Tag Archives: legal aid bill

Congratulations Carol!

Everyone who knows Carol Storer, Director of the Legal Aid Practitioners Group, wants to congratulate her on her OBE for services to legal aid. So we thought we’d join in!

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Weekly round up

In this update:

  • Legal aid bill – the end of the road
  • New criminal forms
  • Guidance for solicitors and barristers billing civil cases
  • Family high cost case plans
  • Deadline for duty solicitors

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Once more unto the Lords…and then what?

The legal aid bill returns to the Lords tomorrow as the final stages of the Parliamentary process draw near. We are now in “ping pong” where the Lords and Commons try to agree a final version of the bill.

Last week, the Commons overturned all the Lords amendments, although ministers did make two more concessions, one on the definition of domestic violence and a rather less clear or useful one on welfare benefits appeals.

Now the Commons version of the bill goes back to the Lords; unless the Lords reject the removal of their amendments tomorrow it will become law.

Whatever happens tomorrow, within days or at most a week or two, the bill becomes law. Then starts the process of bringing it into force.

There will need to be detailed regulations issued, a new version of the Funding Code drafted, and new contract terms written. The LSC has already consulted with representative bodies on the Standard Terms of a new contract, but with the final terms of the bill still uncertain it can not consult on the Specification, either with representative bodies or more widely.

At the recent Provider Reference Groups, very little detail beyond what was in the recent headline document was given. It seems the plan is still to open a tender process in May, announce the results by the end of the year and start new contracts in April 2013. However, according to Hugh Barrett, who was questioned on this at the London PRG at the end of March, even such fundametal issues as the allocation mechanism for matter starts are not yet resolved. It seems the options are the licensing approach outlined by Bill Callaghan in February, or the pro rata approach adopted in last year’s family tender. But no decisions had been made. We understand that the LSC only began the process of engaging with representative bodies on the tender process in the week just gone and it is already the last week of April.

Even last week’s concessions in the Commons will have changed the detail of the future scheme – more family matters and welfare benefits matters will need to be made available, the detailed contract rules and regulations will now be different. There may yet be more to come.

How can a tender process open before the details of what are to be tendered for – the regulations, Funding Code, contract specification – have been drafted, consulted on, finalised and published? How can providers bid until they know the detailed terms and matter start allocations for which they will be bidding? Can all this be done in the next four or five weeks, as the timetable demands? Even if the opening of the tender in May is simply an expression of interest or PQQ, can it be done by September, which is surely the latest possible date for full tenders to happen for contract starts in April 2013?

Royal assent to the legal aid bill is the closing of a chapter, but not the end of the story.


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Legal aid after the Lords

Over the last two weeks, the legal aid bill has been through report stage in the House of Lords. With only third reading to go, where are we now?

See our posts from last summer setting out the detail as originally proposed.

There have been some government concessions in the months since, with more during the course of report stage:

  • Bringing immigration domestic violence cases back into scope
  • Bringing illegal eviction claims back into scope and expanding the range of counterclaims allowed in possession proceedings
  • Extending legal aid for special educational needs cases to clients aged up to 25
  • Removing the power to means test for police station advice
  • Amending the definition of domestic violence as a pre-requisite for private law family legal aid
  • Allowing legal aid for clinical negligence at or shortly after birth
  • Giving the Lord Chancellor power to extend the scope of the legal aid scheme by order
  • Making legal aid available for domestic as well as international child abduction
  • Allowing employment claims by trafficking victims against those who have exploited them
  • Removing community care from the telephone gateway

The government have also lost votes on the following issues:

  • Requiring the Lord Chancellor to secure access to justice
  • Making legal aid available to victims of domestic violence
  • Ensuring the independence of the Director of Legal Aid Casework (the replacement for the LSC)
  • Retaining legal aid for welfare benefits reviews, appeals and onward appeals
  • Funding expert reports in clinical negligence cases
  • Requiring the Lord Chancellor to ensure the availability of face to face advice (removing the power to create a mandatory telephone gateway)

So what happens now? The concessions are definite. The government already have, or have undertaken to, amended the bill. But the lost votes could still be overturned, as they have to be approved by the House of Commons. See the LAG blog for a discussion of whether “financial privilege” (the mechanism that allowed the government to overturn Lords amendments to the Welfare Reform Bill) could be used on legal aid – the final shape of the legal aid bill is still not settled.

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Important day for legal aid

With the legal aid bill starting report stage in the House of Lords today, Ken Clarke was on the Today programme on Radio 4 this morning debating with Des Hudson of the Law Society. You can listen here (the interview was at about 1hr50 minutes into the programme). The debate in the House of Lords this afternoon can be watched here from sometime after 2.30pm.

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Weekly round up

In this update:

  • Legal aid judicial reviews
  • Legal aid bill in the House of Lords
  • Important news for former clients of the Immigration Advisory Service
  • Criminal bills
  • Family high cost cases
  • New LSC addresses

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Further concessions on legal aid bill

The government has introduced two amendments to the legal aid bill, which returns to the House of Lords next week.

The first amends the definition of domestic violence in the bill (but does not change the requirement to prove it as a pre-requisite to obtaining legal aid in private law family cases, as called for by a wide alliance of the legal aid sector.

