Liberty - Protecting civil liberties, promoting human rights

Parts 1 and 2 of the Legal Aid, Sentencing and Punishment of Offenders Bill will exclude huge areas of law from the scope of legal aid, leaving those grappling with family breakdown, debt and welfare benefits issues without legal assistance. The Lord Chancellor is given wide powers to make further changes to the system, including scrapping automatic legal assistance for those taken into police custody.

 

Provisions on sentencing in Part 3 of the Bill will remove obstacles to making mental health treatment requirements and allow judges to pass sentences which will oblige offenders to tackle drug and alcohol dependency problems.

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The briefing on Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Bill proposes comprehensive amendments. In particular, Liberty’s proposed changes would:

- Reverse restrictions on the scope of civil legal aid provision and ensure that those challenging the decisions or actions of a public authority or those experiencing family breakdown or debt problems have access to legal assistance

- Re-instate the test currently applied for the provision of funding in exceptional cases

Widen provision for representation in Court and Tribunal proceedings where an individual faces a public authority

- Place restrictions on the freedom that the Bill gives to the Lord Chancellor to further undermine the legal aid system

- Facilitate the increased use of wasted costs orders in cases where costs are incurred as a result of improper actions or poor administration by public authorities.

Part 2 of the Bill deals with litigation funding and costs outside of the scope of legal aid and, like Part 1, will severely curtail access to justice, including for those attempting to bring cases on human rights grounds against large multinational companies. Part 3 is a discreet
section of the Bill providing for significant reform of the criminal justice system, including out-of-court disposals, sentencing and bail.

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This briefing proposes comprehensive amendments to Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Bill and in particular includes suggested amendments designed to:

• Reverse restrictions on the scope of civil legal aid provision and in particular incorporate:
  (i) provision for individuals challenging decisions, actions or omissions of public authorities, and
  (ii) provision for cases involving private family law, debt and applications to the Criminal Injuries Compensation Authority.

• Re-instate the test currently applied for the provision of funding in exceptional cases.
• Ensure that provision is made for representation in cases reaching the High Court, Court of Appeal or the Supreme Court.
• Place restrictions on the freedom that the Bill gives to the Lord Chancellor to undermine the legal aid system by further restricting the scope of provision in civil and criminal matters.
• Restrict the extent to which the Lord Chancellor can override individual choice both in terms of the means of service provision and choice of representative.

Part 2 of the Bill deals with litigation funding and costs outside of the scope of legal aid and, like Part 1, will severely curtail access to justice, including for those attempting to bring cases on human rights grounds against large multinational companies. Part 3 is a discreet section of the Bill providing for significant reform of the criminal justice system, including out-of-court disposals, sentencing and bail.

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If implemented in its current form Part 1 of the Bill will decimate the legal aid system, placing justice beyond the reach of many and creating alarming gaps in protection. The proposed amendments set out in this briefing focus on reintroducing provision for the most vulnerable people or for types of cases involving significant complexity or matters of overwhelming importance to the individual, namely:

                                                                                        

• Specified private family proceedings (amendments 6-9);
• All proceedings to which a child is party (amendment 10);
• Challenging a public authority including in relation to clinical negligence (amendments 11-13);
• Victims of trafficking in human beings (amendment 14);
• Applications for family reunion by the family members of those granted international protection (amendment 15);
• Welfare benefits appeals and reviews (amendment 16).

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If implemented in its current form Part 1 of the Bill will decimate the legal aid system, placing justice beyond the reach of many and creating alarming gaps in protection. The proposed amendments set out in this briefing focus on reintroducing provision for the most vulnerable people or for types of cases involving significant complexity or matters of overwhelming importance to the individual.

Liberty believes that the proposals in Part 2 of the Bill will close off important avenues for holding powerful interests to account. The suggested amendments set out at pages 5-10 of our briefing focus on removing, from the reach of measures which significantly restrict access to civil litigation funding, certain priority cases, including cases involving claims under the Human Rights Act 1998 and the Equality Act 2010.

Whilst acknowledging the positive changes made in Part 3, the attached briefing urges Parliamentarians, in particular, to:

- Push for provision to be made, on the face of the Bill, for those currently serving IPP sentences (see proposed amendment 8 at pg 14-15);
- Push for a fairer parole board release test for those subject to the new extended sentence regime (see proposed amendment 9 at pg 16);
- Oppose substantial extension of the curfew regime for adults and minors (see proposed amendments 1 and 4 at pg 5-8); and
- Oppose the removal of prosecutorial oversight from the conditional caution regime (see proposed amendment 11 at pg 19-22).

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Once passed, this Bill will decimate our legal aid system, placing justice beyond the reach of many and creating alarming gaps in legal protection. Removing the possibility of legal challenge from huge swathes of society will allow big business, government and other powerful interests to act with impunity. The Bill’s contentious and divisive passage through both Houses indicates the extremely limited and fractured support for legislation which will have such a devastating impact on society’s most vulnerable.

 

Liberty urges Members of Parliament to support the key amendments made by the House of Lords which seek to redress the impact of the Bill on particularly vulnerable groups. These include bringing back within scope for legal aid provision:

- all victims of domestic violence;

- proceedings where a child is a party or is represented by a legal guardian in a wide range of areas of law including private family law, education, housing, immigration and asylum law and decisions in relation to benefits and allowances;

- social welfare decisions relating to a benefit, allowance, payment, credit or pension under certain social security legislation; and

- clinical negligence cases involving children and cases where a child suffers neurological injury leading to severe disability following clinical negligence.