Ministerial Statement on Legal Aid



Proposals for the reform of punishment, rehabilitation, sentencing and legal aid

The Lord Chancellor and Secretary of State for Justice (Kenneth Clarke QC):

Today I will lay before Parliament the Government’s responses to two important consultations on the future of the justice system – Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders, which was launched on 7th December 2010 and Proposals for the Reform of Legal Aid in England and Wales, which was launched on 15th November 2010. I am also introducing the Legal Aid, Sentencing and Punishment of Offenders Bill to give effect to those measures requiring primary legislation. I will be making an oral statement this afternoon.

Protecting the public from crime, ensuring those who break the law face the consequences, and providing swift, cost-effective and fair access to justice are fundamental responsibilities of the state towards its citizens. Yet the last 13 years of government have left a justice system in urgent need of reform.

In the area of criminal justice, a tidal wave of criminal justice legislation has left the system in crisis: neither punishing offenders properly for the crimes they have committed, nor giving adequate protection to the law-abiding public.

In civil justice, we have a system burdened by spiralling costs, slow court procedures, unnecessary litigation, and too limited an awareness of alternatives to court – all of which add to a fear of a compensation culture. In particular, our current system of legal aid too often encourages people to bring their problems before the courts, even when they are not the right place to provide good solutions and sometimes for litigation that people paying out of their own pocket would not have pursued.

The package of reforms I am bringing forward today aims to reform radically our justice system to focus it on fundamental priorities.

Punishment, rehabilitation and sentencing of offenders

Within a year of leaving jail, half of prisoners (49%) are reconvicted of further crimes, creating new victims and harm to society. Whilst they are behind bars prisoners face hours of enforced idleness, free from the discipline of hard work. Underpinning these problems are widespread drug and alcohol abuse, and poor mental health. The previous government’s responses have left a dysfunctional cycle of persistent crime, inadequate punishment and failed rehabilitation. Over twenty Criminal Justice Bills in thirteen years created an unworkable sentencing framework and a statute book littered with overprescriptive law that undermined the expertise of professionals.

The consultation set out wide-ranging plans to deliver tougher punishment, to introduce a rehabilitation revolution to prevent offenders committing further crime, and to ensure that the sentencing framework is sensible and workable. The Government has listened carefully to the points raised in more than 1200 submissions and is seeking to take forward measures under five themes, including:

· Creating a working week in prison of up to 40 hours instead of enforced idleness.
· Introducing tougher, properly enforced community punishments. This includes: allowing courts to impose longer curfews; enabling courts to ban overseas travel; and properly enforced financial penalties, including seizing assets from those who do not pay.
· Introducing a mandatory custodial sentence for knife possession in aggravated circumstances.

· Creating more ways in which offenders make reparation. We will begin by implementing the Prisoners’ Earnings Act 1996 and legislating to extend our powers to deduct and use money earned by prisoners to support victims; and
· Overhauling unpaid work obligations so that offenders work longer hours, carrying out purposeful, unpaid activity that benefits their local community;

· Getting more offenders off drugs and alcohol for good, by piloting an initial five drug recovery wings and by cracking down on the use of illicit drugs in prison. The MOJ will also work closely with the Department of Health to tackle inappropriate use of prison to house low risk individuals with mental illness.
· Extending the use of payment by results to cut reoffending, with services delivered by the voluntary, independent and public sectors. Already, at HMP Doncaster the provider, Serco, will pay back 10% of the contract price unless they reduce reoffending by 5% points from current levels. In July six new pilots will begin in areas including Greater Manchester and London.

· Opening up justice so that the public has a clearer view of how the system is working for them.
· Creating a more proportionate justice system, focusing resources where they will be most effective, including creating a clear national framework for the use of out?of-court disposals, reforming the use of remand, and reducing the number of Foreign National Offenders. We will also conduct an urgent review of the indeterminate sentence of Imprisonment for Public Protection with a view to replacing the current IPP regime with a much tougher determinate sentencing framework.
· Clarifying the law on self defence.

Alongside these measures, there should be no misunderstanding about things the Government has never proposed and is not doing. Contrary to some reports, the Government has never proposed targets to reduce the number of prison places, abolish short sentences or the mandatory life sentence.

