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'Legal Aid'
last updated 23.4.08
background
'Legal Aid' is the financial support available to those who need to go to law but cannot afford the fees to do so. As more legislation brings more people to court, the cost of Legal Aid has risen. The Government has been trying to limit the rise for some years, and commissioned the Carter Review to find ways of reducing this spending. With the publication and implementation of 'Carter', the Government was set for a major assault on the provision of this support to needy members of the public who are called to court or who wish to have access to legal processes.
The law profession viewed this attack with alarm - many firms have been forced to give up Legal Aid work due to the cuts in funding which reduced their income from it to below their costs incurred in undertaking it, and lawyers fear that large parts of the population will lose the ability to go to law, or will have to face court actions without legal representation, if 'Carter' were to go ahead without mitigation of the most stringent proposals.
The Law Society (the national body to which all solicitors must subscribe) mounted a 'Save Legal Aid' public relations campaign, and also took to court The Law Commission (the Government body charged with administering Legal Aid) when it began to implement the toughest 'Carter' measures.
Other entries on this page are in date order with the most recent first
27.10.08
Following reports of proposed cutbacks by the MoJ, The Law Society has voiced fears over the future of the Courts Service. In a letter to Justice Secretary Jack Straw, the Law Society President also warned that further cuts to legal aid expenditure would seriously affect access to justice. He said:
'The courts and legal aid system have been at crisis point for some time and this could tip both into the abyss. There is no scope for further cuts without cutting into vital public services. The Government needs to rethink its strategy and reinvest in these vital public services rather than running them into the ground. We must all be united in defending the justice system.'
17.7.08
"Making legal aid work and keeping up with the changes is very stressful. Everything the Legal Services Commission is doing is destroying big firms, which [are] actually the right model for client-case handling. Everything they do means that people will want to be a one-man show because that is the cheapest way of running. In policy terms it is ludicrous and they're destroying quality."
(solicitor Anthony Edwards)
July 2008
A 2007 survey by The Law Society on earnings and work of solicitors in private practice showed that those working with legally aided clients earned £39,900 p.a. on average, as against £56,000 p.a. average for those who work only on privately paying clients. By the time of the survey only about eight percent of solicitors surveyed spent all their fee-earning time on Leagl Aid work.
23.4.08
The Law Society has dropped its legal action against the Legal Services Commission after Government concessions in the funding of civil Legal Aid. The Commission agreed to work together with The Law Society instead of against it, when bringing in changes to the system of administering Legal Aid.
Legal Aid for those facing criminal trials, however, continues to be at risk. A new contract imposed on lawyers by the Commission is resulting in a 'significant number' of firms turning away from providing this service, while The Law Society's President stated that the number of new Legal Aid lawyers was 'dangerously low'.
The Director of the Criminal Law Solicitors Assocation said that many of those rejecting the new Criminal Legal Aid contract were well-established large firms, 'which we thought would never leave the marketplace.' Commenting on the trend, the Chairman of The Law Society's Criminal Law Committee said that firms were looking for an exit route from that area of legal practice, 'particularly those that practise in rural areas where they have been [doing criminal law Legal Aid work] as a service to the community.'
(quotations above taken from The Law Society Gazette)
26.3.08
The following letter was sent, by the Cambridgeshire & District Law Society's Parliamentary Liaison Officer for Huntingdon, to the Huntingdon MP, as part of the information on the detrimental effects of Government changes in Legal Aid arrangements being passed on to MPs in the effort to get the changes softened or reversed.
Jonathan Djanogly, MP (Conservative)
House of Commons
Westminster
London
SW1A 0AA
1 February 2008
Dear Mr Djanogly
Legal Aid
I refer to our meeting at your constituency office towards the end of last year when we discussed the ongoing plight of Legal Aid in Cambridgeshire.
I have undertaken a survey of Solicitors’ Practices in Huntingdon, St Ives and St Neots to establish what the picture is in terms of Practices which undertook Legal Aid in the past, those that are still Legal Aid providers and whether those remaining Practices intend to offer Legal Aid in the next five years.
I attach a copy of my findings which are in tabular form.
