 12 approved medical professional’s report before a mental health treatment requirement (MHTR) can be issued often delays or disrupts the process. MHTRs are significantly underused compared to other community orders as demonstrated by figures which show that in 2010, 743 MHTRs were commenced compared to 11,996 drug treatment requirements.453 This constitutes less than 1% of all community orders issued last year although it is estimated that around 40% of offenders serving community sentences are thought to have mental health problems.454 449 National Institute of Health and Clinical Excellence. Core interventions in care (update) Clinical Guidance 82, http:// www.nice.org.uk. 2009. 450 See Department of Health (2010) Healthy Lives, Healthy People White Paper: our strategy for public health in England and DH (2011) No health without mental health: a cross-government mental health outcomes strategy for people of all ages. 451 Ministry of Justice (2011) Compendium of Reoffending Statistics and Analysis. 452 Social Exclusion Unit (2002) Reducing reoffending by ex-prisoners London: Office of the Deputy Prime Minister. 453 House of Commons (2011) Parliamentary Question, 5 Sep 2011, Hansard Column 274W, PQ 68068. 454 Enver Solomon and Arianna Silvestri (2008) Community Sentences Digest Centre for Crime and Justice Studies, King’s College London. Legal Aid, Sentencing and Punishment of Offenders Bill 4.2 Although not the only barrier to the use of MHTRs, the organisation of psychiatric reports is the most frequently cited.455 Whilst Rethink Mental Illness welcomes the removal of this barrier, it is important that an adequate and accurate assessment is carried out before a MHTR is issued. The Bill as it stands does not indicate how mental health needs might be accurately identified in the absence of a psychiatric report and we would stress the importance of a thorough and accurate assessment. If this is not carried out, then any treatment detailed within the MHTR might not be the most effective or appropriate for the person to whom the order is issued. We would seek clarification as to how this is going to be handled in a court setting by someone with relevant expertise. 4.3 We would also stress that if the rationale behind the removal of the need for a psychiatric report is to increase the use of MHTRs, then other factors also need to be addressed. Rethink Mental Illness supports the Bradley Report recommendation that a service level agreement needs to be drawn up between Her Majesty’s Court Service, the Probation Service and NHS to ensure that the necessary mental health provisions are in place so that Court Orders can be delivered effectively. Mental health services may not currently be adequately resourced to provide the extra capacity that an increased use of MHTRs would require and as provision around the country is affected by budgetary constraints, this situation will only worsen. 5. Clause 73: Bail 5.1 Rethink Mental Illness welcomes the measures proposed by the Bill to reduce the use of remand in situations where a custodial sentence is unlikely. Research shows that remand prisoners have higher rates of mental illness than sentenced prisoners.456 Remand in custody is an extremely non-therapeutic and uncertain environment that can exacerbate already high levels of mental illness. This was starkly highlighted by recent research that found that in 2008–09, people on remand accounted for half of self-inflicted deaths, although they only comprise 16% of the prison population.457 We therefore welcome the move to promote the use of bail. 6. Clause 107: Conditional Cautions 6.1 Rethink Mental Illness acknowledges that the appropriate use of conditional cautions can be an effective way of diverting offenders with mental health problems away from the criminal justice system. For a conditional caution to be effective for an offender with mental illness, it is imperative that their mental health is taken into account so that the conditions are not impossible or too onerous in light of their condition. Currently the police pass all the relevant information about an offender on to the Crown Prosecution Service (CPS) who then issue the caution with the necessary conditions. The new proposals will give the police power to issue conditional cautions without referring them to the CPS. In either system it is essential that the police have adequate mental health awareness training so that they can accurately identify mental health problems. This will help ensure that or recommend appropriate cautions that do not set vulnerable people up to fail. October 2011 Memorandum submitted by the Bar Council of England & Wales (LA 107) Briefing on proposed amendments and recommendations from the Bar Council of England & Wales on Part 3 of: Clause 102—Prison population implications of restating recall provisions in relation to prisoners sentenced under old law Amendment: Page 80, line 8[ Clause 102], at end insert— “( ) A draft laid pursuant to subsection (5) must be accompanied by a written statement by the Secretary of State that he is satisfied that the making of the proposed order would not adversely affect the management of prisons (as a result of any consequent increase in the prison population or otherwise). 455 Khanom, H., Samele, C., and Rutherford, M. (2009) A missed opportunity? Community sentences and the Mental Health Treatment Requirement London: Centre for Mental Health. 456 Singleton, N., Meltzer, H. and Gatward, R. (1998) Psychiatric morbidity among prisoners in England and Wales The Stationery Office, London. 457 Prison Reform Trust (2010) Bromley Briefings Prison Factfile. Legal Aid, Sentencing and Punishment of Offenders Bill Purpose and effect: As drafted, Clause 102 would enable the Government to make an order that would extend the provisions regarding recall to custody within the Criminal Justice Act 2003 to all prisoners, and not just those sentenced after the Act became operational. While we do not object to this in principle, the Bar Council is concerned that the implications of this Clause have not been fully considered. The 2003 Act brought in stricter recall provisions than existed previously, which were not intended to be applied retrospectively. At a time when the Government is seeking to reduce the size of the prison population, and when custodial facilities are under perhaps their greatest strain to date, it seems contradictory to revisit carefully drafted provisions enacted eight years previously. The Bar Council’s proposed amendment would ensure that, before bringing secondary legislation to apply the 2003 provisions retrospectively,the Government must be satisfied that such an order would not adversely affect the management of the prison estate. This would, of course, need to take account of the potential increase in the prison population and any other public services that may be placed under unmanageable strain. Clause 103—non-pecuniary incentives and rewards Amendments: Page 80, line 33[ Clause 103], at end insert? “( ) early release of prisoners, or the award to prisoners of privileges or benefits in relation to the place, conditions or other circumstances of their detention, instead of the whole or part of any such payment.” Purpose and effect: Clause 103 would amend the Prison Act 1952 to enable the Secretary of State to make rules in relation to prisoner earnings. As expressed in the Criminal Bar Association’s response to “Breaking the Cycle”: “It is difficult to disagree with the objective of ensuring that prisoners spend their time engaged in challenging and meaningful work.”458 The appropriate incentivisation of prisoners will, however, be crucial to ensuring that those not otherwise inclined to work are encouraged to do so. In our view, this should not be confined to monetary payment. Our proposed amendment would enable the Secretary of State to offer other tangible rewards to those who work. Some of these could enable further savings to be made from the justice budget, as well as reinforcing hard work, such as increased visitation rights, day or weekend release and, ultimately, early release on licence. Clause 113—New offences duplicating existing law The Bar Council invites Members to oppose this Clause standing part of the Bill. Purpose and effect: This Clause would introduce a “new” offence of threatening with an offensive weapon or with an article with a blade or a point, with a minimum sentence of six months’ imprisonment. This provision is little more than “tough on crime” window dressing on a Bill which is actually intended to reduce the prison population and the associated cost to the State. While it may have impressed certain sections of the tabloid press, the actions it covers have been criminalised by existing provisions; namely sections 3 and 4 of the Public Act 1984. Even if the Government’s intention is to “toughen up” sentencing on knife crime, we fail to see how a mandatory minimum sentence of six months imprisonment will serve such a purpose. The case law on knife offences indicates that the starting point should be custody. We can only conclude that the imposition of yet another new offence on the statute books, with no real implications in practise, would be a waste of Government time and resource. We thus urge Committee Members to oppose this Clause standing part of the Bill. New Clause: Independent advice on exercise of Chapter 4 or 5 functions To move the following Clause— “Advice on exercise of Chapter 4 and 5 functions (1) The Secretary of State must make arrangements to receive advice from independent persons about the exercise of the functions conferred on him as a result of any provision of Chapter 4 or 5 of this Part. 458 http://www.criminalbar.com/86/records/455/Breaking%20the%20Cycle%20CBA%20Response.pdf Legal Aid, Sentencing and Punishment of Offenders Bill (2) Those persons must include individuals with expertise or experience which the Secretary of State considers relevant to the placement of offenders with social and commercial enterprises.”