Westminster update: lord chancellor doubles down on legal aid policy
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Westminster update: lord chancellor doubles down on legal aid policy

One thing you need to do

We are taking the government to court over its failure to increase criminal defense solicitors’ legal aid rates by the 15% minimum its own commissioned review recommended.

Our president, Lubna Shuja said:

“The government has failed to satisfactorily address the serious concerns we raised about the collapse of the criminal legal aid sector following years of chronic underfunding.

“We have therefore applied to the High Court for permission to challenge the government’s implementation of the recommendations made in the independent review of the sector.

We believe the UK government’s decision not to increase criminal defense solicitors’ legal aid rates by the recommended minimum of 15% is both unlawful and irrational.

“It has had, and will continue to have, dire consequences for access to justice and puts the future of the criminal justice system in jeopardy.”

Read more about the fight for criminal legal aid

What you need to know

1. The Lord Chancellor doubles down on legal aid policy

On Wednesday 1 March, the lord chancellor, Dominic Raab, was challenged on the government’s approach to criminal legal aid at the Lords Constitution Committee.

Raab said that the government has taken important steps in making the criminal legal aid system fit for the future.

He said that he has set the foundations for a sustainable criminal legal aid profession, having followed all the recommendations set out in the Independent Review of Criminal Legal Aid.

This is despite the fact the government has not met the review’s recommendation of a minimum 15% increase in solicitors’ rates.

Challenged on whether the government had invested sufficient funds into criminal legal aid, Raab said that:

  • there has been an overall increase of spending to over £138 million
  • criminal legal aid expenditure per annum is now £1.2 billion pounds a year

When pressed about further future investments, Raab said that he would “have to see how the system settles down”.

On civil legal aid, Raab said that as well as undertaking the review of civil legal aid, the government had carried out the means test review, which has expanded the scope considerably.

He said if there were things that jumped out of the review as essentials that could not wait until 2024, he would of course consider them before then.

Raab said that he is making the best of the financial envelope he has, including injecting £10 million into housing legal aid and £13 million into family legal aid.

He said he was keeping the situation under close review.

2. Peers continue debate on post-Brexit bill

The controversial Retained EU Law Bill continued its committee stage in the House of Lords this week, with peers debating:

  • amendments on exemptions for health and safety laws
  • extending the deadline for reform from the current proposed date of 31 December 2023, as we have been calling for

Parliamentarians and other stakeholders have raised concerns about the lack of parliamentary scrutiny of the legislation being reviewed.

Cabinet Office minister Baroness Neville-Rolfe asserted that whilst parliament cannot amend a statutory instrument, it can debate one.

Minister for energy efficiency and green finance Lord Callanan said that any amendments to limit the provisions of the sunset or to “complicate” its operations are “inappropriate”. This includes amendments 27 and 28 we had supported, which sought to push back the sunset date to 2028.

However, he did state that where reforms are being made to retain EU law, the normal processes of consultation will be “respected” as well as exercises of legislative scrutiny.

The shadow deputy leader of the House of Lords, Lord Collins, questioned what examination is taking place on regulations and forward planning, criticizing the lack of rigorous analysis conducted by departments.

He argued that the bill should be “thrown out by all sides” of the house.

The bill will continue with its committee stage next week.

3. New approach to Northern Ireland: Windsor Framework

On Monday 27 February, prime minister Rishi Sunak unveiled his new way forward for Northern Ireland following Brexit.

He hosted a joint press conference in Windsor with Ursula von der Leyen, president of the European Commission, in the afternoon, before giving a statement to the House of Commons.

Titled the Windsor Framework, the approach seeks to address the political, societal and economic impacts of the Northern Ireland Protocol.

Sunak described the deal as a “new chapter” in the UK’s relations with the European Union.

The deal has been broadly welcomed so far by the Conservative party MPs.

However, Boris Johnson has cast doubts over whether he will support the bill when it comes to a vote.

The Democratic Unionist Party (DUP) – the largest unionist party in Northern Ireland and the party which has boycotted the power-sharing assembly and executive at Stormont since May 2021 to demand significant changes to the Northern Ireland protocol – said it would look through the detail before giving its support.

Sinn Féin, the largest party in the Northern Ireland Assembly, has welcomed the deal, as has the Labor Party, and there has also been significant international support for the deal, including from US president Joe Biden and French president Emmanuel Macron.

The UK government has also confirmed that it will no longer proceed with the controversial Northern Ireland Protocol Bill, with the UK and EU having come to a negotiated agreement.

We have strongly cautioned against the bill, describing it as a “direct challenge to the rule of law”, and so we welcome the government’s decision.

4. New safeguards for the lasting powers of attorney

The House of Commons saw cross-party support for a private members bill seeking to improve the processes concerned with the lasting powers of attorney (LPAs).

Stephen Metcalfe MP, who brought forward the Powers of Attorney Bill, said that the bill relates to the process of making and registering a lasting power of attorney in England and Wales.

He said that it would not affect the making of LPAs in Northern Ireland and Scotland.

He said that the changes fall into five categories:

  • simplifying the process for applying to register a lasting power of attorney
  • changing how people are notified that a lasting power of attorney has been submitted for registration
  • introducing identity checks
  • streamlining how objections to the registration of an LPA can be made
  • providing for electronic evidence of the LPA, alongside physical evidence

Members from both sides of the house, while supportive overall of modernizing and digitalising the system, were anxious that paper-based systems remained an option for those who were digitally disadvantaged, or others not familiar with digital processes.

This is an argument we have been making in its representations on the bill.

Stephen Metcalfe confirmed that people will still be allowed to apply for a lasting power of attorney using a paper-based system.

coming up

The government will deliver its spring budget on 15 March.

We have made a submission to HM Treasury with our recommendations for investing in the justice system and legal sector.

We will be working closely with MPs and peers to influence a number of bills and inquiries:

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