The number of Legal Aid Practices in all three towns has reduced from 18 more than five years ago (albeit one practice stopped in the mid 1980s) to only 5 now plus 1 Criminal Law Practice. Those Practices that are still Legal Aid providers were unable to say whether or not they will remain so in the near future and some are at the very least investigating exit strategies for leaving Legal Aid altogether.
Time and again over the last twelve months since my firm decided not to sign the “Unified Contract” (which came into force in April 2007) I come across cases where I have been unable to direct clients that cannot afford to pay privately to Practices in the local area because either those Practices that are left are overwhelmed with Legal Aid clients or they cannot act for the client due to a conflict of interest (i.e. their spouse or partner has instructed the firm already). This results in the most vulnerable members of our community being unable to obtain access to justice when they need it the most.
For example, I have a client where we are acting for her in ongoing proceedings relating to her dispute with the father of her first child. Recently her relationship with her current partner broke down, to the point that social services are threatening to apply for a Care Order for her children if she does not instruct a solicitor to apply for an Injunction. We cannot obtain Legal Aid to represent her as it will be a new set of proceedings (we are authorised to complete all remainder work only) and because her partner had previously sought advice from the two remaining Legal Aid Practices in Huntingdon I could not refer her to them to assist. She does not drive and is in receipt of benefits. As a consequence she is running the risk of the Local Authority applying for a Care Order for her children simply because she cannot afford to pay privately and she cannot afford the cost of travelling to Cambridge or Peterborough.
I also attach copies of press releases and exchanges of correspondence between the Law Society and the Legal Services Commission following the Court of Appeal’s ruling on the 27th November 2007 that the Commission’s power to unilaterally make amendments to the Unified Contract was unlawful. Relations between the Legal Services Commission and the Legal Profession are at an all time low – for example the Commission sending a fax to the Society on the 21st December 2007 confirming its intention to terminate the contact; hours before firms closed down for the Christmas break!
I do hope the above and enclosed documents assist in you raising this matter further with the Justice Department. The Legal Services Commission (and ultimately the Government) appears steadfast in refusing to listen to the concerns of the Legal Profession which, in my view, will inevitably lead to a legal system where the most vulnerable in our society will have no means of gaining access to justice.
Should you require any additional information then please do not hesitate to contact me.
Yours sincerely
Simon Thomas
Parliamentary Liaison Officer
Cambridgeshire & District Law Society
Enc:
• Law Society Press Release: “Law Society wins legal aid appeal over contract” dated 29.11.07.
• Letter from LSC to Bircham Dyson Bell dated 21st December 2007 confirming its intention to terminate the Unified Contract.
• Law Society Press Release: “Termination of Unified Contract: Law Society Response” dated 4.1.08.
• Letter from Bircham Dyson Bell to LSC dated 14 January 2008.
• Letter from LSC to BDB dated 18 January 2008.
• Letter from BDB to LSC dated 24 January 2008.
23.3.08
Today's Law Society Gazette reports research indicating that about 20 percent of community law centres, which provide legal advice especially for people needing Legal Aid, are facing closure. Another 49 percent are in serious debt, and Gateshead Law Centre had to close after liquidators were brought in the previous week.
The chairman of the Law Centres Federation said that the Government's forcing through of "fixed fees and competitive tendering will destroy the contribution law centres have made for over 30 years."
Meanwhile the Liberal Democrats said if in power they would suspend the changes while researching their impact on vulnerable clients, calling the Government's Legal Aid reforms "botched...the Government has failed to protect one of the most important pillars of the Welfare State."
9.10.07
The Lord Chief Justice will hear an expedited appeal against the upheld challenge of The Law Society to the Legal Services Commission's intention to reform the provision of Legal Aid against the wishes of the law profession. The Law Society agrees that reform is needed, but is (with other organisations) strongly against many of the specific proposals made and the ways in which they are being pushed through. Along with many voluntary and other caring or legal defence bodies, The Law Society believes that were these proposals fully implemented there would be a highly deleterious effect on those who at present are wholly reliant on Legal Aid for the defence of their legal rights.
The Law Society's challenge to the LSC was upheld by Mr. Justice Beatson in the High Court on 27 July. It is this judgement that is being appealed by the LSC on 15-16 October.
