Last night in the House of Lords Peers there were eight vote covering the need for the Bill to contain a statement of the principle of legal aid, the criteria for obtaining legal aid for domestic violence cases, the scope of civil legal aid in the future and an exemption from new no win, no fee rules for asbestos related diseases.
Peers voted to insist on three of the amendments (on the statement of principle, domestic violence criteria and the exemption for mesothelioma cases). In relation to domestic violence cases, Peers argued that the Government concessions did not yet go far enough and voted to extend the evidence criteria to include letters of support from domestic violence support organisations and other evidence at the court’s discretion.
Peers also argued that the Government’s proposed time-limit applying to evidence in such cases (initially 12 months, but doubled to 24 months when the Bill was in the Commons last week) was still inadequate and voted to link this to the general limitation period, i.e. six years.
Domestic violence amendments
Peers voted (by 239 – 236) in support of Motion B1, proposed by Baroness Scotland. The motion read:
“That this House do not insist on its Amendments 192 and 194 and do agree with the Commons in their Amendments 193A, 219A and 220A, and do not insist on its Amendments 2 and 196 but do propose Amendments 2B and 196B as amendments in lieu”
So in summary Peers have voted for the following:
Amendments 193A, 219A and 220A – which Peers agreed – relate to the definition of domestic violence, and bring it fully in line with that used by ACPO.
Amendment 2B – also agreed – puts the list of acceptable evidence for obtaining legal aid in a domestic violence case onto the face of the Bill.
Amendment 196B – again agreed – puts into the Bill a statement to the effect that in relation to the evidence in Amendment 2B the only time limit that shall apply will be “the general limitation period” (which is generally six years).
Hard-up couples choosing to represent themselves are causing chaos in the divorce courts, it has emerged. The recession and upcoming cuts to legal aid are putting immense pressure on family courts as litigants shun solicitors to go it alone, The Law Society Gazette reported. Meanwhile wealthier divorcing couples are benefiting from a new arbitration scheme enabling them to settle out of court by employing expensive specially trained lawyers.
The process is legally binding but allows couples a more informal legal setting. It is feared the new rules will create a two-tier legal system that will favour the wealthy. Since last April divorcing couples have been required to attend a ‘mediation information and assessment meeting’ before they could apply to the family courts. The rules were supposed to encourage people to resolve their issues, easing pressure on courtrooms.
But a survey by family law group Resolution found that only a third of its members had advised their clients about the meeting. Meanwhile, 78 per cent revealed the courts did not check whether couples had looked into mediation before filing for divorce. Divorce rates rose 4.9 per cent from 2009 to 2010, but the courts are also dealing with cohabiting couples seeking legal help in separating.
Several judges told The Law Society Gazette that cases where litigants represented themselves took twice as long because they often needed help navigating the legal process. One said: ‘We are getting more and more people coming to court in private law cases without the benefit of sensible, structured legal advice, wanting to spill blood on the court carpet. ‘The government wants people to stay out of court, but it is very difficult to get people to mediate when they are still very angry and haven’t had the benefit of decent legal advice. These cases take an inordinate amount of time, which is having a knock-on effect.’
Joanne Edwards of Resolution, told The Observer: ‘The potential for a two-tier justice system here with arbitration for the wealthiest and an over-jammed court system for everyone else is a concern. She added: ‘We would also really like to push for a no-fault divorce because, while we have a fault-based divorce system and blame is apportioned, you have a confrontational process which benefits no one.’
Earlier this month Sir Nicholas Wall, the most senior family judge in England and Wales, warned of ‘a substantial increase’ in the number of people who will be forced to represent themselves in court due to cuts in legal aid. The legislation, due to come into force in April next year, will cut £350m from the £2.2bn legal aid bill, axing areas of law including almost all family advice
The Women’s Institute and Mumsnet are among a powerful alliance of women’s groups that has written a private letter to justice secretary Kenneth Clarke, warning that the government’s plans to reform legal aid will hurt victims of domestic violence.
A letter copied to the prime minister, David Cameron, signed by the two organisations, along with Netmums and Rights of Women, expresses fears that the reforms will deny legal aid to tens of thousands of women who are trying to leave abusive partners.
The alliance’s criticisms threaten further headaches for the government and the Tories in particular. The party has been desperately trying to woo women voters, and claims that its legal aid reforms will penalise domestic violence victims could become a high-profile cause for its critics. It is understood that Number 10 is increasingly nervous about the issue and has sought meetings with the Ministry of Justice over the bill’s progress.
Last week, the government presented amendments to its Legal Aid, Sentencing and Punishment of Offenders Bill as confirmation that it was safeguarding legal aid for domestic violence victims.
Clarke said that “the government has responded because of our concern on domestic violence pretty generously”, and suggested the amendments were “fairly formidable”.
But women’s groups are furious that what the government has presented as a U-turn applies only to women who enter a refuge, and not to those who access domestic violence support services in the community – for instance, through specialist charities.
