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Labour launches access to justice commission

22 January 2016

Richard Messingham considers Labour's latest initiative and outlines the details of a Westminster Hall debate on access to justice for vulnerable people.


The Labour Party showed its renewed focus to the justice sector with the launch of the Bach Commission on Tuesday 19 January, which will take a fundamental look at the party's access to justice policy. The Bach Commission will be taking evidence from across the legal and advice sector over the coming months. The Law Society has already actively fed into the scope of Lord Bach's review over the past few months, and will submit its initial written response soon. The Commission looks likely to publish an interim report by April and put forward further proposals by September 2016. 

With this united front the Labour Party have attempted to launch an attack on the government, and the shadow justice minister, Andy Slaughter MP, issued a  public statement on the rumours that the criminal duty tender will be scrapped. Reinforcing this call, the shadow lord chancellor Lord Falconer formerly wrote to the lord chancellor, Michael Gove, asking for him confirm or deny the rumours of the scraping of the two-tier contracts for criminal legal aid. 

Other highlights of the week include the HM Treasury announcement that the Indian government will press ahead with the liberalisation of the Indian legal services, the Migration Advisory Committee recommendations on tier two visas and a Westminster Hall debate on access to justice for vulnerable people. 

Monday 23 November

UK parliament 

On 16 January Labour leader Jeremy Corbyn MP made a speech to the Fabian Society Conference. While there were no specific policy announcements on justice issues, he outlined some key themes which are likely to dominate his political agenda. 

These include: 

• Rebutting the Conservative rhetoric on cuts - Corbyn wants to rebut the Conservative message that public spending cuts are necessary as it is not fair to burden future generations with debt. Corbyn argues that cutting investment in, and for opportunities for, future generations is 'deeply unfair'. Investing in the future through infrastructure, industries and jobs is how fairness can be guaranteed.

• Labour being the party of fairness - the Labour party has created the institutions that built a fairer and more equal Britain including the NHS and the Human Rights Act. Corbyn used the speech to set out some of his policy ideas under discussion that will look to institutionalise fairness in Britain again. These include a publicly owned railway, democratic control of energy, an integrated health and social care, lifelong education service with a focus on college funding, and universal childcare. He stated people should not be tricked by the Conservatives, who he argues are running the state into the ground by underfunding them so that privatisation is seen as the solution. 

• Labour ensuring that everyone benefits from companies' success - Corbyn also discussed the need to ensure that everyone benefits when companies succeed. Policy suggestions to achieve this included: the introduction of pay ratios at the top and bottom; restricting companies from distributing dividends until they pay all their workers the living wage; and ensuring there is a large scale house building programme for families, rather than investors. 

• Labour's commitment to Europe while recognising the need for some change - Labour is committed to Britain's continued EU membership as the best framework for trade and co-operation in the 21st century along with the protection of human rights through the European Convention. Corbyn does however argue that EU decision making must become more accountable and ensure that European policy strengthens workers' rights and ends the pressure to privatise services. He said that the EU must work together to tackle issues like climate change, the refugee crisis and Calais. 

• Conservative's plans to limit opposition - Corbyn argues that the Conservative Party are gerrymandering the electoral system to benefit themselves by cutting parliamentary seats, attacking Labour funding through the trade union bill and by cutting public short money support for opposition parties. 

• Changes to Labour's policy-making process - Ed Miliband expanded the vote to elect the leader and Corbyn wants to do the same with policy-making. 

House of Commons 

Written answers: joint enterprise 

Following a question from Labour MP Ruth Cadbury MP, justice minister Mike Penning MP said ministers are mindful that the Supreme Court is looking at a case which might change the way the law around joint enterprise is applied. The government will decide how to proceed after the Court has delivered its judgment. 

Written answers: advisory services 

Following a question from shadow justice minister Andy Slaughter MP, cabinet office minister Rob Wilson MP said that the Advice Services Transition Fund was always intended to support time limited transformational activity and the Cabinet Office is not in a position to commit to longer-term funding.

Tuesday 24 November

Government

Liberalising the Indian Legal Services Market

HM Treasury announced that India will press ahead with liberalising the Indian legal services market to allow foreign lawyers the right to operate in India. The government noted that this will "bring new opportunities for the UK profession allowing them to enter partnerships with Indian firms and bring their specialist expertise to India." 