. Placement: after Clause 105 Purpose and effect: In its “Breaking the Cycle” Consultation Paper, the Government announced that it would “use the expertise and innovation of the private, voluntary and community sectors to help develop the working prison”, which the Criminal Bar Association wholly endorsed as “imperative to the success of this scheme.” Unfortunately, the Bill contains little to convince us that this Government and, perhaps more importantly, future administrations will consult independent experts about the exercise of the functions conferred by Chapter 4 (release on licence) or Chapter 5 (employment and payment in prisons). If it is truly committed to using the expertise of the private, voluntary and community sector to improve the penal system, the Bar Council urges the Government to enshrine its intentions in statute. The proposed amendment would insert a new Clause after Clause 105 to ensure that the Secretary of State must, when exercising Part 3, Chapter 4 or 5 functions, make arrangements to receive advice from independent inviduals with expertise or experience relevant to the placement of offenders within social and commercial enterprises. October 2011 Memorandum submitted by the Institute of Legal Executives (LA 108) Summary There are significant myths around the operation of the legal aid system and these need to be explored so they do not cloud the facts that are required to enable objective decisions to be made about its future. There are a high number of Legal Executives undertaking legal aid work and the average salary of legal aid lawyers is £25,000—hardly in the often quoted “fat cat” league. International comparisons made to show our Legal Aid system as amongst the most expensive in the world are often not valid. The system in England and Wales is demand-led and costs have been boosted by the surge in new offences created. Overall the cost of administering justice in England and Wales is about the average for comparable countries. The income threshold for access to legal aid is not higher in England and Wales than elsewhere. We would urge the Government to consider proposals that would cuts costs significantly whilst preserving access to justice. The perceived need for changes to be made to deal with the “compensation culture” is not borne out by reports, including the recent one by Lord Young, which concluded that the alleged compensation culture is a myth. Lawyers have no reason or incentive to spin cases out with the aim of receiving more payments through costs. Under CFA arrangements, there are sufficient risks to lawyers not receiving costs to prevent them from undertaking unnecessary work. To allow for non-recovery of the After the Event (“ATE”) Insurance Premium from the Defendant, Qualified One Way Costs Shifting (QOCS) would need to be introduced but this could act to further restrict access to justice, especially for those defendants who may be acting without any or any relevant insurance. The Institute of Legal Executives (ILEX) has considerable concerns about the impact of this Bill. Government proposes to cut back on civil legal aid, and at the same time make CFAs more difficult to use. Given that CFAs were initially introduced to replace previous cuts to civil legal aid, this “double-whammy” means that it is going to be much harder for victims to seek redress and justice from wrong-doers. Introduction 1. ILEX is the professional body representing Legal Executive lawyers and has a membership of around 22,000 practitioners, including Legal Executives, paralegals and students. The majority of Legal Executives and other members are employed by legal practices, and are regulated in the same way as solicitors. 2. In a recent House of Lords debate, ILEX was applauded for its diversity work and robust regulation of Legal Executives. ILEX offers the only route to becoming a qualified lawyer that is open to all, regardless of education, social status or background. 3. Lawyers, including Legal Executives, have for many years effectively used their other profitable work to subsidise legal aid. The removal from scope of large areas of publicly funded work will simply lead to many more firms giving up the remaining areas of legal aid work; this in itself will have a profound impact on access to justice for consumers. Legal Aid, Sentencing and Punishment of Offenders Bill 4. ILEX is committed to the principle that access to justice and the rule of law are inter-dependent and as such one cannot exist without the other. We are also committed to working with the government and the legal profession to create a long-term sustainable future for Legal Aid in England and Wales. 5. The proposals are an important step for reform of a system that has been a concern for Government, legal aid practitioners and the public. ILEX agrees that reform of the legal aid system is necessary to ensure sustainable, high quality legal aid services at an affordable cost to the tax payer. ILEX also welcomes the Government’s support for mediation cases but we note this is not a panacea. That said, we oppose many of the cuts to legal aid and assistance which lie behind many of the enabling provisions of Part 1 of the Bill. Our written submission will focus on “myth busting” facts and figures about legal aid and costs litigation. Myth 1: Legal Aid Lawyers are “Fat Cats” 6. One of the arguments that often rears its head is that the legal aid system makes lawyers rich. The terms “fat cat” and “gravy train” are nearly always used; the suggestion being that the cuts will simply curtail the excessive fee income of lawyers. 7. Whilst a number of leading QCs459 make a good living out of publicly-funded work, the fat cat argument is simply not true, at least so far as the average legal aid lawyer is concerned, who earns an average of £25,000460 per annum. This is less than teachers, town planners, probation offices, social workers, prison officers and sewage plant workers, all of whose average earnings exceed the £25,000 figure. Legal aid lawyers, including Legal Executive lawyers are devoted to helping vulnerable people and they do so because they care about the preservation of access to justice. Myth 2: We have the most expensive legal aid system in the world costing us “£39 per head of population compared with £8 per head in New Zealand, a country with a broadly similar legal system”461 8. There is nothing wrong with a genuine interest in the way legal aid works in other countries. Indeed, the last Government conducted a research study that seemed to conclude that the “legal aid costs were unusually high in England and Wales”.462 However, it also added as a caveat that “international comparisons in the report should be treated with care” as to the interpretation. It concluded that “legal aid was provided for different kinds of motives, conditioned by different kinds of legal systems and evolved operationally along a variety of pathways. International comparison should be seen in the context of these differences and as treated with circumspect”. Using New Zealand as a comparator is simply ignoring these social differences. 9. New Zealand spent NZ$172 million on legal aid in the year 2009–10.463 This amounts to 40 NZ dollars per head of population; translated into sterling this amounts to £20 per person, significantly higher than the oft-repeated New Zealand figure of £8. One would expect a lower figure for a country with a lower crime rate, significantly lower GDP per head, and a population of only four million compared to 62 million. 10. Legal Aid is a demand led system, compounded by the rise in the number of new criminal offences created since 1997 (more than 3,000).464 Being a demand led system invariably means unexpected and unforeseen increases in demand. A case in point is the recent riots. Other cost drivers are the high number of divorces in England and Wales and the legislation applying to procedure; and public law cases involving children. 11. The Government’s own comparative study found that spending on running the courts in England and Wales was much lower than in comparable countries.465 It was suggested that this might to some degree off- set the higher levels of legal aid spending. Indeed, the Council of Europe’s data on judicial systems across Europe illustrates that when the costs of courts, public prosecution services and legal aid are combined, the budget in England and Wales, as a percentage of the GDP per capita, is equal to the average.466 12. What is abundantly clear from the evidence of academics467 is that international comparative studies are notoriously difficult and should not be used to inform ground making changes to Legal Aid policy. In his review of Legal Aid last year, Sir Ian Magee pointed out that: “Legal aid is interconnected with other legal and social provision, and decisions beyond the remit of the Legal Services Commission (LSC) and indeed of the Ministry of Justice (MoJ), can impact upon it”.468 459 http://www.lawgazette.co.uk/news/djanogly-reveals-lawyers039-pay-legal-aid 460 Appendix 1: Guardian’s Chart of Public Sector Pay 2009 Nov 17. 