A meeting for lawyers who deal with criminal cases has been organised by The Law Society for 23 October at Methodist Central Hall, London, to discuss the Legal Aid contract for such lawyers published by the LSC and which it is trying to impose on them. Lawyers at the meeting are expected to express the view that imposition of such a contract would result in far less Legal Aid being available to those who need it, and the provision to be altogether absent in some parts of the country.
Legal Services Commission forces new Legal Aid contracts on crime lawyers
In the last week of September 2007 the LSC decided unilaterally to scrap the existing contract with solicitors and make them apply for temporary contracts, despite the fact that contracts are supposed to be agreements between two sides. Solicitors were given until the end of October to apply for the six-month contracts which start in mid January, and would have to re-apply for newly revised contracts in July.
President of the Criminal Defence Solicitors' Union Roger Peach said the proposed reforms risked 'pushing the defence service towards disaster' and should be resisted. The temporary contract was due to be published by the LSC without being shown to solicitors beforehand.
Other reforms proposed by the LSC are held up pending their appeal against a High Court ruling in favour of a judicial review application by The Law Society.
30.9.07
Law associations cooperate to counter LSC proposals
The Law Society Gazette of 20.9.07 reported (front page) that the five leading criminal lawyers' associations had joined together in a single negotiating team, led by The Law Society, to counter the Government's intention of pushing through a new tendering process for 6-month contracts incorporating its 'reforms'. The five urged law firms to boycott the new tender, which the Legal Services Commission intends to bring in after terminating the present criminal legal aid contracts, and to carry out a week of industrial action starting with a national demonstration on 5th November.
The Criminal Law Solicitors Association, the London Criminal Courts Solicitors Association, the Association of Major Criminal Law Firms, the Criminal Defence Solicitors Union, and the Independent Defence Lawyers called on the LSC to halt the termination of present contracts and to negotiate. The AMCLF said it was clear that what the LSC proposed doing was 'totally unworkable for firms of any size or background,' and the CDSU added 'We are facing the collapse of the system' -- meaning that legal aid representation would not be available in the defence of those charged with criminal offences.
Friday July 27th 2007
Law Society Secures Court Win on Legal Aid
The Law Society's challenge of the Legal Services Commission [LSC] was upheld today when judgment was handed down by Mr. Justice Beatson in the High Court.
The judge said that the Legal Services Commission has breached Public Contracts Regulations 2006 and European Law in its reform of legal aid.
Most significantly the Judge said that changes to the contract should not be made if they would, "alter the economic balance of the contract to the disadvantage of those who have entered into the Unified Contract or to the disadvantage of some of them".
The judge also noted that any proposed changes should be restricted to those envisaged by the initial White Paper. It is not clear at this stage how this will affect the LSC's proposals on fees and the Judge has granted the law Society permission to appeal on the basis of public interest on this point. Dexter Montague were also successful in allied proceedings.
Law Society President Andrew Holroyd said, "This judgment underlines the shortcomings of the LSC's approach to the reforms of the legal aid system. The award of 75% of costs is a significant vindication of the actions we are taking. The Law Society is not opposed to reform of legal aid but rather to the way it has been introduced by the LSC. It is a shame that we have had to resort to the courts to address this. We hope that the LSC and Government will now work with us to secure a sustainable future for access to justice through an extensive supplier base of dedicated professionals."
Notes:
The Law Society issued judicial review proceedings on April 20th in relation to the Legal Services Commission's right to unilaterally amend the Unified Contract in the interests of its members and those they represent who have been severely affected by the decisions and timing of their implementation.
The result is that a Declaration has been made as follows; "A declaration that the rights of the LSC to amend the Unified Contract referred to in clause 13.1 of that contract (other than amendments permitted under clause 13.2) are incompatible with regulations 9(2), 9(4) and 9(7) of the Public Contracts Regulations 2006 in so far as they are applicable to technical specifications (as defined in regulation 9(1) of those Regulations)."
Text of letter from CDLS PLO for Huntingdon to the MP for Huntingdon
Mr J Djanogly
House of Commons
London
SW1A 0AA
16 July 2007
Dear Mr Djanogly
Public Funding at Crisis Point
I am writing to you in my capacity as Parliamentary Liaison Officer for the Cambridgeshire and District Law Society.
