Posts Tagged ‘legal aid’
Independent Review of Criminal Legal Aid – announcement
Just before Christmas, the Government made the long awaited announcement that the independent review of Criminal Legal Aid would start work in January 2021 – with a view to reporting by the end of 2021. The Chair of the Inquiry is to be Sir Christoher Bellamy, a retired judge – formerly President of the Competititon Appeal Trbunal. He will be supported by an Expert Panel, though the composition of the Panel has not yet been announced
The announcement contains a link to the terms of reference for the inquiry which set out in rather more detail than usual the aims of the inquiry and some of the issues it is required to take into account. The document states that the Criminal Legal Aid Review ‘has two main objectives’:
- 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; and
• ensure cases are dealt with by practitioners with the right skills and experience. - 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 document also states that ‘ultimate objective of the Criminal Legal Aid System is to provide legal advice and representation to those who most need it’ and that in order to achieve this overarching objective,
“the Independent Review will seek to make recommendations that will ensure the Criminal Legal Aid System:
a. provides high quality legal advice and representation;
b. is provided through a diverse set of practitioners;
c. is appropriately funded;
d. is responsive to user needs both now and in the future;
e. contributes to the efficiency and effectiveness of the Criminal Justice System;
f. is transparent;
g. is resilient; and
h. is delivered in a way that provides value for money to the taxpayer.”
Furthermore “in order to conduct this analysis, the review will consider the following themes:
- resilience
- transparency
- competition,
- efficiency; and
- diversity.
For criminal legal aid practitioners this is a very important moment. It is clear that the current criminal legal aid is not working as it should. The question remains whether, despite the generally positive tone of the initial press release, a substantially reformed system will ultimately be implemented. This will be an important test for both Government and the legal professions. Much will depend on the political skills of the Lord Chancellor in ensuring that the resources to reform the system are available.
The announcement is at https://www.gov.uk/government/news/independent-review-into-criminal-legal-aid-to-launch-in-january. This includes the link to the terms of reference.
Royal Commission on the Criminal Justice system – details awaited
In the Queen’s Speech, delivered in December 2019, it was announced that the Government would establish a Royal Commission to review and improve the efficiency and effectiveness of the criminal justice process. Little has been heard of this proposal since then. However, in recent meetings with the House of Commons Justice Committee, the Lord Chancellor made it clear that he has been given the resources needed to enable the establishment of the Commission.
At present – and no doubt reflecting other more pressing priorities driven by Covid 19 – no further information is available. It is, however, likely to be a broad-ranging inquiry, not only limited to the operation of the courts, but taking other aspects of the criminal justice system into account as well.
A separate consultation on the Criminal Legal Aid scheme closed in June 2020. The results of that inquiry are likely to be published towards the end of 2020. A number of interim changes to the criminal legal aid scheme were announced in February 2020.
For the Queen’s Speech, December 2019, see https://www.gov.uk/government/speeches/queens-speech-december-2019
The announcement of the consultation on Criminal Legal aid is at https://www.gov.uk/guidance/criminal-legal-aid-review
Reaction of the Law Society is at https://www.lawsociety.org.uk/en/topics/criminal-justice/criminal-legal-aid
Legal support – the way ahead? How much vision?
I have already noted the outcome of the Post-Implementation Review of changes to the Legal Aid scheme contained in Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012. While the Government clearly does not want to make major changes to the scheme, the review did reveal issues to which the Government clearly feels it must respond. In February 2019 it published Legal Support: The Way Ahead – An action plan to deliver better support to people experiencing legal problems.
As a paper, it lacks the ambition or vision of other recent reports, in particular the Report of the Low Commission report on the future of legal services. But buried in the detail is a number of straws in the wind which are worth noting, even if they don’t make the heart race.
The Paper starts by repeating the point that the Government already provides ‘£1.6 billion to the most vulnerable in society to ensure that they can access legal aid’. It seems to accept, however, that there are some who – at least in some circumstances – should receive legal aid who currently do not get it. The Paper states that the Government ‘will conduct a review into the thresholds for legal aid entitlement, and their interaction with … wider criteria’. This review will be completed by summer 2020.
In the interim there will be changes to eligibility for some public family law cases, to be introduced in summer 2019.
And, whilst the review is ongoing, the Government will continue with current arrangements to passport all recipients of universal credit through the legal aid means test.