In its letter to Clarke, obtained by the Observer, the alliance points out that “the vast majority of women who experience domestic violence do not go into refuges”.
In 2010, the latest figures available, 124,895 women accessed services from Women’s Aid, the charity helping domestic violence victims.
Only 17,615 of these were admitted into a refuge. Women’s Aid’s annual survey revealed that, on a single day in 2011, 224 women were turned away from its refuge services, mainly because of a lack of beds.
In its letter the alliance explains that many women do not report violence to the police or other authorities.
It claims: “We know from our work with victims of violence that women most often seek shelter and comfort from family and friends after experiencing violence; a natural and understandable reaction to a traumatic situation.
“Other women who do not have this option may try to access refuge support, but are turned away because there are no bed spaces.”
The alliance is calling for the government to introduce a series of amendments when the bill returns to the Commons, to establish broader criteria for determining which domestic violence victims are entitled to access legal aid.
Its letter concludes: “We feel strongly that women should be encouraged to take whatever route out of domestic violence they feel comfortable with, and should not be denied access to vital legal support because they have chosen not to report the violence they have experienced to statutory agencies.”
A spokesman for Sound Off for Justice, the group that campaigns against the Legal Aid, Sentencing and Punishment of Offenders Bill, echoed calls for the government to think again on domestic violence aspects of the proposed legislation.
“This is a crime that affects the lives of women, men and families,” the spokesman said.
“For over a year, we have warned the impact of this cut will not be to save money but to leave thousands of victims with no way of escape. The government knows this is an attack on the family and on women.”
Cancer patients who have been exposed to deadly asbestos dust could be forced to spend as much as 25% of their compensation on legal fees. Every year, dozens of Derbyshire people die as a result of the incurable cancer mesothelioma, caused by asbestos.
The illness usually develops decades after working with asbestos and those who fall ill are entitled to financial compensation from their former employers. Now proposed changes to legal fees mean that up to 25% of compensation might have to be given to their solicitors. Joanne Gordon, co-ordinator of Derbyshire Asbestos Support Team, said she was “very disappointed and upset”.
She added: “These victims of asbestos already pay with their lives and now they may have to pay with compensation.” The proposal is part of the Government’s Legal Aid, Sentencing and Punishment of Offenders’ Bill.Since 1999, publicly-funded legal help, known as legal aid, has been available for all civil cases unless specifically excluded by law. Now ministers are proposing reforms to the system which they say would speed up proceedings and save £350 million a year.
The bill has now been discussed in the House of Commons following a series of amendments by the House of Lords. These included an amendment which would have protected mesothelioma patients from using compensation for legal fees.
But the amendment was overturned by the Commons by 292 votes to 256. If the bill is passed, solicitors will be left to decide whether to take a cut of compensation.
Mrs Gordon said: “If they don’t, then they won’t make a profit.
“That just won’t be possible for some.” Solicitor Chris Stansfield, of Nottingham legal firm Nelsons, represents many Derbyshire asbestos victims. He said solicitors would be likely to consider whether to take a cut of compensation on a “case-by-case basis”.
He added: “The bill will make the more risky cases – for example where there is little evidence of exposure to asbestos – less attractive to pursue and so deserving cases will be affected.” The bill will be reconsidered by the Lords and could be approved as soon as next Thursday.
To nobody’s surprise, the government last night rejected arguments on behalf of mesothelioma sufferers and overturned a Lords amendment that would have exempted them from the effects of Part 2 of the legal aid bill (known as the Jackson reforms).
The justice minister Jonathan Djanogly argued that asbestos cases are not sufficiently different from other types of personal injury to justify allowing lawyers to undertake them on a ‘no win, no fee’ basis, to recover from the defendant their success fee and any legal expenses insurance premium.
He said that the conditional fee system has “frequently ended up as something of a racket allowing risk-free litigation for claimants, inflated profits for legal firms, and punitive additional costs for defendants”. Djanogly firmly put the onus on clients to negotiate the level of success fee, and on the lawyers to decide whether to charge one at all. This bid to use competition to force down legal costs ignores the original policy behind success fees, which was to compensate lawyers for the cases that lose and for which they don’t get a penny.
Lawyers are now resigned to the measures going through, so the focus has moved to implementation next April. The Jackson reforms are far broader than just these headline changes, and a lot of activity has been going on in the background, with rules of court already drafted, working parties formed – the most recent this week to advise on the introduction of contingency fees – and stakeholder meetings held.
Much of it is relatively uncontroversial, but some significant rows are in the offing, particularly around the banning of referral fees in personal injury (PI) cases. Related to this is the extension of the electronic portal used for low-value road traffic claims to bigger cases and other types of PI (this is technically not part of the Jackson reforms, but is a key part of the picture).
Although the company behind the portal has told the government that from a technical point of view it is not possible to extend it beyond next April, the argument over how much lawyers should get paid under the portal is revving up following a recent stakeholder meeting chaired by Djanogly.
