On 15 November 2010, the Government published a consultation Proposals for the Reform of Legal Aid in England and Wales - Ministry of Justice outlining its proposals to scale back the availability of Legal Services Commission funding (legal aid) in civil cases, with the intention of “trimming” approximately £350 million from the legal aid budget by 2014/15.

Legal aid expenditure totalled approximately £2.1 billion in 2008/9 - roughly 25 per cent of the Ministry of Justice’s budget - with civil legal aid accounting for just under half of that sum. Spurred on by a need to cut the budget deficit, and with the Ministry of Justice facing a reduction of 23 per cent in its budget in real terms over the years to 2014/15, the Government has decided to rein back this use of taxpayer funded subsidy, reserving it for “serious issues which have sufficient priority to justify the use of public funds subject to people’s means and the merits of the case”.

The paper proposes various reforms across the scope of, eligibility for and remuneration of legal aid, covering legal advice and representation in civil cases (including cases against public authorities), family cases and (to a lesser degree) criminal proceedings. In deciding which types of issue and proceedings should continue to justify legal aid, the importance of the issue at stake, the litigant’s ability to present their own case (including the venue for the hearing, the likely vulnerability of the litigant and the complexity of the law) and the availability of alternative sources of funding/modes of resolution, were all factored into the equation. Specifically, the consultation proposes that legal aid will be available in the following categories of cases which may be of particular interest to those involved in the fields of health and social care:  

  • Claims against public authorities ONLY where they concern: (i) abuse of position of power and/or (ii) significant breach of human rights and/or (iii) negligent acts or omissions falling very far below the required standard of care, subject to the availability of alternative sources of funding.
  • Money claims against individuals and public authorities where they arise out of allegations of sexual assault or out of the alleged abuse of a child or vulnerable adult.
  • For individuals who are unable to look after themselves because of age/illness/disability in community care cases and for challenges to public authorities by way of judicial review and for civil injunctions against non-state care institutions which concern community care issues.
  • Mental health and capacity detention cases, including appeals to the First-tier (Mental Health) Tribunal/Upper Tribunal, and appeals to the Court of Protection on DOLS issues.
  • Most public law challenges (judicial review, habeas corpus, statutory appeals) public law children proceedings.
  • Appeals to the First-Tier (Care Standards) Tribunal and Upper Tribunal in relation to inclusion in a list of individuals who are considered unsuitable to work with children and vulnerable adults.
  • Legal help but not legal representation (other than in exceptional circumstances where significant wider public interest can be established) for inquests.
  • All unlawful discrimination claims currently “within scope” but routine legal aid funding would not be extended to discrimination cases which are currently out of scope (eg claims before the employment tribunal or special educational needs and disability tribunal).
  • Appeals to the Court of Appeal, Supreme Court or European Court of Justice would only remain in scope for the litigation of issues which are retained in scope under the proposals.  

It is proposed that legal aid would not be available in the following cases:  

  • Employment cases.
  • “Significant wider public interest”, would no longer be a basis for bringing back into scope otherwise excluded cases (other than in relation to legal representation at inquests as set out above).
  • Where there is a viable alternative source of funding.

While keen to exclude cases from scope where feasible, the Government does, however, recognise that there will be cases, which fall into the “excluded” category, whose specific circumstances nevertheless necessitate funding. For these a new special funding scheme is proposed, to ensure the UK’s domestic and international legal obligations, including those under the European Convention on Human Rights (especially articles 2 and 6) are met, and where there is a significant wider public interest in funding legal representation for inquest cases.

At the same time, the Government has published its proposals for reforming the way in which civil litigation in England and Wales is funded. The consultation period is the same, and covers the recommendations made in the Jackson report which was published in January of this year. In all, 109 recommendations were made and the Government has indicated that it is committed to radical reform of the costs system, looking to implement some of the more radical suggestions including the abolition of success fees and insurance premiums, shifting the risk of litigation costs away from defendants and on to claimants and their solicitors, adopting contingency fees (where lawyers take a share of the damages) and implementing a costs management process to be overseen by judges.

The consultation on both papers closes at midday on 14 February 2011 and the Government’s responses should be available before the summer. Because of the need for legislation to implement changes to the legal aid scheme however, any changes that do follow from the consultation are unlikely to see the light of day before 2012. Those reforms of litigation funding that require primary legislation are likely to follow a similar course, although those only requiring amendments to the Civil Procedure Rules may well be implemented sooner.