The long-awaited review of LASPO, promised by the government within three to five years of implementation, has finally been announced.
In a written statement to Parliament yesterday, the Lord Chancellor said it would be conducted by MoJ officials, with input from interested parties, and would report by the 2018 summer recess (which would take it just beyond five years since LASPO came into force in April 2013).
The statement is here, and the accompanying memorandum is here.
The Court of Appeal has given judgment in the case of Director of Legal Aid Casework and another v IS [2016] EWCA Civ 464, the Director’s appeal against the judgment of Collins J in the High Court that the exceptional funding regime was inherently unlawful.
Laws LJ gave the main judgment, with which Burnet LJ agreed. He said that there were clear flaws in the operation of the scheme which had resulted in unfairness in individual cases. But it is necessary to look at the range of cases, and more than error in individual cases is required; unfairness – to a high threshold – must be shown in the scheme itself. He said that it is important to distinguish a bad scheme and one that is operated badly. And a judge must be careful not to stray into matters of underlying policy.
All sides accepted that there had been flaws in the operation of the scheme. Improvements were needed. But the evidence supplied of experience of use of the scheme was of limited value and unreliable. Significant improvements had been made since Gudanaviciene, showing that both the LAA and providers were on a learning curve. That there was a low number of applications, and a low success rate, didn’t of itself show that the scheme was unfair, and the resources available to legal aid are limited. Collins J hadn’t shown how his individual criticisms of the scheme added up to systemic unfairness, and it was Laws LJ’s “impressionistic” judgment that they didn’t. Neither did he or Burnet LJ consider the merits test or the Lord Chancellor’s Guidance to be unlawful.
Dissenting, Briggs LJ said that he would find the scheme unlawful. Although he agreed with much of what Laws LJ had said, he found that a key feature of the scheme was that its complexity was such that legal assistance was required. As there was no payment available for unsuccessful applications, and such a low success rate, it is uneconomic for lawyers to take part it in it. That is an inherent flaw in the scheme. A learning curve might help those applications that are made, but is no answer to those that aren’t.
Comment
The views of the majority are not wholly persuasive. They recognise a number of powerful criticisms of the operation of the scheme and the injustice that has resulted in individual cases. But all to often that is dismissed or disregarded – even though Laws LJ readily admits that the Court didn’t read all the evidence – and where it is not it is explained away or the Director’s response accepted. The thrust of the majority view appears to be that the scheme is badly operated, but not quite bad enough of itself to be unlawful. But the conclusion that the whole is less than the sum of the parts does not convince.
Wider implications
Following Collins J’s finding in the High Court that the merits test was unlawful, the Lord Chancellor introduced a new merits test. This reversed the exclusion of borderline cases, and extended legal aid to poor (but not very poor – i.e. less than 20% prospects of success) cases. That change applied not just to exceptional cases but to in scope cases as well; now that the Court of Appeal has found that the previous iteration of the merits test was not unlawful, it may be that this wider merits test will be withdrawn. It remains to be seen whether the case will go on to further appeal.
Filed under Civil, Family, Housing, Immigration, LASPO, Policy, Social welfare
The LAA’s recently published annual report shows how much less money has been spent on securing legal advice and representation for the poorest people in England and Wales. There was an overall net reduction in expenditure of £244 million (all figures in £000), a further decrease from 2013-14, which was the first year of the LASPO scope cuts. The reasons for the increase in crime higher were given as higher numbers of sitting days and more pages of prosecution evidence in more complex cases.
Funding type 2014-15 2013-14
Civil legal help 112,165 129,776
Civil representation 510,212 693,527
Crime lower 332,578 367,304
Crime higher 586,457 553,677
Central funds 44,238 89,070
The costs of legal aid administration reduced by £3.1 million, when calculated on a cash basis; although total administration costs rose by £3.3 million, largely due to the development of the widely criticised CCMS system for civil applications and bill processing, which will now not become mandatory until February 2016.
Key milestones noted include:
In relation to internal issues, the LAA:
Plans for the future include:
The main political parties have published their manifestos, and some have also made other specific commitments. We have created a new page on the site to collate manifesto pledges and commitments made – you can see the page here, and we welcome comments and links highlighting things we may have missed. We’ve also included links to other materials produced by rep bodies and others to support campaigning. We’ll try to keep it updated during the campaign.
