The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO)[1] came into force in England and Wales in April 2013, with the aim of cutting the civil legal aid budget by £320m within a year. The Bill was defeated 14 times in the House of Lords, and ultimately passed by a very narrow margin. Following these initial cuts, the coalition government plans to remove a further £220m from the annual criminal legal aid budget. The government states that, with an annual budget of £2bn a year, England and Wales’ legal aid system is ‘one of the most expensive in the world and needs reform.’[2] The Ministry of Justice says it considers legal aid an ‘essential part of the justice system, but can never lose sight of the fact it is paid for by taxpayers and resources are not limitless.’[3] There are concerns that the changes will deny justice, and will result in ‘a two-tier system whereby those who can afford to pay privately can, and everyone else will be left with the crumbs of legal aid.’[4]
Under LASPO, if a case does not fall under schedule 1, it may still be possible to receive legal aid under section 10, if failure to provide funding would breach a person’s human rights.[8]

Civil Legal Aid

The Government introduced several changes to facilitate the £350m cut. The details of what remains in the scope can be found in Schedule 1 of LASPO. Part one lists what is in scope, part two, what is excluded from scope, and part three deals with advocacy remaining in scope. The government has removed funding from several areas of civil law, including; private family law such as divorce and custody battles, personal injury and some clinical negligence cases, some employment and education cases, immigration where the person is not detained, some debt, housing and benefit issues. Family law cases involving domestic violence, forced marriage or child abduction, mental health cases, asylum cases and debt and housing matters where someone’s home is at immediate risk will still receive funding. [5] It must be noted however that funded cases are subject to restrictions. The changes have meant that victims of domestic violence must now have proof, for example evidence of a previous conviction, before they qualify for legal aid.[6] This ‘trigger evidence’ can be found in regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012. There are three major changes regarding eligibility; [7]

  1. Capital means assessment – all clients, regardless of whether they receive income related benefits, will need to have a capital means assessment.
  2. Income contribution – some clients may need to pay an income contribution which is now up to 30 per cent of their disposable income.
  3. Interest in disputable assets- if the client has an interest in assets that are in dispute in the legal case, the value of the client’s assets exceeding £100,000 should be included in the financial eligibility check.

Criminal Legal Aid

The Criminal Legal Aid (General) (Amendment) Regulations 2013 amend the Criminal Legal Aid (General) Regulations 2013, and make provision for determinations in relation to whether an individual qualifies for criminal legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.[9] Chris Grayling, Lord Chancellor, has confirmed that along with the £230m annual cut, the number of duty lawyers’ contracts will be reduced by a third, with legal aid fees falling by on average 6% for barristers and 17.5% for solicitors.[10] Legal aid is still available for cases involving an inmate’s liberty but in other hearings at the Parole Board and complaints about conditions inside jails, prisoners will no longer be provided with legal representation. Two tests must be passed to receive legal aid;

  1. Interests of Justice Test – which considers the merits of the case, previous convictions, nature of the offence and the risk of custody
  2. Means test – which considers the person’s financial position.

If a client is refused legal aid then they will be expected to pay privately for the cost of their defence. If they are found not guilty, they are able to reclaim some or all of their defence costs.

Comparison with the French Legal Aid Budget

In France, the estimated total public budget for legal aid (aide juridictionelle) is estimated at 309.6 million euros for 2014.[11] The office of legal aid (bureau d’aide juridictionelle) decides who is entitled to free or subsidized legal representation. This is based on income during the year preceding the application. In 2014, to qualify for full legal aid the applicant must have an average monthly income of less than or equal to 936 Euros, or between 937 and 1.404 euros for partial legal aid. These thresholds are increased depending on the number of dependents (168 euros for each of the first two dependents and 106 euros for each of the following).[12]

The Ministry of Justice stated that £2.1 billion was spent on legal aid in England and Wales in 2010/11, representing an expenditure of around £39 per head.[13] This estimate has remained fairly stable since 2008/9.[14] This expenditure is higher than other European Union countries in 2008. It is an estimated £5 in France, £5 in Spain, £13 in Denmark, £15 in Sweden, £25 in the Netherlands and £31 in Norway. In 2008, the estimated legal aid expenditure per head as a proportion of GDP was 0.18% in England and Wales, compared to 0.02% in France.[15] According to the Ministry of Justice, costs in the justice system are distributed differently, depending on the nature of the system and traditions of each jurisdiction.[16] Comparisons with the legal aid spend in continental jurisdictions are said to be ‘highly problematic as inquisitorial systems generally require less input from legal representatives but significantly more resources are expended on prosecution services and courts. Once the overall expenditure on courts, the prosecution service and legal aid are taken together, England and Wales spends more than twice as much per capita on legal aid than Holland, by way of example, however with a total spend of 90.61 euros on legal aid, courts and prosecutions, Holland, spends a greater overall per capita sum on justice than England and Wales where the total is 80.40 euros.’[17]

England and Wales’ legal services industry contributes to more than 2% of GDP (£20.9bn in 2011) and more than £4bn in invisible exports.[18] ‘Legal aid is one of the three branches of the English and Welsh welfare state, yet less than 0.5% of GDP is spent on it.’[19] Thousands of solicitors and barristers are opposed to the legal aid cuts in England and Wales, which resulted in walkouts this year, the most recent on the 7th March 2014. Nicola Hill, president of the London Criminal Courts Solicitors Association, said that “these newly confirmed cuts are a short-cut to a two-tier system, where justice becomes a luxury not a right. It’s no exaggeration to say that not only will these cuts cost lawyers their jobs, more importantly they will see trials collapsing, the innocent going to jail, and the guilty walking free.”[20]

[1] Legal Aid, Sentencing and Punishment of Offenders Act 2012 [2] Samira Shackle, How legal aid cuts are harming the voiceless and most vulnerable, The New Statesman 13th January 2014 [3] BBC News  Q& A 20 March 2013 [4] Nichola Hill, President of the London Criminal Courts Solicitors Association, referred to in Lawyers stage a second walkout over legal aid cuts, BBC News, 7th March 2014 [5] Legal Aid, Sentencing and Punishment of Offenders Act 2012 [6] Section 33, The Civil Legal Aid (Procedure) Regulations 2012 [7] [8] [9] The Criminal Legal Aid (General) (Amendment) Regulations 2013 [10] Own Bowcott, Criminal Legal aid fees cuts for layers confirmed by justice secretary, The Guardian, 27th February 2-14 [11] Le Monde : [12] Note du 30 décembre 2013 relative au montant des plafonds de ressources, des correctifs pour charges familiales et des tranches de ressources pour l’admission à l’aide juridictionnelle en 2014 : [13] This estimated is based on a provisional cash expenditure estimate of £2.131bn for 2010/11 financial year and population estimates for England and Wales of 55.24m for mid-2010 as published by ONS population/ [14] Ministry of Justice, International Comparisons of Public Expenditure on Legally Aided Services, 8th September 2011 [15]5 Ibid [16]ibid [17] Bowles and Perry: International comparison of publicly funded legal services and justice systems, MoJ research series 14/09, October 2009, p27. [18] Andrew Langdon QC, Legal aid cuts could put Britain’s reputation for impartiality and fairness at risk, The Guardian, 4th February 2014 [19] Sadiq Khan, Cutting legal aid is an easy gimmick – this is part of a pattern, The Guardian, Thursday 27 February 2014. [20] Nichola Hill, President of the London Criminal Courts Solicitors Association, referred to in Lawyers stage a second walkout over legal aid cuts, BBC News, 7th March 2014