461 Hansard ( House of Commons) 21 June 2011 column 11 WS per Kenneth Clarke. 462 Bowles, R., & Perry, A. International Comparison of publicly funded legal services and justice systems University of York, MoJ Research Series 14/09 October 2009. 463 http://www.guardian.co.uk/law/butterworth-and-bowcott-on-law/2011/jun/30/legal-aid-new-zealand-accuracy-figures 464 HL Deb, 22 January 2008, c167. 465 Bowles, R., & Perry, A. International Comparison of publicly funded legal services and justice systems University of York, MoJ Research Series 14/09 October 2009 at page 7 and chapter 7 of the research. 466 European Commission for the Efficiency of Justice, Efficiency and quality of justice, Edition 2010 (data 2008), Council of Europe. 467 Bowles, R., & Perry, A. International Comparison of publicly funded legal services and justice systems University of York, MoJ Research Series 14/09 October 2009. 468 Sir Ian Magee: review of legal aid delivery and governance paragraph 5 and 6. Legal Aid, Sentencing and Punishment of Offenders Bill Myth 3: England and Wales has a high threshold level for legal aid and public funding compared to other countries 13. Free eligibility for legal aid is based on certain prescribed benefit levels. For example, clients in receipt of certain prescribed income related benefits will automatically be eligible for legal aid. 14. If a person’s gross monthly income is over £2,657 (including the partner’s income if applicable) s/he will be ineligible for legal help. However, If a person (and his or her partner’s gross income) is less is than £2,657 per month, a series of assessments are applied. If, following these assessments, disposable income is no more than £733 per month, the person/couple will qualify for free legal help. As a matter of completeness, the figure of £2,657 per month (which equates to £31,884 per annum) is applicable to a couple with four children where one or both partners may be working. The maximum levels of income for legal aid in New Zealand for a couple with four children is $72, 302 (this equates to £37,583.79). The scheme in New Zealand is more generous to couples and single parents with dependant children than the English equivalent.469 The gap is actually wider in real terms if the higher cost of living in England is taken into account. We would urge the Government to consider proposals that cuts costs significantly whilst preserving access to justice. 15. When Lord Justice Jackson produced his final report into Civil Litigation costs, he categorically insisted there should be “…no further cutbacks in legal aid availability or eligibility”.470 The clauses in Part 1 of the Bill alone will have a detrimental impact on access to justice, but together with those in Part 2 of the Bill, represent a “double-whammy” on some of the most vulnerable sections of our society, making it much more difficult for ordinary people to have recourse to the courts to seek redress. Myth 4: These changes need to be made to deal with the “compensation culture” 16. Reference is continually made to the emergence of a so-called “compensation culture”. ILEX believes the perception and reality do not match. 17. In May 2004, the Better Regulation Task Force released its report “Better Routes to Redress”, The report concluded that the compensation culture was a myth, stating that advertising by claims management companies and reports in the media created an inaccurate perception that large sums of money were available to those who have suffered at the negligence of another. 18. In 2010, Lord Young of Grafham concluded in his report471 that “The problem of the compensation culture prevalent in society today is … one of perception rather than reality”.472 Lord Young acknowledged that the broad consensus amongst stakeholders that responded to his call for evidence “did not believe there was a growing compensation culture in the UK.”473 He noted there was “… a general agreement that the rise of a compensation culture is largely a myth perpetrated by the national press.” Myth 5: Claimants have no interest in their costs as they do not have to pay for them, and lawyers do not have an interest in concluding a case as they want to make cases last longer to get more costs. 19. Sweeping statements such as these were included in the report by Lord Justice Jackson,474 and subsequently repeated in the green paper published prior to the Bill475 when it was stated “under the current arrangements, claimants on Conditional Fee Agreements (CFAs) generally have no interest in costs being incurred on their behalf, because win or lose they do not have to pay anything towards those costs”. Such statements continue to be repeated, for example, Justice Minister Jonathan Djanogly said476 that with the current system “… claimants are able not to lose a penny even if they lose their case, and if you can’t lose anything why should you not sue, even if your chances of winning a case are negligible …”. He claimed that the proposed changes mean that “… claimants will have an interest in what they are paying their lawyer …” and that lawyers will be “… more cautious …” when deciding to take on a case. 20. ILEX strongly advocates that this is a misconception. Claimants can be, and often are, put under considerable costs pressure should a defendant (or rather their insurers) make a sensible offer to settle. Once a defendant does this, as soon as the last date upon which such an offer can be accepted has expired, the claimant is on risk as to costs.477 In a situation where a defendant makes an early offer which the claimant does not beat at trial, the claimant will not receive costs after the last date at which (s)he could have accepted that offer. They will be responsible for the defendant’s costs, and potentially (depending on the terms of the CFA) (s)he will be responsible for the costs of their own lawyer. 21. There may be a situation where there is a counterclaim made by the defendant, and if such a counterclaim is successful, the costs of this will be the responsibility of the claimant. If costs are excessive, and by implication, if the success fee as a percentage of those costs is excessive, then they are susceptible to 469 Appendix 2: Regulation 5 of the Legal Services Regulations 2011 (SR 2011/144) New Zealand Regulations. 470 “Review of Civil Litigation Costs” Final Report. Part 2, Chapter 7, paragraph 4—conclusion. 471 “Common Sense, Common Safety”, October 2010. 472 Ibid, Page 19. 473 Ibid, Page 47. 474 “Review of Civil Litigation Costs” Final Report. January 2010. 475 “Proposals for the Reform of Civil Litigation Funding and costs in England and Wales. Implementation of Lord Justice Jackson’s recommendations. Consultation paper CP13.10 November 2010. 476 BBC Radio 4’s “Today” Programme, 28 June 2011. 477 Part 36 Civil Procedure Rules. Legal Aid, Sentencing and Punishment of Offenders Bill scrutiny by the courts under the case management powers. As a result of the CFA being an agreement between a claimant (usually) and a lawyer, although not always done, it is entirely legitimate for a lawyer to recover the shortfall between the costs incurred in running the case, and the costs awarded. Should a claimant breach the terms of a CFA, the lawyer will be entitled to terminate the retainer, with the claimant being responsible for the fees to date. These are clear examples where a claimant has an interest in the costs incurred in running a claim. When accepting instructions and taking on a matter, a lawyer will explain all of these possibilities with a client when considering the different funding options, and generally, such examples will be included in the CFA document. 22. A claimant therefore has a significant interest in the costs incurred. 23. Statements that lawyers have no incentive to deal with claims in a timely fashion are simply not true. Ultimately, if the case is lost, the lawyer is unlikely to be paid (aside from the instances where the claimant may be liable), this acts as a strong enough incentive for costs to be kept reasonable and proportionate. In any event, lawyers runs businesses. They are as aware as any other business of the need for adequate cash flow. It makes no sense for a business, and that includes a legal business, to delay work, and therefore invoicing for work, and therefore payment for work. Myth 6: The costs burden has moved too far in favour of the claimant and against the interests of the defendant. 24. Whilst not in the Bill, Qualified One Way Costs Shifting (QOCS) will be introduced. The Government believe this will act as a substitute for the removal of the recoverability of the After The Event (“ATE”) Insurance Premium478 from the Defendant. The removal of recoverability is proposed at clause 43 of the Bill. ILEX believes that this is wrong. QOCS essentially means there is a deviation from the usual rule where the loser pays the winners costs (the “costs follow the event” rule). A losing defendant would continue to be liable for the costs of a winning claimant, but a losing claimant would pay for a winning defendant’s costs where, and to the extent, it is reasonable for them to do so. Conduct and financial resources will be taken into account, and if the claimant is considered to have sufficient funds, the successful defendant’s costs will be payable. 