Trying To End Things

I’ve had two very different articles published today, both about attempts to end things:

Those responsible for the latter could do to take a leaf out of the former: draconian powers, not to be used summarily…sadly we read today that the Government is planning to fast track the Legal Aid, Sentencing and Punishment of Offenders Bill – second reading on Weds next week. That is really, really shoddy: politics at its worst.

Summary of Legal Aid Reforms to Family Law

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.

The Response

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.”

and 74:

“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.

Other points:

  • 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.

Ministerial Statement on Legal Aid



Proposals for the reform of punishment, rehabilitation, sentencing and legal aid

The Lord Chancellor and Secretary of State for Justice (Kenneth Clarke QC):

Today I will lay before Parliament the Government’s responses to two important consultations on the future of the justice system – Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders, which was launched on 7th December 2010 and Proposals for the Reform of Legal Aid in England and Wales, which was launched on 15th November 2010. I am also introducing the Legal Aid, Sentencing and Punishment of Offenders Bill to give effect to those measures requiring primary legislation. I will be making an oral statement this afternoon.

Protecting the public from crime, ensuring those who break the law face the consequences, and providing swift, cost-effective and fair access to justice are fundamental responsibilities of the state towards its citizens. Yet the last 13 years of government have left a justice system in urgent need of reform.

In the area of criminal justice, a tidal wave of criminal justice legislation has left the system in crisis: neither punishing offenders properly for the crimes they have committed, nor giving adequate protection to the law-abiding public.

In civil justice, we have a system burdened by spiralling costs, slow court procedures, unnecessary litigation, and too limited an awareness of alternatives to court – all of which add to a fear of a compensation culture. In particular, our current system of legal aid too often encourages people to bring their problems before the courts, even when they are not the right place to provide good solutions and sometimes for litigation that people paying out of their own pocket would not have pursued.

The package of reforms I am bringing forward today aims to reform radically our justice system to focus it on fundamental priorities.

Punishment, rehabilitation and sentencing of offenders

Within a year of leaving jail, half of prisoners (49%) are reconvicted of further crimes, creating new victims and harm to society. Whilst they are behind bars prisoners face hours of enforced idleness, free from the discipline of hard work. Underpinning these problems are widespread drug and alcohol abuse, and poor mental health. The previous government’s responses have left a dysfunctional cycle of persistent crime, inadequate punishment and failed rehabilitation. Over twenty Criminal Justice Bills in thirteen years created an unworkable sentencing framework and a statute book littered with overprescriptive law that undermined the expertise of professionals.

The consultation set out wide-ranging plans to deliver tougher punishment, to introduce a rehabilitation revolution to prevent offenders committing further crime, and to ensure that the sentencing framework is sensible and workable. The Government has listened carefully to the points raised in more than 1200 submissions and is seeking to take forward measures under five themes, including:

· Creating a working week in prison of up to 40 hours instead of enforced idleness.
· Introducing tougher, properly enforced community punishments. This includes: allowing courts to impose longer curfews; enabling courts to ban overseas travel; and properly enforced financial penalties, including seizing assets from those who do not pay.
· Introducing a mandatory custodial sentence for knife possession in aggravated circumstances.

· Creating more ways in which offenders make reparation. We will begin by implementing the Prisoners’ Earnings Act 1996 and legislating to extend our powers to deduct and use money earned by prisoners to support victims; and
· Overhauling unpaid work obligations so that offenders work longer hours, carrying out purposeful, unpaid activity that benefits their local community;

· Getting more offenders off drugs and alcohol for good, by piloting an initial five drug recovery wings and by cracking down on the use of illicit drugs in prison. The MOJ will also work closely with the Department of Health to tackle inappropriate use of prison to house low risk individuals with mental illness.
· Extending the use of payment by results to cut reoffending, with services delivered by the voluntary, independent and public sectors. Already, at HMP Doncaster the provider, Serco, will pay back 10% of the contract price unless they reduce reoffending by 5% points from current levels. In July six new pilots will begin in areas including Greater Manchester and London.

· Opening up justice so that the public has a clearer view of how the system is working for them.
· Creating a more proportionate justice system, focusing resources where they will be most effective, including creating a clear national framework for the use of out?of-court disposals, reforming the use of remand, and reducing the number of Foreign National Offenders. We will also conduct an urgent review of the indeterminate sentence of Imprisonment for Public Protection with a view to replacing the current IPP regime with a much tougher determinate sentencing framework.
· Clarifying the law on self defence.

Alongside these measures, there should be no misunderstanding about things the Government has never proposed and is not doing. Contrary to some reports, the Government has never proposed targets to reduce the number of prison places, abolish short sentences or the mandatory life sentence.

What all the proposals we are taking forward amount to is a clear break by the Government from the mistakes of the past. By implementing this bold but realistic package of reforms, we are seeking to deliver a system which effectively punishes the guilty whilst substantially improving the national scandal of our reoffending rates. They should also reduce costs and improve delivery. This is a new, more intelligent course for the Criminal Justice System and one that we anticipate will make a tangible difference to addressing crime and helping victims in England and Wales.

Reform of legal aid

We are also committed to overhauling our system of civil justice, including through an independent review of family justice, wider access to alternatives to court, measures to streamline civil justice, a criminal justice system efficiency programme and improvements to the ‘no-win, no fee’ conditional fee regime. The overall aim is a fundamental shift in the justice system towards greater effectiveness and efficiency – and a move away from the sorry situation in which the average citizen dreads recourse to the law.

Legal aid reform is a crucial element of this wide-ranging agenda. The current system of support too often encourages people to bring their problems before courts. In addition, legal aid has expanded into areas far beyond its original scope. It is now among the most expensive systems in the world, second only to Northern Ireland, costing over £2 billion a year, or £39 per head of population compared with £8 per head in New Zealand, a country with a broadly similar legal system, and as low as £5 per head in some EU countries. In the current fiscal climate, this is simply unsustainable.

The proposals in the consultation set out to address these problems by: ensuring access to public funding in those cases that most require it; encouraging early resolution of disputes instead of unnecessary conflict; and improving affordability and value for money for the taxpayer.

Our plans attracted more than 5,000 submissions. Following careful consideration, today’s response makes some significant changes in matters of detail, but seeks to take forward the substance of most of the reforms published in November, including:

· Retaining routine availability of legal aid for cases where people’s life or liberty is at stake, where they are at risk of serious physical harm, or immediate loss of their home, or where their children may be taken into care. Following consultation, we are strengthening specific provisions to ensure availability in private family cases for victims of domestic violence, for children at risk of abuse or abduction and for Special Educational Needs cases.
· Pressing ahead with introducing a more targeted civil and family scheme. Prioritising critical areas means making clear choices about availability elsewhere. Legal aid will no longer routinely be available for most private family law cases, clinical negligence, employment, immigration, some debt and housing issues, some education cases, and welfare benefits.

People will instead use alternative, less adversarial means of resolving their problems (notably, in divorce cases, where the taxpayer will still fund mediation). Fundamental rights to access to justice will be protected through retention of certain areas of law within scope and a new exceptional funding scheme for excluded cases.

In sum, the Government intends to implement the substance of the legal aid reform package, refined in specific places. This constitutes an extensive set of very bold reforms, the overall effect of which should be to achieve significant savings whilst protecting fundamental rights of access to justice.