Migration Advisory Committee: review of Tier 2

The Migration Advisory Committee (MAC) published its recommendations to government on Tier 2. The government tasked MAC with reviewing the Tier 2 system with the objective of substantially restricting inflows under the route and they aimed to balance this against the desire to ensure that the route remains open to the "brightest and best workers who will help Britain succeed". Their main recommendation is to increase the salary threshold to £30,000 for skilled workers and intra-company transferees coming to the UK from outside the European Economic Area. 

The Law Society submitted evidence to the Committee and issued a press release following its publication. 

Read the press release

UK parliament

Law Society gives initial evidence to Bach Commission 

Head of legal aid Richard Miller was the first witness to give evidence to Lord Bach's access to justice commission. Miller was asked to give the Society's initial oral evidence to aid the commission in determining its area of focus. 

Summary of evidence given

During the session, Miller gave evidence for an hour and was followed by a short Q&A session. The key areas covered in the oral evidence submission were: 

• The need to ensure that the professional skills and expertise of lawyers is most effectively focused to ensure that consumers get the best value for money.

• The costs of professional skills is beyond the reach of the average family and so legal aid will always be needed.

• The originating principle of legal aid – "that nobody should be unable to enforce or defend a right for want of the advice and representation they need to do so effectively."

• There are a number of societal benefits including:

  o Rule of law cannot be maintained if people cannot enforce their rights

  o If ordinary people feel they can obtain justice from our courts, there will be greater public trust in the mechanisms of justice, reducing the likelihood of people taking the law into their own hands

  o Lower social provision costs for central and local government.

• Some of the benefits of lawyers in the justice process include: leveling the playing field, discouraging weak claims and formulating a claim in a coherent way which can lead to settlement negotiations rather than litigation. 

• Technology can improve access to justice as highlighted in the Briggs Review but proposals for digital courts will not remove the need for lawyers. There are other technological developments which can improve access to justice and make the way lawyers deliver their services more efficient. 

• Successive governments have taken the decision that the government is the funder of last resort in justice. If this is going to be the principle the funding must actually be there for those people who need it. Currently this is not the case. 

• Highlighting a number of problems with the current financial eligibility system for legal aid. 

• Highlighting the need to simplify the current legal aid system including issues around the capital means test for benefit claimants, evidential burdens for domestic violence gateway, problems with the current contract structure and the criminal tendering process.

• The language used by politicians and the need to debunk myths around legal aid including: England and Wales having the most expensive system in the world, "fat cat" legal aid lawyers and legal aid only being for "criminals and immigrants."

• Our priorities for reform of LASPO

• The current mess within criminal legal aid and the need for an independent review of the tender process. Miller argued that an alternative way should be found, rather than continuing with the MoJ proceeding with litigation. 

Questions by the commission

Following Miller's evidence commission members asked questions on the following areas: 

• Gaining more evidence on a number of points made during the evidence session including: the effect of litigants in person; challenging the myth that UK has the most expensive legal aid system in the world; and the savings from restoring housing/welfare benefit advice

• Views on a national legal service and LASPO’s impact on immigration law

• Proposals for criminal legal aid

• The need for a more principled approach to eligibility 

• The Legal Aid Agency's attitude as a keeper of the public purse

The Law Society will be submitting written evidence to the commission in February. 

House of Commons

Debate: access to justice for vulnerable people

Labour MP Stephen Kinnock moved a Westminster Hall debate on access to justice for vulnerable people. The Society briefed MPs in advance of the debate. Legal Aid and Courts Minister Shailesh Vara MP responded on behalf of the government. 

Speakers in the debate include David Mowat MP (Con), Jim Shannon MP (UPD), Cat Smith MP (Lab), Jo Stevens MP (Labour Shadow Solicitor General), and Stuart McDonald MP (Shadow SNP Spokesperson for immigration, asylum and border control). 

The Law Society was mentioned twice in the debate: 

• SNP MP Stuart referenced the Law Society's point that the difference in spend on legal aid between the UK and New Zealand is not significantly caused by any increased generosity. He noted that they are actually more generous but factors such as higher crime rates, higher divorce rates and higher expenditure per case. 