You may recall that when we met at your surgery earlier this year we discussed the grave concerns the legal profession has in relation to the proposed changes to the Legal Aid System under Carter. I advised that as a result of the changes (which have been implemented in part under the Unified Contract) it was likely that my own firm would not sign the contract.
I attach a copy of a letter I sent to the Legal Services Commission confirming that we would not be signing the contract and setting out our reasons why. This decision was not taken lightly as I was conscious of the fact that by the firm not singing the contract a large section of the local community would no longer have access to justice. I also understand that Eaton & Few Solicitors have not signed the contract.
The result is that in Huntingdon there are only two practices offering public funding; two in St Neots and one in St Ives. We are having to turn clients away whom we would have been able to assist under the old contract but who cannot afford to pay privately. In such cases clients will inevitably have to bear the cost of looking for legal representation out of the area altogether if the other party has instructed the only remaining firm of solicitors in St Ives or the client cannot instruct any of the remaining firms that offer public funding due to a conflict of interest.
Family clients are often those who need legal assistance the most; such as victims of domestic violence. Whilst we still have strong ties with the women’s refuge centre in St Neots and offer free advice surgeries this is no substitute to being able to represent vulnerable women in proceedings which often have to be brought at short notice due to the urgent need for the client to be given injunctive relief by the Court.
I am deeply concerned at the Government’s proposals for reform of the Legal Aid system coupled with its chronic plans to under fund the system in England and Wales . Solicitors have had no increase in rates for the work for more than five years and it is very difficult to continue to absorb the effects of inflation. General inflation has risen by 43 % since 1993; RPI has been 43 % but legal aid rates have increased by less than 10 % in the same period. For those firms that have signed the contract, out of their remuneration they have to provide premises, pay staff and purchase ever more sophisticated IT equipment (especially as one of the requirements of the new contract ids that firms must have a case management system compatible with the Legal Services Commission’s own system). As a result I suspect that Leeds Day will be the first of many practices that will withdraw from Legal Aid altogether; especially when the fixed fee structure fazed in from October this year.
A False Economy
While the reforms are aimed at making savings, they are a false economy. A reduction in access to representation will inevitably mean social exclusion for some of the most vulnerable in our society who, without help, are more likely to have children removed from their care in dubious circumstances, suffer eviction from their homes and generally slip into dependency on the state. The costs to the public purse will far exceed any savings made today.
Several organisations are supporting the Law Society’s “What Price Justice?” campaign including the NSPCC, Shelter and Child Poverty Action Group. This shows the extent of concern within and outside the legal profession.
As an MP I am certain (if you haven’t already) see an increase in caseloads in your surgery where constituents no longer have access to justice.
Hard Evidence
Many firms are finding it difficult to sustain the service and yet the Government propose no increase in budget over the next three years and the reforms actually mean reductions in what they will receive from the Legal Aid system; cuts which they simply cannot bear.
All the time the strains on the budget increase due to more high cost terrorism trials and an increase of 75% in Child Care cases over the past ten years as well as many other social factors. If remuneration does not increase the so-called reforms will be the final nail in the coffin. This will lead to many of the most vulnerable in our society being denied access to justice.
This is also false economy for if social exclusion is not tackled through early intervention by access to the law, the down stream costs to the public purse will far exceed the savings made by the Government today.
Through the phased introduction of a package of reforms formed on the back of the Carter Review of Legal Aid Procurement, the proposals will overhaul our legal aid system by gradually shifting through interim fixed-fee arrangements for civil and criminal practitioners to a process of competitive price tendering (CPT).
By setting minimum contract sizes and CPT, the proposals will produce an inevitable result of substantially contracting the supply base of legal aid within Huntingdonshire, by favouring large - predominantly urban-based - volume providers, and challenging the viability of small and medium size firms.
An economic analysis of the reforms of the proposed reforms by LECG has found that between 600 and 1000 legal aid firms could be wiped out across England and Wales and forced to close.
Some may choose to move across to private work in order to remain a going concern, but many are likely to be forced out of business entirely. The Constitutional Affairs Select Committee recently highlighted its concern in a report published on 1 May 2007. In that report the Government was severely criticised for its failure to carry out proper analysis or risk assessment of the proposals. The reforms are aimed only at making savings but are a false economy because the down stream costs arising from the social exclusion effects to the public purse will far exceed the legal aid savings made by the Government today.
