Memorandum submitted by the Ministry of
The Government welcomes this opportunity to
reaffirm its goal of reforming legal aid, and to update the Committee
on achievements since the Government's response to the Constitutional
Affairs Select Committee report Implementation of the Carter Review
of Legal Aid in June 2007. The structure of this memorandum is
as follows, reflecting the specific queries raised by the Committee:
Part One: Overview of Legal Aid Reform
gets to those in need
Part Two: Work to date
Part Three: Ensuring Quality
Part Four: Monitoring the Impact of Phase 1
Phase 1 Civil Fixed Fee Schemes Review
Early Legal Services Commission analysis
Part Five: Best Value Tendering for criminal
Part Six: Very High Cost Cases
Part Seven: Impact on BME providers
Part Eight: Impact of Fixed Fees on Third Sector/Not
for Profit Organisations
Monitoring the impact of Community
Legal Advice Centres/Networks
Part Nine: Coverage of Legal Aid Services and
so-called `Advice Deserts'
Other activity to monitor impacts
and address any issues around access to legal aid
Part Ten: Continuing Legal Aid Reform
Annex ASummary of Key Legal Aid Reform
Annex BWhat Has Been AchievedLegal
Aid Reform: Phase One
Annex CKey Continuing Work StreamsLegal
1. Legal aid is one of the fundamental elements
underpinning the justice system, and an important way of helping
poorer members of the community. It enables access to justice
for those who cannot afford to pay for legal advice and representation.
The Government aim is to get the best value for money from the
provision of services, so that as many people as possible can
be helped within the resources available.
2. In Legal Aid Reform: The Way Ahead,
published in November 2006 and Implementing legal aid reform,
the Government response to the Constitutional Affairs Select Committee
published in June 2007, the Government set out aims of the legal
aid reform strategy. In summary these aims are:
re-focusing spending on legal aidTo
help more people get the support they need;
ensuring fairnessTo help the
most vulnerable people in society; and
Achieving maximum value for moneyto
get the most out of a fixed budget for legal aid whilst maintaining
or improving quality.
3. The legal aid strategy forms part of
the Ministry of Justice (MoJ) strategic objectives to deliver
fair and simple routes to civil and family justice, and to ensure
a more effective, transparent and responsive criminal justice
system for victims and the public. The key aims of these objectives
increase the efficiency and effectiveness
of the civil, administrative and family justice systems;
provide early advice and support
to enable disputes to be resolved out of court or tribunal wherever
deliver an accessible justice system
that provides support where it is needed;
increase the efficiency and effectiveness
of the criminal justice system;
increase the transparency of the
criminal justice system so that it inspires confidence in local
deliver a more responsive criminal
justice system that has the needs of victims and witnesses at
4. The reforms set out in The Way Ahead
were the result of an in-depth examination of how the legal aid
system was working, and how it should work in the future. Other
key publications in the development of the reform programme are
summarised at Annex A (Summary of Key Legal Aid Reform Publications).
SustainabilityEnsuring help gets to those
that in need
5. Legal aid provides around 2.7 million
acts of assistance to people with legal problems each year, equating
to around two million people. The Government aims to ensure the
legal aid system is flexible enough to cope with changing circumstances,
for example, as a result of the current economic turbulence. Ensuring
people have access to advice on issues such as debt and housing
is crucial to helping them find the best way through their difficulties,
and to reducing as much as possible the financial and personal
6. Of the 2.7 million acts of assistance,
criminal legal aid accounts for around 1.6 million and civil and
family legal aid for 1.1 million. The number of acts of civil
and family (excluding asylum) assistance has risen by 20% from
805,000 in 2003-04 to over a one million in 2007-08.
7. Legal aid has been one of the fastest
growing areas of public sector spending over the last 25 years,
growing at an annual average rate of 5.7%. More is spent per head
on legal aid in England and Wales than in any other country. Spending
has increased from £536 million in 1982 (in today's prices)
to around £2 billion today.
8. Looking at the figures since 1997, legal
aid spending in cash terms increased from £1.5 billion in
1997-98 to its current level of around £2 billion by 2003-04.
The amount spent on criminal legal aid increased by 39% in real
terms from 1997-98 to 2003-04 whereas the amount spent on civil
and family legal aid (excluding asylum) fell by 19%. Of the £2
billion criminal legal aid accounts for around £1.2 billion
and civil and family legal aid over £800 million.
9. Total annual expenditure has remained
broadly level since 2003-04. This has been achieved through a
combination of measures including:
the progressive extension of fixed
and graduated fees schemes so that they now cover the majority
of legal aid; and
the introduction of means testing
in magistrates' courts, so that those who can pay for their defence
Without such reforms the taxpayer would have
been burdened with funding an additional £250 million higher
spend in 2007-08, and an increased spend of around £600 million
more in total between 2004-05 and 2007-08.
10. A summary of what has been achieved
since 2007 is set out at Annex B (Legal Aid Reform: Phase One).
