The Government’s consultation paper on the reform of Legal Aid set out some clear aims. Examine and assess two elements of the changes proposed by the Government: one in relation to which you consider there is a strong case to be made that the change will achieve one of more of those aims while doing little harm to access to justice, and one where the case is weak.
Clause 40 of the Magna Carta states: ‘To no one will we sell, to no one will we refuse or delay right or justice’. It is in that spirit since 1949, that access to legal aid has been offered to the British population. Over the years, the modern legal aid scheme has passed through many changes to be able serve as much as possible and in the best conceivable way, free access to justice. However, in these years of economic instability, important reforms of the system are necessary to provide a sustainable service to the population. Therefore, the Ministry of Justice (MoJ) has released a consultation paper containing the proposals for the reform of legal aid in England and Wales. The content of this consultation paper is very diverse, and therefore has got several objectives.
Kenneth Clarke, Lord Chancellor and Secretary of State for Justice has stated in the ministerial foreword the different objectives aimed by this consultation paper in order to reform the system. One of the aims is to discourage people from consulting lawyers and encourage them to consider alternative methods of dispute resolution. The funding plays an important role in this consultation paper as the MoJ wants to reserve funding for issues serious enough to justify the use of public funds. It has also been added by the Secretary of State that the financial plans correspondingly aims to achieve important savings considering the economic situation. The Lord Chancellor has also added that the elements of this consultation paper supplement a wider reform programme which would be ‘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.’
We will concentrate on two aspects of this consultation paper. The first one, which was widely accepted by the respondents, concerns the establishment of a new structure for expert fees which aims at reducing expenditures. The second one, which is about the creation of a mandatory single telephone helpline, was much criticised.
- Proposal for reform on expert fees
In this consultation paper, the MoJ has devoted an annex towards the topic on expert fees. According to the consultation paper ‘Legal Aid: Funding Reforms’ issued in 2009 by the MoJ, experts are often used to provide information in court cases. They are very numerous and specialised in a specific area. The LSC (Legal Services Commission) estimates the budget for experts to be around two-thirds of the total amount spent on payments in criminal, civil and family cases. Referring to the consultation paper, the amount spent between 2007 and 2009 increased drastically, especially in the family work. The consultation paper gives us some figures of the expenditures. The total amount spent on criminal, civil and family cases in 2007 was £192m whereas in 2010, these expenditures amounted to £232m. Before the consultation, there were no established rates in civil matters, whereas in criminal matters, the MoJ has set out specific guideline rates to guide court staff when dealing with claims from expert witnesses. However, these guideline rates are not necessarily used, and to make it worse, higher rates may be used in courts. Indeed, the final decision to use an expert remains in the hands of the Court. The previous consultation paper aimed to prioritise expenditures on legal aid. A proposal to set hourly rates was criticised by respondents who stated that these rates were too low and would have a negative impact on the supply of experts. Therefore, the problem remained the same. The government has consequently included a wide range of proposals for reform to tackle this problem. A clear structure for fees is mostly needed. These proposals do in theory achieve the objective of cutting costs mentioned by the Lord Chancellor in his ministerial foreword. In the Government’s response to that consultation, it is shown that most respondents, such as the Royal College of Psychiatrists has agreed with these suggestions.
To address this problem, the Government has proposed to codify and apply a reduction of 10% to the standard fees applied by the LSC. These new rates represent the maximum amount which would be allowed for the expert charge. Some exceptions also apply to these new rates. It has been noticed that the rates paid in London are lower due to an important competition between experts. This explains the greater resource of experts in London. Thus, the MoJ has included two set of fees for each service, one which would be applied in London and the other one outside London.
As it has been mentioned earlier, Courts have an extensive power, since they can decide to allow higher rates than those agreed by the LSC. It has consequently been proposed that the new rates structure will bind the Court in order to avoid additional expenditure. Moreover, there is provision for cases where such extra spending would be necessary. In such cases, the LSC would take over the Court in order to decide if that additional spending should be allowed or not. The consultation paper gives some examples of these special situations, such as cases where expert’s evidence is crucial for the client’s case, or cases where the nature of the material is so unusual that only a handful of experts would be able to provide relevant information to the Court. The MoJ is certain that the codification of rates will make them clearer and more transparent but also will ensure consistency in the way experts who provide the same work, are paid.
