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).

The Bill

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. Continue Reading…