All change: MoJ reconsiders legal aid proposals

On 5 September 2013, the Ministry of Justice announced its own response to the 16,000 responses to the public consultation on proposals to ‘transform’ legal aid, which had closed on 4 June 2013.  The response confirms the government will not now proceed with several of its original plans, and makes a significant number of other key concessions. It also introduces further consultations on criminal legal aid and judicial review.

Criminal legal aid

Plans to award contracts for provision of criminal legal aid based on price alone have been abandoned, in response to concerns that this would have a negative impact on quality of provision and would significantly reduce the number of providers. The government had also previously confirmed that it would not proceed with its plans to deny defendants a choice of legal aid defence lawyer. It still intends to impose a financial eligibility threshold for Crown Court trials.

The government has issued a further consultation with alternatives it believes will reduce the criminal legal aid budget. The deadline for responses is 18 October 2013. Under the new proposals, firms with a legal aid contract would be able to represent an unlimited number of ‘own’ clients, instructed outside of the police station and court duty schemes. Firms would need to bid for a share of the ‘duty’ rota work in their geographical area, with new contracts beginning in Spring 2015. A phased reduction in fees of 8.75% in early 2014 followed by a further reduction of 8.75% (of current rates) in Spring 2015 is also proposed, along with two alternative proposals for criminal advocacy fees.

The ‘Residence Test’ for non-criminal legal aid

The government intends to proceed with its plan to impose a ‘residence test’ for non-criminal legal aid eligibility. Only those living lawfully in the UK and who have done so for at least a year, now or at any time in the past, will qualify.

Some important exceptions were announced in the recent response to the consultation. It was already confirmed in the consultation paper that legal aid would remain available (for all non-criminal matters) for those pursing an initial asylum claim. The new concessions mean that legal aid will now remain available for those in immigration detention or held under the Mental Health Act 1983 seeking to secure their release, for failed asylum-seekers wishing to make a further (‘fresh’) asylum claim, for victims of trafficking, victims of domestic violence and forced marriage, for cases involving the protection of children, and for appeals heard by the Special Immigration Appeals Commission. Children under the age of twelve months who can prove they are lawfully in the UK will not need to clock up a year’s lawful residence before they are eligible. The period of residence for asylum-seekers who are granted refugee status will be ‘back-dated’ to the date they first claimed asylum. A break of up to thirty days in lawful residence in the twelve-month period would be allowed.

The government will confirm what evidence will be required to show that an individual meets the residence test in secondary legislation and guidance, once issued, to take effect in early 2014.

These concessions are welcome, but fail to recognise not only that a residence test will prevent many vulnerable people from challenging decisions to make them homeless; to refuse them community care support; to refuse to accept them as a child and support them as such; to refuse to accept them as a victim of trafficking (since the exception only applies once an individual has been recognised as such), and others. The plans also fail to reflect that many vulnerable British individuals – and those lawfully resident here – may be unable to prove that they meet the residence test. Read more about this here.

Judicial Review

The government intends to proceed with plans to remove legal aid for cases whose merits are initially assessed as borderline, and to proceed with cuts to fees in civil cases, with the small exception of fees for London-based interpreters.

A further consultation on proposals for changes to Judicial Review was issued on 6 September 2013.

The government intends to proceed with its plans that lawyers will not be paid for Judicial Review work until and unless the case proceeds beyond the initial stage and are granted permission to continue. In recognition of the fact that many cases settle before reaching this permission decision – often because the government body challenged accepts it has made a mistake and agrees to put it right – the government proposes to allow the Legal Aid Agency to pay these initial costs on a discretionary basis, as long as the lawyer has attempted to obtain the costs of the litigation from the government body concerned and that the case can be considered to have been worth running.

Other proposals outlined in the new consultation include:

  • Establishing a specialist tribunal to deal with challenges to government planning decisions, rather than processing such cases through Judicial Review in the High Court;
  • Preventing local authorities from bringing legal challenges to government decisions  on national infrastructure projects;
  • Removing legal aid for Judicial Review of planning decisions where an individual is at immediate risk of losing their home (legal aid remains unavailable for      challenges to other planning decisions);
  • Preventing campaigning groups from bringing legal challenges to government decisions (with the exception of environmental groups) and limiting the potential for interested expert groups from acting as ‘interveners’ in the course of proceedings;
  • Attempts to speed up challenges to government decisions made without complying with its duties to first consult those affected by its decisions. The government proposes two alternatives for this: (i) an assessment at an early stage of whether the decision would have been made differently had it complied with these duties; or (ii) provisions for Judges to dismiss cases at an early stage where it is ‘reasonably clear’ that the decision would not have been made differently had the government complied with its duties;
  • Removing from Judicial Review challenges to decisions made by a government body without adequately considering the extent to which its decisions will discriminate      against minority groups, including disabled people and minority ethnic groups;
  • Provision for wasted costs orders to be brought against individual lawyers in a      wider range of situations than is currently allowed, for example against lawyers who bring Judicial Review cases which are later found to be without merit.
  • Allowing the court wider powers to limit the amount of costs a Judicial Review claimant will be able to seek from a defendant if the claim succeeds.
  • Making third parties who wish to intervene in litigation (to provide an expert      opinion, for example) liable for their own costs, including their own legal costs.
  • Widening the type of appeals which can bypass the Court of Appeal to be heard      directly in the Supreme Court, to include cases ‘of national importance or which raise significant issues’. This could include, for example, the deportation of an individual considered to be a national security risk (such as Abu Qatada) and nationally important infrastructure projects (such as HS2).

The deadline for responses to the Judicial Review consultation is 1 November 2013.

Prison law

The government intends to proceed with its plans to remove most aspects of prison law from eligibility for legal aid. Funding will remain for proceedings before a Parole Board where the board has the power to direct release; and for matters where the dates of sentence calculation and release dates are disputed. Prison law contracts will not now be solely awarded to firms with a criminal defence legal aid contract.

The Howard League for Prison Reform outlines here, the devastating impact these proposals are likely to have on children and young people in the criminal justice system.

What’s next?

The Joint Commission on Human Rights has called for written evidence of the likely human rights implications of the legal aid proposals, and the deadline for this is fast approaching, on 27 September 2013. Read the inquiry and submit your evidence here.

The further consultation on criminal legal aid closes on 18 October 2013 and the consultation on Judicial Review closes on 1 November 2013.

In the meantime, let’s keep up the pressure. See our What Can I Do? page for actions to take now to raise awareness of the government’s proposals.

Read more…

… on the new proposals here (The Guardian), here (Sunday Mirror),  here (Liberty), here (Legal Aid Handbook) and here (Open Democracy).

…on civil legal aid here (Legal Action Group).

…on Judicial Review here (UK Human Rights Blog) and here (Euro Rights Blog).

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3 thoughts on “All change: MoJ reconsiders legal aid proposals

  1. This is a really helpful summary, thanks. But – much as I hate to defend them – it looks to me like the proposed exceptions to the residence test would, in fact, cover people detained under the Mental Health Act: the consultation response talks about an exception for ‘detention cases’ which would include those covered by Paragraph 5 of LASPO Schedule 1, and Paragraph 5 covers ‘civil legal services provided in relation to matters arising under the Mental Health Act 1983’, amongst other things.

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