Evidence submitted by The Magistrates'
Association
1. There is a large and continuing increase
in the amount of money spent on legal aid, and we accept that
the amount available is not infinite. The principle of legal aid
contributions being paid by those who can afford it is perfectly
acceptable, but earlier efforts have shown that achieving savings
and keeping down bureaucracy are not easy tasks. Any means testing
system could by administered either by the courts or the LSC provided
that it was kept at local level and not centralised. However,
applying the interests of justice test belongs more properly
with the courts. We question whether the present proposals will
achieve the desired aims while—crucially—maintaining
access to justice.
2. The large increase in spending on criminal
legal aid is a fact, but the reasons are unclear, and arguments
advanced in the consultation paper issued with the draft Bill
do not seem to be fully supported. There is reference to the increased
number of cases coming to the courts as a result of various Government
initiatives, and the fact that more of these cases may pass the
"interests of justice" test. We agree with both of these
points. However, there is a reference to "some evidence"
that the interests of justice test has not been applied rigorously
in all courts (paragraph 45) and we do not understand what this
evidence is—and for this reason cannot accept the charge
of lack of rigour. No doubt courts do vary in the rates of grant
and refusal of legal aid, but each case is different and total
consistency here could not possibly reflect the interests of justice.
One possible explanation for a low rate of refusal at a particular
court is a good understanding between local solicitors and the
court over what is an appropriate application. This could therefore
point to the court applying the test, and being known to apply
it, with rigour. Conversely, a court with a high rate of refusal
may have a higher number of inappropriate applications.
3. The same point about evidence applies
to the specific mention of courts being "too favourable to
defendants and certainly inconsistent in applying the interests
of justice test" (paragraph 40). Again we do not know the
basis for these assertions. The phrase "too favourable"
implies straight criticism of the number of grants made without
any reference to considerations of interests of justice.
4. The consultation paper states the grant
of legal aid is not the core business of the courts, and goes
on to say that the courts cannot be responsible for controlling
legal aid expenditure. This ignores the interests of justice,
undoubtedly the core business of the courts. The Government's
proposals are aimed at controlling rising expenditure on criminal
legal aid, but we are concerned that they are focussed totally
on limiting expenditure without due regard to the interests of
justice. (Paragraph 39 specifically states that transferring the
power to grant legal aid will enable the LSC to use modern managements
tools to monitor and control expenditure.) Effectiveness in keeping
cost down cannot be the only measure of success.
5. Re-introducing a means test through the
models outlined is calculated to reduce the number of people applying
for and/or receiving legal aid. All the calculations make clear
that the potential savings from contributions are small compared
with the amount forecast as savings through fewer people receiving
legal aid—an estimate of between 75,000 and 150,000 people
in magistrates' courts. If every one of these people either needed
no legal advice, were able to represent themselves or could afford
to pay privately then there would be no restriction in access
to justice, but it is difficult to know that this will be the
case.
6. We consider there is a real risk that
the proposals will involve a great deal of bureaucracy and that
there will be difficulties and delays in dealing with the necessary
paperwork. The verdict on earlier schemes was that they were "cumbersome
and unworkable" and the models described here may vary in
detail but all have to involve means forms and documentary evidence
to support claims. The consultation paper acknowledges the risk
of delay in grant affecting the Effective Trial Management Programme,
where early intervention by solicitors is a key part of the scheme,
and we do see this as a genuine risk. It is estimated that this
work will only apply to some 5% of cases in the magistrates' courts—the
same proportion as before the abolition of the means test—with
possible contributions varying from £1 million-£2.9
million. Again, this highlights the fact that the major financial
advantage of the proposals comes from fewer people receiving state
funded legal aid. If this were to lead to an increased number
of unrepresented defendants it is our view that this would significantly
increase delays and impede the effectiveness of our courts. (Our
views on this were submitted in earlier evidence to the committee
in relation to the enquiry on legal aid; a copy is attached.)
7. It is suggested in the proposals that
solicitors are best placed to deal with grant of legal aid, and
one reason given for this is that they are instructed to represent
their client's interests from the outset of a case. We see this
as a difficulty in the solicitor/client relationship rather than
an advantage as the solicitor has to ask for evidence of means
and may then refuse representation or possibly withdraw it a later
date; to put the other side of the picture there is a conflict
of interest as the solicitor will be deriving financial benefit
from the public purse by making a grant. The system would have
to be properly regulated, which means another layer of administration.
8. The situation as regards the grant of
legal aid in family matters, where solicitors under contract to
the LSC already deal with grants, bears comparison. There is a
financial advantage to undertaking this work in the county court
rather than family proceedings court. In some parts of the country
there are shortages of family lawyers and it is better for them
to instruct a barrister to appear in the county court. We have
had it reported that many cases are too easily marked as having
complex legal issues (a ground for transferring up from family
proceedings courts) for reasons of finance or convenience, leading
to a mismatch of work in the courts and inevitable delay. We believe
this has led to increased expenditure in family proceedings.
9. Finally, we are aware that there is a
fundamental review of legal aid in process at the moment, but
have been told that it is entirely unconnected with these proposals
and the draft Bill. We find this extremely surprising and would
suggest that it would be constructive to await the results of
this review which could then be used to inform any final decisions.
The Magistrates' Association
June 2004
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