Government restricts civil legal aid

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Source: Law Society Gazette - 4 February 2010

By Catherine Baksi

The Ministry of Justice has announced it is to press ahead with proposals to restrict civil legal aid for people not resident in the UK, tighten the funding rules for judicial review and limit funding for public interest cases, despite strong opposition from lawyers.

The consultation paper – Legal Aid: Refocusing on Priority Cases – sets out a range of proposals which the MoJ said were designed to save £6m a year and target resources more effectively to refocus the £1bn-a-year budget on ‘high priority and meritorious cases’.

The consultation, which closed in October 2009, received 94 responses – the ‘vast majority’ of which were opposed to most of the original proposals. In light of which, the MoJ said it has dropped some proposals and modified almost all of them.

It has modified its proposals to tighten access to civil legal aid in England and Wales for those who do not reside in the UK or associated territories, including safeguards to ensure important human rights cases are funded.

The majority of respondents were opposed to restricting access to civil legal aid for non-residents. Many, including the Law Society, were concerned that if this excluded those who were present in the country, but not ‘lawfully resident’, it would have an adverse impact on particularly vulnerable groups, including asylum seekers and trafficked persons, and that it could prevent claims being brought concerning unlawful immigration detention, claims relating to asylum support, or access to healthcare services.

There were also concerns that if this excluded those who were permanently resident abroad, it would prevent funding for important human rights challenges against the British government, and in particular it would prevent funding for cases like the recent cases brought against the Ministry of Defence concerning Baha Mousa.

It will be open for any non-resident to apply for exceptional funding for their case. As many of these cases brought by non-residents will be public law challenges against the government, the decision will no longer be made by the lord chancellor, but by the Legal Services Commission.

Despite overwhelming opposition to the proposal to abolish the presumption of funding for judicial review cases where a judge has given permission for the case to go ahead, the proposal will be introduced. The LSC will determine whether to grant funding.

The rule changes will strengthen the role of the LSC committee that decides whether to fund cases brought for public interest considerations – that is, cases where the benefit of the case to the litigant alone would not justify the likely cost, but where others would benefit from the outcome. Only those cases where there is a realistic prospect (rather than merely a theoretical one) that the outcome will provide benefit to others will receive funding.

The changes will also mean that before legal aid is granted in a divorce or child contact dispute, the other side will be given 14 days to provide evidence that the applicant is financially ineligible for legal aid. Currently the onus is on people to contact the LSC if they have evidence. This measure will not be applied to domestic violence cases or other emergency applications.

The MoJ will not proceed with proposals to restrict legal aid for individual low-value damages claims, require additional reconsideration of merits in judicial review, or withdraw solicitors’ delegated powers to self-grant judicial review funding in urgent cases.

Legal aid minister Lord Bach said: ‘Civil legal aid provides critical support for the most vulnerable people on a range of important matters, from debt, housing and employment advice to representation in important family and public law proceedings.

‘The government devotes very significant resources to civil legal aid. It is therefore important that we regularly look to ensure we are getting the best value for money and, even more importantly, that the people who need help most are able to get it.’

He said: ‘We were impressed with the representations received during the consultation and have made significant revisions to many of our original proposals. The changes we have announced will ensure that fraudulent applications are detected before public funds are expended on them, and that legal aid is better targeted.’

Following further consultation and parliamentary debate the new measures are expected to be introduced in April 2010.

• The full consultation response (PDF)