Only the Greens promise a full reversal of the cuts. UKIP doesn’t mention legal aid at all, and the three main parties all promise reviews rather than anything specific of substance, with the exception of some specific commitments Labour has made. In summary, this is what each party says about legal aid:
Filed under Civil, Crime, Family, Housing, Immigration, LASPO, Policy, Social welfare
This evening’s Panorama reported on the cuts to civil legal aid, focussing on private family law. It included interviews with the Lord Chancellor who introduced LASPO, Ken Clarke, as well as retired judges, lawyers and litigants affected by the cuts. It can be seen on the iPlayer here, and an article by the programme reporter Raphael Rowe can be seen here.
On Monday, the High Court quashed the regulations which introduced conditional funding for judicial review, following its judgment that the Lord Chancellor’s decision to introduce them was irrational.
Three days later, the Lord Chancellor today laid a fresh set of regulations, which come into force tomorrow (27 March). The new regulations re-impose conditional funding in exactly the same way as before, with the exception that payment is now permitted in two more situations.
The Civil Legal Aid (Remuneration) (Amendment) Regulations 2015 provide that, for all certificates granted applied for on or after 27 March 2015, payment for judicial review work done pre-permission is conditional on one of the following:
This is a slight extension from the irrational regulations of the situations in which payment may be made, to add oral and rolled up hearings and cases where the defendant concedes pre-permission. Whether that is enough to stave off any future challenge to these regulations will remain to be seen.
But it is most unfortunate that the Lord Chancellor decided to slip, unannounced, these regulations out on the last day Parliament was sitting before the election, and that the Legal Aid Agency hasn’t made any announcement or done anything to publicise a change in the legal aid scheme before it comes into force.
UPDATE 27 March
The transitional provisions say that the new regulations apply to certificates applied for from 27 March. Applications signed before 27 March and received by the LAA by 5pm on 31 March aren’t caught by the new regulations, nor are applications submitted through CCMS before 27 March or grants of emergency representation made before 27 March and received by the LAA, or uploaded through CCMS, within 5 days. Existing certificates to which new JR proceedings are added on or after 27 March will be subject to the new rules.
Filed under Civil, Costs, Housing, Immigration, LASPO, Policy, Social welfare
The Parliamentary Joint Committee on Human Rights has released its report on UK compliance with the UN Convention on the Rights of the Child.
In a section on legal aid, which is critical of the scope cuts, exceptional funding and the residence test, it concludes:
The government’s reforms to legal aid have been a significant black mark on its human rights record during the second half of this Parliament. The two reports we agreed on the subject, at the end of 2013 and early in 2014, set out our concerns and what we feared might be the outcome of some of those reforms in terms of reducing access to justice for children. We acknowledge the few discrete areas in which the government helpfully accepted our concerns and reviewed elements of its reforms. However, the evidence we heard from the outgoing Children’s Commissioner for England and from all the NGOs we took oral evidence from provides firm grounds for a new government of whatever make-up to look again at these reforms and to undo some of the harm they have caused to children.
In a week in which Parliament is likely to dissolve ahead of the coming general election, this is a timely reminder of the effects LASPO has had, and the urgent need for a new government to review its effects – not just in respect of children, the focus of this report, but also more widely.
An election campaign gives those concerned with access to justice the opportunity to raise the profile of legal aid issues with canvassing politicians. A good place to start is LAPG’s excellent manifesto, launched last week, which sets out a range of measures a new government could adopt which would make a real difference.
Filed under Civil, Family, Housing, Immigration, LASPO, Social welfare
Today the High Court decided on the appropriate relief following the granting of the judicial review of the regulations making payment in JR cases conditional on permission being granted.
The regulations were quashed – meaning that the amendments to the remuneration regulations which provided for conditional payment have been removed. The Lord Chancellor is reported not to be intending to appeal.
This leaves the original regulations – and original payment regime – intact. The LAA hasn’t yet said how it intends to implement the ruling, but it will have to introduce some mechanism for paying for cases where no claim was made, or discretionary payment refused, because of the quashed regulations. We will post when we know more.
