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New Law Society practice note on uneconomic criminal work

The Law Society has issued a new practice note setting out the requirements of the legal aid contracts and of professional conduct in deciding whether to accept instructions in criminal legal aid cases.

It reminds practitioners that, in the main, only duty solicitors acting as such are required to take on work – and then only of the types prescribed in the contract.

It also sets out the relevant professional conduct obligations. These apply both at the level of individual cases – such as the duty to advise of the availability of legal aid before accepting private instructions – but also at the level of practice management. There is a particular obligation on COLPs and COFAs to ensure their practices are managed responsibly, which includes financial prudence.

There is nothing new in the practice note but it comes at a time when changes to Crown Court fees and to court appointed work are under consideration (though no decisions will be made until after the general election). It reminds practitioners that they are not required to take on all cases and that there may be circumstances where there is a professional duty not to do so. The bar took a similar approach some years ago when it deemed criminal fees not to be a proper fee, thus exempting these cases from the cab rank rule.

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Legal aid reform (1): overview

When the government published the final version of its reform plans last week, it actually published a number of key documents. The Legal Aid, Sentencing and Punishment of Offenders Bill has been through its first and second reading in Parliament and is now in the committee stage. As well as the bill, it released a response to the consultation and a schedule of revised fees, as well as impact assessments, a reply to the Justice Select Committee report, and a paper about litigants in person.

The key documents are the consultation response, fees schedule and the bill. The consultation response contains the detail of the proposals, and the bill sets out those that need primary legislation. The proposals can be grouped into 5 broad areas:

  1. Scope – the provisions on scope are within the bill
  2. Eligibility – the bill makes provision for regulations to govern eligibility under the new scheme. It is not yet clear whether the government also propose to change the existing eligibility rules for the current scheme, which could be done relatively easily by amending the regulations
  3. Fees – the government has announced cuts to civil, family and crime fees. The civil and criminal fee cuts will take effect from October 2011, the family from February 2012.
  4. Administration and governance – the bill abolishes the LSC and creates a Director of Legal Aid Casework, to whom various functions and responsibilities are given.
  5. Establishment of a telephone gateway, initially for limited areas of law.

The bill itself is in 4 parts – legal aid, litigation funding, sentencing, and technical provisions. There are also 16 schedules, of which the key ones for legal aid are the first 5 (schedules 6 and 7 concern criminal costs from central funds in mainstream and services prosecutions).

The current scheme

The current legal aid scheme is governed by the Access to Justice Act 1999, and various regulations made under it, together with contracts entered into by the Legal Services Commission using their powers under the Act. The LSC itself was created by the 1999 Act. Paragraph 49 of Schedule 5 of the bill repeals all parts of the Access to Justice Act dealing with legal aid, and clause 36 of the bill abolishes the LSC itself.

Therefore, the bill does not simply amend the existing legal aid scheme; it abolishes the entire scheme, together with the body set up to administer it, and replaces it with a brand new legal aid scheme administered from within the Ministry of Justice. This is not just reform or amendment; in effect, legal aid – or its statutory underpinning – has been torn up and re-created from scratch.

The Access to Justice Act civil legal aid scheme is a broad scheme; unless a court or tribunal or type of case is excluded by Schedule 2, it is covered. Similarly, all areas of criminal law are by default included within the criminal scheme, as are a number of “quasi-criminal” civil proceedings (ASBOs and the like) which are added either by statute or regulation.

The new scheme

The new scheme proposed under the bill, by contrast, is an exclusive scheme. Schedule 1 of the bill lists various types of civil proceedings; those listed are within the scope of legal aid, but anything not listed is out of scope.  Clause 8(2) of the bill allows the Lord Chancellor to amend the schedule to exclude further areas of law, but not to bring more areas back in scope. So in future civil and family legal aid can be further restricted by regulation, but can only be expanded by Act of Parliament.

Criminal legal aid is available for criminal investigations (clause 12) and criminal proceedings (clause 13). The definition of criminal proceedings is basically the same as in s12 Access to Justice Act, and includes a similar power to prescribe other proceedings. It is this power that has been used under the current scheme to bring quasi-criminal civil cases within criminal legal aid, most recently last week. As regulations to be made under the bill have not yet been published, it is not known whether the current list in Reg 3 of the Criminal Defence Service (General) (No 2) Regulations 2001 will simply be carried over.

What happens next

The LSC has already announced the implementation of fee cuts – 3rd October for civil and crime, and February 2012 for family and housing with family. There has been no announcement yet as to when the eligibility changes take effect, but this could happen either within the current scheme or in the implementation of the new scheme.

The bill will continue its passage through Parliament and seems unlikely to receive Royal Assent before next spring. The tendering process for new family and family with housing contracts to take effect from February 2012 is currently being consulted on, but these are Access to Justice Act, not new-style contracts. The earliest a tendering process under the new law could happen is spring / summer 2012, making the earliest implementation date for new-style contracts, and thus scope cuts, autumn 2012.

Further reading

Over the next few days we will publish further analysis of key provisions of the reform programme and links to those posts are below.

See also our summary of the proposals and the fees announcement. See also responses by Sound off for Justice, Justice for All, the Bar Council, Shelter, and Citizens Advice. There are good posts about specific subject areas on Nearly Legal (housing) and Pink Tape (family), and an overview in the Gazette. Baroness Hale’s Hodge Lecture on access to justice is also worth reading, as is Professor Richard Moorhead’s broader view.

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Filed under Civil, Costs, Crime, Family, Immigration, Legal aid bill, Policy, Social welfare