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Transforming Legal Aid Consultation: The Impact
Introduction
On 9 April 2013, the Ministry of Justice launched a new consultation aimed at making further
cuts to the legal aid system. This system has already been severely hit by cuts implemented
on 1 April 2013 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012
(LASPO). This briefing sets out some major concerns about how the planned changes will
impact upon ordinary members of society, including some of the most vulnerable. We urge
those who are concerned to respond to the consultation, which closes on 4 June 2013. The
consultation
document
and
associated
materials
can
be
found
here:
https://consult.justice.gov.uk/digital-communications/transforming-legal-aid.
All-Party Group meeting – 15 May 2013 6pm Committee Room 12 House of Commons
The All-Party Group on Legal Aid is holding a meeting on Wednesday 15 May 2013 at 6pm
in Committee Room 12 of the House of Commons to discuss the consultation. This meeting
will focus on its civil aspects, as the Group’s last meeting dealt with crime competitive
tendering (notes are available on the Group’s website: http://www.appg-legalaid.org). If you
would like to attend the meeting, please email Carol Storer: [email protected]. As the
last meeting was held before the consultation was published, this briefing deals, for
completeness, with criminal and civil matters.
Criminal legal aid
Price Competitive tendering
The consultation sets out the Government’s aim to introduce price competitive tendering for
criminal legal aid work. The consultation paper makes it clear that the intention is to impose
a 17.5% cut on current fee levels and gives a strong indication that in order to succeed bids
will need to be below this reduced level. This means that providers will have to bid for work
at unrealistically low rates of remuneration: we are extremely concerned that they will
therefore have to focus on maximising profits, to the detriment of quality, simply in order to
survive. The proposals will also mean that the overall number of providers is reduced from
the current number of 1,600 to 400.
This raises the following key concerns for clients:
 The emphasis on providing services cheaply will mean that clients’ interests will come
second to considerations of cost.
 Clients will generally no longer have any choice over who represents them, and so
will not be able to choose a lawyer they trust, such as one who has previously
represented them. Choice will become a luxury for those who can afford it. We are
concerned that this will undermine equality of arms between the State and individuals.
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Lack of client choice risks reduced client care as firms and ABSs do not have to compete
for work.
 Clients may have to travel to access services as there will be fewer providers in their
area. This will involve an increased burden on clients in terms of time and money and will
be difficult for those with disabilities, childcare commitments etc.
Reduction of prisoners’ (including children’s) rights
The consultation also proposes that the scope of prisoners’ rights to legal aid should be
heavily reduced, to cover only cases involving their ongoing detention or the determination
of a criminal charge against them. This will leave a host of very important issues out of
scope, including relocation and resettlement issues. The Howard League for Penal Reform
has expressed particular concern over the exclusion of resettlement, saying that the
proposed changes “will consign children to the streets or hostels on their release from
custody, exposing them to untold dangers”1 because legal aid will no longer be available to
challenge decisions of local authorities who treat children as homeless after they leave
secure institutions.
Civil legal aid
Residency requirements
The consultation proposes that in order to be eligible for civil legal aid, clients will need
to satisfy a residence test. The test will require them to show that they are lawfully resident
in the UK, Crown Dependencies or British Overseas Territories, and have been so for at
least 12 months.
The test will apply even to the most vulnerable clients, such as the disabled and those who
have suffered domestic violence. Practitioners may have to send clients away to bring
documentary proof to the office rather than assist them immediately.
This proposal raises a number of concerns. It is not clear why 12 months should be the time
period. It is also not clear how the application of the test will be triggered, and what evidence
the client will have to provide.
The test will also cause difficulties in the case of asylum seekers. They will be allowed to
access legal aid whilst their application for asylum is pending, although officially defined as
“lawfully present” rather than “lawfully resident”. However, once they are granted asylum,
they must wait a further 12 months (even if they have already been present for more than 12
months) before they can receive civil legal aid on any new matter. Those who have sought
and been granted refuge in the UK from dangers abroad may therefore be denied equal
access to justice for a longer period of time than those whose residency arises from other
circumstances.
More risks in starting judicial review actions
The consultation proposes that service providers should only be paid for work carried
out on an application for permission to proceed with a judicial review application if
permission is granted by the Court (including a request for reconsideration of the
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Media Statement, 9 April 2013. Available here: http://www.howardleague.org/legal-aid/.
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application at a hearing, the renewal hearing or an onward permission appeal to the Court of
Appeal; work to investigate the strength of claims and avoid going to court would still be
covered). The concern with this is that it may force providers to be overly cautious in making
applications for judicial review, meaning that decisions of public bodies may go
unchallenged. This risks perpetuating unlawful practices of such bodies.
No assistance in “borderline” civil cases
The consultation also proposes to remove legal aid in all civil cases deemed to have
only a “borderline” chance of success: that is, cases where it is not possible, by reason
of disputed law, fact or expert evidence, to (a) decide that the chance of obtaining a
successful outcome is 50% or more; or (b) classify the prospects as poor. Cases where a
“borderline” challenge is permitted currently include some public law, immigration and family
claims. These are often cases where the matter at issue is of particular importance, such as
cases involving human rights.
If implemented, this decision could have severe impacts. The points raised in these cases
are often of high importance and the very nature of a legal case is that the final outcome
cannot be determined without deliberation on what are often controversial issues. Test cases
on “borderline” issues can be vital for shaping the law’s development and clarifying the most
difficult questions. Removing this possibility will increase the power of public bodies and may
allow undesirable practices to continue without a realistic option to challenge them.
Civil and criminal legal aid
Reduced access to experts
The consultation also proposes a reduction by 20% of expert fees in civil, family and
criminal proceedings. This is of great concern as it means that experts may well be less
attracted to appearing in cases funded by legal aid, meaning that legal aid clients are
unlikely to be able to afford services of a comparable quality to those available to other
clients. This may lead to an inequality of arms (i.e. not just comparing clients to other clients
who are paying privately, but to opponents in cases, especially when challenging the state
where they are also publically funded but not subject to the same restrictions)
Fee cuts
The consultation also proposes fee cuts for practitioners in a number of areas, including
public family law cases (care proceedings), and immigration and asylum Upper Tribunal
cases. This is of concern because lawyers already struggling with the fee cuts introduced in
October 2011 and the cuts in LASPO will face further difficulties in providing adequate
services for even lower remuneration.
For more information please contact
Carol Storer Director of LAPG on 07432 104088 [email protected]
Eleanor Sanders (APG Project Worker): [email protected]
Joanna Fleck Young legal Aid Lawyers: [email protected]