What all the proposals we are taking forward amount to is a clear break by the Government from the mistakes of the past. By implementing this bold but realistic package of reforms, we are seeking to deliver a system which effectively punishes the guilty whilst substantially improving the national scandal of our reoffending rates. They should also reduce costs and improve delivery. This is a new, more intelligent course for the Criminal Justice System and one that we anticipate will make a tangible difference to addressing crime and helping victims in England and Wales.

Reform of legal aid

We are also committed to overhauling our system of civil justice, including through an independent review of family justice, wider access to alternatives to court, measures to streamline civil justice, a criminal justice system efficiency programme and improvements to the ‘no-win, no fee’ conditional fee regime. The overall aim is a fundamental shift in the justice system towards greater effectiveness and efficiency – and a move away from the sorry situation in which the average citizen dreads recourse to the law.

Legal aid reform is a crucial element of this wide-ranging agenda. The current system of support too often encourages people to bring their problems before courts. In addition, legal aid has expanded into areas far beyond its original scope. It is now among the most expensive systems in the world, second only to Northern Ireland, costing over £2 billion a year, or £39 per head of population compared with £8 per head in New Zealand, a country with a broadly similar legal system, and as low as £5 per head in some EU countries. In the current fiscal climate, this is simply unsustainable.

The proposals in the consultation set out to address these problems by: ensuring access to public funding in those cases that most require it; encouraging early resolution of disputes instead of unnecessary conflict; and improving affordability and value for money for the taxpayer.

Our plans attracted more than 5,000 submissions. Following careful consideration, today’s response makes some significant changes in matters of detail, but seeks to take forward the substance of most of the reforms published in November, including:

· Retaining routine availability of legal aid for cases where people’s life or liberty is at stake, where they are at risk of serious physical harm, or immediate loss of their home, or where their children may be taken into care. Following consultation, we are strengthening specific provisions to ensure availability in private family cases for victims of domestic violence, for children at risk of abuse or abduction and for Special Educational Needs cases.
· Pressing ahead with introducing a more targeted civil and family scheme. Prioritising critical areas means making clear choices about availability elsewhere. Legal aid will no longer routinely be available for most private family law cases, clinical negligence, employment, immigration, some debt and housing issues, some education cases, and welfare benefits.

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

In sum, the Government intends to implement the substance of the legal aid reform package, refined in specific places. This constitutes an extensive set of very bold reforms, the overall effect of which should be to achieve significant savings whilst protecting fundamental rights of access to justice.

Legal Aid, Sentencing & Punishment of Offenders Bill Published

The Legal Aid, Sentencing & Punishment of Offenders Bill (LASPOB for not-so-short?) was published earlier today. And then rapidly un-published. However, the ever excellent ilegal was quick off the mark and had saved it before it was magicked away again. You can read the bill here.

From a quick whizz through insofar as it is relevant to family law it appears little has changed since the Green paper. No big surprises immediately declare themselves – of note though is the removal of ToLATA from scope – so cohabitees with claims to property are comprehensively stuffed and will have to fall back on the state because they can’t enforce an entitlement their own home – brilliant cost saving that. The definition of “abuse” has been recrafted into something which means – well, who knows what it means. It seems that questions of whether an adult or child is at risk of abuse will be left to civil servants on funding applications since the LSC is being abolished. These are of course the substantive questions in much children litigation which rather begs the question. Other changes include placing the courts power, developed through caselaw, to make orders for one party to contribute to the legal costs of the other on an interim basis – on a statutory footing, rather than as a species of MPS.

As expected all arguments about equality of arms have fallen on deaf ears – only the complainant in respect of allegations of abuse will be entitled to representation and advice. The poor sod on the receiving end of serious serious allegations (whether true or not) will be left to his (most often his) own devices.

More later.

Telegraph Poll

Hands up who else just keeps tripping over yet another eye roller of an article in The Telegraph? You don’t even need to buy the thing, people just keep tweeting and facebooking humdinger after humdinger. I don’t want to be constantly confronted with Telegraphisms but I just can’t bring myself to ignore them. This time it’s Noel Arnold’s fault (@Children_Law) for pointing it out an article entitled: Lawyers claim £645 million family breakdown legal aid bill.

