Westminster weekly update: Criminal legal aid review first stage announced

Alexandra Cardenas
Alexandra CardenasThe Law Society

Your weekly update from the Law Society’s public affairs team on all the latest developments and debates in Parliament and across Whitehall.

Houses of Parliament

One thing you need to do

Use our online tool to write to your MP and raise your concerns regarding the government's proposals for the first stage of its criminal legal aid review.

Write to your MP using our online tool

Five things you need to know

1. Criminal legal aid proposals are insufficient

Last Friday the Ministry of Justice (MoJ) published proposals as part of the accelerated items of the criminal legal aid review.

We've argued that the proposals are insufficient to match the scale of the problem. In the past year alone large criminal defence practices – such as Rodney Warren and Co and One Legal – have become insolvent and ceased trading.

One duty scheme in the North West has already become unviable and has been merged with the neighbouring scheme. We're also aware that a number of firms have had to close their criminal departments after their staff moved to work for the Crown Prosecution Service.

We welcomed the criminal legal aid review announced in December 2018 and were encouraged that the MoJ accelerated some of the urgent changes required to secure the sustainability of the profession.

However, we do not believe that the accelerated proposals announced on Friday will do enough to secure the short-term sustainability of the profession. We're particularly concerned about the total value of the package, proposals on sent cases and committals, unused material and cracked trials.

If urgent action is not taken immediately, further collapses of duty schemes, solicitors’ firms and crime departments are inevitable, causing criminal defence services to be unavailable in some parts of the country. This will result in unrepresented defendants, cause huge inefficiencies in our courts and have clear implications for access to justice. It’s vital that the MoJ amends the proposals, otherwise further collapses of firms will be inevitable.

We're encouraging people to share their concerns with the proposals, by writing to their MP and participating in the consultation.

Write to your MP using our online tool

Find out more information about the proposals

Read our press release responding to the announcement

2. Justice week drop-in

As part of this year's Justice Week, the Law Society, in collaboration with the Bar Council and the Chartered Institute of Legal Executives, hosted a parliamentary drop-in event for MPs last Wednesday.

The event was an opportunity to raise awareness of our efforts to improve access to justice, and MPs were invited to reflect on some of the threats currently facing the justice system and the rule of law.

As part of the drop-in, MPs were able to take part in a photo call, citing examples of where they have “…used the law to...” protect or fight for rights and freedoms, as part of the wider Justice Week campaign profiling the power of law.

26 MPs took part in the event, including attorney general Suella Braverman QC MP, solicitor general Michael Ellis MP, lord chancellor Robert Buckland QC MP, justice minister Alex Chalk MP, chair of the Justice Select Committee Sir Bob Neill MP and shadow justice minister Bambos Charalambous MP.

Justice Week 2020 ran from Monday 24 to Friday 28 February and aimed to improve access to justice by boosting the profile of justice and the rule of law, placing them at the centre of public and political debate.

Find out more about Justice Week 2020

3. Government announces they will seek to accede to Lugano Convention

Last Thursday, the government published their negotiating intention for the UK-EU future relationship, including objectives on trade in services in the four GATS modes, mutual recognition of qualifications, and temporary entry and stay for business purposes.

They also announced they would seek to accede to the Lugano Convention, something we've consistently advocated for and the government have previously been hesitant about.

Earlier in the week, our head of the Brussels office Dr Helena Raulus gave evidence to the Lords EU Justice Sub-Committee on civil justice co-operation. She covered the importance of seeking to accede to the Lugano Convention, as well as the advantages of the Brussels Regime for civil and family co-operation (while noting that Brussels Regime participation is linked to single market membership).

She acknowledged that Lugano was lacking on measures for family law, and that as the EU had included family law co-operation in their mandate (published last Tuesday) there would likely be opportunity to strengthen family law provisions in the Lugano and Hague conventions.

Read the government negotiating objectives (PDF)

Read the EU Mandate (PDF)

Watch Dr Raulus give evidence

4. Whiplash reforms delayed

Last Thursday the government announced that it would delay the implementation of reforms to the process for whiplash claims to 1 August 2020.

The government had intended for the new portal to go live on 1 April 2020, however they argued that more time was necessary to make sure it is ready for implementation.

The government also confirmed that a key element of the portal relating to support for litigants in person would be dropped, as no practicable solution could be found to provide alternative dispute resolution.

Last Wednesday our head of justice Richard Miller spoke at a parliamentary event held by the union USDAW on the forthcoming changes to the small claims limit.

Opening the meeting, general secretary of USDAW Paddy Lillis noted that this was an important issue for the union and its members. He argued that from time to time people are injured in the workplace, and those people are entitled to compensation if appropriate and require access to justice. He said that Usdaw opposed the Civil Liability Act, and said that the proposals will impact access to justice for tens of thousands.

Richard Miller highlighted our concern on the impact on access to justice of the proposals. He focused his remarks on the provision of medical reports and noted that at the moment most injured employees can instruct a solicitor.

However, with the increase to the small claims limit, it will no longer be possible to secure a medical report through a legal representative, and the cost will fall on individual, which will prove an impossible barrier for some injured employees to overcome.