25. It is extremely likely that this is going to lead to “satellite litigation” (where proceedings are issued not related to the main issue in a matter, but matters which are ancillary to it)479 and will therefore not serve to reduce civil litigation costs, but will in fact increase them. 26. This position actually restricts access to justice for a defendant. In practical terms, there may be a disincentive for defendants (or their insurers) to defend a claim, no matter how strong a defence they feel they have. Why defend a matter if it can be settled at a lower cost to themselves? To have a system where a winning claimant will recover their costs, but a winning defendant must bear their own, brings a fundamental inequality between the parties. QOCS could ultimately restrict access to justice for defendants. This may be something the insurance industry is willing to accept as a “trade off” for not having to pay success fees to winning claimants, but not all defendants are supported by insurance companies. This regime could be particularly detrimental to private individuals and small businesses. October 2011 Memorandum submitted by ARAG plc (LA 109) This is a submission by ARAG plc to the Public Bill Committee which is scrutinising the Legal Aid Sentencing and Punishment of Offenders Bill. 1. Introduction 1.1 ARAG group, based in Dusseldorf, Germany, has been operating for over 75 years and is the second largest legal protection insurer in the world, employing over 3500 staff in 14 countries, ARAG plc set up in the UK in 2006 and has rapidly grown to become a major player in the UK legal expenses market. It now insures over 1,000,000 motorists, 500,000 households and 100,000 businesses in addition to issuing over 25,000 ATE (after the event) policies per annum. 1.2 ARAG products protect individuals and businesses against paying legal costs and expenses arising from various types of legal disputes, such as—employment disputes, contractual disputes, pursuit of personal injury claims and nuisance and trespass claims. Cover is also available to fund defence of criminal prosecutions arising from the insured’s employment, motoring offences and, under particular arrangements—to defend members of affinity groups in relation to their activities in connection with that group. Where insured wishes to plead not guilty there must be a reasonable prospect that the court will accept that plea. 478 The ATE Insurance Premium is the premium for an insurance policy which is taken out when litigation is contemplated, and which usually protects a claimant from the defendants costs, should they lose their case. It can also protect a claimant from having to pay for their own disbursements (for example, medical reports, police reports and other reports). 479 For example, many personal injury cases were held up, as there was much satellite litigation regarding the validity of Conditional Fee Agreements, and litigation regarding the costs of lawyers etc. Legal Aid, Sentencing and Punishment of Offenders Bill 2. TheL egalA idS entencing andP unishment ofO ffendersB ill 2.1 The Legal Aid Sentencing and Punishment of Offenders Bill Schedule 6 Costs in Criminal Cases amends Part 1 of the Prosecution of Offences Act 1985, section 16 so as to delete section 16(2); which makes provision that in respect of cases tried by the Crown Court where the accused is tried on indictment and acquitted on any count in the indictment they may apply for a defendant’s costs order. 2.2 If correctly understood this amendment means that individuals, who are presumed innocent until proven guilty and who subsequently are proven innocent beyond reasonable doubt by trial, at Crown Court will, unless they are eligible for public funding, have to fund the cost of their own defence at trial. 3. Case studies 3.1 Below are three case studies of trials of an extremely serious nature. If the above amendment is passed into law the defendants in these cases would not in the future be able to recover the costs of their defence. There is a significant risk of miscarriages of justice in relation to cases of this nature if innocent individuals. Some individuals are exposed to false accusations being made because of the nature of a position they hold. These individuals would be unable to fund substantial defence costs that arise from complex and sensitive cases. 3.2 The cases below were funded by legal expenses insurance. The withdrawal of cost recovery would make such insurance unobtainable in the future. 3.2.1 Case 1 C is a former foster carer. In June 2010 C was arrested and charged on 13 accounts, for mainly rape and indecent assault on a female under the age of 16, who was formally in his care from 2001. The complainant alleged the sexual abuse started before her 14th birthday. A solicitor was appointed to represent C’s defence. It was established that there were reasonable prospects of successfully defending C. This was a very complex case with extremely serious allegations and ultimately led to a ten day trial which Counsel was required to attend. Due to the grave nature of the charges and the complexities involved with a case such as this costs were estimated at £70,000 plus VAT. C was acquitted on all accounts and to date we have recovered in the region of £30,000 from Central Funds, we are expecting to receive the remainder of the outstanding costs in the very near future. 3.2.2 Case 2 B received a summons from the Police regarding an accident where it was asserted that she had left the scene without giving her details to the third party. B did not recall the accident nor did she have any damage to her vehicle which one would expect if involved in an accident. She pleaded not guilty and was successful. All of the solicitor’s costs were recovered from Central Funds. 3.2.3 Case 3 T was charged with assault in June 2011. However, in October the Criminal Prosecution Service decided they did not have enough evidence to support the charges, therefore the case has been discontinued. A costs order will now be sought from Central Funds to recover all of the costs incurred to date which is around £7,000. 4. Conclusion 4.1 In view of the obvious risk of; at worse miscarriage of justice and at best significant personal financial loss resulting, if individuals such as those in the case studies above were either unable to afford legal representation or did so bearing significant costs themselves; we would implore the Scrutiny Committee to retain Part 1 of the Prosecution of Offences Act 1985, section 16(2) as it stands. October 2011 Memorandum submitted by The Barbara Melunsky Refugee Youth Agency Ltd, known as RefugeeYouth (LA 110) We are RefugeeYouth, a community of young people from all over the world who are now living in the UK. We come from many different backgrounds; most of us are refugees or still in the process of seeking asylum. RefugeeYouth supports us to take leadership and develop our own projects in and across our communities and interests. Together we research the issues that affect our lives and try to take action to make positive change for ourselves and other young people. Legal Aid, Sentencing and Punishment of Offenders Bill We have an office in London but our network includes young people from across the UK. RefugeeYouth has existed for nearly 10 years and over that time over 2,000 young people have been involved. Our current active membership includes over 350 young people living in London, Birmingham, Leeds and Newcastle. We have very serious concerns about the proposed Bill. Our concerns are in particular in relation to the proposals to remove Legal Aid for all immigration matters that are not asylum claims. Many of us came to the UK without family, under the age of 18. The vast majority of us were refused asylum in the first instance but given discretionary leave to remain. We are concerned for the following reasons: 1. We don’t have the capacity to offer legal support and advice within RefugeeYouth RefugeeYouth does not have the expertise or the capacity to represent or advise young people in their legal matters. The work is lengthy, requires detailed knowledge and a level of support that RefugeeYouth is not capable of providing. RefugeeYouth is a space for young people to come away from their worries and concerns about their legal status. An increasing amount of young people are bringing their concerns to RefugeeYouth because they do not know where else to turn for advice and support. Due to the limited amount of free legal advice already available for immigration matters, we are having problems trying to find places to signpost people to. “I had a really good lawyer, but then her firm closed because they stopped doing Legal Aid” Alpha, 23, Guinea 2. The court systems are intimidating and uncomfortable for young people A court room is not made to be friendly, it is really intimidating. Having a lawyer makes you feel safe. As young people we feel we don’t have authority anywhere—let alone in a court room. “I had a really good lawyer and even though she was with me going to court was still one of the scariest things I have ever been through” Fardus, 21, Somalia “When I just had to say my name in court I was so scared and stuttering and shaking—I can’t even imagine how scary it would be to represent myself” Asha, 24, Somalia “It is too scary to relive traumatic experiences we have been through in court. Some things are too painful to represent ourselves” Khadeem, 22, Afghanistan 3. Unaccompanied young people rely on the expertise and knowledge of lawyers to represent them When we