Nearly Legal has provided an excellent summary of the legal aid reforms in respect of housing and other areas of law: Ask not for whom the bill tolls. Due to other commitments I have not been able to put together a full analysis of the Bill insofar as is relates to family law. That will follow, but here is a summary of the position (largely borrowed from someone else I’m afraid).
Headlines: The confirmation of the removal of large numbers of private law cases from scope of legal aid, and of the reduction of family fees by 10% (on top of the FAS cuts implemented in May).
Part 1 of the Bill itself is dedicated to Legal Aid (Clauses 1-40). The Bill contains provisions to abolish the LSC and transfer the day-to-day administration of legal aid to the Lord Chancellor. In practice, this will be done by civil servants in an executive agency of the Ministry of Justice. However, decisions on legal aid in individual cases will be taken by a statutory office holder: a civil servant designated by the Lord Chancellor as the Director of Legal Aid Casework. The Lord Chancellor will have no power to direct or issue guidance to the Director in relation to individual cases
There are empowering sections for the Lord Chancellor on legal aid issues, there is some provision about funding legal services and eligibility for legal aid (Clause 20). By Clause 36 the Legal Services Commission is abolished.
Clause 9 is an important provision for the payment of legal aid for ‘exceptional cases’ (i.e. where failure to do so would be a breach of the individual’s Convention rights within the meaning of the Human Rights Act 1998). It is clear from the tenor of the response paper that the Government anticipate that this will be a narrow category, albeit with some initial boundary testing via JR.
In Part 2 of the Bill there is provision (Clause 45) for a new section 22ZA of the MCA 1973 for the payment of a sum to enable the other party to obtain legal services in proceedings for divorce, nullity of marriage or judicial separation. Clause 22ZB sets out the matters to which the court should have regard in a legal services order.
Schedule 1 sets out the categories of cases in and out of scope. Schedule 1 is structured in a rather confusing way with a set of “excluded services” and other “exceptions and exclusions” some of which then don’t apply in certain instances. I suggest you tackle it in print rather than on screen.
The response contains a narrative of the contents of the Bill, and sets out the Legal Aid Reform Programme.
There is a very poor assessment of the impact of litigants in person in the courts. There is a summary of the findings of a literature review in the main response thus (para.138) “Overall the review found that the evidence available on litigants-in-person tends to suggest a mixed impact in length of proceedings. This was affected by case type and how active the litigants were. It was suggested that cases took longer when the unrepresented litigant was active but could take less time when the litigant was inactive.” See also para 68 – 69:
“68. However the Government does accept, even if there is no conclusive evidence of this, the likelihood of an increase in volume of litigants-in-person, and potentially some worse outcomes for them materialising. But it is not the case that everyone is entitled to taxpayer funded legal representation for any dispute or to a particular outcome in litigation. Our new exceptional funding scheme will mean that no one will be deprived of their fundamental rights of access to justice. Taxpayer funded representation has had to be targeted on priority areas.
69. Litigants-in-personareafeatureofthecurrentjusticesystem.Some people choose not to be legally represented because they consider it unnecessary or that they can do a better job themselves, and others, who may fail to qualify for legal aid on either means or merits grounds, may feel that they are unable or unwilling to pay for representation.”
“74 …further examination of the system to support litigants-in-person is required and we intend to review this issue.”
But not before they implement the cuts it seems.
Even though the majority of responses to the Green Paper were “overwhelmingly” against the removal of private law cases from scope, the proposal to exclude large numbers of private law cases from the scope of legal aid has been confirmed. However, some of the exceptions have been expanded.
Domestic violence: The Government maintains that it accepts that, to ensure that victims of domestic violence are protected, the criteria for the domestic violence exception originally proposed in the consultation needed to be widened, whilst maintaining the requirement for objective evidence of domestic violence. It therefore decided to accept some additional circumstances as evidence of domestic violence, so that the criteria should target legal aid to genuine cases without providing an incentive for unfounded allegations of domestic violence. Legal aid will be now available, for example, where there has been a referral to a Multi-Agency Risk Assessment Conference in the past 12 months, as well as where a protective injunction or other order has been put in place in the past 12 months.
The Government accepts that legal aid should be routinely available in cases where a child is at risk of abuse, provided that there is objective evidence of the risk of abuse. The Government has therefore decided to extend the approach to the criteria for the domestic violence exception in private law family cases to provide legal aid for the party seeking to protect the child in cases.
I need to look at this properly but my understanding of the position from the response paper is that in order to obtain a grant of legal aid the applicant for funding must produce objective evidence either be criminal proceedings, MARAC OR civil findings of fact (or in the case of children a CP Plan). If this is right it rather defeats the object of having funding, which will in many cases be in order to run a fact finding exercise. As I say that is something I need to check. Views welcome in comments.
- Legal aid for mediation will be expanded (slightly).
- The interim lump sum provision will be brought in for ancillary relief cases (see above); however
… the Government has not been persuaded that legal aid should be available for advice and/or representation to apply for an interim lump sum costs order or for enforcement proceedings (see para.119)
- The exceptional funding regime will be in place to provide legal aid where the failure to do so would be likely to result in a breach of the individual’s rights to legal aid under the Human Rights Act 1998 or European Union law.
- On the subject of fees… it is to be noted that “there was strong opposition to the proposals”; it is further accepted that “there is a risk that the fee reductions could lead to a reduction in the availability of solicitors and barristers prepared to undertake legally aided work” (para.233)… (para.234) however, “… we intend to implement the reduction of 10% to all fees paid under the civil and family legal aid scheme as set out in the consultation”
- The proposals for QCs remains as proposed in the Green Paper: “A QC is a specialised resource. The Government takes the view that they should only be used in novel, complex or exceptional cases which require that level of skill” (para.245).
- Expert fees: “The Government notes concerns about the level of fees paid to expert witnesses. However, given the need to make substantial savings to legal aid, it remains the Government’s view that fees paid to experts should be subject to the same constraints as those paid to lawyers”. (para.259)
More in due course.