• Justice Minister Shailesh Vara MP said that "the Law Society itself accepted that there are far too many people chasing too little criminal work".                                                                                                  

The other main points of the debate were:

• David Mowat MP started by challenging Labour's view that legal aid must be protected pointing out that the Labour government had plans to cut legal aid and that the Coalition government had brought about changes to legal aid already planned by Labour

• Interestingly, Mowat repeatedly attacked the Bar Council, noting that the barrister profession had grown hugely over the last few years, "which is not an indication of a profession under stress"

• Mowat went on to say that the justice system seems to have a structural issue, despite the money the UK spends on legal aid compared to other countries. He concluded that, if this is the case, "perhaps the independence of the Bar is an issue in itself"

• Karl Turner insisted that the Coalition government had made "a shocking mess of the justice system", demonstrating "utter incompetence". He highly praised Leader of the Opposition Jeremy Corbyn who "understands legal aid like nobody else has ever done"

• Turner challenged the legal aid 'residence test' arguing that no one seems to known how it will be implemented and how it would work

• He also mentioned the criminal legal aid tender as impossible to implement because the system is clearly not fit for purpose. He went on saying that "ministers privately must believe that access to justice will be denied to vulnerable people because of a chaotic system"

• Turner called for political parties to "put politics aside" and acknowledge that, although saving money is a priority, it is crucially important to defend legal aid

• In his response, Vara said that equality is at the heart of One Nation justice but was unable to give a meaningful response to Turner's questions on how the implementation of the legal aid system would work in practice. However, he attempted to attack the Labour party on legal aid cuts, quoting an interview that Shadow Minister Andy Slaughter MP gave to the Law Gazette before the General Election in May conceding that some cuts were necessary

• Vara pointed out that the residence test was fair and appropriate, and that recipients of legal aid should have a strong connection with the UK. He confirmed that a LASPO review is on the way.

Written answers: clinical negligence

Following a question from Labour MP Liam Byrne MP, Health Minister Ben Gummer MP noted that in the following number of cases the value of damages was less than £25,000 in which costs exceeded damages: 

Year of closure Total number clinical negligence claims
2010/11 1,588 
2011/12 1,785 
2012/13 1,925 
2013/14 2,185 
2014/15 2,417 

Wednesday 25 November

House of Commons

Correspondence: British Bill of Rights - Scotland 

Chair of the Joint Committee on Human Rights Harriet Harman MP (Lab) has written to Lord Chancellor Michael Gove MP raising her concerns about whether the voice of Scotland is being fully heard with regard to the British Bill of Rights. She raises the concern that there are 10 weeks until the commencement of purdah in respect of the Scottish Parliament election and her concern that the delay in the publication could mean that they may not be able to contribute to the consultation. 

Read the letter (PDF)

House of Lords: legislation

The Immigration Bill undertook its second sitting in Committee Stage. We briefed a number of peers on the Immigration Bill and the Law Society was mentioned during the debate. Specifically Liberal Democrat Peer Baroness Sheehan noted our concerns that the Immigration Act 2014 was excluding people from the rental market. 

Read the full transcript

Thursday 26 November

House of Commons

Business statement

Shadow Lord Chancellor Lord Falconer has written to the Lord Chancellor calling on to him to "come before Parliament and clarify his position in relation to criminal legal aid contracts". The letter specifically references the Law Society saying: 

Following these allegations, the president of the Law Society, Jonathan Smithers, wrote to the Chairs of the Justice Select Committee and the Public Accounts Committee expressing concerns that the process had not been robust and calling for an independent review.

In the last few days, there has been speculation that the court action would cease this week and that the government would drop its plans. I note that when asked by the Law Society, the Legal Aid Agency said that there had been no change of policy but that policy remains constantly under review. 

Find out more

The Law Society has also written to the Courts and Legal Aid Minister Shailesh Vara MP to call for clarity on the contract procurement process.  

Read our press release

 

Tags: politics | Westminster weekly update | access to justice | Labour

About the author

Richard Messingham is head of public affairs at the Law Society. He and his team are responsible for supporting the president and CEO to manage the Society's relationships with Parliamentarians, Ministers, civil servants and other major stakeholders of direct relevance to solicitors.
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