The consultation has provided a skeleton of what the new fees structure would be like. This outline indicates a list of experts and whether the fee proposed will be hourly, graduated or fixed. Unfortunately, the MoJ has not specified the exact fees. This new structure will fulfil the Government’s intention to provide fixed fees for activities which are ‘routine’ activities like GPs, but also one-off activities like DNA analysis. It is also specified in the green paper that it is Government’s will to provide a very detailed structure so that each activity is attributed to a specific fee, but avoid doubt when an expert’s work is more widespread and involves the accomplishment of numerous activities.
The Government also plans to include in this new set of fees, a limited number of hourly rates. This fees structure will be formed by the information received from different sources such as respondents to the 2009 consultation, interviews with the representative bodies and other interested parties of the Working Group and the Reference Group and also responses from this consultation. These proposals will surely achieve the objectives set by the Government, especially the ones related to funding. Moreover, these proposals will have no negative impact at all on access to justice.
However some points need to be clarified concerning the establishment of this new structure. Albeit they have stated that they agreed with the proposals for reform, the Royal College of Psychiatrists also specified in their response that the consultation paper does not provide enough information and that the draft of ‘the reasoning that supports the proposed categorisation is not provided’. Moreover, the Law Centre affirmed in their response that they agree with the need for regulation but they ‘do not wish to see a situation where, in appropriate cases, a legally aided client should not be able to instruct the same experts as paying clients’. This therefore shows that this consultation paper is not entirely accepted by everyone. Undeniably, there are some areas of this consultation paper which have been very criticised and rejected by many respondents. One of these areas of reforms concerned the establishment of a system to provide advice and information services by telephone to legal aid seekers.
- Proposal to establish a single mandatory telephone helpline
Inspired from the Community Legal Advice (CLA) helpline, the telephone service proposed by the Government would be the only access to civil legal aid services. This means that legal aid seekers would have to contact this helpline, and the operator will examine the client’s problem and see if that person is eligible for receiving legal aid. After this step, the operator will discuss the different available options and guide them to the appropriate service including legal aid specialists, a paid for service, or alternative sources of help. The client will then be advised by the specialist on the phone. Depending on the nature of the case and the special needs which a client may require, face to face advice will also be provided.
As practical as it may sound, this element of change proposed by the Government in their green paper poses many problems.
The responses received by the Government on this matter came from lucrative and non-profit organisations as well as legal practitioners. The main point which was raised was about the importance of a face-to-face contact with the person. Imposing a single telephone gateway may be a hurdle for some people trying to seek legal aid because of the difficulties they may endure when using a telephone based service. The consultation response included some examples like people who do not have access to a telephone, or people with low communication skills or poor level of literacy or problems where the adviser would need to see some documentation to be able to give effective advice. In their response to the Ministry of Justice, the Inner Temple Bar Liaison (BLC) Committee added that it would be ‘discriminatory and unlawful as it discriminates against those unable to use the telephone (or other technologies) through disability e.g. deaf people’. Moreover, the BLC takes the view that the proposal to put in place a helpline may be a further option for the client but should not be the only way to have access to legal aid. The BLC thinks ‘very strongly this proposal goes against the theme of access to justice’. Moreover, in their response, the Equality and Human Rights Commission (EHRC) said that this system could extent to a breach of Article 6(1) of the European Convention on Human Rights (ECHR) taken in conjunction with Article 14 of the ECHR concerning the enjoyment of rights under the Convention without discrimination on any ground. Moreover, it was added that the proposal is not in conformity with Article 5 of the Convention on the Rights of Persons with Disabilities (CRPD) read with Article 13, regarding access to justice.
The respondents to this proposal showed concern about the impact that the establishment of this system would have on the legal aid advice services market. Indeed, many face-to-face advisers responded, affirming that it would have significant drawbacks on their income and future sustainability. This matter would have as long-term consequence, the reduction of face-to-face advice providers for the clients who need them. According to the EHRC, this consequence would also have impact on not-for-profit organisations which will accordingly have a negative outcome on access to justice. For instance, the law society gazette published an article which points out a figure taken from the Impact Assessment document published with the Government’s green paper which states that law firms will lose 75% of their ‘legal help’ work as well as not-for-profit organisations which should lose 85%.
