Following the consultation period of the government’s proposed changes to Legal Aid the Justice Secretary, Chris Grayling, has indicated that some of the intended amendments to criminal legal aid will be significantly reviewed.

By way of background, the consultation proposed a raft of changes to both civil and criminal legal aid, including the following:

  • Reducing the scope of legal aid for prison law cases
  • Creating a residence test for civil legal aid so that only those with at least 12 months’ continuous “lawful residence” in the UK will be eligible
  • Restricting legal aid for Judicial review cases so that funding is only available if the High Court gives permission for the case to proceed
  • Civil cases as having a ‘borderline’ chance of success will no longer be eligible for funding. They will have to have at least a 50% chance of success to be eligible for legal aid representation.
  • Reducing expert fees in both criminal and civil cases by a further 20%
  • Reducing barristers’ hourly fees for civil proceedings by around 50%.
  • Restricting access to legal aid in criminal cases in the Crown Court based through a means test
  • Introducing competitive tendering for criminal defence work

The press coverage in relation to the proposed changes primarily focused on the changes to criminal defence work. It was argued these would take away the accused’s element of choice of solicitor, drive down standards, and put many criminal focused firms out of business. Indeed, it is “client choice” that Grayling has now stated will be retained, marking a substantial shift in the government’s proposals for criminal legal aid.

However, the proposed changes to civil legal aid are equally noteworthy and, as some would say, equally alarming. For example, the proposed residence test would exclude foreign nationals who are granted asylum for 12 months after the grant; and those waiting for a decision on Leave to Remain from having access to legal aid. This would prevent those without the financial means being able to access lawyers to assist them in times of crisis such as when facing homelessness or dangerous housing conditions. The Housing Law Practitioner’s Association’s response to the consultation asserts that this proposal is contrary to the Rule of Law and the Universal Declaration of Human Rights.

Further, the proposed restrictions on funding for Judicial Review would mean that solicitors won’t be paid anything for many of the strongest judicial review cases since these would often settle before the first hearing. The availability of funding to threaten Judicial Review proceedings against a Local Authority can be enough to force the Authority to house a street homeless family who have been wrongly refused accommodation.

More recent press coverage has also highlighted the detrimental effects the changes would have for victims of domestic violence and trafficking who would be denied access to legal aid under the proposed residence test; highlighting the vulnerabilities of those with an uncertain immigration status.