Posts Tagged ‘LASPO’
Reviewing the Criminal Legal Aid fee schemes
There is increasing recognition that the criminal legal aid scheme is not delivering an adequate service for the Criminal Justice system. Practitioners have long argued that cuts have gone too far; there have been strikes, threats of strikes and last minute deals cobbled together to try to stop the wheels falling off the bus completely.
In December 2018 the Government announced that there would be a more fundamental review of the criminal legal aid scheme.
More detail about the scope of the review was announced in March 2019. Thus the review will consider criminal legal aid throughout the life cycle of a criminal case, including:
- pre-charge advice at the police station, advice and advocacy services in the Magistrates’ Court and Youth Court, and advice and advocacy for prisoners
- advice and litigation services in the Crown Court through the Litigators’ Graduated Fee Scheme (LGFS)
- advocacy services in the Crown Court through the Advocates’ Graduated Fee Scheme (AGFS)
- litigation and advocacy services for very high cost Crown Court cases though the Very High Cost Case (VHCC) Scheme
The review will also consider wider changes to the justice, social, economic, business and technological landscape that are impacting on the criminal legal aid system – including, but not limited to:
- Her Majesty’s Court and Tribunals Service (HMCTS) reform, including the digitisation of the criminal trial process;
- the Attorney General’s review of disclosure of evidence, and the need to prevent trials collapsing because of failure to disclose evidence; and
- wider modernisation work being pursued by the Home Office and the police.
The Government has stated that the overall objectives of the review are:
(1) To reform the criminal legal aid fee schemes so that they:
- fairly reflect, and pay for, work done
- support the sustainability of the market, including recruitment, retention, and career progression within the professions and a diverse workforce
- support just, efficient, and effective case progression, limit perverse incentives, and ensure value for money for the taxpayer
- are consistent with and, where appropriate enable, wider reforms
- are simple and place proportionate administrative burdens on providers, the Legal Aid Agency (LAA), and other government departments and agencies
- ensure cases are dealt with by practitioners with the right skills and experience
(2) To reform the wider criminal legal aid market to ensure that the provider market:
- responds flexibly to changes in the wider system, pursues working practices and structures that drive efficient and effective case progression, and delivers value for money for the taxpayer
- operates to ensure that legal aid services are delivered by practitioners with the right skills and experience
- operates to ensure the right level of legal aid provision and to encourage a diverse workforce.
The plan is to produce a report by the end of Summer 2020.
As part of this peogramme the Crown Prosecution Service has been undertaking work to develop proposals for the remuneration of prosecution lawyers. It plans to finish this work by the end of September 2019.
As interim measures, the CPS has proposed changes to fees payable to prosecutors to be implmented from 1 Sept 2019. In addition, the Ministry of Justiice has agreed with the Criminal Bar Association and the Bar Council that the elements of the review will be accelerated:
- consideration of the issue of unused material;
- fees paid for cracked trials; and
- uplifts in paper-heavy cases.
The intention is for interim proposals to be made by the end of September. The impact of the prorogation of Parliament and the possibility of a General Election may alter these timings.
Details about these developments may be found at:
For the overall review https://www.gov.uk/guidance/criminal-legal-aid-review#history
For the CPS work see https://www.cps.gov.uk/cps/news/proposal-between-crown-prosecution-service-ministry-justice-attorney-general-criminal-bar
Post-implementation review of LASPO Part 2: the Jackson Reforms
I have noted elsewhere the fact that the Government has started a post-implementation review of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). (See this blog, March 2018 and September 2018).
The principal focus is on changes to the legal aid scheme – Part 1 of the Act.
Part 2 of the Act introduced changes to the costs rules relating to civil litigation proposed in the review led by Lord Justice Jackson.
Progress with this review has been slower than with the legal aid review. But in June 2018, the Government published a short statement on how it thought the changes were going, and set out a number of questions on which it sought evidence from practitioners and other civil justice stakeholders.
The focus of the inquiry is on the five principal reforms contained in the Act. They are
- (i) non-recoverability of Conditional Fee Agreement success fees;
- (ii) non-recoverability of After the Event insurance premiums,
- (iii) the introduction of Damages-Based Agreements,
- (iv) section 55 changes to Part 36 offers to settle proceedings,
- (v) banning referral fees in personal injury cases.
The preliminary view of officials is that while their introduction was very contoversial, they are working pretty well in practice.
