The Governments consultation

The Government’s consultation paper on the reform of Legal Aid set out some clear aims. Examine and assess two elements of the changes proposed by the Government: one in relation to which you consider there is a strong case to be made that the change will achieve one of more of those aims while doing little harm to access to justice, and one where the case is weak. Clause 40 of the Magna Carta states: ‘To no one will we sell, to no one will we refuse or delay right or justice’. It is in that spirit since 1949, that access to legal aid has been offered to the British population.

Over the years, the modern legal aid scheme has passed through many changes to be able serve as much as possible and in the best conceivable way, free access to justice. However, in these years of economic instability, important reforms of the system are necessary to provide a sustainable service to the population. Therefore, the Ministry of Justice (MoJ) has released a consultation paper containing the proposals for the reform of legal aid in England and Wales. The content of this consultation paper is very diverse, and therefore has got several objectives.

Kenneth Clarke, Lord Chancellor and Secretary of State for Justice has stated in the ministerial foreword the different objectives aimed by this consultation paper in order to reform the system. One of the aims is to discourage people from consulting lawyers and encourage them to consider alternative methods of dispute resolution. The funding plays an important role in this consultation paper as the MoJ wants to reserve funding for issues serious enough to justify the use of public funds.

It has also been added by the Secretary of State that the financial plans correspondingly aims to achieve important savings considering the economic situation. The Lord Chancellor has also added that the elements of this consultation paper supplement a wider reform programme which would be ‘more responsive to public needs, which allows people to resolve their issues out of court using simpler, more informal, remedies where they are appropriate, and which encourages more efficient resolution of contested cases where necessary.

’[1] We will concentrate on two aspects of this consultation paper. The first one, which was widely accepted by the respondents, concerns the establishment of a new structure for expert fees which aims at reducing expenditures. The second one, which is about the creation of a mandatory single telephone helpline, was much criticised. 1. Proposal for reform on expert fees In this consultation paper, the MoJ has devoted an annex towards the topic on expert fees.

According to the consultation paper ‘Legal Aid: Funding Reforms’ issued in 2009 by the MoJ, experts are often used to provide information in court cases. They are very numerous and specialised in a specific area. The LSC (Legal Services Commission) estimates the budget for experts to be around two-thirds of the total amount spent on payments in criminal, civil and family cases. Referring to the consultation paper, the amount spent between 2007 and 2009 increased drastically, especially in the family work.

The consultation paper gives us some figures of the expenditures. The total amount spent on criminal, civil and family cases in 2007 was ? 192m whereas in 2010, these expenditures amounted to ? 232m. Before the consultation, there were no established rates in civil matters, whereas in criminal matters, the MoJ has set out specific guideline rates to guide court staff when dealing with claims from expert witnesses. However, these guideline rates are not necessarily used, and to make it worse, higher rates may be used in courts.

Indeed, the final decision to use an expert remains in the hands of the Court. The previous consultation paper aimed to prioritise expenditures on legal aid. A proposal to set hourly rates was criticised by respondents who stated that these rates were too low and would have a negative impact on the supply of experts. Therefore, the problem remained the same. The government has consequently included a wide range of proposals for reform to tackle this problem. A clear structure for fees is mostly needed.

These proposals do in theory achieve the objective of cutting costs mentioned by the Lord Chancellor in his ministerial foreword. In the Government’s response to that consultation, it is shown that most respondents, such as the Royal College of Psychiatrists has agreed with these suggestions. To address this problem, the Government has proposed to codify and apply a reduction of 10% to the standard fees applied by the LSC. These new rates represent the maximum amount which would be allowed for the expert charge. Some exceptions also apply to these new rates.

It has been noticed that the rates paid in London are lower due to an important competition between experts. This explains the greater resource of experts in London. Thus, the MoJ has included two set of fees for each service, one which would be applied in London and the other one outside London. As it has been mentioned earlier, Courts have an extensive power, since they can decide to allow higher rates than those agreed by the LSC. It has consequently been proposed that the new rates structure will bind the Court in order to avoid additional expenditure.

Moreover, there is provision for cases where such extra spending would be necessary. In such cases, the LSC would take over the Court in order to decide if that additional spending should be allowed or not. The consultation paper gives some examples of these special situations, such as cases where expert’s evidence is crucial for the client’s case, or cases where the nature of the material is so unusual that only a handful of experts would be able to provide relevant information to the Court.

The MoJ is certain that the codification of rates will make them clearer and more transparent but also will ensure consistency in the way experts who provide the same work, are paid. The consultation has provided a skeleton of what the new fees structure would be like. This outline indicates a list of experts and whether the fee proposed will be hourly, graduated or fixed. Unfortunately, the MoJ has not specified the exact fees.

This new structure will fulfil the Government’s intention to provide fixed fees for activities which are ‘routine’ activities like GPs, but also one-off activities like DNA analysis. It is also specified in the green paper that it is Government’s will to provide a very detailed structure so that each activity is attributed to a specific fee, but avoid doubt when an expert’s work is more widespread and involves the accomplishment of numerous activities. The Government also plans to include in this new set of fees, a limited number of hourly rates.

This fees structure will be formed by the information received from different sources such as respondents to the 2009 consultation, interviews with the representative bodies and other interested parties of the Working Group and the Reference Group and also responses from this consultation. These proposals will surely achieve the objectives set by the Government, especially the ones related to funding. Moreover, these proposals will have no negative impact at all on access to justice. However some points need to be clarified concerning the establishment of this new structure.

Albeit they have stated that they agreed with the proposals for reform, the Royal College of Psychiatrists also specified in their response that the consultation paper does not provide enough information and that the draft of ‘the reasoning that supports the proposed categorisation is not provided’. Moreover, the Law Centre affirmed in their response that they agree with the need for regulation but they ‘do not wish to see a situation where, in appropriate cases, a legally aided client should not be able to instruct the same experts as paying clients’[2].

This therefore shows that this consultation paper is not entirely accepted by everyone. Undeniably, there are some areas of this consultation paper which have been very criticised and rejected by many respondents. One of these areas of reforms concerned the establishment of a system to provide advice and information services by telephone to legal aid seekers. 1. Proposal to establish a single mandatory telephone helpline Inspired from the Community Legal Advice (CLA) helpline, the telephone service proposed by the Government would be the only access to civil legal aid services.

This means that legal aid seekers would have to contact this helpline, and the operator will examine the client’s problem and see if that person is eligible for receiving legal aid. After this step, the operator will discuss the different available options and guide them to the appropriate service including legal aid specialists, a paid for service, or alternative sources of help. The client will then be advised by the specialist on the phone. Depending on the nature of the case and the special needs which a client may require, face to face advice will also be provided.