legal aid


Legal aid cuts: Do we spend more on legal aid than other countries?

16 November 2010 by

Updated | One of the many points of interest from yesterday’s announcement that legal aid is to be cut by £350m per year was the underlying justification, put by Ken Clarke in his announcement, that England and Wales spend more on legal aid than other countries.

The Justice Secretary said that “we currently have one of the most expensive legal aid systems in the world“. But where does this often-quoted statistic arise from?

In its consultation document, the MoJ quotes (at para 3.43) a report commissioned from the University of York into comparative international legal aid systems. The report, Efficiency and quality of justice European Commission for the Efficiency of Justice (CEPEJ); International comparison of publicly funded legal services and justice systems, was produced in October 2009 by Roger Bowles and Amanda Perry. It investigated the legal aid systems in Australia, Canada, France, Germany, Netherlands, New Zealand and Sweden and compared these to the system in England and Wales.

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Legal aid cuts, the aftermath

16 November 2010 by

Updated | The legal community has been digesting yesterday’s announcement of government plans for legal aid to be reduced by around £350 per year from 2014-15.

Most commentators and legal professionals are worried that less money for legal representation will lead to less access to justice for the poorer members of society. But some have also expressed relief that the criminal legal aid scheme has been left largely untouched, as have funding for inquests, judicial reviews and asylum cases.

For those who have a view on the reforms, the Ministry of Justice has an online questionnaire which can be filled in here.

Nicholas Green QC (Chairman of the Bar of England and Wales: “A permanent contraction of justice cannot be justified by the “big society” or by any sort of philosophical mantra. Ultimately an efficient justice system is fundamental to the wellbeing of the country. We only have to look at our television screen at events unfolding in Burma and elsewhere to see the undeniable truth of that proposition.”


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Legal aid cuts announced, significant reduction in funding of civil and family cases

15 November 2010 by

Updated x 2 | The lord chancellor Ken Clarke has announced plans for significant cuts to the legal aid system, which provides funding for legal representation to those who otherwise cannot afford it. The plans were largely as expected and will be open to consultation.

Update: The MoJ has published full details of the plans:

  • The main documents, including impact assessments are here
  • The proposals can be downloaded here
  • Views on the consultation can be submitted online here
  • A summary of the plans can be found here.
  • The consultation on proposals for reform for civl litigation funding (the Jackson review) is here.

The scale of the cuts is expected to be around £350m out of the £2.2bm budget, which is just over 15%. Some of the plans had been leaked with partial accuracy by the Sunday Telegraph.

 

Update x 2: Read a summary of the reaction to the cuts here and an analysis of the underlying rational here.

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How much free work should a lawyer do?

8 November 2010 by

Today marks the beginning of National Pro Bono Week, with events being held across the country to celebrate the range and impact of pro bono work undertaken by solicitors, barristers and legal executives. A calendar of events can be found here.

How much pro-bono, or free, work should a lawyer do? This is a question which I have heard asked surprisingly rarely. I cannot recall the topic being addressed during my legal training, although pro-bono work was generally encouraged not just as charity but also as an excellent way of gaining legal experience with a view to finding a job. This was certainly my experience, and I cannot stress enough how valuable my work at the Free Representation Unit was in providing an interesting and valuable insight into representing real clients.

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Family legal aid tender process was “unfair, unlawful and irrational”

30 September 2010 by

Updated The High Court has ruled that the Legal Service Commission’s legal aid tender process was “unfair, unlawful and irrational”. The decision came in  a judicial review of the tender brought by the Law Society.

According to the Law Society’s press release:

The failure of the LSC to anticipate, let alone manage, the outcome of the process was the latest and perhaps most alarming of the LSC’s apparently haphazard attempts to reshape legal aid…

The LSC’s actions would have seen the number of offices where the public could get subsidised help with family cases drastically cut from 2400 to 1300.

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Top judge says legal aid in family cases may disappear

21 September 2010 by

Update The president of the family courts, Sir Nicholas Wall, has given a wide-ranging speech to Families Needs Fathers. In it he outlined his own vision for change and also sounded a warning that legal aid in family cases may soon be abolished.

On legal aid, he said “you do not need a crystal ball to see that legal aid for private law proceedings is likely to be further diminished if not abolished“. This may not come as a surprise to those who have been following the family legal aid tender debacle. But the practical outcome of a reduction or abolition of Legal Aid will be that when cases do come to court, more will have to be accomplished, and faster, before the money runs out. Sir Nicholas suggests some ways of achieving this.

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High Court judge says legal aid tender was a “dreadful decision”

26 August 2010 by

Updated 27 Aug  (17:15)  | A High Court judge has branded the Legal Service Commission’s recent and highly controversial tender for legal aid work as a “dreadful” and potentially irrational decision.

The comments of Mr Justice Collins came in a permission hearing (i.e., only the first stage of a two-part process) on the application by the Community Law Partnership to judicially review the LSC’s recent tender, and specifically the rejection of CLP’s own application. It appears from a Law Society Gazette article that the hearing was adjourned, with the judge warning the LSC to consider its position carefully, and that if it fights and loses the decision could set a dangerous precedent. The hearing is to resume in around a week and a half.

