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Legal Aid in England and Wales Proposals for the Reform of Legal Aid in England and Wales Consultation Paper CP12/10 November 2010 Cm 7967 £26.75 Proposals for the Reform of Legal Aid in England and Wales Presented to Parliament by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty November 2010 Cm 7967 £26.75 © Crown copyright 2010 You may re-use this information (not including logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/ or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or e-mail: [email protected] Where we have identified any third party copyright material you will need to obtain permission from the copyright holders concerned. Any enquiries regarding this publication should be sent to us at [email protected] This publication is available for download at www.official-documents.gov.uk and on our website at www.justice.gov.uk ISBN: 9780101796729 Printed in the UK by The Stationery Office Limited on behalf of the Controller of Her Majesty’s Stationery Office ID P002398535 11/10 Printed on paper containing 75% recycled fibre content minimum. About this consultation To: This consultation is aimed at providers of publicly funded legal services and others with an interest in the justice system. Duration: From 15 November 2010 to 14 February 2011 Enquiries (including Annette Cowell requests for the paper in Legal Aid Reform an alternative format) to: Ministry of Justice 102 Petty France London SW1H 9AJ Tel: 020 3334 3555 Fax: 020 3334 4295 Email: [email protected] How to respond: Please respond online by 12:00 noon on 14 February 2011 at: http://survey.euro.confirmit.com/wix/p485462495.aspx Alternatively please send your response to Annette by 12:00 noon on 14 February 2011 to: email: [email protected] or by post to: Annette Cowell Legal Aid Reform Ministry of Justice 102 Petty France London SW1H 9AJ Welsh language version: A Welsh language version of the Executive Summary of this consultation paper is available at www.justice.gov.uk Response paper: A response to this consultation exercise is due to be published by Spring 2011 at: www.justice.gov.uk Proposals for the Reform of Legal Aid in England and Wales Contents Ministerial Foreword 3 1 Executive Summary 5 2 Introduction 15 3 Background 22 4 Scope 31 5 Financial Eligibility 85 6 Legal Aid Remuneration: Criminal Fees 101 7 Legal Aid Remuneration: Civil and Family Fees 116 8 Expert Fees: Civil, Family and Criminal Proceedings 124 9 Alternative Sources of Funding 129 10 Governance and Administration 138 11 Impact assessments 143 12 Next Steps 144 About you 145 Contact details/How to respond 146 The consultation criteria 147 Annex A: Glossary 149 Annex B: Means Testing in Criminal Cases 156 Annex C: Means Testing in Civil and Family Cases 159 Annex D: Legal Aid Remuneration in Criminal Cases 161 Annex E: Summary of Consultations on Legal Aid between 2006 and 2009 166 Annex F: Summary of Proposals for Reform of the Scope of Civil and Family Legal Aid 170 Annex G: Summary of Proposed New Criminal Fees 195 Annex H: Legal Services Commission Guidance on Expert Fees in Civil Cases 203 Annex I: Legal Services Commission Guidance on Expert Fees in Criminal Cases 205 Annex J: Possible Structure for Expert Fees 208 Annex K: Data Tables 214 1 Proposals for the Reform of Legal Aid in England and Wales 2 Proposals for the Reform of Legal Aid in England and Wales Ministerial Foreword The modern legal aid scheme was established in 1949 with a laudable aim: to provide equality of access and the right to representation before the law. However, the scope of legal matters covered was very tightly drawn. The current scheme bears very little resemblance to the one that was introduced in 1949. It has expanded, so much so that it is now one of the most expensive in the world, available for a very wide range of issues, including some which should not require any legal expertise to resolve. I believe that this has encouraged people to bring their problems before the courts too readily, even sometimes when the courts are not well placed to provide the best solutions. This has led to the availability of taxpayer funding for unnecessary litigation. There is a compelling case for going back to first principles in reforming legal aid. There have been many attempts to reform the system by previous administrations. Since 2006, there have been over thirty separate consultation exercises on legal aid. Although successive changes have managed to contain the growth in overall spending, they have not addressed the underlying problems facing the scheme. With some justification, lawyers have complained that they cannot reasonably be expected to manage their practices against a background of almost constant change. To continue like this is unsustainable, and I want to use these lessons as an opportunity for fundamental reform of the scheme. I want to discourage people from resorting to lawyers whenever they face a problem, and instead encourage them, wherever it is sensible to do so, to consider alternative methods of dispute resolution which may be more effective and suitable. I want to reserve taxpayer funding of legal advice and representation for serious issues which have sufficient priority to justify the use of public funds, subject to people’s means and the merits of the case. Legal aid must also play its part in fulfilling the Government’s commitment to reducing the fiscal deficit and returning this country’s economy to stability and growth. The proposals on which I am consulting are therefore designed with the additional aim of achieving substantial savings. It is an approach which demands that we make tough choices to ensure access to public funding in those cases that really require it, the protection of the most vulnerable in our society and the efficient performance of our justice system. My legal aid reform proposals complement the wider programme of reform which I will be bringing forward to move towards a simpler justice system: one which is more responsive to public needs, which allows people to resolve their issues out of court using simpler, more informal, remedies where they are appropriate, and which encourages more efficient resolution of contested cases where necessary. But these legal aid proposals are not dependent on the implementation of those wider reforms. 3 Proposals for the Reform of Legal Aid in England and Wales Today, I am also publishing a consultation on implementing recommendations on civil funding and costs arrangements set out in Lord Justice Jackson’s Review of the Costs of Civil Litigation. I intend to consult on reforms of sentencing, as well as other proposals designed to deliver an improvement in the way we seek to punish offenders while reducing their propensity to re-offend. Next year I am expecting to receive final recommendations for reforming family proceedings, which are being developed under the independent chairmanship of David Norgrove. And early next year, I also intend to set out my proposals for simplifying and reforming the procedures used in the civil courts, making greater use of mediation to deliver the services clients want in a way that suits their needs. In the meantime, I have been working with the Home Secretary and the Attorney General on ways in which we can transform procedures in the criminal justice system. We will be announcing details in due course. I would welcome your views on the proposals in this paper. We will need to consider responses within the overall fiscal context. However, I am sure that they will provide a helpful contribution to the development of a fair, balanced and sustainable legal aid scheme for the future. Kenneth Clarke Lord Chancellor and Secretary of State for Justice 4 Proposals for the Reform of Legal Aid in England and Wales 1 Executive Summary 1.1 We said in our document The Coalition: our programme for government published in May 2010, that we would undertake a review of legal aid in England and Wales. 1.2 The Government strongly believes that access to justice is a hallmark of a civil society. The proposals set out in this consultation paper represent a radical, wide-ranging and ambitious programme of reform which aims to ensure that legal aid is targeted to those who need it most, for the most serious cases in which legal advice or representation is justified. 1.3 Against a backdrop of considerable financial pressure on the Legal Aid Fund, the proposals set out in this paper have been developed with the aim of providing a substantial contribution to the Ministry of Justice’s target of a real reduction of 23% in its budget, worth nearly £2bn in 2014–15.1 Sound finances are critical to the delivery of the Government’s ambitions for public services: reducing the burden of debt by reducing public spending is essential to economic recovery. 1.4 Decisions on how the Ministry of Justice will allocate its resources over the next spending round have not yet been made and they will, in any event, need to be reviewed in the light of actual expenditure and emerging pressures. Nevertheless, we estimate that the proposals set out in this consultation would, if implemented, deliver savings of some £350 million in 2014–152 from legal aid. This is an estimate and the final package of proposals that we decide to implement following consultation might in the event achieve more or less.
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