|Rt. Hon. Kenneth Clarke PC QC MP|
In many ways, the Act is a radical rethink and is designed to save some £350m per year on legal aid. The Legal Services Commission will disappear to be replaced by a Director of Legal Aid Casework ('the Director') - a civil servant appointed by the Lord Chancellor. The Act offers the Director some independence but only in respect of individual case decisions. Whether this arrangement will prove to be satisfactory remains open to question. Civil servants are always influenced by the general ethos of the Department to which they are attached.
The Act is a marked improvement on the original Bill since, due to significant pressure from interested parties, the government conceded on a number of important points such as the definition of domestic violence, the need for legal aid for certain appeals, removal of the idea of means testing police station legal advice etc. On this, see the article by John Wotton (President of the Law Society). For anyone who thinks that the return of a Labour government will mark a return to pre-LASPO days (or even better) see the article "Labour would rebalance the justice system."
In civil proceedings, legal aid becomes
limited to what is permitted by Schedule 1 though the Lord Chancellor has been granted power to remove or add matters to the Schedule - (Henry VIII powers). Many areas of law are removed from the scope of civil legal aid.
For criminal legal aid, the Act provides for advice and assistance for individuals held in custody; advice and assistance for criminal proceedings and representation for criminal proceedings.
In relation to both civil and criminal legal aid, a great deal remains to be set out in Regulations and these are likely to be extensive since regulation-making powers are strewn throughout Part 1 of the Act.
Sections 1 to 7 deal with a number of important but preliminary matters (see below). Section 8 to 12 deal with civil legal aid and sections 13 to 20 with criminal legal aid. Sections 21 to 43 address Financial resources; Contributions and Costs; Providers of Services and Supplementary matters. Note that a number of terms are defined in section 42 (Interpretation) and Part 1 binds the Crown (section 43).
Section 1 - The Lord Chancellor's duty and powers: The duty is to ensure the provision of legal aid in accordance with Part 1 of the Act. The term "legal aid" is defined - s.1(2) - as
Section 1 goes further in enabling the Lord Chancellor to secure the provision of - (a) general information about the law and the legal system, and (b) information about the availability of advice about, and assistance in connection with, the law and the legal system.
Section 2 (Arrangements) amplifies the Lord Chancellor's powers by enabling him to make various arrangements for legal aid provision. This is not considered further here. Section 3 deals with Standards of Service and enables the Lord Chancellor to set and monitor standards in relation to services made available under Part 1. Accreditation of those providing or wishing to provide services is dealt with and enables accreditation to be removed where the services provided are "unsatisfactory."
The Director of Legal Aid Casework - Section 4 requires the Lord Chancellor to "designate a civil servant to be the Director of Legal Aid Casework (“the Director”)." The Director must (a) comply with directions given by the Lord Chancellor about the carrying out of the Director’s functions under this Part, and (b) have regard to guidance given by the Lord Chancellor about the carrying out of those functions. Any directions and guidance given under section 4 must be published though it may be revised or withdrawn from time to time.
Section 4(4) is of particular importance given that objection was raised to the Bill in relation to the Director's independence. Under subsection 4, the Lord Chancellor must not give a direction or guidance about the carrying out of those functions in relation to an individual case, and (b) must ensure that the Director acts independently of the Lord Chancellor when applying a direction or guidance under subsection (3) in relation to an individual case. Section 4 needs to be read in connection with section 37 (Status of Director and Lord Chancellor). The appointment of the Director enables the Legal Services Commission to be abolished - section 38.
Section 5, 6 and 7 deal (respectively) with Delegation, Authorisations and the Director's Annual Report. The Director reports to the Lord Chancellor and the latter must lay the report before Parliament and arrange for it to be published. Annual reports will relate to "financial year" (1st April to 31st March).
Section 8 defines Civil Legal Services. The term "legal services" embraces (a) providing advice as to how the law applies in particular circumstances, (b) providing advice and assistance in relation to legal proceedings, (c) providing other advice and assistance in relation to the prevention of disputes about legal rights or duties (“legal disputes”) or the settlement or other resolution of legal disputes, and (d) providing advice and assistance in relation to the enforcement of decisions in legal proceedings or other decisions by which legal disputes are resolved.
These services include, in particular, advice and assistance in the form of - (a) representation, and (b) mediation and other forms of dispute resolution. It is widely known that the present government favours the use of mediation etc. in many areas rather than have people resorting to the courts as a first step.
