Proposals for the Reform of Legal Aid in England and Wales: A Summary (2011-01-07)
Proposals for the Reform of Legal Aid in England and Wales: A Summary
By Roger Smith
1. The UK Ministry of Justice released a consultation paper on cuts to legal aid in November 2010. The return date for responses is 14th February 2010. The proposed cuts are extensive and, if implemented, will cut the cost of legal aid in England and Wales by almost a quarter. Legal aid currently around £2bn per year.
2. The paper is available on the Ministry’s website together with various assessments of the impact of the proposals: http://www.justice.gov.uk/consultations/legal-aid-reform-151110.htm. The proposals may well have an international influence because of the extent to which developments to the UK systems of legal aid are monitored by other jurisdictions. Domestically, the proposals are highly controversial.
3. In essence, the paper proposes:
(a) cuts to eligibility and scope;
(b) reductions in remuneration;
(c) changes to delivery systems.
4. The background to the paper is the UK government’s desire to reduce government spending overall. Most departments have been required to make cuts of comparable levels. The Minister, Ken Clarke, argues in the document itself that:
1. legal aid has expanded to cases that ‘should not require legal expertise to resolve’;
2. this has encouraged unnecessary recourse to the courts ‘even sometimes when the courts are not well placed to provide the best solutions’;
3. the consequence has been overfunding;
4. There is a need to contribute to government cuts;
5. This is part of a wider programme of reform including implementation of a report on the funding of civil cases (‘the Jackson report’, sentencing reform and family law reform, greater use of mediation in civil cases and reform of criminal justice procedures.
6. There is a need to go back to ‘basic principles’.
5. The Ministry’s own assessment of the impact of its proposals is:
1. Cuts to clients services will be £286-251m (including £4-11 estimate of payment of increased contributions). 512,000-450,000 will come out of scope; 8000 clients will pay increased contributions; 2-4,000 will lose eligibility on financial grounds.
2. Legal aid providers will get £114-54m less for the same level of services. £41m will be saved on civil fees. £95m on criminal. £8m will be shaved off expert fees. The telephone advice proposals may save up to £10m.
3. Planning assumption is no uprating for inflation over next four years to 2014-5
4. Impact on clients ‘case outcomes may be less fair than beforehand’.
5. There may be less use of courts and tribunals. Might be an increase in litigants in person but ‘it has been assumed that on balance any such effect should not have a significant impact on ongoing court or tribunal operating costs’.
6. Estimated that the proposals will reduce legal representation (aid) closed cases by 44 per cent and legal help by 68 per cent.
7. Assumption is implementation of fee cuts to practitioners and experts and implementation of supplementary legal aid scheme in 2011, the rest in 2012.
8. Small firms may be disproportionately affected and the impact will be considered later.
9. The proposals have been subject to a ‘Human Rights screening’ to ensure compliance with HRA
10. Of the clients affected, 27 per cent will be black and ethnic minority and 57 per cent female. People with a disability will also be hit by proposals such as that to cut assistance with education issues.
6. The aim is to target legal aid ‘to those who need it most’. And to contribute to departmental savings of £2bn overall, 23 per cent of its current budget (largely for legal aid, prisons, probation and the courts), by an estimated £350m in 2014-5. Those responding should, says the paper, bear ‘the overall fiscal context firmly in mind’. However, the case for reform is independent of cost savings.
7. The fundamental considerations of the proposals are:
to reduce unnecessary litigation, to encourage people to take more personal responsibility; to take advantage of alternatives;
to reduce costs in criminal justice through removal of perverse incentives;
to provide alternative market mechanisms
to uphold international and human rights obligations
These reforms ‘complement the wider strategy for reform across many elements of civil, criminal and family justice’ though they are ‘stand alone’ as well.
8. Current cost of legal aid is 2008-9 is
Magistrates courts 291
Crown Court etc 699
Civil (net) £m
Total all 2108
9. Chapter 4 of the consultation paper deals with the issue of scope. Criminal scope is preserved. Significant cuts are proposed for civil cases. Decision has been made on the basis of
Importance of the issue;
The litigant’s ability to present their own case;
The availability of alternative funding;
The availability of alternative routes to resolution;
Domestic, European and international obligations.
10. The biggest single cut will be cases relating to ancillary relief in divorce cases where there is no allegation of domestic violence. The result is that the following cases remain in the scheme:
Asylum but not applications for asylum support.
Claims against public authorities where they concern abuse of position of power and/or significant breach of human rights; and/or negligent acts or omissions falling very far below the required standard of care.
Claims arising from allegations of abuse and sexual assault.
Debt where client’s home at risk.
Domestic violence and family mediation in private law family cases.
Housing possession cases, counterclaims for disrepair in possession cases; homelessness appeals; serious housing disrepair; county court ASBOs.
International child abduction and international family maintenance.
Public law children and separately represented children in private law cases.
Enforcement of EU judgments.
A number of miscellaneous cases including advice for inquests but generally not representation.
Among the major exclusions will be:
Ancillary relief where no domestic violence.
Consumer and general contract.
Legal help for criminal injuries compensation.
Debt where home not at risk.
Housing matters not included above.
Immigration where no detention.
Private law family and children cases where no domestic violence.
Appeals to the Upper Tribunal from the General Regulatory Chamber of the First Tier Tribunal.
11. The paper proposes that all access to civil legal aid to be via call centre – the Community Legal Advice (CLA) line. Only in exceptional cases will a prospective client be able to go to a lawyer direct. CLA operators will only transfer to contracted legal aid providers where satisfied the applicant is eligible and in scope. However, ‘Face to face provision will be available where cases are too complex to be dealt with appropriately or where the client’s specific needs would not be met (for example due to mental impairment)’. In addition to this statutory service, the CLA provider will be able to be paid referral fee to commercial providers of services.
12. The paper proposes cuts to civil financial eligibility of income and capital. It also proposes increased contributions from those eligible. The position in crime will be reviewed in 2012 after evaluation of the newly introduced Crown Court means test.
13. Competitive tendering will be introduced for criminal cases and subsequently extend to civil. In the interim, various remuneration rates will be cut. In civil cases, the cut will be 10 per cent across the board.
14. The paper expresses an interest in requiring solicitors to pay income on client accounts (‘trust accounts in the US) and possibly a supplementary legal aid scheme where a percentage on civil damages was also taken for funding.
15. The government intends to proceed with the reform proposed by the last government of abolishing the quasi-autonomous status of the Legal Services Commission though it promises that ‘individual funding decisions should continue to be made fairly and objectively under agency status’. ‘The government is also considering whether further safeguards should be in place to distance ministers from the day to day decisions being taken by the executive agency on individual cases’.