Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘legal aid

Reviewing the Legal Aid, Sentencing and Punishment of Offenders Act 2012

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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,

  1. the changes to the Legal Aid scheme, and
  2. 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

 

 

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Written by lwtmp

October 31, 2017 at 11:35 am

The Right to Justice: Final Report of the Bach Commission

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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:

  1. more attention should be given to new ways of delivering legal services, embracing new technologies that would allow more to be provided for less;
  2. greater consideration of alternative sources of funding for the provision of legal advice and assistance, especially through different forms of insurance;
  3. the legal needs of small and medium size business should be treated as seriously as the legal needs of individuals, and
  4. 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

Written by lwtmp

October 20, 2017 at 1:17 pm

Creation of a Contingent Legal Aid Fund?

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Ideas for  new ways of funding cases for persons of moderate means have been floating around for a number of years. JUSTICE produced a report on the matter as long ago as 1978. The Bar Council returned to the issue in 2008/9 when a policy group, chaired by Guy Mansfield QC, made proposals for the establishment of such a scheme. And suggestions for the creation of a scheme were made to Lord Justice Jackson’s Review of the Costs of Civil Litigation.

In that report, he did not make a definitive recommendation, but he did propose that the Government should undertake further modelling work to see whether a financially viable scheme could be created.

With recent cuts to the publicly funded legal aid scheme, Lord Justice Jackson has returned to the issue in a speech delivered in February 2016. He notes that such a scheme has successfully operated in Hong Kong for a number of years; and that similar schemes also operate in a number of Australian states.

A CLAF would not offer funding in all cases; it would have to be very selective in the cases it took on. As Lord Justice Jackson noted, it would – in effect – be a not-for-profit third party funding scheme. The idea provokes many questions:

  • where would the initial seed corn money come from?
  • how would the fund be sustained?
  • who would decide which cases to support?
  • would the introduction of such a scheme require changes to the normal principle that a loser pays the costs of the winner?

In his lecture, Lord Justice Jackson argues that the time has not come for more detailed work to be done on this issue and argues at the legal profession – the Bar, the Law Society and the Chartered Institute of Legal Executives – should come together an develop proposals.

Whether the legal profession will rise to the Jackson challenge is not at present clear – but it is an issue worth keeping an eye on.

To read the Jackson lecture, visit https://www.judiciary.gov.uk/wp-content/uploads/2016/02/lj-jackson-speech-clf-160202.pdf

Written by lwtmp

March 20, 2016 at 5:11 pm

Posted in Chapter 10

Tagged with , ,

Criminal legal aid changes – recent decisions

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It is, to me, one of the curiosities of public life that U-turns are usually portrayed in the mass media as a sign of official/political incompetence. To me the idea that someone might change their mind because they had had second thoughts is a sign of maturity and intelligence.

Whether you regard the Secretary of State for Justice as incompetent or intelligent and mature, there is no doubt that his recent written statement to the House of Commons on the change of direction on Criminal Legal Aid reform is important.

The issues are:

1 Reductions in fees paid to legal aid applicants. They had been reduced in March 2014 by 8.5%. A similar sized reduction was planned for July 2015, but this was put on hold while the MoJ did not work to ensure that such a cut would be unlikely to reduce the quality of criminal advocacy. In his January 2016, Michael Gove has announced that there will be a further postponement of the proposed cut. “I have also decided to suspend, for a period of 12 months from 1 April 2016, the second fee cut which was introduced in July last year.” Whether or not that fee cut will be brought back into effect in April 2017 will depend on how the market for the provision of criminal legal aid services has developed in the meantime.

2 Consolidation of provision of criminal legal aid. There has long been a view in Government that there are too many soicitors’ firms offering criminal legal aid services. Various proposals have been made to reduce their number. The most draconian proposal was that existing criminal legal aid contract should be replaced by new contracts that would be awarded, following a tendering process, in which contracts would be awarded to those firms who submitted the lowest bids for legal aid work.