Another issue which was raised was the quality of the diagnosis and the screening which would be done by the first operator, before the second operator deals with the client’s problem. Many respondents brought up issues about the level of training and accreditation that the operators would be required to meet to qualify for this duty. If the level of training is poor, this could lead to risks of professional negligence and claims against the state. Additionally the screening process would be very difficult on a telephone service, especially one which requires the collection of sensible information. It would be very difficult for the operators to effectively and accurately collect simple information like the identity of the caller, checking if the caller is acting under duress in cases of domestic abuse, identifying if there are several problems or merely checking if there are any conflicts of interests. Another key issue which would be difficult to determine over the phone, is the financial eligibility since, it is one of the major requirements to benefit from legal aid. Therefore, this telephone service may cause many practical problems.
One of the wider aims given by the Lord Chancellor, Kenneth Clarke, in his ministerial foreword, was to make a system which would be more responsive. However, the proposal to establish this telephone helpline raised concern about the problems which may follow an increase of the bureaucracy and also delays in assisting clients. These evils may be hard to deal with, particularly in situations where the client needs assistance emergently. Some respondents asked if the infrastructure of the system would be able to work efficaciously for the probable increasing demand for the service. For example, respondents asked whether the system would be able to handle properly the important amount of calls it will receive. This factor has to be anticipated as this system will be the only mandatory gateway to have access to legal aid. Therefore, to avoid cases where people being in emergency situations would be asked to wait, the respondents gave a list of cases which should be considered as priority cases. If a client finds himself in one of these cases, he will not need to go through the system to immediately have access to legal aid. Examples of these cases are situations where there is a risk of harm to the individual such as domestic violence or cases where legal representation would be necessary. To bend the rules in situations like these would be essential to have system which would be truly responsive.
One of the major aims stated by the Lord Chancellor concerns the funding. He expressed an urgent need of cutting costs to be able to reserve funding for serious issues which would need legal representation. The establishment of this telephone helpline and that previous statement are therefore mutually contradictory. Indeed, many respondents were fretful concerning the estimated savings published in the Impact Assessment document because they thought these were overstated. Such a system would, over time, become a liability as it would amount to unnecessary additional expenditure. As an illustration, many respondents used the scenario where a client who was at first stage advised by an operator, would have afterwards to consult a face-to-face provider to solve his issues. This clearly shows that the telephone helpline would be economically ineffective on a long term basis.
The consultation paper published by the Ministry of Justice in 2009 is very mixt. There are numerous elements which have for objective to promote access to justice but also limit expenditures to have a sustainable service. One of the elements appreciated by many respondents in this consultation is the proposal to put in place a new set of expert fees which would allow limiting costs, without putting access to justice in danger. However there are many elements such as the establishment of a telephone helpline which were disapproved by respondents. The Government has decided to launch this system in four areas of the law while taking some exceptions into account when the case is an emergency or the client is either a child or in detention. Overall, this consultation paper was much criticised and only a few elements which were already present in the system were approved. Therefore, the Ministry of Justice has consecrated an annex in the consultation response towards the alternatives proposed by a few respondents. In its response, the minister has stated that ‘these legal aid changes constitute a substantial set of very bold reforms, the overall effect of which should be to achieve significant savings whilst protecting fundamental rights of access to justice’.
Bibliography:
Proposals for the Reform of Legal Aid in England and Wales
Reform of Legal Aid in England and Wales: the Government Response
Consultation Response from the Gloucester Law Centre
Calls to rethink telephone gateway for civil legal aid, Catherine Baksi
Consultation Response, Royal College of Psychiatrists
Response to Ministry of Justice consultation as to reform as of legal aid in England and Wales on behalf of Inner Temple Bar Liaison Committee
Response of the Equality and Human Rights Commission to the Consultation on reform of legal aid in England and Wales
Legal aid reform consultation response from Sheffield Law Centre
Ministry of Justice, Proposals for the Reform of Legal Aid in England and Wales (Green Paper, 2009), Ministerial Foreword
Consultation Response from Gloucester Law Centre
Catherine Baksi, ‘Calls to rethink telephone gateway for civil legal aid’ (Law Society Gazette, 13 January 2011) <> accessed 22 March 2012
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