The second reading

On 29 June 2011, the Legal Aid, Sentencing and Punishment of Offenders Bill went through, and passed, its second reading in Parliament. The Bill, which seems to have divided opinion in government, proposes changes in legal aid, civil litigation and the sentencing and punishment of offenders.

With regards to legal aid, the Bill proposes cuts in funding of £350 million meaning that people will be unable to obtain legal aid for most cases in private family law (except domestic violence), clinical negligence, employment (except those brought under the Equality Act) and debt and welfare issues amongst others.

As announced by Ken Clarke in the reading, legal aid will also continue for cases where, “people‘s life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home or where their children may be taken into care.”

Clarke defended the legal aid cuts by stating that, “The scope of legal aid has expanded too far”, giving the example of taxpayers who are “forced to pay for legal advice to foreign students whose visa applications are turned down.”

Mr Elfyn Llwyd argued back that, “these provisions will disproportionately affect the most vulnerable in society, particularly people from ethnic minorities.”

Joan Ruddock also identified that her constituents “are people who need advice on immigration, on welfare and on housing” and asked “Where am I to send them? How are they to get justice with the provisions in [the] Bill on legal aid and on no win, no fee?”

The second section of the Bill aims to reform civil litigation and implement many of the proposals laid out by Lord Justice Jackson. The changes include removing the recoverability of success fees and After-the-Event (ATE) insurance premiums, increasing general damages by 10% and capping success fees at 25%.

The Labour response to the proposed changes was strong. Sadiq Khan, the Shadow Justice Minister, described the Bill as “incoherent, inconsistent and obsessed with cutting costs.” He went on to attack the proposals, explaining how the government’s motivation is driven by “their zeal to fix the so-called compensation culture.”

Khan’s deputy, Andy Slaughter continued:

“Turning to the Government’s meddling with civil litigation, they justify the need to upend no-win, no-fee by reference to the compensation culture.

“The Government are legislating to fit false perceptions. A system that allows people on moderate incomes to access justice is being overturned to please the insurance industry and large corporations.

“While the justification for reform may be imagined, the victims are all too real: children brain-damaged by medical negligence, workers injured by unsafe machinery or suffering industrial disease.”

With specific regard to the small concession of keeping recoverability for disbursement-only ATE insurance premiums in clinical negligence cases, Sir Alan Beith noted that “it is not clear to those who understand the system that there would be a viable market in after-the-event insurance in such a narrow field, when it has been abolished in other areas.” An important point, as legal insurers do not see a feasible way to provide this type of cover.

A large portion of the debate was taken up by referral fees, which was odd as they are not covered by the Bill. Several MP’s called them a “scandal” and Jack Straw quoted a solicitor who described them as a “form of legalised bribery.” He went on to say that they drove up costs and premiums and brought into question the “integrity of the whole of the motor insurance industry.”

So all in all, many of the concerns raised were for the victims who either through the legal aid cuts or civil litigation reforms will be worse off and have limited access to justice. As Baroness Hale stated in the run-up to the second reading, the Bill will have “disproportionate effect upon the poorest and most vulnerable in society".