It is clear to me -( and this is backed up by evidence that I have referred to above and by the Government’s own expert Andrew Otterburn) - that the reforms cannot work without an increase in the legal aid budget.
Worryingly, Huntingdonshire is likely to be hit especially hard. Because of the rural nature of our area, constituents needing legal aid are far more reliant upon our local high street firms. However, it is precisely these smaller providers who will be disproportionately disadvantaged by the reforms.
I would be extremely grateful for any support you can give offer in pressing the Government to secure a sustainable legal aid system that will ensure fair access to quality legal advice for people across Huntingdonshire.
In particular I would ask that you:
Sign one of our three EDM's (537)
Support the proposal that there should be democratic scrutiny of legal aid rates
The number and range of organisations that have been involved in the Law Society’s What Price Justice? campaign has demonstrated the extent of concern both within and outside the legal profession about these proposals, and I feel it is now vitally important that the Government stops to take on board the views and recommendations of these bodies before the plans become embedded and irreparable damage is the destruction of the legal aid system. This is not primarily a problem for lawyers but is a disaster for their vulnerable clients who without help are more likely to commit offences, end up in prison, have children removed from their care in dubious circumstances, suffer eviction from their homes and generally slip into dependency on the state.
If you would like require any further information, you may find it helpful to contact the Law Society’s Parliamentary Unit on 020 7320 5932/5858 or parliamentaryunit@lawsociety.org.uk. Alternatively should you wish to discuss the matter further then please contact me at simon.thomas@leedsday.co.uk or the address below.
Many thanks indeed
Yours sincerely,
Simon Thomas
Parliamentary Liaison Officer
Cambridgeshire & District Law Society
Parliamentary Briefing from The Law Society 12.7.07
Click on the following link to read a comprehensive review by The Law Society of the background to the controversy over the Government's proposed changes in Legal Aid provision and the resulting loss of access to justice among the most disadvantaged in society that is predicted to result:
Link to Parliamentary Briefing 12 July
[extract] "There is a very real risk that rural communities will be particularly adversely affected by the changes as a result of a contraction in the supplier base. It is clear that the market model promoted
by the Carter Review and accepted by the Government will favour volume suppliers. Small town high street firms which do relatively small amounts of legal aid work may not be able to achieve the size and capacity required quickly enough to win contracts in the new market. The likelihood is that they will abandon legal aid work altogether in favour of private paying clients or simply close down, leaving large swathes of rural England and Wales without local supply."
items from late 2006 and early 2007
Lawyers have been on Strike in Wiltshire, Cardiff and elsewhere over Government Proposals which they say will reduce the availability of Legal Aid for much of the Public, making Access to Justice for All a dead letter
The national Law Society (which represents all practising solicitors) mounted a large and vocal campaign opposing the worst aspects of the Carter Review, under the title 'What Price Justice?' (www.lawsociety.org.uk/newsandevents/news/majorcampaigns/view=newsarticle.law?CAMPAIGNSID=247074). Local law societies are also taking action on behalf of their own members and of the public in their districts. Some details of our own activities are shown below. More may be added following a national meeting of solicitors to be held on 30th November 2006.
1. The following Declaration, signed by CDLS President Jane Oakes together with the Presidents of three other local law societies in the region, has been sent to the Lord Chancellor, Lord Falconer, as well as to the President of The Law Society.
DECLARATION OF THE LINCOLNSHIRE, NORWICH AND NORFOLK, WEST NORFOLK, & CAMBRIDGESHIRE LAW SOCIETIES 9.10.06
We represent family and civil lawyers covering a vast rural area. The principles set out in the Consultation Document “Legal Aid: a sustainable future” are deeply flawed and will bring about the demise of most if not all of the legal aid practices of our members, whether implemented in part or in full.
The impact of such a withdrawal will be devastating upon the communities where we live and work. The most vulnerable will be denied access to proper advice and representation in breach of their human rights. It will not only cause social injustice but will bring chaos to the administration of the Court Civil system at a considerable cost to the tax payer. It will also put pressure on the fabric of our society and upon the limited resources of the police, social services and advice and support organisations that will be left to pick up the pieces, also at considerable cost.
