Legal aid

This Commons Library briefing paper provides an overview of the post-implementation review of the changes made to legal aid in England and Wales by Part 1 of LASPO. Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), along with its secondary legislation, made significant changes to the provision of in England and Wales.

Changes to the scope of civil and family legal aid

• LASPO changed the scope of civil and family legal aid.
• Whereas previously a legal matter was within scope and qualified for legal aid funding unless it was specifically excluded by the Accessto Justice Act 1999, LASPO reversed this position and listed in Schedule 1 those areas of legal problems that now remained in scope.
• The Coalition Government said its goal was to refocus the scope of legal aid on those who need it most.
• With legal aid available in fewer areas of law, the volumes of publicly funded cases dropped, and expenditure fell by approximately 90m in civil cases and 160m in family cases.

Changes to the eligibility criteria for civil and family legal aid

• Regulations under LASPO made four changes to the eligibility criteria for civil and family legal aid:
  • Applying capital eligibility test to all legal aid applicants;
  • Increasing Income Contributions for Contributory Clients;
  • Capping the subject matter of dispute (SMOD) disregard at £100,000;
  • Removing legal aid in cases with ‘borderline’ prospects of success.
  • The review found the changes to eligibility contributed to savings in the cost of the scheme.
  • These were largely down to the application of the capital means test to all applicants for legal aid, which saved an estimated 9m per annum.
  • During the evidence gathering phase of the review the MoJ was told that the changes have prevented people from accessing legal aid because of difficulties in obtaining the relevant financial evidence to support their applications.
  • In response the MoJ announced it would conduct a further review into the thresholds for legal aid entitlement.

Fee changes in civil and family legal aid

• The Coalition Government saw fees as an area for reducing the overall spend on legal aid.
• Young Legal Aid Lawyers reported that low remuneration, combined with high levels of tuition fee debt, was a barrier to entry to the profession.
• In response the Government argued that the reduction in the number of legal aid providers (a drop of 32%, varying between the differing areas of civil law) is a consequence of the reduction in the total expenditure on civil legal aid work (25% since 2012-13).
• It argued that the average income per civil legal aid provider has increased by 11%.

Changes to criminal legal aid

• LASPO made a number of changes to criminal legal aid, principally concerning the fees paid to solicitors and barristers, but also some changes to eligibility criteria and the provision of legal aid to prisoners.
• During the evidence gathering phase the Bar Council and Law Society told the review that the remuneration changes in criminal law had cumulatively impacted on the sustainability of the criminal legal aid market.
• In response the review pointed out that the Government had acknowledged that, for certain matters concerning prison law, prisoners should be supported through legal aid and had made the necessary changes to expand scope.
• However it also stated that it believed the time is right for a further, more holistic review of criminal legal aid fee schemes.

Changes to experts’ fees

• Regulations under LASPO (and the Access to Justice Act1999 beforehand) also reformed the fees paid to experts in civil, family and criminal proceedings.
• The review heard evidence that the new rates of remuneration have made it difficult for lawyers to persuade experts to provide evidence in proceedings funded by legal aid.
• The MoJ asserted that expert fees must represent value for money, but pointed out that there are processes are in place to allow for higher rates in exceptional circumstances.

The creation of the Legal Aid Agency

• LASPO also replaced the Legal Services Commission (LSC) with the Legal Aid Agency (LAA).
• Some respondents to the review expressed concern that the position of the Director of Legal Aid Casework is far too close to ministers in terms of decision making.
• The MoJ replied that changes made under LASPO were made to ensure independence and avoid political interference.

Reaction to the review

• Reaction to the review was mixed.
• Whilst the Bar Council called the review a wasted opportunity, the Law Society greeted the PIR as a shift in the right direction and Young Legal Aid Lawyers expressed the hope that it would make a turning point in the Governments policy on legal aid.
• The Justice Committee, meanwhile, warned that the numerous proposals for further reviews and research risked being seen as kicking the can down the road.