On 9 April 2013 the Ministry of Justice issued a consultation paper entitled ‘Transforming Legal Aid’. The deadline to respond is 4 June 2013.
The consultation paper announces a further round of cuts to legal aid, following closely in the wake of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) which came into force on 1 April 2013.
The proposals, if implemented, will have the effect that many migrants and prisoners will no longer be eligible for legal aid; access to judicial review will be restricted; contracts for criminal work will be the subject of competitive tendering; and fees paid to legal aid solicitors and barristers will be reduced, by more than 50% in some instances.
YLAL is very concerned about the Government’s new plans. These new cuts, coming as they do within weeks of the LASPO changes will further undermine the rule of law. It is politically easy pickings for the Government to target groups like migrants and prisoners. But these people are some of the most vulnerable in our society and the Government’s attempt to restrict their access to justice simply on the basis of their status is complete anathema to the rule of law.
The proposals to tender criminal defence work and slash fees paid to lawyers will make it very difficult, if not impossible for many junior lawyers to continue their crucial work for vulnerable clients. It is very frustrating. Our members are not “fat cat” lawyers – many of them are working for free or for not much more than the minimum wage. If the Government goes ahead with these cuts, it is difficult to see how we can carry on doing this work. Without a supply of dedicated, properly-trained lawyers to provide publicly-funded help, what happens to the clients in need of essential advice? It is deeply worrying.
An outline of the proposals is set out below. YLAL will be responding to the consultation fully in due course. If you would like to be involved in the response please email us at firstname.lastname@example.org indicating your area of interest.
- Reduction of the scope of prison law to cases that engage Articles 5.4 (the right to have ongoing detention reviewed) and 6 (right to a fair trial) of the European Convention on Human Rights, such as Parole Board review hearings, some sentencing matters and adjudication hearings for disciplinary matters. This would exclude legal aid for all treatment matters, including for those prisoners with learning disabilities and/or mental health issues, and would exclude resettlement cases.
- Creation of a residence test for civil legal aid restricting eligibility to those with at least 12 months' continuous “lawful residence”. This would include British nationals and European nationals with the right to reside in the UK who have lived in the UK for a year. However, it would exclude people who may have been in the country for several years possibly with British children without leave to remain and who are waiting for an application for leave to remain to be decided by the Home Office. There would be an exception for those seeking asylum, who would be eligible for legal aid in civil cases whilst their asylum claim was ongoing. However, once they are granted asylum they would then become ineligible for civil legal aid until they had resided “lawfully” for another 12 months. There are no exceptions for domestic violence injunctions, child abduction cases, homeless issues or other important and emergency cases.
- In judicial review cases, legal aid will only be paid for the work carried out if the High Court grants permission for the case to proceed. This means that solicitors (and barristers) will have to decide whether to carry out the work for a homeless family, a person facing removal, a disabled client refused community care services etc, at the risk of not being paid for the substantial work in judicial review cases. Those cases that settle after the claim is issued but before permission is granted will also not be eligible for legal aid even where the client obtains a beneficial result. The consultation paper states that in these cases it would be open for the solicitor to seek a costs order against the opponent. There would be no success fee or uplift for those cases which are successful at the permission stage (which would compensate the lawyers for cases that failed at the permission stage and that would not be paid by legal aid).
- Civil cases will have to have at least a 50% chance of success to be eligible for legal aid representation. Those classed as having a 'borderline' chance of success will no longer be eligible for funding. Currently there are only a limited number of cases where this would apply in any event, such as those involving the loss of the person’s home and asylum work or where the case appears to have a significant wider public interest or is of overwhelming importance to the client;
- Reduction in expert fees in both criminal and civil cases by a further 20% (from the rates set in October 2011).
- Reduction in graduated fees and hourly rates for childcare proceedings by 10%.
- Massive reduction in barristers' hourly fees for civil (non-family) proceedings by around 50%. The consultation paper states that the aim is to “harmonise” fees paid to advocates in civil cases and as solicitor-advocates (if they appear at court) are paid the lower rates then (the Government argues) so should self-employed barristers.
- Removal of a 35% uplift for fees paid for Immigration and Asylum Upper Tribunal appeal cases where the lawyers are at risk of not being paid for their work at all. (The current system is similar to that which is proposed for judicial review above but for the fact that an uplift is currently available is successful cases to compensate for having to do the work “at risk”. The idea is to abolish this uplift.)
In criminal cases:
- Defendants in the Crown Court would not be eligible for legal aid if they had disposable annual household income of £37,500 or more. This would not apply to appeal cases.
- The introduction of competitive tendering for criminal defence work (except for Crown Court advocacy and Very High Cost (Crime) cases). The way in which the Government proposes to run the tendering system would result in clients generally having no choice of which solicitor should represent them (clients would need to telephone a call centre to be allocated a provider); and having to stay with the same provider for the duration of the case. There would be block payment for all police station attendance work per provider per new procurement areas, based on the historical volume in area and the provider's bid price. In the Magistrates' court there would be a fixed fee per provider per procurement area based on the provider's bid price. Any provider bidding for the new contracts would have to offer at least a 17.5% cut in current rates as the tender would have a price cap set at 17.5% of current rates.
- An aim to reduce fees for Crown Court advocacy and very high cost cases (VHCCs) (both litigation and advocacy), which are not included in the proposals for competition. This includes a reduction to all VHCC rates of 30%.
- A proposal to restructure the current Advocacy Graduated Fees Scheme to encourage earlier resolution and through a harmonisation of guilty plea, cracked trial and basic trial fee rates to the cracked trial rate.
- Reduction in the number of advocates used in cases and a requirement for litigators to provide “adequate support” to counsel in the Crown Court.
What can you do to help stop the cuts?
Learn more about the Government's plans
A number of meetings are being held to discuss the different aspects of the cuts:
1. In relation to the criminal law proposals, there will be a meeting on Wednesday 22 May from 1.30-5pm (not Friday 17 May as stated in our March minutes) in central London to discuss the Government’s proposals for criminal legal aid. Tickets to attend are £10 (to cover an administrative fee). More details here.
2. The Constitutional and Administrative Law Bar Association (ALBA) has called a meeting to discuss the judicial review proposals. It will take place in central London on 23 April at 5.15pm. Places are restricted. More details here.
3. Representative bodies and Non-Governmental Organisations working with migrants will be meeting in central London on Monday 29 April in the evening to discuss the proposed “residence test”. Please email email@example.com to confirm your attendance.
The Ministry of Justice will also be holding meetings to discuss the proposals. Find a meeting close to you here.
Show your support
There are a number of different petitions that you can sign to show your support for the campaign against the cuts:
Respond to the consultation
We are encouraging all members to respond to the consultation individually. Please also ask your firms, chambers or organisations you work for to respond as well.
Spread the word
Tell your family, friends, neighbours, MP, and everyone in the pub about what the Government intends to do to the legal aid system and why it is important to stop the cuts.
Keep an eye out on our campaign website www.savelegalaid.co.uk for future actions.