Unsurprisingly this was fiercely resisted by solicitors on the basis that, if implemented, this would be a ‘race to the bottom’ – standards would fall because services would only be offered by those charging the least.

Mr Gove’s predecessor, Chris Grayling, came up with an alternative plan, known as ‘dual contracting’. Under the dual contracting system, two types of contract were to be awarded to criminal legal aid firms.

  • An unlimited number of contracts for ‘own client’ work based on basic financial and fitness to practise checks – in others words continued payment for representing existing and known clients.
  • And a total of 527 ‘duty’ contracts awarded by competition, giving firms the right to be on the duty legal aid rota in 85 geographical procurement areas around the country, with between 4 and 17 contracts awarded in each. In other words, these contracts would allow a limited number of firms the chance to represent new entrants to the criminal justice system.

The dual contracting model was  designed to meet concerns expressed by the legal profession about price competition.

A tender process under this proposed scheme did go ahead, but ended very badly with a lot of adverse publicity about both process and outcome.

The primary arguments against these alternative proposals were

  • Many solicitors firms feared that the award of a limited number of “dual” contracts – with a restriction therefore on who could participate in the duty legal aid rota would lead to a less diverse and competitive market.
  • Many barristers feared that the commercial model being designed by some solicitors’ firms would lead to a diminution in choice and potentially quality.
  • And, possibly the most compelling argument, many also pointed out that a process of natural consolidation was taking place in the criminal legal aid market, as crime reduced and natural competition took place.

In the face of considerable potential litigation (99 cases in the pipeline, plus a judicial review challenging the whole process), the Government has announced that this exercise will also be set aside. There will be a further review of the process towards consolidation early in 2017.

3 Quality of criminal advocacy. In the midst of all this, the report from Sir William Jeffrey on how to enhance the quality of criminal advocay has not been forgotten. Mr Gove stated:

I will also bring forward proposals to ensure the Legal Aid Agency can better support high quality advocacy. Furthermore, I intend to appoint an advisory council of solicitors and barristers to help me explore how we can reduce unnecessary bureaucratic costs, eliminate waste and end continuing abuses within the current legal aid system. More details will follow in due course.

I don’t think that criminal legal aid practitioners are completely off the hook as regards potential changes to how they work. But for the immediate future, things are clearer.

For Mr Gove’s written statement, go to https://www.gov.uk/government/speeches/changes-to-criminal-legal-aid-contracting.

For further information on the Jeffrey Review, see this blog at https://martinpartington.com/2015/11/05/enhancing-the-quality-of-criminal-advocacy/

 

Written by lwtmp

February 10, 2016 at 6:45 pm

Who is doing legal aid? The statistical evidence

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On 15 June 2015, I wrote a short note on the then recently published Annual Report of the Legal Aid Agency. I deplored the fact that, by comparison with its predecessor – the Legal Services Commission (whose Annual Reports not only reported on how the organisation was doing but also on the work undertaken by legal aid providers, the innovations it was seeking to introduce and the concerns it felt about the overall robustness of the scheme for delivering legal aid services), the Legal Aid Agency’s report was very narrowly focussed on corporate concerns.There was no information about the services being delivered to the public.

What information is provided is now contained in quarterly statistical reports, the most recent of which was published at the end of June 2015. These relate to the period January 2015-March 2015 (inclusive)

The headline findings were:

Criminal legal aid
1.The gradual decline of recent years in crime lower workloads has continued in the context of falling overall crime rates, and the latest quarter saw a 7% fall compared to the same period in the previous year.
2. Expenditure on crime lower has declined more than workloads, down 14% compared to the same period of the previous year.. This reflects the introduction in March 2014 of a reduction of 8.75% to the fees paid for most crime lower legal aid work.
3.In crime higher, the trend in new work entering the system has dipped in the last few quarters. The number of representation orders granted in the crown court in the last quarter was down 13% compared to the same period of 2014. Part of this reduction was due to fewer cases being in the criminal justice system.
Civil legal aid
1.The implementation of the LASPO Act in April 2013 resulted in large reductions in legal help workload and expenditure but trends have since levelled out at around one-third of pre-LASPO levels. In the last quarter new matter starts were 6% lower than in the same period of 2014
2.
Workloads in civil representation fell by a smaller proportion than legal help following the implementation of LASPO, and now appear to be stabilising at around two-thirds of pre-LASPO levels. The number of certificates granted in the last quarter was down 7% compared to the same period of the previous year.
3. After sharp falls following LASPO, the number of mediation assessments in the latest quarter was 19% up compared to the same period in 2014 and the number of starts was up by 33% over the same period.
Exceptional Case Funding
1.This quarter, the proportion of applications being granted was 18%, which is 8 percentage points lower than the previous quarter, but 11 percentage points higher than the same quarter of 2014.
The downward trends revealed here are the clear consequence of the cuts that the Government has made to the scope of the legal aid scheme.
Providers of legal aid
What this quarter’s statistical report also shows are annual figures relating to the numbers of providers of legal aid services.
These show that  in the three years from April 2012 to April 2015, there has been a significant fall in the number of provider offices for both crime and civil work. The fall has been greater for civil (down 20%) than for crime (down 11%) over this period. In the last year there was a 13% fall in civil providers and 4% reduction in crime providers.
Such figures would have led the former Legal Services Commission to ask itself whether there were enough providers in the system to provide a nationally based service, and it not what might be done to arrest the decline. Such sentiments are not aired by the Legal Aid Agency.
Indeed, it is possible for the Agency to argue that as there are still good numbers of providers applying for the various tenders for work that the Agency offers, there are still providers willing to do the work and that therefore there is no problem.
It is also possible to argue that, by comparison with most other countries, per capita spending on legal aid services remains relatively generous.
What is missing from this analysis, however, is any consideration of the age profile of legal aid providers. It may plausibly be hypothesised that many legal aid providers have been doing the work for many years, remain committed to it, and will continue to do it as long as they can. But if no or only very little new blood is coming into the legal aid sector of the legal profession, then the medium to long-term future of the sector must be in some doubt. Such doubts will be reinforced by the continued cutting of the legal aid budget – which are clearly irreversible in the foreseeable future.
I agree with Ruth Wayte, who in her podcast with me (January 2015), made the point that providing legal aid services was an interesting and very worthwhile thing to do, However, if the existing model of providing legal aid services through private practice law firms is not sustainable, perhaps these trends hide the need for a rather more profound policy debate about who should provide legal aid services. Should we be thinking about the development of other provider models?
The statistical report is at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/438013/legal-aid-statistics-bulletin-jan-to-mar-2015.pdf

Written by lwtmp

August 4, 2015 at 11:23 am

Legal Aid – Exceptional Cases Funding – recent developments

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Following enactment of the Legal Aid Sentencing and Punishment of Offenders Act 2012,(LASPO) the scope of civil legal aid was significantly reduced. Civil legal services could only be funded under the new legal aid scheme which fell within statutorily prescribed classes of case. (See LASPO section 9 and schedule 1).

However, section 10 of the Act did provide that, in exceptional circumstances, civil legal services could be provided where

(a) … it is necessary to make the services available to the individual … because failure to do so would be a breach of –

(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b) … it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

The Director of Case Work has the statutory responsibility for making such decisions. In reality, the decisions are taken by case workers working within the Legal Aid Agency.

In coming to their decisions, case workers are required to take into account Guidance issued by the Lord Chancellor. (LASPO section 4.)

The Lord Chancellor was clearly anxious that, unless he was careful, the existence of exceptional funding might create a means for getting round the limitations he sought to impose on the Legal Aid scheme, which would have the effect of undermining the Government’s desire to reduce public expenditure on legal aid. Thus, in his guidance on exceptional case funding, which was published in 2013, it was stressed that, in reaching their decisions, case workers should understand that this funding ‘is to be used for rare cases’ only; ‘limited resources’ should be focussed ‘on the highest priority cases’. In relation to cases that might involve breach of Article 6 of the ECHR (right to a fair trial) the guidance stated: The overarching question to consider is whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings. This is a very high threshold” (original emphasis).