The second brings clinical negligence back within the scope of legal aid, but only where negligence in child birth or shortly thereafter caused a neurological injury causing severe disability. This is a very small number of cases brought back within scope and, as the UK Human Rights Blog points out, is essentially arbitrary.

It remains to be seen whether this is the start of a series of concessions to get the bill through, or if the government believes it has now done enough to ensure Parliamentary support. There is still time to take part in the campaign in the Lords, and now is the time to begin lobbying MPs, as any amendments won in the Lords will also need to pass the Commons.

See also the reports in the Gazette and the Guardian.

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Another concession on the legal aid bill?

Despite Ken Clarke’s bullishness on Law in Action this week, the Legal Action Group is reporting news of a further potential concession on the legal aid bill. Clause 8 of the bill as it stands would give the Lord Chancellor the power to remove further areas of law from legal aid scope in future, but not the power to add areas back in. The equivalent power in the Access to Justice Act allows both to be done. Many, including the combined legal aid sector and the House of Lords Constitutional Committee, have pointed out that clause 8 needs to be amended to prevent primary legislation being the only way to amend the legal aid scheme in the future. LAG’s post is based on a letter sent by Lord Thomas, the Liberal Democrat peer, indicating that the clause will be amended.

This is supported by comments made in the House of Lords (see column 361) by the minister, Lord McNally, on 16th January hinting that the government would look further at clause 8 and referring to discussions with Lord Thomas:

Lord McNally: A number of telling points have been made by the contributions today. To clarify a point that my noble friend Lord Faulks asked for, the regulations under Clause 8(2) would be subject to the affirmative procedure in terms of parliamentary scrutiny. However I take full note of the point that the noble and learned Baroness, Lady Butler-Sloss, made, that strong and experienced legal opinion has advised against this one-way street which is built into the Bill. I also take on board-which is why I want to come back to this at the end-the question of primary legislation as against secondary legislation……There is no doubt that there is great strength of feeling about these amendments. I assure the House that the Lord Chancellor has noted the concerns; my noble friend Lord Thomas and others had a meeting with him earlier in the week when they put this case very strongly. With the leave of the House, and I think the noble Lord, Lord Bach, intimated this in his wind-up speech, in the full light of the points made in this debate and by the Delegated Powers Committee and the Select Committee on the Constitution, both of which have been referred to, may the Justice Secretary look at these matters again and give serious consideration to the amendments-not all of which mesh together-so that we can bring back proposals regarding this clause for further debate on Report? Given that assurance that we are taking this matter away in a constructive way, I hope that noble Lords will agree to not to press their amendments today.


So not a definite concession yet, but one that appears to be on the cards. So far all the concessions have not involved additional expenditure or significantly affected the number of people who will lose access to justice, and with report stage in the House of Lords on 5th March, time is running out.

See also:


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Ken Clarke on the legal aid bill

Yesterday’s Law in Action on BBC Radio 4 featured the legal aid bill, with an interview with Nottingham Law Centre and one of their clients, as well as discussion around the proposals to remove legal aid from welfare benefits and clinical negligence cases. It ended with an interview with Ken Clarke, who defended his bill and particularly criticised the way speakers in the House of Lords have been near unanimously against it to date. He hinted at potential concessions at report stage, due to begin in a couple of weeks, but made clear he was not expecting them to be significant. You can download the programme from the Radio 4 website or listen to it on the iplayer.


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The end of matter starts?

In a speech to the Liverpool Law Society last week, the Chair of the LSC, Sir Bill Callaghan, gave the broadest public indication so far of the LSC’s vision of contracting from April 2013, following the full implementation of the legal aid bill. He said:

The ongoing administration of new matter start allocations is now attracting particular attention because it takes a great deal of effort for both providers and LSC staff.

The removal of a fixed allocation of new matter starts is one idea that has been put to us by representative bodies. Fixed allocations mean that more popular providers often run out of work and are refused an increase while other providers in the area have unused matter starts.

A more open competition at client level would be one way of dealing with this issue and we think it should improve the quality of provision and client care.

What we’re talking about here is licensing civil contract work rather than simply allocating a fixed number of new matter starts.

There is still a lot discussion to be had about the detail of how this will work. But we envisage introducing this approach in April 2013 at the same time as the LSC is abolished and the new Executive Agency takes over.

This suggests that the tender round for civil and family work which is likely later this year, for contracts starting from April 2013, will be on a completely different basis to recent tenders. Instead of bidding for a fixed number of matter starts, organisations would either be able to do legal aid work or they would not; if they can do legal aid, they can do as much or as little as they can attract. Clients and the market – not the LSC – would decide who does the work.

In some respects, this would turn the wheel full circle to the situation that existed prior to the Access to Justice Act 1999, except that in those days any firm could do the work; in future, only those licensed by the LSC would be able to. But once licensed, how much work would be up to them not up to the LSC. No maximum matter starts, no 85% matter start KPI?

This approach would represent a significant change to how work is allocated and potentially significantly increase competition between providers. Although this approach is not yet guaranteed, providers would be wise to factor it into their long term business planning.

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