Martin Partington: Spotlight on the Justice System

At last some detailed policy proposals which will directly impact on the English Legal system are starting to emerge from the Coalition Government. The first, considered here, is a consultation paper on the reform of legal aid. This is accompanied by another consultation paper on costs in civil cases.

The legal aid consultation is actually quite dense and difficult to summarise. The following has been adapted from the MoJ Press Release. It should be noted that, because of the need for legislation to make many of the changes, they are unlikely to come into effect before April 2012. Further, policy on legal aid always attracts detailed attention from lobby groups – in particular the lawyers and the advice sector. It is likely that there will be changes of detail before the final package is introduced. The MoJ estimates savings of around £350m if the changes were introduced without modification. The main changes proposed are:

• Criminal Legal Aid. Retaining legal aid for those criminal cases where it is currently available, in order to ensure fair trials for those accused of more serious criminal offences can access the representation required to provide a fair trial.

• But: Changes will be made to the way that lawyers are paid in criminal cases in order to promote an efficient system of justice and to ensure that the taxpayer is receiving the best possible value for money. The intention is to move towards a competitive market to replace the current system of administratively set fee rates.  In the meantime, there is a series of proposals designed to promote swift and efficient justice as well as to achieve savings.  These include proposals to pay the same fee in respect of a guilty plea in the Crown Court regardless of the stage at which the plea is entered.  In Crown Court cases that could realistically have been dealt with in the magistrates’ courts, it is proposed to pay a single fixed fee for a guilty plea based on fee rates in the magistrates’ court.  This complements other reforms to the justice system designed to encourage cases to be brought quickly and efficiently to justice, so sparing the victim the ordeal of giving evidence in court unnecessarily, and the justice system significant but avoidable costs; and

• To contain the growth in costs of the most expensive (Very High Cost Criminal Cases – VHCCCs) we propose to bring the arrangements for solicitors in VHCCCs into line with those the last Government introduced for advocates. This will mean that more of these cases will be paid within a graduated fee scheme where costs are more easily controlled.

• Civil Legal Aid. Legal aid will still routinely be available in civil and family cases where people’s life or liberty is at stake, or where they are at risk of serious physical harm, or immediate loss of their home.  For example, legal aid will be retained for asylum cases, for debt and housing matters where someone’s home is at immediate risk, and for mental health cases.  It will still be provided where people face intervention from the state in their family affairs which may result in their children being taken into care, and cases involving domestic violence or forced marriage.  It is also proposed to retain legal aid for cases where people seek to hold the state to account by judicial review, for some cases involving discrimination which are currently in scope, and for legal assistance to bereaved families in inquests, including deaths of active service personnel.

• But: Clear choices are proposed in order to introduce a more targeted scheme which directs limited resources to serious issues in civil and family cases which have sufficient priority to justify the use of public funds, subject to people’s means and the merits of the case.
• Thus, some types of cases will no longer routinely qualify for legal aid funding.
  • This  include private family law cases, for example, divorce and child contact, where long-drawn out and acrimonious cases going through the courts can often have a negative impact on the well-being of any children and not necessarily achieve the most effective result.  Funding for cases where domestic violence is involved will, however, continue to receive funding.  And funding will also continue to be provided for mediation as a better alternative to family disputes going to court in most cases.
  • Other civil cases which will no longer routinely qualify for legal aid funding include clinical negligence, where in many cases alternative sources of funding are available, such as “no win no fee” arrangements (Conditional Fee Agreements).
  • Other issues proposed for removal from the scope of the legal aid scheme include debt, education, employment, housing, immigration and welfare benefits (except where there is a risk to anyone’s safety or liberty or a risk of homelessness), where in many cases the issues at stake are not necessarily of a legal nature but require other forms of expert advice to resolve.

• Legal aid funding may still exceptionally be provided for individual cases through a new funding scheme for excluded cases, generally only where it is necessary to meet our domestic and international legal obligations, for example, in a particularly complex clinical negligence case involving a disabled claimant who cannot represent themselves where access to the court could not otherwise be secured.

• In addition, changes will be made to means testing for non-criminal legal aid.  These seek to ensure that those who, on the basis of their disposable capital or income, can pay or contribute towards the costs of their case should be asked to do so.  The proposals include ensuring that all civil legal aid applicants undergo an assessment of their available capital, including those on benefits.  Greater account will also be taken in future of equity in people’s homes when assessing their capital means.  A minimum £100 contribution to their legal costs will be introduced for all successful applicants with £1,000 or more disposable capital, and higher contributions will be expected from those who currently contribute to their legal fees.

• In order to strike a better balance between using tax payers money efficiently, and ensuring that people can access legal aided services where necessary, fees paid in civil and family cases will be reduced by 10% across the board.  It is also proposed to extend lower legal aid ‘risk rates’ in civil cases where costs are likely to be paid by the opponent, pending the introduction of competition once any proposed changes to the scope of civil and family legal aid have bedded in.   Similar levels of reductions are envisaged in experts’ fees to exert greater control over costs.

• Legal advice: Telephone services will be extended to help people find the easiest and most effective ways to resolve problems.

• The paper also consults on suggestions for alternative sources of funding for the legal aid fund, to help supplement existing funding arrangements.  These include making use of the higher rates of interest generated by money invested in a new pooled account where solicitors would hold their clients’ money, and recovering a proportion of legal aid funds in cases where a successful claim for damages has been made.
• Views are also sought on how to make the administration of legal aid more efficient and less bureaucratic for solicitors and barristers doing legal aid work.

So – the proposals combine suggestions for taking cases out of the legal aid altogether, getting clients to pay more, and reducing the money lawyers receive.

It is worth noting that the effect of the proposals relating to legal aid in family cases appear rather to preempt the conclusions that the current inquiry into the family justice system might come up with when in reports in 2011.

The proposals for devising supplementary sources of funds for legal aid could result in some further significant changes. What is not clear from the paper is the extent to which new models for the delivery of legal aid, which have been promoted by the Legal Services Commission, will be sustained.

The consultation paper is at http://www.justice.gov.uk/consultations/legal-aid-reform-151110.htm

The consultation runs until 14 February 2011