The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act received royal assent last week. The consequence of this will be that, in some very important areas such as housing and welfare benefits law, vulnerable members of society will find legal advice and representation in the courts, funded by legal aid, more difficult to obtain.
The Law Society fought a long campaign against the bill, which raised public awareness of the importance of legal aid and achieved some notable successes. When packaged together, the numerous small amendments that we secured put the bill in significantly better shape than when it was introduced into the House of Commons. Nonetheless, we cannot pretend that the final bill is the outcome we had hoped for.
Because of the significant pressure exerted by the Law Society and others, the government did concede on several important points during the passage of the bill. The government accepted that there would be a risk of political interference in the decisions taken by the director of legal aid casework, when applying the exceptional funding provision, which permits legal aid to be given in certain cases for matters not automatically in scope. The definition of domestic violence has been amended to accurately reflect that which is used by the Association of Chief Police Officers (ACPO).
This is important because the ACPO definition is carefully drafted to cover not just physical violence but psychological abuse and other forms of systemic controlling behaviour which make for an oppressive relationship, and broader than the original definition in the bill. The lord chancellor went further than before and stated that a broader range of criteria would be accepted for the purposes of demonstrating that domestic violence had taken place, and stated that the time limit applying to such evidence would be two years, not 12 months.
Ministers conceded that legal aid was necessary for appeal to the Upper Tribunal and senior courts for welfare benefits entitlement appeal cases. Concessions were made on legal aid availability for domestic as well as international child abduction, cases dealing with provision for individuals with special educational needs, clinical negligence for babies and victims of human trafficking. The government also conceded and removed subclauses from the bill which could have allowed for the means testing of police station advice. The government also left the door open for areas of law to be brought back into scope via regulations in the future.
On part 2 of the bill (the Jackson civil costs reforms) the government conceded that there should be no minimum payment for losing claimants under the new qualified one-way costs shifting regime, delayed implementing part 2 reforms until the legal aid changes come into effect and accepted that it would be inappropriate for the reforms to apply to asbestos poisoning cases until after a review had been conducted.
This is not the end of the journey for the Law Society or our members. The challenge now facing the Society is twofold. We must help the profession adapt to the new regime and ensure that we do what we can to mitigate the unavoidably negative impacts on access to justice for the least well off. We have been working towards these aims for some months now. We are currently finalising our priorities for the safeguards we hope to secure through consultation and negotiation on the implementation of LASPO, particularly the controversial ‘telephone gateway’. The telephone gateway will be the sole point of access initially for discrimination claims (which, among other things, represent the only employment cases left in scope, although it applies to discrimination in any context, not just employment) and special educational needs (the only education cases left in scope), although the government has said that it intends to roll it out to other areas of law after an initial pilot.
And we are also developing a programme for monitoring LASPO’s impact. We will look carefully at the contracting and tendering process and check to see that the implementation of the bill is compatible with human rights legislation.The Law Society will also look at our own access to justice policy. We need to go back to first principles to consider what our clients need, where lawyers are either necessary or best placed to meet those needs, and how those needs can be funded. We also want to consider how new technology and the development of alternative business structure models may open up new ways for solicitors to meet at least part of our clients’ needs in a way that is accessible and affordable. Our intention is to have a suite of services for Law Society members ready early next year on coping with the consequences of LASPO, including courses, guidance and toolkits.
We will need to work closely and collaboratively with the Ministry of Justice, now that the battle over the bill, in which we have repeatedly questioned the policy decisions taken, is over. We will need to put a lot of effort into our relationships with ministers and officials at the department so that they continue to value the Law Society’s expertise and appreciate that we are working in the public, as well as the profession’s, interest for a better legal framework. That way the Law Society will continue to play its proper role in helping to improve government policy at the earliest stage of its development.
Spring in New York
I spent five days in New York for the American Bar Association Section of International Law spring meeting. It was particularly timely because the New York State Bar Association’s committee on professional ethics has recently ruled that New York lawyers may not practise in New York as employees of entities with non-lawyer owners or managers, such as an ABS. During the week, there also came news of a decision by the ABA commission on ethics 20/20 to drop proposals for a limited form of non-lawyer ownership, which became a major topic of discussion.
While I understand the commitment of the ABA and state bars to protect the independence of the legal profession, I feel that a position seems to be developing in the US that could set back the great progress made in recent years to enable firms to operate more and more internationally, meeting the needs of global clients.
During the week, I also enjoyed an ‘ABA day at the UN’, which included highly informative briefings by senior UN officials and by the US ambassador to the UN and her staff on a whole range of topics, such as the decision to send a taskforce of UN observers to Syria, to the UN’s human rights work. It struck me that the Law Society’s human rights work might benefit from greater engagement with international organisations.
John Wotton is president of the Law Society