We want our national Law Society to convene an immediate emergency conference to take a proper sounding of the legal aid members it purports to represent.
The LSC states “We can be proud of our legal system. It is of the highest quality and guarantees access to justice. It is built on the work of a skilled and committed supplier base. Legal Aid practitioners play a crucial part in ensuring there is an effective justice system the public can trust.” The Lord Chancellor has also acknowledged that there has been a 22 per cent reduction since 1997 in the amount spent on civil legal aid. Why then the need for immediate and dramatic change? We seek a withdrawal of the proposals set out in the Consultation document.
We recognise that there is a need for a measured review for the provision and administration of family and civil legal services but it must be approached in a holistic manner and involve the Judiciary, The Court Administrators, The Bar, Solicitors and Not For Profit sector and must not be driven by monetary factors alone.
We as a profession have been subject to such prolonged and continuous change that it has become impossible to draw and implement the business plans the LSC require us to have. We seek a moratorium on change for a period of 3 years. This will enable the implementation of business plans and a holistic and measured consideration of the system with those who know it best.
The legal aid system has been staved of proper funding for many years. Many firms have already given up legal aid work and advice deserts are appearing. Recruiting new legal aid lawyers has become near impossible. We are the poor man of the legal system and feel undervalued unlike our Scottish peers who have recently received an increase. We seek a similar raise in the rates of remuneration.
The Bar provide a highly skilled and effective service and are critical to the effective running of cases and the Court System. We wish to support and work with the Bar to ensure their skills are properly recognised by a review of the existing graduated fee system.
We recognise also the important part played the Not for Profit Sector and we wish to work with them and the LSC to ensure the supply of legal aid services to all areas
[signed by the Presidents of the four Local Law Societies]
2. The Cambridgeshire and District Law Society endorse and support the Resolution of the Council of the [national] Law Society of 5th October 2006 and resolve as follows:
• To challenge the Government’s insistence that there is no additional money for legal aid in the current spending round
• To seek a delay of the legal aid proposals to enable a proper assessment of the potential impact to be made
• To require that changes to fee structures ensure that the cost and risk of system inefficiencies are not passed from the government to suppliers
Signed [Jane Oakes] President of the Cambridgeshire and District Law Society
3. CDLS sent support for the 5th October resolution of the national Law Society, referred to in 2 above and reproduced here:
Resolution passed by the Council at its meeting on 5 October
The Law Society Council has agreed this motion:
• To challenge the Government’s insistence that there is no additional money for legal aid in the current spending round.
• To seek a delay of the legal aid proposals to enable a proper assessment of the potential impact to be made.
• To require that changes to fee structures ensure that the cost and risk of system inefficiencies are not passed from the government to suppliers.
4. Jane Oakes, as chairman at a quarterly meeting of delegates from seven of the ten Eastern Region local law societies, sent the following letter on 5th January to all 61 East Anglian MPs.
Re: Proposed Reforms of Legal Aid
I write on behalf of the East Anglian Region Local Law Societies (EARLLS) which is an association of local law societies for Cambridgeshire & District, Norfolk & Norwich, West Norfolk & King's Lynn, Mid Essex, Hertfordshire, Peterborough, and Bedfordshire, comprising seven out of the ten local law societies established in East Anglia.
I understand that on 11th January there is to be a parliamentary debate on the future of the legal aid.
Although many of our members are not legal aid practitioners, the proposed legal aid reforms are causing our members a high level of concern. In particular, we consider the reforms are likely to lead to many of the most vulnerable members of our local community being denied access to legal advice and, in consequence, denied access to justice.
Ours is primarily a rural area with solicitors’ practices based in market towns each of which serves a wide area. Public transport links are generally poor and there is a high level of rural deprivation which is reflected in the type of case load handled by legal aid practitioners. Over the years, we have seen the number of our colleagues willing to continue doing legal aid greatly reduced. We already have legal aid deserts in East Anglia, with clients having to travel many miles for specialist advice in certain categories of work, for example, housing and debt.
We are therefore all the more concerned to learn that the current proposals will have the effect of further reducing the number of lawyers willing to do legal aid work in the criminal, family, public law child care, mental health and other civil areas of work. We appreciate part of the reforms have been put back for further consultation, but our legal aid colleagues tell us that will not be enough to prevent a further exodus from legal aid practice.
