Controversy in 2010-11 surrounding the Government’s plans for legal aid reform

The legal aid scheme is, in essence, the same as it was when founded in 1948; it is not a system of direct provision by the state but, rather, one in which the government funds private practitioners to provide the service.  Nonetheless, since its inception, numerous changes have been made to the way in which the scheme is organised and managed.  The Labour government, for example, oversaw more than 30 reviews and consultations on the subject of legal aid. 

Soon after coming into office, the then Lord Chancellor and Secretary of State for Justice, Kenneth Clarke, gave a speech in which he argued that expenditure on legal aid in England and Wales was excessive compared to that in other countries, that the taxpayer was funding cases which ought either to be funded by the person bringing the case or dealt with outside the courts and that significant reform was needed. 

A green paper on legal aid reform was published on 15 November 2010.  In determining which categories of case should retain funding, the Ministry of Justice considered where issues sit on what it termed a “spectrum of objective importance”.  Other factors which the Ministry of Justice considered in drawing up its proposals included the litigant’s ability to present their own case and the availability of alternative sources of funding and of other routes to resolution.

The green paper’s proposals were wide-ranging.  For all legal aid, fees paid to practitioners would be reduced.  The financial eligibility criteria for civil legal aid would become more restrictive, but perhaps the most controversial aspect of the green paper was the proposal to take some categories of case out of scope for legal aid funding.  Amongst the categories to be taken out of scope were clinical negligence, education, employment, welfare benefits, debt (except where the client’s home is at risk), housing (except where there is an immediate risk of homelessness) and private law children and family cases where domestic violence is not present..