The Government has laid new regulations under the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012, which will be debated in the House of Commons on 29 November and in the House of Lords on 3 December 2012. The Regulations introduce the new merits criteria (which will replace the current funding code) and also amend Schedule 1 of LASPO to deal with the provision of legal aid for welfare benefits work.
We are very concerned in particular about two key issues.
In relation to judicial review there is a very specific concern about regulation 53(b) of the draft Civil Legal Services (Merits Criteria) Regulations (these regulations will replace the current LSC Funding Code and were laid before Parliament on 29 October). Regulation 53(b) provides that legal aid will not be granted unless “the individual has exhausted all administrative appeals and other alternative procedures before bringing a public law claim.” This contrasts with the equivalent current wording which is to the effect that the individual must exhaust all reasonable alternatives to JR before funding is granted. Clearly in some cases JR is the only practical remedy and it will not be possible to exhaust all remedies. Legal aid should certainly be provided in these instances.
Members will remember that during LASPO's passage through Parliament Ken Clarke (Secretary of State at the time) confirmed that legal aid would remain available for appeals in the first-tier tribunal that raised "points of law". The regulations as currently drafted do not reflect that assurance. It now appears that legal aid will only be available when the first tier tribunal:
(a) Quashes its own decision on the basis that it has made an error of law or
(b) Invites representations regarding the legality of its decision from a person before deciding whether it has made an error of law.
The number of cases where this situation will arise is negligible. Indeed the regulation is so restrictive that in practice very few if any cases will meet the criteria for legally aided advice. This is because the firstier tribunal rarely quashes its own decision on the basis that it has erred in law without an appeal first being submitted. No legal aid will be available for advising a person or drafting the appeal, and therefore this situation is unlikely to arise in practice. Therefore we are very concerned that the Government has reneged on its promise to provide legal aid to people in urgent need of legal assistance.
What you can do
Together with the Legal Aid Practitioners Group, we have produced a briefing for members to send to their MPs and any peers they are in contact with to ask them to attend the debates in Parliament to raise your concerns. You can download the briefing below and you can find out the details of your MP here. If you would like to help us target peers please email us firstname.lastname@example.org