In the meantime, congratulations to the claimants – Ben Hoare Bell, Deighton Pierce Glynn, Mackintosh Law, Public Law Solicitors and Shelter – as well as their representatives the Public Law Project, Martha Spurrier and Martin Westgate QC, and the Law Society which supported the action financially. All took significant risks in bringing the case, and deserve the thanks of the profession for achieving this result.
Filed under Civil, Costs, Housing, Immigration, LASPO, Policy, Social welfare
The Commons Justice Committee published its report on the impact of the cuts to civil legal aid today.
It found
The committee’s summary of its comments on each of the MoJ’s four objectives is reproduced below, and the full report can be found here, with the oral evidence here and written evidence here.
Significant underspend
Since the reforms came into effect, there has been a significant underspend in the civil legal aid budget because the MoJ failed to ensure that those who are eligible for legal aid are able to access it. This has been partly been due to a lack of public information, including information about the Civil Legal Advice telephone gateway for debt advice, and the Committee recommends that the MoJ take prompt steps to redress this.
The Committee also concludes that the exceptional cases funding scheme has not worked as Parliament intended. It was supposed to act as a safety net, protecting access to justice for the most vulnerable. However, insufficient weight has been given to access to justice in the grant-making process and the Committee heard about a number of cases where it was surprising that such funding was not granted.
The Committee expects the MoJ to react rapidly to ensure that the scheme fulfils Parliament’s intention that the most vulnerable people are able to access legal assistance.
Necessary evidence
Although private family law was largely removed from the scope of legal aid, those who can provide evidence of domestic violence are still eligible. The Committee welcomes the MoJ’s efforts to ensure that healthcare professionals provide victims with the necessary evidence, but it remains concerned that a large proportion of victims do not have any of the types of evidence required, and about the strict requirement that evidence be from no more than 2 years ago, which the Committee considers should be a matter over which the Legal Aid Agency has discretion.
The inquiry found that the reforms have led to reduced capacity in the for-profit and not-for-profit legal advice and assistance sectors. Despite a warning from the Committee in a previous Report that advice deserts might be created, the Ministry of Justice did not carry out research into the geographical provision of legal advice before the reforms or the impact of the changes. The Committee recommends that work to rectify this should begin immediately.
Unrepresented litigants
The Government’s reforms have led to an increase in the number and a change in the profile of litigants in person: increasingly these are people who have no choice but to represent themselves, and who may thus have difficulty in doing so effectively: although many tribunals are accustomed to dealing with unrepresented litigants the courts have to expend more resources in order to assist them.
There has also been a sharp unintended reduction in the use of mediation. The Committee concludes that the end of compulsory mediation assessment, the removal of solicitors from the process and the lack of clear advice all contributed to the problem. However, the MoJ has acted swiftly to remedy this by setting up the Family Mediation Taskforce and accepting many, although not all, of its recommendations.
Value for money
The MoJ has not been able to demonstrate that it has achieved value for money for the taxpayer. Although significant savings have been achieved, efforts to target legal aid at those who most need it have focused on intervention aimed at the point after a crisis has already developed, rather than on prevention.
This has created knock-on costs, either because cases become more serious so become eligible for legal aid, such as house repossession cases, or because costs are shifted from the legal aid budget to other public services rather than reduced overall. The Committee believes that the MoJ must quantify these if it is to achieve its objective of better value for money.
Filed under Civil, Family, Housing, Immigration, LASPO, Policy, Social welfare
Those words, a criticism of the removal of legal aid in private law family proceedings, came not from a legal aid lawyer or politician opposed to the cuts. They were said, today, by a High Court Judge. Giving judgment in MG & JG v JF [2015] EWHC 564 (Fam), Mostyn J expressed himself in unusually strong terms about the effect of a lack of legal aid on the litigants in the case before him, and more broadly.
The facts of the case are that a lesbian couple had a child fathered by a donor, who had contact with the child in his early years, until the relationship between the mothers broke down. He issued an application for contact. He is well off, if not wealthy, and the mothers are both relatively impecunious and would have been eligible for legal aid had it been available. Mostyn J considered that the interests of justice required that the mothers be represented and that the only source of funds was the father. He therefore ordered the donor father to pay the bulk of the costs of the proceedings, both his own and that of the mothers. “It could be said that it is grossly unfair that JF should have to pay now £20,596 plus 80% of the future therapeutic costs up to the IRH. But that is where the government has left him. It is a sorry state of affairs.” (para 36).
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