Monday, 29 November 2010

Legal Aid - a look at the Ministry's proposals for Civil Proceedings

On  Monday 15th November, the Ministry of Justice issued their consultation paper "Proposals for the reform of Legal Aid in England and Wales."  It is a lengthy document which seeks to go back to what are referred to as "first principles" so that funding is reserved for serious issues which, in the Ministry's opinion, justify the use of public funds. 

The modern legal aid scheme goes back to 1949 but the scope of legal aid has expanded considerably since the 1970s.  The Ministry's consultation presages a huge reduction in the scope of legal aid.  This is to be achieved by removing many types of case from legal provision altogether and by amending the financial eligibility limits.  The financial limits already exclude many from civil legal aid and this may be one reason why the general public may not be too bothered about further reductions.  Furthermore, even in those legally aided cases which remain, there will be strict control over fees payable.  This remainder of this post is confined to looking in outline at what the government considers should be within the scope of legal aid for the future but first it is neceassary to look at where we are at present.

The present civil legal aid scheme:

In considering the paper, it should be borne in mind that, under present rules, not everything is included within legal aid - see  Schedule 2 Access to Justice Act 1999.  Examples of "excluded services" are allegations of personal injury or death (except those caused by clinical negligence); allegations of negligently caused damage to property; conveyancing; boundary disputes; wills; trust law; defamation etc.  Furthermore, under present rules, services may only be funded "for an individual as part of the Community Legal Service if his financial resources are such that, under regulations, he is an individual for whom they may be so funded" (Access to Justice Act 1999 s.7).  Thus, there is a financial eligibility test based on disposable income and disposable capital.  Fuller details of the present legal aid arrangements may be read in "A Step by Step Guide to Legal Aid" which is published by the Legal Services Commission.

"Factors" used to decide the proposed scope of legal aid:

Whether or not to continue to provide legal aid in a particular area of the law has been considered in relation to 5 factors:

  • the importance of the issue - (that is, its importance on a spectrum of objective importance) - purely monetary claims are low on this spectrum;
  • the ability of claimants to be able to present their own case - it is interesting that the Ministry regards "inquisitorial" methods (e.g. as used at inquests) as being more likely to enable a claimant to present a case personally;
  • availability of alternative sources of advice or funding - e.g. whether "conditional fee agreements" are available or legal expenses insurance etc .  Legal aid is seen as a "funder of last resort."
  • availability of other routes to resolution of issues - e.g. use of mediation or referring cases to "ombudsmen" etc.
  • the government's European and international obligations.
Where will legal aid remain if the proposals go ahead? (Full details in the consultation Chapter 4 and annex F).
  • Asylum 
  • Claims against public authorities - subject to a revised test of "serious wrongdoing"
  • Claims arising from abuse or sexual assault
  • Community Care
  • Debt - if the home is at risk
  • Domestic Violence and Forced Marriages
  • Family mediation in private law family cases
  • Housing
  • Immigration cases involving detention and hearings before the Special Immigration Appeal Commission
  • International child abduction - includes Hague Convention 1980 cases etc.
  • Family maintenance cases with an international element
  • Mental Health cases
  • Public law - judicial review
  • Family "Public Law" cases - e.g. care proceedings
  • registration and enforcement of judgments under EU legislation
  • Family cases involving separate representation for a child - so-called "Rule 9.5 Guardian" cases
  • Certain other areas - see consultation paras. 4.109 - 4.144.
Proposals for more areas where legal aid will be excluded:

  • inquests - "legal help" will continue but the government considers that bereaved persons can participate in an inquest without legal help given that the proceedings are essentially inquisitorial
  • most tribunal hearings
  • ancillary relief cases in divorce
  • clinical negligence - though some cases may receive assistance under a separate funding scheme proposed for excluded cases
  • consumer and general contract cases
  • Criminal Injuries Compensation Authority
  • Debt where the home is not at risk
  • Education matters
  • Employment matters
  • Housing
  • Immigration where the person is not detained
  • Private law family cases not involving domestic violence - e.g. applications for "contact"; "residence" etc.
  • Welfare benefit cases
  • Certain other matters - see para 4.225
  • Cash forfeiture 
  • Upper Tribunal appeals
  • Tort and other general claims.
The above is by way of summary only.  There is a large volume of detail contained within the paper.  Also, a number of particular situations are addressed such as the question of exceptional funding (para. 4.263). The proposed scheme is a harsh cut back and it is easy to claim that alternatives are available such as using Law Centres but many of those services are struggling for survival in the present climate.  It is also easy to say things such as - "We consider that legal aid for advocacy before most tribunals is not justified given the ease of accessing a tribunal, and the user-friendly nature of the procedure."  The reality for many people is that appearance at any form of legal proceedings is an ordeal.

An interesting post appears on the Head of Legal Blog written by barrister Carl Gardner.  His argument is well worth reading as are many of the interesting comments made by readers of the blog.  He sees the need for more fundamental reform of legal proceedings so that they are simpler and more accessible.  He concludes - "If the coalition allows legal business to carry on as usual while cutting legal aid ....last Monday will have been a bad day. But if this signals the start of major reforms to move us from an expensive, partly subsidised legal system to one that is cheap, genuinely accessible to anyone regardless of means, and funded disproportionately by its rich users – then last Monday will have been a bad day for legal aid, and a good one for law."  Merely slashing legal aid whilst leaving everything else untouched will not prove to be acceptable.

Primary legislation will be needed to bring about most of the changes.  They are therefore unlikely to take place until 2012.  See also the Consultation on Litigation costs (Jackson Review) - here and the full consultation paper may be seen here.

Addendum 2nd December:  Read "EU to the rescue on legal aid" - Law Society Gazette 2nd December.

No comments:

Post a Comment