The proposals assume that legal advice will also be provided by advice centres from the not for profit sector but such organisations are to be subject to the same contractual provisions as solicitors firms, and their future is equally under threat.
An issue of prime importance in East Anglia is that a full rural impact assessment be carried out before any of the proposals are implemented. In a rural environment such as ours, it would appear impossible for best value tendering and the market economy model to be brought in without a gross deterioration in the availability and quality of the service available to the general public. The Carter model suggests that legal aid providers should be able to achieve greater efficiency by working in larger practices. Such an approach is unrealistic in a rural area. For the Legal Services Commission to say that the majority of the population live within 5 miles of a legal aid practice is to miss the point. Due to conflict of interest between clients each town needs at the very least two legal aid practices. For example: at its simplest, in a divorce situation, husband and wife each need their own separate solicitors from different practices, while in public law child care matters, separate legal representation is needed for the local authority, the child, each of the parents and frequently also for one or more third parties such as a grandparents. The fewer the number of legal aid practices, the further each party will need to travel to access legal advice.
Access to justice is an issue of prime importance to all members of the legal profession, not just to legal aid lawyers. Where access to quality legal advice is denied, many will have no choice but to appear before the courts in person, although they may be wholly unsuited to the task. Often the litigants in person will be unaware whether or not they have an arguable case and neither will they know how best to present their arguments. It follows that the courts will work more slowly and it will be all the more difficult for judges and magistrates to deal effectively and fairly with the cases before them. If access to justice is denied the confidence of the general public in the legal system as a whole is likely to be undermined.
In the circumstances, I would ask you to take these points on board and lend your weight to those opposing the proposed reforms. In particular, I would urge you to press for the rural impact assessment which is so essential for the East Anglian counties.
With many thanks for your kind attention.
Yours sincerely,
Jane Oakes
Chairman EARLLS
5. The New Policy Institute's recent survey of the impact of the new Means Test for Magistrates Court cases showed some startling effects of the proposed changes:
MEANS-TESTING IN THE MAGISTRATES’ COURT: IS THIS REALLY WHAT PARLIAMENT INTENDED?
With effect from October 2006, a defendant’s right to receive legal aid for cases before a Magistrates’ Court became subject once again to means-testing, this requirement having been abolished in 1999.
In justifying this re-introduction, ministers stressed that it was designed to ensure that those able to afford the cost of their own representation should not benefit from legal aid. The spectral figures of a convicted murderer and a professional footballer accused of spitting, both of whom had received legal aid, hovered over the debate. Yet our analysis of the new rules paints a very different picture of who, from now on, will have to pay for their own defence: in short, three quarters of adults in working households, including for example some lone parents working on the minimum wage. The question we ask in this briefing is: is this what parliament really intended?
Introduction
To anyone familiar with the voluminous detail of the Department for Work and Pensions’ (DWP) rules for the means-testing of social security benefits, the arrangements that have been introduced for the Magistrates’ Court are breathtakingly simple.
In essence, a single adult is definitely eligible for legal aid if their gross annual income is below £11,590 while they are definitely not eligible if it exceeds £20,740. Between these two limits, a further test is conducted to see if net income less a ‘cost of living’ amount, set at £5,304 a year, exceeds £3,156. *
For both the gross and net tests, adjustments are made if the individual has a partner and/or children. Where there is a partner, it is the income of the pair not just the individual on which eligibility depends.
* The details of the means-testing rules are set out in Statutory Instrument 2006 No. 2492, “The Criminal Defence Service (Financial Eligibility) Regulations 2006”. A ready reckoner to calculate eligibility in any particular case is available at http://www.legalservices.gov.uk/criminal/getting_legal_aid/criminal_means_calculator.xls
Unlike most DWP rules, there is an all or nothing outcome: either someone is eligible for legal aid or they are not.
Findings
By using official data on household incomes, we have analysed who and how many are now no longer entitled to legal aid.
Our principal finding is that, of the some 40 million adults in England and Wales, a clear majority – 22 million or 55% – are now no longer eligible.† During the six or so years when there was no means testing, all were eligible. Before that, all but a tiny minority of individuals were eligible. The new arrangements therefore represent a dramatic shift in eligibility.