come here alone from another country we don’t know the rules and the systems. Often we come from countries where you can’t criticise the police or the government or any authority, so sometimes we don’t know when it is safe to speak out and tell our story. We need advice and support from our lawyers. When a lawyer is involved matters are taken more seriously. The proposed cuts to Legal Aid would put a lot of young refugees in danger because we don’t understand the systems. Lawyers know how to construct an argument in a way that we don’t. Sometimes the things we think are important and feel passionate about are not relevant. We need support to be able to tell our stories and identify what is relevant to our case. If there are complications or bureaucratic errors we need legal support otherwise our whole case can be put in jeopardy. “When I don’t even know my rights, how am I going to challenge a decision made about me?” Jawed, 18, Afghanistan 4. We are concerned about the quality of legal representation from private lawyers Those of us who have had to find private legal representation have had some bad experiences. We spent a lot of money hoping for adequate legal representation only to find that even basic arguments are not submitted on our behalf. “My case was refused and my lawyer would not take my case any further. Eventually I found a private law firm who agreed to take on my case and submit a fresh claim. The application she made was not written in good English and she didn’t even include a fresh argument” Eman, 19, Somalia We trust in lawyers to be the experts, but if we have to find private representation we are worried that some lawyers are trying to make easy money from us and don’t have a real concern for our case. Legal Aid, Sentencing and Punishment of Offenders Bill 5. We do not have the finances to pay for legal representation Many of us do not have permission to work and so we are not earning money. Many of us are still students at school, college or university. We don’t have family here who can support us. We cannot access loans. We do not know what is a fair amount to pay for legal advice, how to judge the quality of the advice we are getting, or where to complain if we are being exploited. “If I hadn’t had that Legal Aid I don’t know what I would have done. I didn’t have a penny to pay for a lawyer and if I had to represent myself I would have no idea what evidence to provide” Abera, 19, Eritrea From our personal and lived experiences as young people involved in the asylum and immigration system we are absolutely certain that the proposed changes will have a severely damaging impact on us and our peers. October 2011 Memorandum submitted by MG Law Limited (LA 111) LegalA id,Sentencing andP unishment ofO ffendersB ill—205 1. I should preface thee comments on legal aid reform by setting out some of the background to the firm. We are a firm of solicitors, originally established in 1998 with the aim of providing specialist legal advice on education law and community care (particularly for the disabled). That remains our focus although we now deal with aspects of Health Care law including mental health, best interests work and access to treatment. While we may have views on the proposals to remove other areas from scope, our comments are relate solely on our areas of specialist expertise, and the impact of the proposals on these. 2. Although we also work for clients on a privately funded basis, we are the largest provider of legally aided education law work in the country and also have considerable experience of running the CLA’s telephone advice line on education law in conjunction with the Children’s Legal Centre. This has enabled us to see both how a telephone advice system may work in practice, and given us an overview of education law across the country. In addition, we have a highly specialist team of more than 10 solicitors with appropriately trained paralegal support who deal with a full range of community care problems, and best interests work. Summary 3. The definition of special educational needs in Schedule 1 paragraph 2 (p96) should be widened to include support for those up to the age of 25 who have special educational needs and include provision in colleges of further and higher education as well as schools. The omission of this group is anomalous and appears to be in error. 4. Exclusion from school should be reinstated—failure to do so will not reduce costs and may increase them as more cases are brought as discrimination claims. 5. Significant areas of community care law covering core assessments, direct payment proposals, and rights to continuing care seem to have been omitted (although the drafting is not crystal clear on this); again this appears to be anomalous and in error. 6. In addition, the current method of drafting in the Bill, which means that eligibility for public funding will depend on an assessment of whether or not a claim could be made under specific sections under a number of statutes will prevent the telephone gateway which is currently proposed for delivery of advice on community care from operating effectively. Our experience in working with the telephone gateway in education law shows that it can work well when the questions to be considered are clear and straightforward, but does not work at all well when more complex legal definitions have to be considered and applied. This is far more problematic in the area of community care. LegalH elp forE ducationL aw cases Special needs 7. We note the Government’s response to the original consultation and welcome the fact that work on special educational needs under Part IV of the Education Act 1996 can continue. This mainly covers appeals to the Special Educational Needs Tribunal, which makes up a very large proportion of the work carried out by the most specialist education law firms. The Government stated in its summary that cover would remain for special educational needs matters, and accepted that failure to include special needs tribunal appeals would merely mean that many of these cases would be brought as disability claims. In addition they acknowledged that cases going to Tribunal were becoming increasingly complex and that special needs raise many of the same issues as community care which his to remain in scope. Further, children with special educational needs were more than twice as likely to live with a parent who also has a disability as defined under the Equalities Act 2010. Legal Aid, Sentencing and Punishment of Offenders Bill 8. Unfortunately the method of drafting used by the framers of the Bill does not in fact achieve what the Government’s response indicated was the intention. While special needs educational issues for children under the age of 16 are covered by Part IV of the Education Act 1996, education of those over the age of 16 who will be attending a college of further education or special needs college rather than a school, are not covered as they do not come within Part IV and there is usually no appeal to the Special Educational Needs Tribunal. Instead they are covered by complex and ever changing systems of funding decisions currently split between the Young People’s Learning Agency (YPLA) and the local authority. The system is changing regularly causing great confusion about the legal obligations among both parents and professionals (including those within the education system). As a result we see an increasing number of cases where we are called upon to advise on these highly complex issues. To make matters worse, there is no longer any clear appeal system for parents to follow, as the appeal route through the YPLA has quietly been dropped from their procedures, leaving parents completely confused on how they can challenge the provision being made which may be completely inadequate for their child’s needs. Failure to provide timely guidance through the early stages of challenging assessments on provision will lead to an increase in the numbers of judicial review cases or alternatively disability discrimination claims, which will be the only mechanisms for redress. 9. Parents in this situation are having real difficulties sorting out who has what responsibilities for their child’s further education even though all can agree that it is essential education should continue beyond 16. Statements made by local authorities through their education and social services departments are often misleading in effect even if accurate, leading many parents to believe (wrongly) that their views and those of their child are not to be taken into account. Yet again we will have to frame a number of these cases as disability discrimination claims which will have to be brought in the County Court (as SEND does not apply for this group) and will cost considerably more than advising parents through the proper local authority appeal mechanisms. It is also likely that many authorities, if not challenged at an early stage, will make decisions which do not comply with the complex and ever-changing legal obligations, causing an increase in judicial review. In addition, of course, many parents, particularly those with disabilities themselves, will never be helped. 10. This exclusion is particularly bizarre given the Government’s Green paper proposal that special needs provision and local authority oversight should continue to age 25. We are sure that its omission was an oversight, brought about by the decision of the drafters to deal with legal aid by specifying those detailed provisions which were covered by legal id rather than specifying areas for exclusion. 