In June 2018, the Government has published an initial assessment together with a list of questions to which it hopes practitioners will respond during the summer of 2018. A further report will be published in due course.
The document is available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/719140/pir-part-2-laspo-initial-assessment.pdf
Post-implementation Review: Legal Aid – progress report
The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) was a multi-faceted piece of legislation, dealing with a number of issues of great importance to the English Legal System. Part 1 of the Act made provision for major cut-backs in the provision of legal aid. This is now the subject of a Post-Implementation Review (PIR), being conducted by the Ministry of Justice.
A Post-Legislative Memorandum on LASPO was written and published by the Ministry of Justice in October 2017. This set out preliminary views on how the Government thought the reforms were working. This was to be the first step to further inquiry.
I noted the launch of the PIR into Part 1 of LASPO here in March 2018. A brief progress report was published by the Ministry of Justice in June 2018.
This stated, in part,
Ministry of Justice (MOJ) officials have led consultative groups formed from organisations and academics representing a cross section of the justice system. These meetings took place in April 2018 and focused on the four themes:
- criminal justice,
- family justice,
- civil justice and
- the advice and third sector. ..
Further consultative group meetings have been scheduled later in the year with a focus on how individuals navigate through the justice system at present.
In addition, the review team have been meeting a wide variety of interested parties on an individual and small group basis, in order to gather a broad range of evidence of the impact of the changes to the provision of legal aid made under LASPO. Through all forms of engagement, the review team has so far met with over 50 organisations in order to discuss the impact of LAPSO and many more meetings are planned for the coming months.
Alongside meetings with interested parties and to ensure our review is as informed as possible, the review team is also accepting submissions of evidence.
The deadline for the submission of evidence is this month (September 2018).
It seems unlikely that the final decisions arising from the review will be published before 2019. I stick to my prediction that major change to the legal aid scheme is unlikely to be an outcome of the review, but I would be happy to be proved wrong!
It may also be noted that the Justice Committee has published a report on the impact of changes to the criminal legal aid scheme on practitioners. This urges a full review of Criminal Legal Aid, to start no later than March 2019, to be informed by the work currently being undertaken in the PIR. The Government has yet to respond to this report.
The Post-Legislative Memorandum is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/655971/LASPO-Act-2012-post-legislative-memorandum.pdf
For the PIR update, see https://www.gov.uk/government/publications/post-implementation-review-of-laspo
For the Select Committee report on Criminal Legal Aid, see https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news-parliament-2017/criminal-legal-aid-report-published-17-19/
Reviewing the Legal Aid, Sentencing and Punishment of Offenders Act 2012
In 2008, the then Labour Government announced its support for the concept of post-legislative scrutiny of legislation. It stated that “the basis for a new process for post-legislative scrutiny should be for the Commons committees themselves, on the basis of a Memorandum on appropriate Acts submitted by the relevant Government department, and published as a Command paper, to decide whether to conduct further post-legislative scrutiny of the Act in question.”
The Ministry of Justice has just (October 30 2017) published a post-legislative memorandum on the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which it has sent to the Justice Select Committee. While much of the document seeks to explore the extent to which Government objectives in introducing the legislation have or have not been met, it also draws together a number of important other reports which have commented more critically on the effect of LASPO. These include, for example, the reports of the Low Commission, and the Bach Commission’s report on a Right to Justice (both noted in this blog). It also refers to other reports, e.g. from the National Audit Office, and the Equality and Human Rights Commission, and reports from a number of other Parliamentary Committees. It also notes how the Government has responded to a number of legal challenges that were made to LASPO. The response of the Justice Committee is not yet known.
Whether or not the Committee pursues its own post-legislative scrutiny, it is important to note that, in the memorandum, the Government confirms that in the course of the coming months it will undertake two more analytical reviews of aspects of LASPO, relating to,
- the changes to the Legal Aid scheme, and
- the changes to rules on the funding of litigation.
This will provide an opportunity for critics of LASPO to make their arguments and might lead to further thought being given to the ideas set out in the Low and Bach Commissions’ reports.
It will also provide the opportunity to reflect on the changes resulting from Lord Justice Jackson’s review of Costs and his 2017 Supplementary Report (also noted in this blog).
The text of the memorandum is at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/655971/LASPO-Act-2012-post-legislative-memorandum.pdf
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 