The proportion of people no longer eligible varies greatly between different groups. For example, figure 1* [not shown on CDLS website] shows the 40 million adults according to the working status of their household and whether, according to our analysis, they are now eligible.
† This compares with the Final Regulatory Impact Assessment’s estimate that 46% of defendants would no longer be eligible for legal aid.
Two things stand out here. First, as the left-hand bar shows, three quarters of adults in households where at least one person is doing paid work are now no longer eligible for legal aid. These 20 million people make up the great bulk of the 22 million in total who are no longer eligible.
Second, just 6% of the working-age households with no one in work are ineligible. From now on therefore, legal aid in the Magistrates’ Court is restricted to people not in work and those in working households with the lowest incomes, chiefly those where part-time work only is being done.
Comment
Besides the huge shift in the extent of eligibility, what strikes us most is the gulf between the reality of the new test and the image of it presented by speakers during the parliamentary debates. Ministers stressed that it was designed to ensure that those able to afford to the cost of their own representation should no longer benefit from legal aid. Some ‘celebrity’ names were mentioned as examples. Yet when three quarters of all working people are no longer eligible, celebrities are at best irrelevant.
* The data source for the graph is Households Below Average Income, 2004-05. The electronic version of this briefing, available at www.npi.org.uk includes a technical appendix giving full details.
This ‘top’ three quarters contains some unlikely people: for example, a lone parent with one child (aged 10), who works full-time at the minimum wage of £5.35 an hour will not be eligible because of the boost to family income coming from tax credits.
The implication of our analysis is that the thresholds which determine whether a person is eligible for legal aid should be revised upwards so that more people are included. The difficulty, though, is that the greater the number of people eligible, the less will be the public money saved.
As it is, depriving more than half of the population of their right is estimated to save just £35 million a year.† Given the uncertainties about how much money is really saved, it is far from clear whether a means test that disqualified only a small minority would actually save money at all. That is what the pre-1999 regime did – and it was abolished in order to save money.
We also see a connection between this issue and the decline in the number of solicitors providing this service. An old saw among anti-poverty campaigners is that services mainly for the poor become poor services. With fewer than half of all adults now eligible, criminal legal aid risks heading in that direction. The increased difficulty that some clients now face in accessing the service, even when they have a right to it, is consistent with this.
Conclusion
Parliament is clearly not opposed in principle to the means testing of criminal legal aid. The question is whether the effects of what it has enacted are what it expected. In particular, did it intend to remove eligibility from 75% of adults in working households, leaving legal aid in the Magistrates’ Court as a residual right chiefly for those in households where little or no paid work is being done?
Peter Kenway, December 2006
New Policy Institute, 504 Coppergate House, 16 Brune Street, London E1 7NJ. www.npi.org.uk
† Final Regulatory Impact Assessment
Technical appendix
Basis of the estimates
The estimates are based on analysis of the Department of Work and Pensions’ Households Below Average Income, (HBAI) 2004/05, supplemented with additional information from the Family Resources Survey (FRS)for the same year.
The analysis is for England and Wales only and is conducted at the level of the Benefit Unit.
The eligibility test based on gross income uses the benefit unit gross income variable* from which the following have been deducted: Council Tax Benefit paid (from HBAI) plus Attendance Allowance, two type of Disability Living Allowance, Severe Disablement Allowance and Carers Allowance (from FRS).
The eligibility test based on net income uses a measure of after-housing costs income at the household level,† allocated to benefit units in multi-benefit unit households in proportion to gross income. Other than Council Tax Benefit, the same deductions are then made from this variable as in the gross test above.
This is not a wholly satisfactory representation of net income for two reasons, first because the measure of housing costs does not fully correspond to that set out in the regulations, and second, because neither childcare costs nor maintenance payments have been excluded from the calculation. Both of these factors will mean that the estimate of those eligible for legal aid has been under-stated.
Against this must be set the fact that these figures, though the latest available, are now two years old, meaning that the income figures are on the low side for 2006. If incomes in the dataset were 5% higher to reflect this, the numbers entitled to legal aid would be one million fewer than those estimated here.
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