11. We would suggest that instead of limiting cover to cases under Part IV of the Education act, that the Bill should simply state that it covers civil legal services provided in relation to special educational needs as defined in Part IV of the Education Act 1996, expanded to include learners up to the age of 25 and to cover provision for further and higher education. Exclusions 12. Quite apart from the fact that this is a minor area for legal help funding, with very little cost to the public purse, it cannot be accepted that all decisions to exclude are correct. For example it is not always clear whether the child has actually committed the act which the head teacher alleges has led to the exclusion, let alone whether exclusion was an appropriate remedy. In addition, it seems bizarre to allow funding for access to a solicitor when an offence is committed outside school and action taken by the police, yet deny this when the school is taking action for what may be a similar offence. The negative consequences for a child of an exclusion from school for violence, for example, may be as significant to their future as a conviction for a criminal offence. Head teachers are not invariably right in their assessment of the facts of a case, yet this cannot be challenged unless they make a mistake in procedure. 13. As currently drafted, exclusions are also outside scope unless there is an element of disability discrimination. In fact the latest figures show that some 70% of all children who are permanently excluded have some element of special educational needs. If organisations are unable to assist in exclusion appeals, they will simply have to run many of these cases through the disability discrimination system. Disability discrimination cases are much more expensive to run that exclusion appeals and the documentation involved may run to over 1,000 pages. Consequently removing the ability to advise in exclusion cases is unlikely to bring any costs savings at all and may in fact lead to an increase in costs and problems for the schools concerned in having to comply with the requirements of the Special Educational Needs Tribunal rather than the local appeal panel arrangements which are far quicker and more informal. 14. In addition looked after children (LACs) are at high risk of exclusion, both because of inherent special needs and also because of the almost inevitable behavioural problems that arise as a result of the chaos they have experienced earlier in their lives. The incidence of special needs among LACs is very high in proportionate terms as is their over-representation in the penal system. They have no voice of their own and are dependent for the main part on action being taken on their behalf by the foster parents. At present we are able to assist these foster parents under the legal help scheme. Foster parents, particularly those doing short term fostering (which again often includes the most needy children who have moved round many settings), cannot be expected to pay for advice and help to support the children in their care. What is proposed is a system whereby these children are denied any effective method of challenging the educational decisions being made on their behalf. Legal Aid, Sentencing and Punishment of Offenders Bill 15. Foster parents are also particularly at risk from threats from LEAs to remove them from fostering panels if they cause too much fuss. We are aware from work carried out within the firm on peer review for education that individual authorities have in fact done exactly that. On one file examined, a foster parent raised perfectly reasonable concerns about the provision being made for a boy in her care who had special needs and had been excluded several times. The local authority’s initial reaction was for social services to advise the foster parent that if she continued to raise her concerns, she was at risk of being removed from the list of foster parents. Without legal help there will be nobody to take up cases of this particularly needy group whose life chances are already severely compromised. CommunityC are 16. The problems in community care stem from similar causes to the difficulties with drafting provision to cover advice on special needs, but are significantly more acute and will cause major difficulties if the telephone gateway is adopted as an initial route for advice. It would appear from Schedule 1 of the Bill that unless the case comes within the specific sections laid out in the Bill, no legal help can be given. The sections specified are generally those which give certain rights to provision. It is by no means clear that we can also act where the client for example needs a core assessment so that provision can be determined, or there is a dispute on how the provision is to be funded through direct payments etc. These areas (such as s2 of the Chronically Sick and Disabled Person’s Act 1980) in fact cause the main problems for our client base. It may be that these are considered to be connected matters under paragraph 39 of Schedule 1, but the drafting is distinctly opaque Care is going to have to be taken on all future occasions to make it clear that any particular community care provision is covered when legislation is amended. 17. Of more importance is the fact that the Government in its response has stated its intention to run community care through the telephone gateway before cases are submitted to the relevant telephone advisor for assistance. I run a telephone advice service under the current system, provide training for the staff carrying out initial assessments under the gateway, and review a selection of calls made by the operator service (presumably the equivalent to the telephone gateway set out in the Government’s response) to ensure quality. Knowing what I do of the constraints upon the gateway service I cannot conceive of any way in which this can be workable, given the current style of drafting. The client who telephones may not even realise that they have a community care problem rather than one for housing for example. However, social services and community care support will be the appropriate route to follow if the person concerned is under 21 and has at some stage been in care after the age of 14 (this is a gross oversimplification of the category, but necessary because of the legal complexity of giving a full description). 18. Telephone gateway staff have neither the time on the initial call nor the expertise in this complex area of law to assess accurately whether or not the case happens to fall within the list of sections set out in the Bill. It will be hard enough to ensure that all special needs case come through properly, for example if a child with severe special needs has been excluded from school. It will in my view be completely impossible to ensure any sort of a reasonable service from the telephone gateway if they are required to understand the full range of community care law. If they do, then the LSC (or whichever body takes over) will have to choose providers for the gateway who have a good range of specialist expertise, with proper legal supervisors, and allow considerably more than the current average of eight minutes per call, as well as paying at a much higher hourly rate. This work will then be duplicated by the specialist advisors which has to result in a duplication of costs. The current system whereby in effect the gateway simply assesses means, and can tell generally whether something is in scope,(because the drafting is relatively non-technical) simply cannot work, and will bring the system into disrepute as well as running the risk of legal action for failing to meet the needs of individuals entitled to legal help under then new Act. 19. The best way out of the problem would be to revert to the current wording for the definition of community care work set out in the LSC manual. Failing that, all such questions relating to scope must be referred to paid specialists. October 2011 Memorandum submitted by Mr Ismail Bhamjee (LA 112) PublicB illC ommittee onL egalA id,Sentencing andP unishment ofO ffendersB ill 1. I request that the Legal Services Commission when granting Legal Aid to represent any person for the purpose of any Legal Proceedings whether Civil or Criminal Proceedings The Grant of the Legal Aid Certificate should be disclosed to the Parties and to any Court of Law in any part of the United Kingdom. 2. On 12 July 1988 before Her Hon Miss C. A. Calvert QC In the High Court of Justice Family Division in the proceedings number 9974 of 1987 (by Paragraph (ii) of the Order I was given leave of the Court to file a Petition for Foreign Decree (Talaq) Declaration of Marital Status Section 55(1)(d) of The Family Law Act 1986, which had the Provisions for the HM Attorney General. Legal Aid, Sentencing and Punishment of Offenders Bill 2.1. The Law Society, The Bar Council, The Bar Standards Board by their Servants or Agents have failed to Obey the Order dated 12 July 1988, as the time to challenge the Order dated 12th July 1988 had accordingly expired on 12 August 1988. Any Orders made after 12 August 1988 were legally flawed and Illegal. When any Litigant in Person—He/She does want to make an Application to the Court to bring Contempt of Court Proceedings, than Funding should be granted for a Counsel–Barrister. There is a decision given in the House of Lords of Quaziv Quazi, and in the Court of Appeal of Abassi v Abassi and Another (Lord Chancellor Intervening). The HM Attorney General who does have the Power to Issue Contempt of Court Proceedings under the Contempt of Court Act 1981 has not issued Contempt of Court Proceedings. Legal Aid Funding should be granted to bring Contempt of Court Proceedings against a Solicitor or Barrister Section 8 of the Accessories and Abettors Act 1861does apply. 