Miller noted the Unison judgment in relation to employment tribunal fees, and the right to access justice, and argued that the increase to the small claims limit will limit access to justice.

The meeting also heard contributions from the British Safety Council, the Association of British Insurers and Thompsons Solicitors, who all expressed support for the exclusion of employers’ liability and public liability from the increase to the small claims limit.

Read the government’s statement on whiplash reforms

5. Legal aid raised in justice oral questions

Last week the lord chancellor and his new ministerial team faced their first justice oral questions session in the House of Commons. The session largely focused on prisons, probation and reducing re-offending, but there were questions on domestic abuse, legal aid for early advice and legal aid deserts.

Early legal advice

Debbie Abrahams MP (Labour) asked about the ability of social security claimants to access early legal advice and asked what role have the cuts in legal advice to claimants had in failing to protect our most vulnerable citizens.

Responding, justice minister Alex Chalk MP said that access to justice is a fundamental right and that legal aid for early legal advice remains available in many areas, such as for asylum cases. In addition, legal aid is available under the exceptional case funding scheme in any matter where failure to provide it would breach or risk breaching someone’s rights under the European convention.

He said that later this year, the government will conduct a review of the scope of legal aid, but that will sit alongside a lot of work on scoping pilots to ensure that legal aid and support is provided quickly. He said that early legal support is much better than late legal support, that it is evidence-led on the basis of the pilots and that it truly goes to those who need it most.

Yvonne Fovargue MP (Labour) asked the minister to consider extending the pilot to other areas of law including family, housing and social security law.

Responding, Alex Chalk MP said he agreed that if early support is provided, it can make an enormous difference in solving problems that would otherwise fester and become more difficult. A pilot is taking place on social welfare law and the government will consider that evidence extremely carefully.

Shadow justice minister Bambos Charalambous MP (Labour) said that is has now been over a year since the LASPO review was published. Since then, he argued, hardly any of the deadlines for government action have been met, including the pilot for early legal advice.

He asked the minister when we are likely to see the proposals on early legal advice. Responding, Alex Chalk MP said that proposals for the early legal advice pilot will sit alongside pilots for co-located hubs and a legal support innovation fund. He argued that those pilots have to be done right if they are to be sustainable in the long run, so they are being considered together with academics to make sure that they will work precisely as required.

Paul Maynard MP (Conservative) welcomed the minister to his new role and encouraged him to look at Law for Life’s Advicenow website, which provides early legal support for social welfare claimants. He encouraged the minister to roll out early advice to existing legal aid deserts, such as his constituency. Responding, Alex Chalk MP said that those who are entitled to legal aid support can always access it over the telephone.

Domestic abuse

Joanna Cherry QC MP (SNP) said that the Republic of Ireland ratified the Istanbul Convention last March, and that the UK is one of only six countries yet to do so.

She said that the government’s own report show two areas in which our law has yet to comply sufficiently to make us able to ratify the convention.

Responding the lord chancellor Robert Buckland QC MP said that the UK is committed both internationally and domestically through legislation to implement the convention and that in many areas the UK is ahead of the obligations the convention places on us. He said it is key that the concerns raised by the Joint Committee (on the Draft Domestic Abuse Bill) are met.

Peter Gibson MP (Conservative) asked what steps the government is taking to support victims of domestic abuse through the criminal justice system, and how it deals with perpetrators to stop re-offending.

Responding, the lord chancellor said that domestic abuse is an abhorrent crime and that the government is determined to better protect and support victims and bring perpetrators to justice. The Domestic Abuse Bill will be introduced in this session. He said there are a number of programmes aimed both at those who have been convicted of domestic abuse and at those who have not received such criminal convictions but who pose a real risk.

Shadow justice minister Yasmin Qureshi MP (Labour) said that the justice system is failing the most vulnerable victims. She said that far too often, domestic abusers are using the family and criminal courts to publicly re-traumatise their victims.

She asked the minister to ensure that no woman is “callously and unjustly cross-examined by her abuser”. Responding, the lord chancellor said that the provisions in the domestic abuse Bill relating to the prohibition of cross-examination by perpetrators are important, and they will remain in the Bill when it is reintroduced. He said that the special measures that we have already taken in the criminal courts, which she knows about, will be replicated in other forums to offer maximum protection and support to victims who get abused in that way.

Read the full session

Coming up this week

This Tuesday will see a ten-minute rule motion on the rule of law in the House of Commons, as well as oral questions to the Department for Business, Energy and Industrial Strategy.

On Thursday, the Department for International Trade will face questions in the House of Commons and there will be a general debate on International Women's Day.

In the House of Lords, on Tuesday, there will be an EU Justice Sub-Committee evidence session on criminal law cooperation after Brexit and a Constitution Committee annual evidence session with the president and deputy president of the Supreme Court.

The Divorce, Dissolution and Separation Bill and the Extradition Bill will both undergo committee stage on Tuesday and Thursday respectively.

View the upcoming parliamentary business

If you made it this far

Read the Competition and Market Authority's update report on leasehold housing, published last Friday.

Read the full report (PDF)