Experiences of legal aid reform

The long awaited reform of legal aid is under way in Northern Ireland. With the establishment of the Legal Services Agency Northern Ireland last October, it is timely to examine the system established in England and Wales through the Access to Justice Act 1999. Nony Ardill is Policy Director at Legal Action Group, a UK-wide charity which provides support services for lawyers and advisers and campaigns for equal access to justice for all members of society. In this issue of Frontline, she explains the framework developed in England and Wales. Her critique of the system, which she describes as having a number of serious problems, will be published in our summer issue.

Before the Access to Justice Act 1999, government perception was that the legal aid scheme needed a more planned approach. The system had been operated mainly by solicitors’ firms practising in areas of law where it was easiest to make money. Its demand-led budget was seen as running out of control. There was also a worry that the quality of legal aid work was patchy. The Legal Aid Board – which in England and Wales took over the running of legal aid from the Law Society in 1989 – had set up franchising in the mid 1990s as a system of quality assurance based on management proxies, but it was a voluntary scheme which did little to improve quality, still less to control the budget. These concerns led to the Access to Justice Act, designed to deliver controls over expenditure, service delivery and planning. The Act created the Legal Services Commission (LSC) – as in Northern Ireland, an independent non-departmental public body – which took over the work of the Legal Aid Board from April 2000.

The Commission operates two schemes. The Criminal Defence Service (CDS) funds duty solicitor work and advice and representation in criminal courts and supports experimental Public Defender Service projects in eight locations. On the civil side, the LSC runs the Community Legal Service (CLS), a flagship manifesto policy for the government, designed to provide a seamless referral network of information, general advice, specialist advice and legal representation through a broad network of organisations.

The Community Legal Service

The CLS extends beyond specialist legal and advice services, to include organisations that provide generalist first stage advice or information. These agencies are seen as part of the wider CLS, even though they get no CLS funding, and are encouraged to comply with the LSC quality assurance scheme, the CLS Quality Mark, at General Help or Information level. The CLS has a directory of these organisations, available through a helpline and on its website, www.justask.org.uk.

Community Legal Service Partnerships (CLSPs) now cover most of England and Wales. They have representation from the LSC, the local authority, the not for profit (NfP) advice sector and from private practice. CLSPs are intended to assess the level of local need for services in different areas of law. They do not make decisions on allocating CLS resources, which is the job of the Regional Office of the LSC, in consultation with the Regional Legal Services Committee. CLSPs are also supposed to co-ordinate funding from all sources, produce strategic plans and help improve access to services, especially by promoting referrals. Experience suggests that some partnerships are more successful than others; this seems to depend on some extent on whether the local authority is willing to get actively involved. Few CLSPs have succeeded in levering in new funds for advice, and many have seen cuts to local authority funding for local advice services, despite their protests.

Civil legal aid through the CLS fund

All legal aid providers must comply with quality assurance standards set out in the Specialist Quality Mark, which has replaced the quality standards used for franchising but differs little from these. Providers are audited by the Commission, usually once a year, to assess whether they meet the Quality Mark standards for office management and whether they have systems in place to support a specialist service in particular areas of law.

The CLS fund pays for specialist civil legal and advice services and civil representation. ‘Green Form’ Advice and assistance for civil work has been renamed legal help. CLS providers are given contracts by the LSC to carry out a certain amount of legal help work. Contracts can only be awarded for areas of law in which the agency has been awarded the Specialist Quality Mark. The idea is that the Commission can control the supply of legal advice services by adjusting the size of contracts. Significantly, for the first time, NfP agencies without solicitors (eg, CABx) can receive legal aid income through contracts to provide legal help in areas where they have expertise, for example welfare benefits and debt.

The CLS fund also pays for full civil legal aid certificates, which allow representation at court. Generally, only solicitor organisations with a Specialist Quality Mark are licensed to apply for certificates. Applications for civil legal aid are assessed by the LSC in accordance with the Funding Code, a detailed document defining the services that can be funded, and which reflects the Lord Chancellor’s directions on priorities for civil legal aid.

The idea of the Funding Code is to provide a framework for deciding on the competing priorities for different areas of civil legal work. Some categories are now excluded altogether from mainstream legal aid funding, including personal injury (apart from clinical negligence; conveyancing and boundary disputes; matters relating to trust law; and business matters. Occasionally, cases in these excluded categories can be ‘returned to scope’, in limited circumstances, and at the Lord Chancellor’s discretion. This could be when, for example, a case is judged to have a significant wider public interest or involve proceedings against a public body accused of abusing its power.

But even if a case is within scope, the legal aid application is then assessed under the Funding Code criteria. There are category specific criteria applicable to various areas of law (eg, judicial review, housing, mental health etc) and also for cases which are likely to be very expensive. Applying the Code criteria always involves considering the prospects of success and costs benefit of the case. There have been a lot of complaints about the Funding Code, the new restrictions it has placed on civil legal aid and the areas of law which are now excluded from scope.

Cases out of the scope of legal aid can be funded by direct payment by clients, if they are wealthy enough. Some clients are able to use ‘before the event’ legal expenses insurance. For personal injury cases, there is a growing industry of insurance-based conditional fee agreements, now spreading to areas of law that are in fact within the scope of legal aid, such as housing disrepair.

New approaches to legal services

The LSC has showed itself willing to experiment with new types of service, some of which are genuinely innovative. These include telephone advice; outreach services; second tier advice (ie, support services provided for front line advisers who have less expertise); a pilot scheme delivering advice and representation for people with housing repossession cases in the county court; and the pilot Family Advice and Information Service, a project providing legal advice and other support for clients facing family breakdown. The Commission has also provided experimental funding of small scale projects, through the Partnership Initiative Budget. These often involve a community legal education element or provide advice in unusual settings such as doctors’ surgeries.

The Criminal Defence Service

Like the CLS, the Criminal Defence Service operates a system of contracts, although only with private solicitors’ firms. But unlike civil legal aid, criminal legal aid cannot be subject to strict rationing because there are obligations to defendants under Article 6 of the European Convention on Human Rights to provide access to representation. Attempts have been made to contain costs through the system of standard fees that operates for most cases. There is currently no means testing, only a relatively easy to fulfil test on merits.

The level of expenditure on criminal legal aid (which includes representation orders in the magistrates’ court, legal aid for Crown Court trials and the court and police station duty solicitor schemes) is not easily controlled by the LSC. Overall, it is increasing: last financial year, payments on criminal defence services totalled nearly £1,096 million (about 10 per cent over budget), compared to payments of £813 million for CLS funded services. It is no surprise that changes are being made. The Commission is clamping down hard on so-called Very High Cost Criminal Cases, which take up nearly half of Crown Court legal aid costs, although they only represent 1% of Crown Court cases. From April 2004, these cases will be funded through a system of tightly controlled individual case contracts.

The government is also imposing cuts in the scope of criminal legal aid. Post charge advice and assistance is to be abolished, representation in the magistrates’ court will be subject to more limitations and, for the first time, there will be restrictions imposed on the police station duty solicitor scheme. A draft bill on the criminal defence service is also being planned, which would re-introduce a means test for defendants in criminal cases and give the Legal Services Commission the power to decide on applications for criminal representation.