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Feature | The duty to investigate deaths under human rights law: Part 2

15 July 2010 by

R (Humberstone) v Legal Services Commission [2010] EWHC 760 (Admin) – Read case

Part 2 of Matthew Hill’s feature on the duty to investigate deaths under human rights law (read Part I).

A recent High Court decision (see previous post) concerning the funding of a party at a coroner’s inquest has highlighted the importance of distinguishing between the two different types of investigative duty that arise under Article 2 ECHR.

It is argued in this post that imprecise terminology and a failure to appreciate that Article 2 is engaged in Jamieson as well as Middleton inquests has confused this area, and that the learned judge in R (Humberstone) v Legal Services Commission [2010] EWHC 760 (Admin) erred by eliding the investigative duties and the case-law from which they emerged.

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Inquests and legal aid for relatives of the dead

11 May 2010 by

Recent weeks have seen considerable media attention paid to the role of inquests and their increasing significance for relatives of the deceased.

Article 2 of the European Convention on Human Rights, providing legal protection for everyone’s right to life, in some circumstances requires investigation into a death such as an inquest. It places a duty upon the state to ensure the investigation is properly conducted. This may entail providing funding, such as legal aid given to relatives so they may be represented at the hearing.

On 1 May 2010, The Times published “How coroners have become the public voice of grieving relatives” which considered the trend in recent years for coroners to take a role similar to that taken by a chair of a public inquiry. Frances Gibb wrote that David Ridley, a coroner in an inquest for two soldiers killed in Afghanistan, made comments which will give some comfort to grieving relatives. Only two days earlier, another coroner, David Masters, “castigated US authorities’ failure to cooperate in an investigation into the “friendly fire” deaths of three British soldiers”.

The article goes on to note that

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Refusal to grant legal aid to mother for inquest into son’s death was unlawful

14 April 2010 by

Humberstone, R (on the application of) v Legal Services Commission [2010] EWHC 760 (Admin) (13 April 2010)

Read judgment

It would seem that legal aid is the topic of the day. Mr Justice Hickinbottom in the High Court has quashed the decision of the Legal Services Commission (LSC) not to grant an applicant for Judicial Review, Mrs Humberson, legal aid for representation at the inquest enquiring into the death of her son, Dante Lee Kamara. The judge took the opportunity set out five criteria which the LSC should apply when considering future applications (listed after the page break below).

Dante died in hospital on 1 July 2008 after an asthma attack. He was aged 10. The judge criticised the LSC’s decision not to grant funding to his mother, saying:

95. I regard the failure of the Commission to take into account the true nature and seriousness of the allegations Miss Humberstone faces at the inquest as a particularly serious defect in the decision making process: one reason why this case is unusual and essentially exceptional is because of the serious allegations Miss Humberstone faces, at the instigation of the agents of state who, she suspects, may have caused or contributed to her son’s death. This case does not open up any floodgate. I do not demur from the view in the Lord Chancellor’s Guidance, which itself reflects comments in Khan, that “in the overwhelming majority of cases the coroner would be able to conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented” (paragraph 27.4.7 of the Funding Code, quoted at paragraph 37 above). Given the nature of an inquest, and the specialist nature of coroners, that must be so.

Article 2(1) of the European Convention on Human Rights provides: “Everyone’s right to life shall be protected by law“. That primary obligation includes not only a duty on the state not to take life, but also a duty on the agents of the state to take appropriate legislative and administrative steps to protect individuals from threats to life when in their care. This also encompasses a duty, in some circumstances, to investigate a death, and if necessary, provide funding so that the investigation, including an inquest, functions properly.

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Legal aid is a human right, even for politicians

14 April 2010 by

Three MPs who are being prosecuted for their role in the parliamentary expenses scandal have been granted legal aid.

However, contrary to what the the Prime Minister said yesterday afternoon, Jim Devine, David Chaytor and Elliot Morley will only have to pay back the money if they are found guilty.

The case and ensuing political furore highlight two important aspects of the legal aid scheme from a human rights perspective.

First, that financial legal assistance in criminal cases is a human right. As Joshua Rozenberg points out on his Standpoint Blog:

Article 6(3)(c) of the Human Rights Convention says that everyone charged with a criminal offence has the right to defend himself through legal assistance of his own chosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.

The second important point is that from June, the right to legal aid in serious criminal prosecutions will be limited by the introduction of means testing.

The scheme is undergoing significant changes primarily in order save costs. In 2008/9 £2.186 billion was spent on legal aid, with 53% spent in the criminal courts, amounting to 1/630 of government expenditure. In order to reduce that figure, from June 28 this year criminal legal aid in the Crown Court, where more serious criminal offences are tried, will become means tested. Legal aid in the Magistrates’ Courts, where less serious offences are tried, is already subject to means testing. The Legal Services Commission now hopes to save a further £35m per year.

From June, anyone with a net (i.e. after tax) disposable income of more than £3,398 per year and with capital of over £10,000 will have to contribute to their own legal expenses when prosecuted in the Crown Court. As such, the three MPs would probably not receive full legal aid under the new scheme.

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