Legal Aid, Sentencing and Punishment of Offenders Act 2012 in United Kingdom
“The Legal Aid, Sentencing and Punishment of Offenders Act 2012 has been passed and its provisions regarding legal aid are expected to be brought into force in April 2013. The Act will make changes to the civil legal aid system, but leaves untouched for the time being criminal legal aid. Once in force, the Act will drastically cut the availability of legal aid to the public with a view to saving £350 million a year in order to cut the national debt. The cuts amount to the most radical attack on the legal aid system since its foundation in 1949. Legal aid will only be available where the Government believes it necessary to meet its minimum legal obligations – primarily cases directly concerned with an individual’s human rights. This will amount to little more than an emergency service. Most areas of social welfare law will be removed from the system altogether.
Civil legal aid will cease to be available for medical negligence, welfare benefits, employment, consumers and education. Legal aid will no longer be provided for immigration cases (unless clients were in detention) and housing cases (unless they involve homelessness or serious disrepair). Private family law cases (such as divorce and child contact) will not qualify for legal aid funding unless the case involves domestic violence, child abduction or a forced marriage. Instead funding will be provided for mediation as an alternative to family disputes going to court.
Legal aid will be retained for environmental law, asylum, mental health and child welfare cases, including where children may be taken into care, and judicial review. In summary, civil legal aid will only be available where a person’s life or liberty is at stake, or where they are at risk of serious harm or immediate loss of their home. A fund will be set up for cases where legal aid would not normally be available, but where it is necessary to provide funding to meet domestic or international legal obligations.
The means test for civil legal aid will be tightened, including taking into account the value of a person’s family home. A minimum £100 contribution to their legal costs will be introduced for all
successful applicants with £1,000 or more disposable income, and higher contributions will be expected from those who currently contribute to their legal fees. The number of people entitled to legal aid will, as a result of these changes, be reduced by half.
Payments to lawyers for civil legal aid work will be cut by 10 per cent. Some people seeking access to civil legal aid will no longer be able to go directly to a solicitor. Instead they will have to call the Community Legal Advice (CLA) national helpline, where an operator will refer them if appropriate to a specialist for face-to-face advice. Face-to-face advice will only be available where the case is too complex to be dealt with by telephone or where a client’s needs could not be met through a telephone service, for example, because of a mental impairment. The Ministry of Justice believes that over half a million cases a year could be dealt with over the phone rather than in person. Initially the telephone gate-way will be introduced for debt, discrimination and special educational needs cases, though it is likely to be extended further in the future.
Implementation of Lord Jackson’s report
The Ministry of Justice has accepted most of Lord Jackson’s recommendations. It issued a consultation paper entitled Proposals for reform of civil litigation funding and costs (2011). It has noted that of the responses it received to this consultation paper, in general defendant representatives supported the main proposals, while claimant representatives and after-the-event insurers opposed them. The Government is pushing ahead with the reforms arguing that the compensation culture needs to be addressed and that it has become too easy to get conditional fee agreements. Some of the reforms are contained in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. For example, the Act bans the recovery from another party of money spent on after-the-event insurance (except for expert fees in medical negligence cases) and payment by the losing party of success fees under a conditional fee agreement. The qualified one-way cost shifting rule is not referred to in the Act but will be implemented through regulations. The 10 per cent increase is also not in the Act, but is being introduced through case law. The Government aims to implement the reforms in October 2012, though fixed fees for fast-track cases will not be introduced until later.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 contains provisions that will effectively replace conditional fees with contingency fees, called in the Act ‘damages-based agreements’. While a conditional fee agreement allows the lawyer to be paid an increased fee if the action is successful, under a contingency fee agreement, lawyers receive a share of the successful claimant’s award of damages. The name ‘contingency fee’ comes from the fact that payment of the lawyer is contingent on the claim succeeding and an award of damages being paid. At the moment, contingency fees are banned from being used for litigation in the High Court and county court, though they can be used in employment tribunals and are commonly used in America. Lord Jackson’s Report recommended the introduction of contingency fees for litigation and the coalition Government accepted this recommendation. Under the 2012 Act, lawyers will be allowed to receive up to 25 per cent of the award of damages as legal fees.”
Source: Updtad to English Legal System (Elliot)
Civil Legal Aid
Conditional Fee Agreement
Legal Aid Cuts
Legal Services Costs
Steel v United Kingdom (2005)
MGN Ltd v UK (2011)