Section 9 covers General cases and requires legal services be available to an individual under this Part if (a) they are civil legal services described in Part 1 of Schedule 1, and (b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination). Section 9 enables the Lord Chancellor to (a) add services to Part 1 of Schedule 1, or (b) vary or omit services described in that Part. This permits flexibility but, of course, contains the seeds of further cuts to legal aid provision made by the expedient of an Order in Council. Parliament will need to watch this carefully. Section 41 is of importance in the making of Orders. An Order made under section 9 is subject to affirmative resolution procedure.
Schedule 1 is lengthy but here is the nerve centre of the legislation since it is here that the detailed scope of civil legal aid is set down. It is a complex scheme not really assisted by some very cumbersome drafting. The Schedule divides into four parts. Part 1 of the Schedule lists some 46 areas where legal aid might be available but careful reading is necessary since most of the areas are subject to various exceptions. Part 2 of Schedule 1 sets down a list of Excluded Services and Part 3 deals with when Advocacy is covered by civil legal aid. Part 4 deals with Interpretation. See below for the "small print" on Schedule 1.
Section 10 deals with Exceptional Cases. Civil legal services (other than services described in Part 1 of Schedule 1) are to be available to an individual if either of subsections 10(2) or 10(4) are satisfied. Subsection 10(2) requires that Director has (a) has made an exceptional case determination in relation to the individual and the services, and (b) has determined that the individual qualifies for the services in accordance with this Part,(and has not withdrawn either determination). An exceptional case determination is a determination - (a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of (i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or (ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or (b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.
Subsection 10(4) is satisfied where (a) the services consist of advocacy in proceedings at an inquest under the Coroners Act 1988 into the death of a member of the individual’s family, (b) the Director has made a wider public interest determination in relation to the individual and the inquest, and (c) the Director has determined that the individual qualifies for the services in accordance with this Part, (and neither determination has been withdrawn). For the purposes of subsection (4), a wider public interest determination is a determination that, in the particular circumstances of the case, the provision of advocacy under this Part for the individual for the purposes of the inquest is likely to produce significant benefits for a class of person, other than the individual and the members of the individual’s family.
The term "member of the individual's family" is defined in subsection 6.
Section 11 - Qualifying for Civil Legal Aid. The Director must determine whether an individual qualifies under this Part for civil legal services in accordance with (a) section 21 (financial resources) and regulations under that section, and (b) criteria set out in regulations made under this paragraph. The remainder of section 11 deals with factors which the Lord Chancellor must consider when setting criteria for those who qualify for legal aid. Subsection 5 is important - "The criteria must reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings."
Section 12 - Determinations. A determination by the Director that an individual qualifies under this Part for civil legal services must specify - (a) the type of services, and (b) the matters in relation to which the services are to be available. Regulations may make provision about the making and withdrawal of determinations under sections 9 and 10. The regulations must include provision for establishing procedures for the review of determinations under sections 9 and 10 and of the withdrawal of such determinations and Regulations may make provision for appeals to a court, tribunal or other person against such determinations and against the withdrawal of such determinations.
Section 14 - Defines “criminal proceedings” for the purposes of Part 1 of the Act.
(a) any related bail proceedings, and (b) any preliminary or incidental proceedings.
(b) the interests of justice.
In deciding what the interests of justice consist of for the purposes of such a determination, the following factors must be taken into account - (a) whether, if any matter arising in the proceedings is decided against the individual, the individual would be likely to lose his or her liberty or livelihood or to suffer serious damage to his or her reputation, (b) whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law, (c) whether the individual may be unable to understand the proceedings or to state his or her own case, (d) whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual, and (e) whether it is in the interests of another person that the individual be represented. The Lord Chancellor may by order amend the list of factors. (In essence, this list appears to set in statutory form some of the criteria which originally began life - back in 1966 - as the "Widgery criteria". Widgery J reported on Legal Aid in Criminal Proceedings). Amendment of the factors is subject to negative resolution procedure (see s.41).
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Part 1 of Schedule 1 lists areas where legal services might be made available where an individual qualifies. (Remember that financial tests also apply to legal aid qualification). In relation to each of the 46 paragraphs, it is essential to check the detail since there are various exclusions set out for each area of legal aid.