For a standard road traffic accident worth less than £10,000, lawyers receive a basic fixed fee of £1,200; however, insurers say that much of this goes on the referral fee paid to secure the case in the first place, and that with such fees banned, the figure should fall to £300-400. Djanogly has been clear that he expects a reduction and so the fight is over how much. Lawyers counter that referral fees are just a form of marketing – and a significant minority of firms refuse to pay them anyway – meaning they will have to invest in other ways to attract work. A figure of around £800 could be where we end up.
The referral fee ban will make life difficult for claims management companies, but does not directly address the problem of nuisance texts and automated phone calls asking whether you have had an accident in the last three years. That is subject to separate work at the Ministry of Justice, although to judge by the calls I have received in recent weeks, it’s not having much of an effect yet.
It was years of unseemly scrapping between insurers and lawyers over legal fees in PI work that led to the Jackson reforms in the first place – while the system has got out of kilter, lawyers are entitled to make a living out of what they do and many thousands of people every year benefit from it with legitimate compensation for negligently inflicted injuries.
The reality is that access to justice relies to some extent on having lawyers who consider it financially viable to do the work; at the same time, in my experience lawyers usually find a way of working with changes that they previously predicted would lead to the end of the world.
However, the winds of change are blowing strongly, and with their business models set to change, some law firms are undoubtedly in a precarious position – well-known Manchester PI firm Donns went into administration just last month. Consolidation is afoot and it is no coincidence that the first wave of major announcements about alternative business structures in the law have come in the PI sector. As we head towards April 2013, they will not be the last.
‘MPs have a very clear choice. They can back the Lords to stop the worst of the cuts. Or they can vote to stick with the government’s original plans.
Almost every day on the Mumsnet forums we see heartbreaking stories – from women trapped in abusive relationships, or parents desperately challenging local authority decisions on provision for their children with special needs.
The legal aid budget helps women and families out of these situations, which is why it needs protecting – because those who use legal aid are some of the most vulnerable in our society’
To read Justine’s full article please click here, and tell us what you think.
The Guardian has warned today that if The House of Commons passes the LASPO bill in its original form it will leave some of the country’s most vulnerable people without recourse to advice if they face a problem claiming state support.
Citizens Advice believes that tens of thousands of people will be put at greater risk of homelessness and poverty if they do not receive funding for their advisers.
The timing of the legislation is particularly unfortunate given that the ongoing reform of incapacity and disability benefits has thrown up so many difficulties.
To read the full article please click here, and tell us what you think about the upcoming debate.
Yesterday The Guardian reported how Liberal Democrat MPs are set to come under fierce attack from charities, celebrities and their own party this week if they side with the Tories over controversial reforms to legal aid that were savaged in the House of Lords.
Peers forced 11 amendments to the LASPO bill, which will return to the Commons on Tuesday – the heaviest series of defeats for a government in 50 years. However, legal aid supporters fear the government will ignore the Lords and force the bill through.
To read the whole article please click here.
This is Bristol has highlighted the fact that although the House of Lords have improved the Legal Aid, Sentencing and Punishment of Offenders Bill, if MPs reject the changes,
people will still be denied the right to justice. The changes that the Lords made protect some of the most vulnerable in society, but MPs need to back these changes to ensure that those who most need justice can afford it.
Please click here to read the whole article.
The Guardian has also reported how the government has suffered a fresh series of defeats in the House of Lords over proposals to cut access to legal aid for children and in medical negligence cases.
Having already forced nine unwelcome amendments onto the Ministry of Justice’s cost-cutting measures during the report stage of the Legal Aid, Sentencing and Punishment of Offenders bill, peers have now inflicted further damage on the legislation.
Please click here to read the whole article and tell us what you think.
The Huffington Post has reported how the government has suffered two further defeats on its Legal Aid Bill in the House of Lords – bringing the number of amendments made by peers against ministers’ wishes to 11.
Ken Clarke’s Legal Aid Bill has now seen more defeats than any other piece of coalition legislation, raising the prospect of the Bill having to be carried over into the next session of parliament.
Please click here to read the whole article and tell us what you think.
Today’s Evening Standard reports how nearly 50 millionaire criminals have received an average of almost £300,000 each in legal aid.
Figures released under the Freedom of Information Act show that at least £14.3 million in legal aid went to 49 “Mr Bigs” of the crime world over the last three years. They include fraudsters, drug smugglers and gang bosses.
Some lawyers have called it a “scandal” and accused ministers of allowing scarce funds to be squandered on wealthy criminals who could easily afford their own defence. The figures, from the Legal Services Commission, emerged as Justice Secretary Ken Clarke tries to force through £350 million cuts to legal aid for poorer litigants through the Legal Aid, Sentencing & Punishment of Offenders Bill.
Please click here to read the whole article, and tell us what you think.