Westminster update: legal aid means test reforms delayed
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What you need to know
Legal aid means test reforms delayed
It is well known in law that justice delayed is justice denied. However, justice ministers sought to test the proposition on Thursday 14 March by announcing reforms to the legal aid means test will be delayed until 2026.
The means test has not been updated in line with inflation since 2009, and since then prices have risen by around 40%. This means that each year fewer and fewer people are eligible to access legal aid, meaning justice for them is pushed out of reach.
Issues with antiquated IT systems have been causing implementation problems and have been blamed for delays to the rollout.
However, our president Nick Emmerson pointed out that: “The government is displaying a pattern of behaviour of refusing to commit resources to the justice system, resulting in unmet legal need.”
The reforms were intended to give millions more people access to legal aid, but this delay means that the most vulnerable in our society will continue to be denied legal help to fight eviction, tackle housing disrepair and respond to other life-changing legal issues.
Our own research has shown that families living below the poverty line are currently failing to meet the restrictive thresholds to get legal aid.
We are continuing to push the case for the government to invest sustainably in our legal aid system, especially in this election year.
2. Lord chancellor: legal aid judgement “sobering”
Wednesday (20 March) saw the lord chancellor admit to peers that our recent judicial review judgment on the government’s response to the Independent Review of Criminal Legal Aid (CLAIR) was “sobering” and “striking”.
Questioned by members of the House of Lords Constitution Committee on his role and the justice system, Alex Chalk said he cared deeply about criminal legal aid and is committed to doing everything he can to support the profession.
Chalk told the Committee he had accepted our invitation to meet following the High Court’s judgment.
We are currently awaiting confirmation from his office of a date for the meeting, and we look forward to speaking with him soon about getting criminal legal aid the investment it needs.
The Committee also questioned the passage of the Safety of Rwanda Bill and whether it is compatible with the Human Rights Act. Chalk said he couldn’t comment until a potential judgment on compatibility is made, but argued that the government respects the courts and their independence.
Chalk also addressed legislation to remove the convictions of those impacted by the Post Office Horizon scandal. Chalk described the scandal as unprecedented, and said that we are in an “extraordinary position”.
The lord chancellor was clear that the Post Office Bill should not be seen as setting a precedent for interference with court judgments, and said the government is looking at ways of recognising this on the face of the bill.
3. Rwanda Bill: Lords stand ground on amendments
This week saw the Safety of Rwanda (Asylum and Immigration) Bill have its first two sessions of ping pong, as the Commons and the Lords attempt to reach a consensus on proposed amendments.
On Monday (18 March), the bill went to the Commons for MPs to consider the amendments that the Lords made at report stage. The Commons, though, rejected all the amendments made by the House of Lords, arguing that the extra safeguards that the Lords had sought to put into the bill were “not necessary”.
Michael Tomlinson (minister for illegal migration) said that “it is a powerful thing that evidence has been put forward that represents the spectrum of views, but it needs to be looked at in the round… we on this side are confident in the government of Rwanda’s commitment to implement this partnership. We are clear that Rwanda is a safe country.”
The Lords, however, were not convinced by this line of argument and, when the bill returned to them on Wednesday (20 March), they once again defeated the government in seven votes. This means that seven new amendments will go back to the Commons for consideration on 15 April.
The new amendments follow similar themes to those agreed at report stage, including an amendment to state that the legislation has “due regard” for international law, an amendment that checks whether Rwanda complies with its treaty obligations, and an amendment that allows for appeals based on individuals’ personal risk of harm in Rwanda.
The Lords defeats represent the biggest confrontation between the upper house and the Commons since Rishi Sunak became prime minister. While only one Tory peer rebelled – former chancellor Lord Clarke – the government failed to get enough Conservative peers into the Chamber to stave off the votes from Labour, Lib Dem and Crossbench peers.
Before the bill returns to the Commons on 15 April, the Law Society will be encouraging the government to engage with the Lords’ amendments and bring forward proposals to address the valid concerns they express.
4. Post Office (Horizon Systems) Offences Bill passes second reading
After announcing the new legislation last week, the bill to overturn convictions of postmasters prosecuted as part of the Horizon scandal had its first debate in the Commons on Wednesday (20 March).
The bill will automatically quash convictions for specified offences of dishonesty (including false accounting, fraud and theft) that were prosecuted by the Post Office or the Crown Prosecution Service. Convictions that have already been considered by the Court of Appeal will be excluded from the bill.
The legislation has strong cross-party support with members across the House offering endorsements. While members were keen to see postmasters’ convictions overturned and allow them access to the compensation schemes, there were concerns raised over the precedent that could be set by parliamentary intervention in the justice system, as well as questions over applicability to the devolved nations.
Sir Bob Neill, Sir Jeremy Wright and Sir David Davis (all Conservative) led the questioning of the method and criteria within the legislation. Sir Bob called for a sunset clause to ensure that the exceptional nature of the bill is highlighted in the text so that “when the bill has served its purpose it would no longer be the constitutional anomaly that it might otherwise be if it stayed on the statute book indefinitely”.
These considerations were taken on board by both the Business Secretary and Labour spokespeople, both keen to reassure MPs with a legal background that they recognise the extraordinary step this Bill is proposing.
The shadow business secretary, Jonathan Reynolds, added that provisions in the bill “undermine a fundamental principle of our democracy: the separation of the judiciary and the legislature. Overruling the courts in this way could set an incredibly dangerous precedent, and one that I hope we will never use again.”
We have raised similar concerns in our own briefing note to MPs, stressing the need for adequate parliamentary time and a recognition on the face of the bill that this type of legislation is clearly an exceptional response to an unprecedented miscarriage of justice. We will continue to monitor and brief on the bill as it moves through parliament.
5. Trade (CPTPP) Bill becomes law
On Wednesday this week (20 March) the Trade (CPTPP) Bill achieved royal assent, meaning it finishes its passage through Parliament and becomes law. The bill completes the accession process of the UK becoming a member of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and passed through both Houses mostly unamended save for limited technical changes. In accordance with Article 21 of the UK Accession Protocol, the ratification will be complete 60 days after the Act is passed into law.
The UK is the first country to join the CPTPP since its formation and will be the first member from Europe. The UK already has trade agreements in place with all the CPTPP countries, except Malaysia and Brunei Darussalam.
While the economic benefits of joining CPTPP appear to be small, with the increase in GDP predicted to be £2 billion, this could be higher if other countries, such as South Korea, join the bloc.
Joining offers limited new trading opportunities for legal services, though the upcoming review by all parties does create an opportunity for further negotiation to benefit the sector.
We have been working on communicating our market access asks and highlighting the strength of the sector ahead of this review.
Coming up:
We are working on a number of bills in parliament:
- Safety of Rwanda (Asylum and Immigration) Bill will have its consideration of Lords amendments in the Commons on 15 April
- Victims and Prisoners Bill began its committee stage in the Lords on 24 January
- Renters (Reform) Bill will have its report stage in the Commons, date to be announced
- Criminal Justice Bill will begin its report stage in the Commons, date to be announced
- Leasehold and Freehold Reform Bill will have its second reading in the Lords on 27 March
- Sentencing Bill will have its committee stage in the Commons, date to be announced
- Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill gained royal assent on 20 March
- Data Protection and Digital Information (No. 2) Bill will have its committee stage in the Lords on 20 March
- Arbitration Bill will have its committee stage in the Lords, date to be announced
If you made it this far:
We recently released our updated research on legal aid deserts. These updated maps highlight the continued deterioration of civil legal aid, leaving millions without representation on crucial issues such as housing and welfare. We are using this research to press the government for more support.