I don’t really have the energy to dismantle this, so let me highlight a few of it’s more striking assertions.
Legal aid lawyers are making £645 million from taxpayers over family breakdowns each year – £28 for every household in England and Wales.
Note the use of the word “making” which insinuates profit, although it appears that in fact this figure is the cost to the public purse for the provision of family legal advice and representation service, rather than profit after deduction of cost.

In total just over £2.1 billion is paid to lawyers from the legal aid budget, £1.2 billion of it to defend criminals, the rest to advise people on civil cases, which as well as family law include aid for immigrants trying to stay in the country, people suing over alleged mistreatment at the hands of the NHS or the police, and prisoners upset at jail conditions.

Note the precise terminology:

£1.2b to defend criminals (not for criminal defence), and

immigrants trying to stay in the country (not the other kind who want to leave, we don’t mind them), and

alleged mistreatment at the hands of the NHS and police (we’re prepared to accept all criminal defendants are guilty, but those criticising our beloved national institutions are heretics), and

prisoners upset at jail conditions (not prisoner’s whose human rights have been breached).

Anyone else get a whiff of the undeserving, the trivial and the unpatriotic?

Ken Clarke, the Justice Secretary, has promised to dramatically cut the total amount spent in the teeth of major opposition from lawyers.

Not to mention the major opposition from all sorts of other people who aren’t lawyers at all. But obviously we only need mention the lawyers, because they can’t argue back since we can beat them over the head with the word “profit” (because lawyers tend to provide public services through private vehicles, although perhaps that may be a more commonplace feature of public service in the future?)

Many lawyers are almost entirely dependent on legal aid work and a list released by Mr Clarke’s department shows that some firms make millions each year from charging the state for their clients.

Self evidently the bigger the firm and the more legal aid work carried out the bigger the charges coming from any one firm. And?

The ten biggest recipients of legal aid, all of them large law firms, received £45.6 million.

Yes, but this is an article about family legal aid, so I’d like to know what proportion of this is family legal aid? And actually, if the ten largest firms received an average of £4m each in legal aid payments (not profit remember) is this really so surprising?

Jonathan Djanogly, the justice minister, said: “At more than £2 billion a year, we pay far more per head than most other countries for legal aid.

“The current system encourages lengthy, acrimonious and sometimes unnecessary court proceedings, at taxpayers’ expense, which do not always ensure the best result for those involved.

“We need to make clear choices to ensure that legal aid will continue to be available in those cases that really require it, the protection of the most vulnerable in society, and the efficient performance of the justice system.

“Our proposals aim to radically reform the system and encourage people to take advantage of the most appropriate sources of help, advice or routes to resolution – which will not always involve the expense of lawyers or courts.”

As to the per head legal aid cost, see here. As to the rest – pish, piffle, bah and other assorted brushoffs.

And the number of custody battles arising from legal separations or cases involving unmarried parents is not known, but is likely to account for a significant part of the £468 million legal bill.

Timewarp to Torytown c1980. Country’s going down the drain. Single mums. Tssk. Tut. Thankfully, we don’t need statistics to tell us what proportion of the bill arises from the irresponsible unmarried (who cohabit, breed and litigate with similar astonishing abandon) since we can rely upon our preconceptions.

Cases of children being taken into care, forced marriages, and international child abduction will still be funded, but the rules about who is entitled to legal aid will be tightened, meaning no homeowner will be able to claim support.

Well, um no. This is just wrong. Care, forced marriage and child abduction will not become means tested.

£89 million was given to lawyers for immigration and asylum work, virtually all of it to help immigrants stay in the country.

Am I missing something? What else would immigrations and asylum work entail? I don’t think many immigrants instruct lawyers because the government won’t let them go back home.

Emma Boon, campaign director at the Taxpayers’ Alliance, said: “Our legal aid bill is excessive and needs to be better controlled.

“The gigantic family cases figure reveals the true cost of broken Britain and shows that too many lawyers are profiting at taxpayers’ expense.”

Should those experiencing the social and legal problems arising from our broken society do this without access to legal advice? Why are the lawyers cast as to blame for the public expense, when the social breakdown has already been identified as the root cause? You could shoot all the lawyers and we’d still have broken Britain.


You get the general idea. Need I say more?