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Lord Woolf: Legal aid cuts are damaging the reputation of our justice system

Peers approve ‘small but important’ change to merits criteria in civil legal aid cases

26 October 2016

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Lord Woolf has told the House of Lords that ‘legal aid cuts are damaging the reputation of our justice system’ as peers signalled their intention for a review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The former Lord Chief Justice asked the Lords’ spokesperson for the Ministry of Justice, Lord Keen of Elie, whether he accepted that ‘what is happening in relation to legal aid is damaging the reputation of our justice system and the judges up and down the country are finding it difficult to administer justice?’

In response, Lord Keen, a Scottish lawyer and advocate general for Scotland, said the MoJ retained ‘full confidence’ in the world-leading British judicial system while legal aid ‘remained available where it was most needed’.

The Lords session had begun with an oral question from Labour peer Lord Beecham as to when a review of LASPO would take place. Lord Keen said ‘we will announce our intentions in due course’ and reiterated the government’s stance that an ‘appropriate review of LASPO would take place before April 2018’.

Lord Beecham, a lawyer and former partner at Beecham Peacock Solicitors, also expressed concern about the rise in unrepresented parties in family cases. The latest MoJ statistics revealed that 34 per cent of family court cases took place without legal representation of either party – twice the number reported pre-LASPO.

However, Lord Keen said there had not been a ‘sudden introduction’ of unrepresented litigants in the context of family cases as almost two-thirds of cases had one unrepresented litigant prior to LASPO coming into force.

The intervention of Lord Woolf came at a difficult time for the MoJ which has been criticised by the Trade Union Congress and Amnesty International in recent weeks over legal aid reforms that have left hundreds of thousands without access to justice. Speaking at SJ Live earlier this year, the former Master of the Rolls said the middle classes had been most affected by the cuts and faced a ‘big problem’ with accessing justice.

In a welcome move, however, the House of Lords last night approved a motion to extend the ‘prospects of success’ test under the Civil Legal Aid (Merits Criteria) Regulations 2013. The 2013 regulations had required a case to have at least a 50 per cent chance of succeeding to receive legal funding for full representation. This was ruled unlawful by the High Court in a judicial review in July 2015, but earlier this year the Court of Appeal overturned that decision.

However, under the 2016 regulations, legal aid funding will now be available for certain cases where the prospects of succeeding are marginal – between 45 per cent and 50 per cent – or borderline.

Addressing MPs last week, Sir Oliver Heald QC said that in most instances, the case must be of ‘overwhelming importance to the individual or of significant wider public interest’. Legal aid would be available in domestic violence cases without having to meet the additional criteria and will also be available where the substance of the case relates to a breach of the European Convention on Human Rights.

‘The government consider public funding to be justified in cases with marginal or borderline prospects of success, even though that is not legally required. To that end, the Ministry of Justice has introduced the amendments made by the statutory instrument,’ said Sir Oliver.

‘It must be remembered that the regulations do not impose a uniform set of merits criteria. The criteria depend on the type of legal services and the type of case for which funding is sought. There are areas, such as legal help, Court of Protection cases and public law children cases, where prospects of success do not have to be shown.’ Sir Oliver described the new regulations as ‘small but important changes’.

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @sportslawmatt

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