3. Section 29 (3) of the Senior Courts Act 1981—This needs to be replaced with the words Section 78 (1), 119 of the Courts and Legal Services Act 1990 as it does denies any person to Appeal or Apply for Judicial Review in the High Court of Justice when the Crown Court or Magistrates Courts refuses to issue a Volunteer Bill of Indictment for the Offence of Perjury–Subornation of Perjury under the Perjury Act 1911. 4. Legal Aid funding should be granted for defamation proceedings. 5. Criminal proceedings judicial review—there should be separate claim forms for criminal proceedings under the Criminal Procedure Rules 2011, The Fraud Act 2006 and Criminal Procedure and Investigations Act 1996. 6. The Treasury Solicitors, the Law Society, the Bar Council, the Bar Standards Board, the Parliamentary Ombudsman Commissioner, the Information Commissioner’s Office, the Legal Services Commission they have been given copies of the Court Orders dated 12 July 1988 before Her Hon Miss C. A. Calvert QC, and Order dated 23 December 1988 before His Hon Judge Callman in the High Court of Justice, Family Division. There has been a breach of Article 9 of Freedom of Religion and Conscience, and Section 1 of the Zambia Independence Act 1964 as on 15 January 1986, Mr Ismail Abdulhai Bhamjee was living outside the United Kingdom, and the Senior Courts Act 1981 does not apply to any country outside the United Kingdom. 7. Aldrige, Eady and Smith on Contempt. Bevansv Hastings Jones (1978) 1 WLR 294. De Vriesv Kay, The Times, October 7, 1978. (Page 889). The List of Authority in Bevansv Hastings (1978) 1 WLR 294. This had been provided to the Administrative Court, The Chancery Division. Since many citizens in the United Kingdom can’t afford to pay the Higher Fees which are being demanded by the Solicitors or Barristers, where Funding should be given before any Judge before any Court of Law in any part of the United Kingdom when the Attorney General or Solicitor General does not issue Contempt of Court Proceedings as due to conflicts of Interest or being unreasonable by refusing to uphold the rule of Law when it is not the function of any Attorney General to misapply any Parliament Act. 8. Criminal Records (Public Access) Bill (HC Bill 90) I have seen the Criminal Records (Public Access) Bill on the Parliament Publications. I humbly request that this Bill should be added to the Public Records Office Act 1958 Section 5 and 8 Section 32 of the Freedom of Information Act 2000 needs to be repealed because of Section 5 and 8 of the Public Records Office Act 1958. 9. Section 6 and 6A of the Civil Jurisdiction and Judgments Act 1982 should be inserted under any Parliament Act, Section 55 of the Access to Justice Act 1999 should be repealed (because of Statutory Instrument 2009 No 3131). October 2011 Legal Aid, Sentencing and Punishment of Offenders Bill Memorandum submitted by Henry Hyams Solicitors, Leeds (LA 113) Purpose of paper 1. This submission focuses on the likely impact of the proposed cuts in civil legal aid on the people of Leeds. Background 2. Henry Hyams provides both social welfare law and family law services to the people of Leeds. We are members of Advice Leeds, a city-wide network of over 30 organisations whose aim is to “improve well-being, the reduction of poverty and social exclusion in Leeds”. Since November 2010 Henry Hyams has been in a consortium partnership with Leeds Citizens Advice Bureau and Leeds Law Centre to deliver social welfare law (housing, debt and welfare benefits) advice and representation to the people of Leeds. 3. In all, under legal aid funding, we currently offer legal services to over 2,000 citizens of Leeds (and their families) each year. The proposed cuts will decimate these services. Evidence 4. We know that those we help are some of the poorest and most vulnerable people in Leeds. Analysis by Leeds City Council in September 2011 shows that up to 65% of clients seen by Henry Hyams live in areas of Leeds identified as falling within the 10% of most deprived “Super Output Areas” (SOAs) in the country. SOA measures of deprivation include: income, employment, health, education, barriers to housing and services, living environment and crime. Child Poverty is at 41% in Leeds Central area. Research published in May 2011 by Leeds City Council on financial exclusion in the city shows that many more people are likely to need advice and assistance with one in four households surveyed affected by redundancy, reduced hours or pay cuts within the previous 12 months. 5. MPs and Councillors in Leeds will already be aware of the increasing numbers of people seeking their help, often with “clusters” of problems. The proposed cuts will mean that that there will be far less support available for casework in future. 6. Of particular concern in family cases are those involving domestic violence. The proposal in the Bill is that legal aid is only provided where there is “‘objective evidence” in the form of a criminal conviction or finding of fact hearing within the last 12 months, or that the case has been taken up through Multi Agency Risk Assessment Conference. We know that many of our clients greatly fear the consequences of taking such actions which may aggravate the perpetrator’s behaviour further and seriously endanger themselves and their children. We believe that the evidence of domestic violence and child abuse should also be taken from medical practitioners, social services and support workers. As proposed, the Bill will deny help to many victims and, based on our clients, will lead to an increase in the numbers of vulnerable children in Leeds without any assistance through legal aid creating a serious risk that many children will lose contact with one of their parents or be subjected to unfair financial arrangements that may harm their upbringing and wellbeing. 7. A further concern is the proposal that mediation will be suitable for every case. We know from our lengthy experience with many clients in Leeds that it simply will not work in all cases. Where there are mental or physical health problems, where one of the parents, with implacable hostility, refuses any contact between the children and the other parent, where the child’s views are ignored by parents, mediation is very unlikely to work and the children’s welfare during residence and contact disputes will be at serious risk due to the delays before a legal outcome is reached. 8. Further, regarding financial matters on divorce where mediation is unsuitable or unsuccessful we have concerns about no access to legal help on urgent finance issues. There will be no legal aid available for advice or action to prevent dissipation of assets, despite potentially serious consequences such as loss of the matrimonial home and dependence on public housing. This affects women and children disproportionally in our experience. 9. Other types of cases where the people of Leeds will be unable to access legal help (unless they can afford to pay) are: one parent worried that the other parent will abduct their child to an unknown destination in the UK; cohabitants where one partner needs help to claim a share of the family home for themselves and their children; parents in private children cases where the court considers the case has an element justifying separate representation of their child; people who need legal help to sort out their finances when divorcing, even on an emergency basis unsuitable for mediation. 10. Nearly 50% of our family clients are men. Men wanting contact with, and access to, their children where the relationship with the mother has completely broken down. The proposed cuts will mean that legal aid funding is no longer available for this type of case. A likely consequence of this is that more children in Leeds will grow up with no contact with their fathers. Legal Aid, Sentencing and Punishment of Offenders Bill Conclusion andR ecommendations 11. In conclusion, the people we provide services to are amongst the poorest and most vulnerable in Leeds. The likely impact of removing these legal services is that they will find it almost impossible to access justice resulting in increased disadvantage. It appears inevitable, given the demographics of the public we serve, that they are likely to end up being a greater burden on the public purse in their need for housing, community services, and other local authority and health services. We urge the Public Bill Committee to reconsider: — The degree of disadvantage and wider effects of the proposed cuts. — Redefining the domestic violence proposals to ensure that all victims can access legal advice for early intervention. — Making legal aid available for representation in cases where a competent mediator determines that mediation simply will not work. — Making legal aid available for collaborative family law recognising the success of this approach in avoiding the need for lengthy court proceedings. — Making legal aid available to obtain an emergency order to prevent the abduction of a child within the UK. — Making legal aid available so people can secure legal