Shortly before Christmas 2014, the Court of Appeal handed down its decision in the case of Gudanaviciene . The case actually involved 6 cases which had been brought together because they raised in essence the same question – was the Lord Chancellor’s Guidance lawful? It was argued, in effect, that the terms in which the guidance had been drafted  imposed too high a threshold on applicants for exceptional funding, and that therefore the guidance went beyond the words of the Act, and were in consequence unlawful.

The Court of Appeal agreed with this argument. In the course of a long judgement, they held, in part, that

The fact that section 10 is headed “exceptional cases” and that it provides for an “exceptional case determination” says nothing about whether there are likely to be few or many such determinations. Exceptionality is not a test. The criteria for deciding whether an ECF determination should or may be made are set out in section 10(3) by reference to the requirements of the Convention and the Charter. In our view, there is nothing in the language of section 10(3) to suggest that exceptional case determinations will only rarely be made.

They therefore concluded that the Lord Chancellor’s Guidance was unlawful.

The question for Government was: how to respond to this judgement? There were two options: take a further appeal to the Supreme Court; or reissue the guidance and hope that the revised guidance would comply with the Court of Appeal’s interpretation of LASPO.

In the event, the Government decided on the latter course. On 9th June 2015, the Lord Chancellor published revised guidance on how exceptional case funding decisions are to be made in future. While those who drafted the revised guidance are still concerned that the provision of exceptional case funding should be kept under controi, the ‘tone’ of the document seems to have softened. Indeed the emphasis, for case workers taking decisions on these matters is whether – as the Act says, the provision of such funding is necessary.

The recent election of the new Conservative Government has clearly scotched any lingering hopes in the legal profession that there would be any major softening of policy on civil legal aid. But the revised guidance on exceptional case funding for civil legal services does represent a change in emphasis which practitioners must note and apply.

To read the judgement of the Court of Appeal in the Gudanaviciene case go to https://www.judiciary.gov.uk/wp-content/uploads/2014/12/gudanavicience-ors-v-dir-of-legal-aid.pdf

To read the revised guidance on emergency case funding (non-inquest) go to https://www.gov.uk/government/publications/legal-aid-exceptional-case-funding-form-and-guidance. This page also gives a link to the guidance relating to inquest cases.

Written by lwtmp

June 16, 2015 at 2:30 pm

What is happening to Legal Aid? Reports from the Legal Aid Agency June 2015

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Publication of the second Annual Report of the Legal Aid Agency might be thought to be an opportunity to find out in a bit more detail about what is happening to Legal Aid, following implementation of the Legal Aid Sentencing and Punishment of Offenders Act 2012. Those expecting such information will be very disappointed. The bulk of the Annual Report details how various business targets have or have not been met during the year under review. The report is thus about administrative and operational outcomes, rather than giving a view of how citizens are (or are not) being assisted by legal aid.

The Annual Report appeared on the same day as a much shorter summary by the Director of Legal Aid of issues that had come up during the same reporting year. This is also very general in tone – though it does mention a couple of cases that went to the Court of Appeal – and is more about the process of dealing with cases than anything else.

All the details on the current operation of the legal aid scheme is now put into quarterly statistical reports. The next is due at the end of June 2015. I will report on these in due course. But I very much regret that the reporting strategy of the former Legal Services Commission – which used to run legal aid – which included the key statistical headlines and provided a commentary on how the scheme was working for the public has not been continued.

To see the 2nd Annual Report go to https://www.gov.uk/government/publications/legal-aid-agency-annual-report-and-accounts-2014-to-2015

The Director of Legal Aid Case Work’s Report is at https://www.gov.uk/government/publications/director-of-legal-aid-casework-annual-report-2014-to-2015

Written by lwtmp

June 15, 2015 at 9:33 am