Addressing the problem that people do not know about their entitlement to legal aid, the Government states that it ‘will ensure that more people are aware of their entitlement to legal support – and will advertise its availability’. The stated aim is to launch the awareness programme by autumn 2019 – dealing not just with legal aid, but legal support more generally.
The Government plans to make some changes to protect the most vulnerable. It will expand the scope of legal aid to include separated migrant children in Spring 2019. It also plans to bring forward proposals to expand the scope of legal aid to cover special guardianship orders in private family law by Autumn 2019.
As regards Exceptional Case Funding, the Government plans to consider, by the end of 2019, whether the process for applying for Exceptional Case Funding can be simplified, and whether decisions can be reached more quickly. It will also consider whether it is necessary to introduce a new emergency procedure for urgent matters to access Exceptional Case Funding.
By Spring 2020, the Government will amend the rules relating to the ‘mandatory telephone gateway’ so that there can be immediate access to face-to-face advice in discrimination, debt and special educational needs cases. (The telephone option is retained.)
The new Paper accepts that ensuring people can access the right legal support at the right time may help people resolve problems more efficiently and effectively. There is research evidence demonstrating how problems, if left undiagnosed and unresolved, can escalate, cluster, and lead to damaging cycles that are hard to break. However, the Government states that there is limited comprehensive research as to what works best, when, and for whom. Further, whilst it is often suggested that early intervention leads to cost savings, the financial and economic benefits of early advice are difficult to quantify with accuracy. The Government’s response to this challenge is that it wants to pilot and evaluate several different forms of early legal support.
Thus,
- it will work collaboratively with providers to develop web-based products which bring a range of legal support tools together in one place;
- it will improve the signposting advice and support available from the existing specialist telephone service and test enhancements to this service;
- it will use funding to encourage the delivery of legal support through technology;
- recognising that a comprehensive service may offer people an opportunity to support themselves, the Government will work collaboratively with the legal and advice sector to evaluate the impact of legal support hubs;
- it will pilot face-to-face early legal advice in a specific area of social welfare law and will evaluate this against technological solutions, bearing in mind costs; and
- it will enhance the support offered to litigants in person.
All these interventions will be researched to assess what is the best way to help and support those who need it, and whom should be assisted in the provision of legal support. The intention is that there should be outcomes from these initiatives by the end of 2019.
The Government states that it will continue to work across departments to help to improve the quality of decision-making on legal rights. It has been noted on numerous occasions that if decisions are ‘right first time’ this should reduce the need to take cases on appeal.
Key to the modernisation of the justice system is the need to ensure that forms and systems are as simple and straightforward to use as possible, and that the courts and tribunals service enables people to resolve their conflicts as quickly and early as possible. The Government wants to generate momentum in this area, but acknowledges that this is a first step.
It will be important for the Government to continue open and collaborative working with experts over the coming years, identifying and evaluating new ideas. One specific commitment is that the Government plans to set up a Legal Support Advisory Network to make use of external expertise, shape research and evaluation proposals, and potentially explore new research opportunities and collaborations.
As a nod to the problem of whether or not there will be sufficient numbers of people entering this sector of the legal services market, the Government states it will ‘support practitioners to join the legal profession and continue to deliver high quality legal support to people across England and Wales long into the future’.
Specifically there will be a comprehensive review of the criminal legal aid fee schemes and structures, to be completed by Summer 2020.
The full paper can be accessed at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777036/legal-support-the-way-ahead.pdf
See also Press Release at https://www.gov.uk/government/news/government-sets-out-new-vision-for-legal-support
Review of legal aid for inquests
Inquests offer an opportunity to investigate how a person has died. This process can be traumatic for the bereaved family. But the search to find out what happened is important in helping them to understand and make sense of their loss.
In 2017, in the light of a good deal of public criticism, the then Lord Chancellor, David Lidington MP agreed that there should be a review of the provision of legal aid at inquests. The Report Final report: Review of legal aid for inquests was published in February 2019.
In my view the title is misleading. The Report takes an overall look at the Inquest process. Only 1 of 3 chapters is actually about legal aid. The focus is on process both before a hearing and at the hearing, and the report makes recommendations about amending those processes – which obviously cost little if any money.
Chapter 2 deals with legal aid. In the course of the review, the Ministry of Justice received evidence which pointed to a number of concerns that stakeholders had regarding the provision of legal aid and the role of families in the application and inquests process. In particular, it suggested:
- the current legal aid application process might not be fully understood;
- there were difficulties in understanding the eligibility criteria for legal aid; and
- there were difficulties understanding the types of cases where funding may be available.