representation in finance proceedings where one party is significantly disadvantaged. CaseS tudyA Our client (A) has lived in Leeds for over 20 years. Her husband, with whom she has five children, was violent and abusive throughout their relationship. She finally plucked up the courage to end the marriage and her then husband left the matrimonial home (which was held in the joint names of him and his father). But before doing so he transferred his interest in the matrimonial home to his father. After the property transfer A was ejected from the house with the five children. A, who had been a full-time wife and mother, had no funds to mount a legal challenge. With legal aid funding action was taken on her behalf through the courts resulting in the property being put back into the “matrimonial pot”. This allowed A to secure the release of funds to re-house herself and her children. Without this A would have had no alternative but to depend on state benefits and public housing. The cost to the public purse would have been much greater. CaseS tudyB Our Client (B), now in her late 60s, has lived in Leeds all her life. Following her husband’s aggressive behaviour over a number of years her mental health deteriorated and B was sectioned under the Mental Health Act. With legal aid funding we were able to apply for non-molestation and occupation Orders so that she could eventually return to her home without fear. Without legal advice B would have been unable to obtain the assistance and protection she needed. CaseS tudyC Our client (C), from central Leeds, was faced with a complete loss of contact with his young children after his relationship broke down. Sadly, the children’s mother had taken up with a new partner who was subjecting both the children and the children’s mother to domestic abuse. Under the Bill’s proposals no legal aid would be available to C to take action to protect his children. October 2011 Memorandum submitted by The False Allegations Support Organisation (UK) (FASO UK) (LA 114) Introduction 1. FASO (UK) The False Allegations Support Organisation (UK) is a voluntary organisation dedicated to providing support to anyone affected by a false allegation of abuse. FASO is a refuge for the innocent not a haven for those in denial. 2. The organisation (10 years old in 2011) is run by a small band of dedicated volunteers who empower individuals (either in prison or the community) to move forward by providing factual information by e-mail, leaflets through both the postal system, e-mail and by emotional support on the FASO Helpline 0844 35 1992 which is open Mon to Fri 6pm to 10pm. 3. We also provide the name of solicitors given to us by those who have recommended and used them as they are strong in fighting issues of false allegations of abuse. 4. The following information is based on our 10 years of experience in the requests we receive for support to those falsely accused and continuing to maintain their innocence of sexual abuse of any kind/rape and child protection issues. Legal Aid, Sentencing and Punishment of Offenders Bill LegalA id,Sentencing andP unishment ofO ffendersB ill (HC Bill 205) Legal aid 5. Those who are accused are put at an immediate disadvantage due to the lack of Legal aid funds to investigate their case by prominent solicitors/barristers, and being able to call specialists if necessary, whilst those who accuse have access to unlimited funds from the state. Litigation funding and costs 6. As the accused has to rely on legal aid funding or pay toward their legal aid costs when their finances are being drained away because of the breakdown of the family life and/or the breakdown of the family unit, mental health strains, they also have to rely that their lawyers/barristers to carry out a strong defence of their case (which has to be paid back) on limited legal aid funding. The “justice system” is seen as having no equality of arms, where, in fact, one has to prove ones innocence, and often creates miscarriages of justice. 7. The accuser has all the support and (the state) an unending supply of finances to fund their legal team. Sentencing 8. A jury arriving at a wrong verdict is not recognised in the UK courts, so that an individual, who maintains his innocence throughout, is not recognised by the judiciary, prison and parole system whilst they maintain their innocence. The comments made, follow the “guilty” person through his sentencing, prison and life there-after is to the detriment of the individual. Bail 9. Bail is often given pre and post charge until the trial. Family restrictions are often imposed dependant on the sex crime and whether the accused has a young family. Often the bail conditions are draconian as pre- trial one is supposed to be innocent until proven guilty—but sadly that is not the case in any sex allegations, as both the government and judiciary know. Remand andR elease ofL icence 10. Those accused of rape/sex offences can be remanded for “no reason” which is written in the statute books. 11. Part of releasing on licence conditions are that no unreasonable condition can be placed on the freed offender, which in the FASO case is attending the sex offenders’ programme. As they are not allowed by prison rules to attend the sex offenders’ course throughout their stay in prison, whilst continuing to apply for appeals. On release and on licence, the offenders are often returned to prison, as they cannot attend the probation sex offender’s programme. Probation and the prison authorities have conflicting rules. Prisoners’ pay and Employment 12. Prisoners do not receive adequate information on resettlement despite their being an organisation NACRO etc to support them. 13. Many have no idea what to do when released there is no adequate state money to resettle them. They are expected to leave prison find their way to either a home or hostel, often alone, where they are still under strict supervision and without personal funds, whilst having been confined for many years. 14. There are no funds for personal necesaties—their income support is not available to them immediately. They are often presented with challenges in attending designated places to sign on, Doctors surgeries, and there is no hope for jobs. 15. For those on the sex register there is no life, they cannot work in most areas, they are not allowed to see their families, or if families have broken down are not allowed to form new relationships with those who have children under 18. They are isolated. 16. Those released are often returned to prison on pretexts of breaking their bail conditions—one of these reasons is that they continue to maintain their innocence and cannot do the Sex Offenders Programme. Out of court disposals and knives 17. Sorry don’t know what this means as only a voluntary organisation. Summary 18. FASO has 10 years’ experience in speaking with those who maintain they are falsely accused. The pattern is usual where the CPS directions for prosecuting cases of rape (which is the same method for all sex allegations) are one sided, as FASO reported to the CPS, Stern committee and other consultations over the past few years. Thorough investigations are not carried out, the legal aid system is top heavy in giving the open funding to prosecute cases of abuse/rape (with none having to be repaid by the accuser) whilst the accused relies on a limited legal aid funding (of which some has to be repaid) this affects the chances of strong legal actions being taken on their behalf. Legal Aid, Sentencing and Punishment of Offenders Bill 19. Often juries are perverse in making decisions often aided by media attention pre and during trial. Having been found guilty, the facts are placed on file and probation have short interviews with the convicted and as maintaining innocence is not recognised a bias report is written. This follows the convicted through the system. It is compounded by the fact the convicted cannot attend the Sex offenders Programme (as stated by the prison system) as they are maintaining innocence. 20. The convicted are penalised in all life within the prison, and often treated inappropriately by staff and Probation, and factual and complaint records are not accurately kept. They often have to serve greater sentences, because of the crime and having finally won their release are often recalled because they still cannot do their sex offenders programme. 21. The stress of endeavouring to obtain solicitors to raise their appeals and the work that has to go into that causes extra stress on the prisoner and families who support them. Even more so, when the family has broken down and access to children is not allowed in the controlled visiting areas of prison or on release. 22. Until there is in place a robust and equitable system of investigation into the sex crimes, miscarriage of justice will always occur because the evidence that could be obtained has not due to lack of funding and an ability to make a strong case. There is great difference between the outcomes of a celebrity being accused because of the money spent on legal teams and the fact their careers have had so much spent on them and Mr Jo average. 23. Rumour and inefficient, inadequate recording of correct information in written reports and statistics will always pave the way to Miscarriages of justice. That from the moment a person has been accused of sex allegations of any kind their life and their family life is over in every respect, even though they continue to obtain an appeal. October 2011