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Offensive and unjust

Willy Bach

Willy Bach calls on his fellow Peers to hold the government to account for reneging on its commitment for First Tier Tribunal legal advice

Many will recall, and most with a sense of distaste, the passing of the Legal Aid, Sentencing and Punishment of Offenders Act earlier this year. Part 1 of the then Bill effectively abolished our current and well respected system of giving legal aid to the poor, disabled and marginalised for legal advice when they face a Social Welfare Law problem in the fields of housing, employment, benefits or debt.

During the current recession, the demand for this sort of quality but inexpensive legal advice has grown hugely; and with the coming welfare reforms it is now obvious that such demand will grow much further. Yet this is precisely what Ministers are intent on ending, hitting those who can least defend themselves the hardest.

The Bill, as some will recall was defeated 14 times in the Lords. Indeed, during 'ping-pong' in the Commons, it looked as though the government might lose one of its most desired aims: the abolition of legal aid for First Tier Tribunals (FTT) in any circumstances. 

When the Lords voted this proposal down, Ministers, in order to keep the Bill alive, had to make a concession. They did so by agreeing that any citizen who wanted to bring a case, based on a 'Point of Law', before the FTT would, if they met the eligibility criteria, be entitled to legal aid for legal advice. These cases are the minority of welfare benefit appeals, and it was therefore not a particularly generous concession. But it was enough to allow a much wider amendment to be withdrawn and for the Bill to eventually become law.

Many months later, the government announced what it would do to fulfil this promise. Instead of setting up a system of legal aid for Point of Law cases at FTTs, they want to put in place a scheme where no one can get legal aid before, during or even after a FTT – unless the unadvised appellant appeals and the FTT say they have made 'An Error of Law' before commencing a Review into the case. As anyone with half an interest in Social Welfare Law will tell you, this set of circumstances will happen extremely rarely.

By putting this scheme into the Draft Order being debated in the Lords on Monday, the government is reneging on its pledge to Parliament, and letting down many people and organisations who had taken Ministers at their word. This will just not do. Not only is it offensive to those members of both Houses who debated the issue in the final days of the Bill, it is also deeply unjust that our fellow citizens are not able to get any legal advice for these sort of cases. The government should withdraw the Order and return with a more acceptable one. If it refuses, I hope the Lords will decline to approve it. 

Lord Willy Bach is backbench Labour Peer, and until earlier this year was Shadow Justice Minister in the Lords

Published 2nd December 2012