The Review also considered the recommendation to expand the provision of legal aid for certain types of cases – such as death in custody cases, and cases where the state are represented. This is the big-ticket item as it in those, often very controversial cases, where there can be a significant inequality of arms as between the parties to the inquest.
In relation to this point, however, the Review concludes:
Having considered the impact of additional representatives on bereaved families, the financial considerations, and the impact of a possible expansion on the wider legal aid scheme, we have decided that we will not be introducing non-means tested legal aid for inquests where the state has represented. However, going forward, we will be looking into further options for the funding of legal support at inquests where the state has state-funded representation. To do this we will work closely with other Government Departments.
So no big change. The Government says it will look at the information it gives to families. In order to address difficulties with the application process, the Government states it will look at the procedure for claiming under the Exceptional Case Funding Scheme to ensure it works as effectively as possible. It also states it will be introducing a provision for the backdating of the legal help waiver, so that all such payments can be backdated to the date of application should a waiver be granted. But these cannot be said to be substantial changes.
Given the overall approach to funding legal aid, following its Post-implementation Review of the 2012 reforms to legal aid (see this blog 8 March 2019) this conclusion is not unexpected. Nonetheless, it will be very disappointing to those who have to cope with inquests, particularly where there are significant evidential disputes as to what happened.
The Report can be accessed at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777034/review-of-legal-aid-for-inquests.pdf
A press release is at https://www.gov.uk/government/publications/review-of-inquests
Post Implementation Review of LASPO 2012 Part 1 (reform of legal aid)
February 2019 was a busy month for the Ministry of Justice.They published a large number of official documents relevant to the future of the English Legal System.
First up was the long-awaited post-implementation review of the legal aid changes brought about by Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), Part 1 which introducted major changes to the legal aid scheme. This is a very long document which concludes, broadly, that not much is going to change, at least in the short-term.
The key objectives of the reforms, as the Government saw them, were
- to reduce expenditure on legal aid;
- discourage unnecessary and adversarial litigation at public expense;
- target legal aid on those who need it most;
- deliver better overall value for the taxpayer.
The Review concludes, in the light of large amounts of evidence it received, that Objective 1 was successfully achieved. In relation to objective 2, the outcomes are unclear. There has been a reduction in clinical negligence litigation, now funded by Conditional Fee Agreements rather than legal aid; but family law litigation is increasing – diverting cases to mediation has not worked. The Review ‘cannot say with certainty’ whether objective 3 has been successful, as there in insufficient evidence from those outside the scope of the current legal aid scheme. They also cannot reach any conclusions regarding Objective 4.
A number of themes also emerged from the Review:
- Scope changes undermining value for money: LASPO removed many areas of early civil and family legal advice from the scope of legal aid, restricting it to the most serious cases. It is argued this lack of early intervention in social welfare and private family law generate wider costs as relatively minor legal problems can escalate and cluster into more serious problems.
- People who need legal aid cannot access it: LASPO did not substantially reform the financial eligibility requirements but lots of evidence was submitted arguing change was necessary.
- Exceptional Case Funding is not working: There were lots of criticisms over how the scheme operates.
- Fees for legal aid work are inadequate: Many practitioners, especially in criminal law, have argued this is affecting recruitment and retention, potentially creating future problems in provision.
- Increases in litigants in person generating costs: by removing funding for legal representation the volume of self-representing litigants has risen.
- Advice deserts: people may not able to access advice due to geographical remoteness, or a shortage of supply in their given area.
There was never going to be any chance that, despite the difficulties of assessing whether the objectives for the original legislation had been met and all the other issues the Review identified, the cuts made by LASPO would be restored. The Government has, however, taken modest steps which are worth noting and will be considered in future blog items.
The full report of the Review is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777038/post-implementation-review-of-part-1-of-laspo.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/
Exceptional case funding for legal aid
For an interesting research report go to this note published by the UK Administrative Justice Institute:
Extending access to Exceptional Case Funding (ECF) through the work of university law clinics
Post-legislative scrutiny : LASPO 2012
The concept of the post-legislative scrutiny was introduced in 2008, following a report on the idea, published by the Law Commission in 2006.
Now called ‘Post Implementation Review’, the Government has decided to subject Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act, 2012 (LASPO) to such a review. This is the part of LASPO which deals with legal aid.
