A Westminster Hall debate on the spending of the Ministry of Justice on legal aid is scheduled for Thursday 22 October at 3pm. The Member leading the debate is Sir Robert Neill MP.
There have been a number of changes to the justice system in England and Wales in recent years. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed many areas of law from the scope of civil and family legal aid.
Legal aid in the United Kingdom is a devolved issue. In Scotland legal aid is administered through the Scottish Legal Aid Board; further information is available in the SPICe briefing Legal Aid. In Northern Ireland the Legal Services Agency Northern Ireland administers the statutory legal aid scheme.
Legal aid changes: the impact on vulnerable people
Commentary on the impact of the changes to civil and family legal aid in England and Wales made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has, broadly speaking, focused on the effects on individuals who are no longer eligible for legal aid to resolve legal problems, on the courts which must deal with increased numbers of litigants in person (LIPs) and on the legal profession. Whether the reforms will generate the savings that have been claimed has also been a matter of debate.
The effects of the changes to civil and family legal aid and the increased numbers of litigants in person are discussed in the Commons Library briefings civil legal aid changes since 2013: the impact on people seeking help with legal problems and litigants in person: the rise of the self-represented litigant in civil and family cases.
In an exchange in the Commons in May 2011, the then junior minister, Jonathan Djanogly, confirmed that individuals with protected equality characteristics were over-represented within the current client base for civil and family legal aid:
Legal aid per se involves poor people, so if we are going to reduce costs it will impact on poor people. It is true that individuals with protected equality characteristics are over-represented within the current client base of civil and family legal aid when compared with the population as a whole, although the extent of that varies by category of law.
In reply to a PQ in June 2015, junior minister Shailesh Vara said that the Government would ensure that vulnerable people had access to justice:
Whilst making savings to spending on civil legal aid we have made sure funding is available in cases where legal help is most needed. When we enacted the Legal Aid, Sentencing and Punishment of Offenders Act 2012, we specifically protected legal advice and legal representation for eligible persons involved in mental health and capacity proceedings under the Mental Health Act 1983 and the Mental Capacity Act 2005. In addition, certain damages claims brought against public authorities (those involving a significant breach of human rights or the abuse of a position of power) claims arising out of allegations of the abuse of a child or vulnerable adult, or allegations of sexual assault, continue to be funded.
Does exceptional funding provide a safety net for vulnerable people?
For cases that are out of scope, the only potential way to secure legal aid would be through exceptional funding (discussed in the briefing on civil legal aid changes since 2013). In essence, a person seeking help with a legal problem would have to demonstrate that European Convention on Human Rights or EU rights were at stake.
The National Audit Office report in November 2014 on the legal aid reforms observed that use of the exceptional funding route had been lower than the MoJ had planned for. In the report of its inquiry into the impact of the changes to civil legal aid, the Commons Justice Committee considered whether exceptional cases funding had provided enough of a safety net for the vulnerable and concluded that it had not:
The number of exceptional cases funding applications granted has been far below the Ministry of Justice’s estimate. We have heard details of cases where the refusal of exceptional cases funding to vulnerable litigants is surprising on the facts before us. We conclude therefore that the low number of grants together with the details of cases refused exceptional cases funding means the scheme is not acting as a safety net. [page 15]
The exceptional cases funding scheme has not done the job Parliament intended, protecting access to justice for the most vulnerable people in our society. (…) The wrongful refusal of applications for exceptional cases funding may have resulted in miscarriages of justice. [page 20]
Responding to the Justice Committee, the MoJ defended the robust line it takes on exceptional funding, arguing that it should be available only where lack of legal aid would breach rights under the European Convention on Human Rights or EU law. The MoJ did not agree that people who had been refused exceptional funding were at risk of a miscarriage of justice.
Legal aid for people lacking capacity
The eligibility criteria for legal aid for people lacking capacity are generally the same as those for others – something on which the Justice Committee in its report of its inquiry into the impact of the changes to civil legal aid expressed surprise:
It is surprising to us that cases involving adults lacking capacity in which the Official Solicitor is involved do not appear to be differentiated from other cases by the Legal Aid Agency. Such cases, by their very nature, concern some of the most vulnerable people in our society, whose impaired understanding means they are barred by law from conducting litigation without assistance. [page 43]
In response, the MoJ argued that a lack of mental capacity did not necessarily mean an inability to pay:
Generally speaking, people who lack litigation capacity are subject to the same legal aid eligibility requirements as everyone else. It should be recognised that a person may be vulnerable due to their mental capacity but this does not mean that they are also financially vulnerable. A number of exceptions are in place however. For example, individuals seeking legal aid for representation in proceedings before the Court of Protection on certain matters under the Mental Capacity Act 2005 are exempt from the legal aid means test.
More widely, we are taking steps to ensure that vulnerable people are able to participate in court proceedings in the most appropriate way.
Have the reforms had a disproportionate impact on women and families?
In considering direct discrimination, harassment and victimisation, the cumulative equalities impact assessment for the changes to civil legal aid (published by the MoJ to accompany the consultation (green) paper) concluded that there would be no less favourable treatment by reason of relevant protected characteristics. In considering indirect discrimination, though, it concluded that the proposals did have the potential to disproportionately affect (amongst others) women seeking help with legal problems and female barristers.
In the oral and written evidence for the Justice Committee’s earlier report on the proposed reforms, there was some discussion of the reforms’ potential impact on women; see (for example) the evidence from the Family Law Bar Association and the Legal Action Group. Some of the submissions in the volume of additional evidence also mention the reforms’ potential impact on women.
Commons Debate Pack, Access to Justice in Wales, CDP2015/127
Commons Library Briefing, Civil legal aid changes since 2013: the impact on people seeking help with legal problems, SN06645
Commons Library Briefing, Changes to Criminal Legal Aid, SN06628
Commons Library Briefing, Controversy in 2010-11 surrounding the Government’s plans for legal aid reform, SN05840
Commons Library Briefing, Have changes to legal aid in England and Wales since 2013 created more “advice deserts”?, SN06273
Commons Library Briefing, Legal Aid for Victims of Domestic Abuse, SN05839
Commons Library Briefing, Litigants in Person: the rise of the self-represented litigant in civil and family cases, SN07113
Commons Library Briefing, Paying the statutory charge: legal aid in England and Wales, SN06537
Lords Library Note, Future of Legal Aid, LLN-2015-48
Justice Committee, Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, 8th report of the 2014-15 session and the Government Response to this report from July 2015
Equality and Human Rights Commission, Equality, Human Rights and Access to Civil Law Justice: A literature review, 2015
The Bar Council, The Legal Aid, Sentencing and Punishment of Offenders Act 2012: One Year On, (2014)
Criminal Justice Alliance, ‘Structured Mayhem’: Experiences of victims, witnesses and defendants in Crown Courts, (2015)
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