The effect of LASPO was to make significant cuts to the provision of legal aid in England and Wales. There have been many calls – from the legal profession, from the judiciary and from those working in the advice sector, among others – for those cuts to be reversed.
The Low Commission (2014) and the Bach Commission’s Report (2017) argued that the cuts had led to legal advice deserts and were having an adverse impact on the citizens’ access to justice.
The Government has recently (March 2018) set out the terms of reference for what it calls the ‘consultation’ phase of the LASPO review and has invited the submission of evidence on the impact of the 2012 changes.
The process is currently being monitored by the Select Committee on Justice. It has recently published correspondence with the Secretary of State for Justice.
It may also be noted that criminal legal aid barristers are currently threatening strike action on the impact of changes to the rates of pay they receive for doing criminal legal aid work.
It is likely that many of the submissions to the review will argue for the restoration of cuts imposed 5 years ago.
My view is that a roll-back to the pre-LASPO position is extremely unlikely. More likely is a renewed emphasis on ways of improving the provision of front-line advice, to try to enable more people to undertake legal work for themselves. There will also be an emphasis on new processes for handling legal disputes which might be easier for people to operate themselves.
It would be nice to think that the innovative ideas of the Low Commission for a new National Strategy for Advice and Legal Support would be put in place, supported by its proposed National Advice and Legal Support Fund. But, in the absence of strong lobbying from the public in favour of these ideas, I have my doubts as to whether these will gain political traction.
For the terms of reference of the consultation, see https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/686576/pir-laspo-terms-of-reference.pdf
The Select Committee on Justice is at https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/.
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
The Right to Justice: Final Report of the Bach Commission
In September 2017, the Bach Commission (chaired by Lord Willy Bach) published its report on the Right to Justice. The Commission was established at the end of 2015 to find solutions that will restore access to justice as a fundamental public entitlement.
The commission found that the justice system is in crisis. Most immediately, people are being denied access to justice because the scope of legal aid has been dramatically reduced and eligibility requirements made excessively stringent. But problems extend very widely through the justice system, from insufficient public legal education and a shrinking information and advice sector to unwieldy and creaking bureaucratic systems and uncertainty about the future viability of the practice of legal aid practitioners.
Covering many of the same issues as the Low Commission (which reported in 2014) this report makes the following specific recommendations.
The commission has concluded that the problems in the justice system are so wide-spread that there is a need for a new legally enforceable right to justice, as part of a new Right to Justice Act. This Act would:
- codify existing rights to justice and establish a new right for individuals to receive reasonable legal assistance without costs they cannot afford;
- establish a set of principles to guide interpretation of this new right covering the full spectrum of legal support, from information and advice through to legal representation;
- establish a new body – the Justice Commission – to monitor and enforce this new right.
The purpose of the Right to Justice Act is to create a new legal framework that will, over time, transform access to justice.
In addition, early government action is also required.
- Legal aid eligibility rules must be reformed, so that the people currently unable either to access legal aid or to pay for private legal help can exercise their right to justice.
- The scope of civil legal aid, which has been radically reduced, must be reviewed and extended. In particular, all matters concerning children should be brought back into the scope of legal aid.
- An independent body that operates the legal aid system at arm’s length from government should replace the Legal Aid Agency and action must be taken to address the administrative burdens that plague both the public and providers.
- Public legal capability must be improved through a national public legal education and advice strategy that improves the provision of information, education and advice in schools and in the community.
My own view is that there is a growing consensus that the cuts to legal aid have gone too far. I have doubts whether there will be a wholesale return to the legal aid system that existed before the programme of cuts that has been going on for the best part of a decade.
This is potentially an important area of policy making. However, when considering new policies:
- more attention should be given to new ways of delivering legal services, embracing new technologies that would allow more to be provided for less;
- greater consideration of alternative sources of funding for the provision of legal advice and assistance, especially through different forms of insurance;
- the legal needs of small and medium size business should be treated as seriously as the legal needs of individuals, and
- there should be a recognition that there is scope for ‘do-it-yourself’ lawyering.
The Bach report may be downloaded from http://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission_Right-to-Justice-Report-WEB.pdf
The Report of the Low Commission is at https://www.lowcommission.org.uk/dyn/1389221772932/Low-Commission-Report-FINAL-VERSION.pdf together with a follow up report, published in 2015 at https://www.lowcommission.org.uk/dyn/1435772523695/Getting_it_Right_Report_web.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 