11. The Government is committed to ensuring
clients have access to quality legal advice. It was announced
in The Way Ahead that all legal aid providers wishing to undertake
legal aid work should pass a strict quality threshold. The objective
is to place quality assurance at the heart of the provision of
legal aid procurement benefits. This is aimed at:
clients, to reassure them they are
getting a guaranteed quality of advice;
the wider public, so they can be
confident that the system is delivering justice and their taxes
are delivering value for money; and
the justice system, to hold account
advocates for properly progressing a case and ensure they have
the appropriate level of competence.
12. The Legal Services Commission (LSC)
has developed a system of Solicitor Peer Review to assess and
compare the quality of legal aid advice. The process is managed
by a research and operations team based at the Institute of Advanced
Legal Studies. The results of these reviews are used to help legal
aid providers maintain and improve the quality of the advice they
13. It is widely accepted that Peer Review
is the most effective and preferred means by which the quality
of legal advice and assistance by solicitors can be assessed on
behalf of the client. The LSC rolled out Peer Review for solicitor
firms involved in Very High Cost Cases between September 2006
and March 2007. It started rolling out Peer Review nationally
to all criminal, family and civil firms in April 2007. Firms wishing
to take part in the best value tendering process will initially
be required to demonstrate that they have been certified as a
Peer Review Level of 3 "Competent", 2 "Competent
Plus" or 1 "Excellent".
14. In addition to the Peer Review process,
the Specialist Quality Mark (SQM) is the standard by which all
legal aid solicitors must adhere to when supplying legal aid services.
The Quality Mark is a set of standards and requirements devised
by the LSC to assure the quality of service given by legal aid
providers. All firms must pass the SQM before a permanent contract
to provide publicly funded legal services is awarded. The LSC
is currently reviewing the SQM application and assessment process.
15. A Quality Working Group was also established
as part of the legal agreement reached between The Law Society,
MoJ and LSC following the Unified Contract Judicial Review. The
Quality Working Group's purpose is to examine the range of quality
assurance mechanisms in place and to make recommendations on any
16. A scheme to quality assure advocacy
(QAA) services for publicly-funded criminal defence advocates
in the Crown Court is to be designed, and then piloted in early
2009 for a period of six to nine months. Following an open and
fair competition, Cardiff Law School has been contracted to help
devise and run the pilot scheme. It is envisaged that the scheme
will cover four areas in England and Wales, those areas having
been chosen for their mix of potential participants. The pilot
scheme will reflect the broadest possible spread of advocates
across the countrymale and female, white and BME, self-employed
and employedto make it valid and measurable. Progress will
be regularly reviewed by a Reference Group made up of a wide group
of representatives from across the Criminal Justice System, including
the professional bodies and the senior judiciary, who have been
supportive of piloting a QAA scheme. A full public consultation
process will be run before any decisions are made on wider implementation
of any QAA scheme.
PHASE 1 FIXED
17. In December 2007, following the introduction
of phase 1 of the civil and criminal legal aid fixed fee schemes,
the LSC compiled a cumulative impact assessment to estimate the
impact on providers of both civil and criminal legal aid fixed
fees. This was important as many firms do a range of a civil and
criminal work, and many firms also do both civil and criminal
legal aid work.
18. However, whilst the cumulative impact
assessment is a useful tool, it is only an estimate based on applying
past behaviour to the new fee schemes. It looked at claims made
under the old hourly rates system, and then assessed the impact
of the new fees on this pattern of work. What it could not do
at the time, given the short time frame in which to gather data,
is fully anticipate changes in provider behaviour (e.g. improved
efficiency) that the new fees would encourage.
19. For criminal legal aid, the assessment
showed that spending would be reduced by £15.5 million per
annum. This represents an overall reduction of 1.3% against expenditure
on the Criminal Defence Service (CDS) in 2006-07. The reduction
in spending was targeted so that the greatest proportion of the
savings has been taken from the main urban areas where there is
over-supply and where there is greater scope for providers to
improve their efficiency by altering their working practices to,
for example, minimise the amount of time they spend travelling
and waiting. This is also consistent with encouraging providers
to ensure coverage in their own local areas.
20. For civil legal aid, all of the civil
fee schemes were designed to be cost neutral against all providers'
claims from the financial year 2005-06, with the exception of
the Immigration and Asylum Fee scheme, which has been modelled
to be cost neutral against forecasted spend for the financial
year 2007-08. The assessment showed that in all regions, bar London,
Cambridge and Manchester, a majority of providers in each region
would see an increase in income. A majority of cases in all regions
are conducted by providers whose income would have increased under
the new schemes. Nationally, 56% of providers, collectively responsible
for 75% of cases, would see increases in their income. Some urban
areas have traditionally been more expensive, and London and Cambridge
LSC regions may therefore see a decrease in funding in the order
of 1%. In Manchester only a minority of providers are likely to
see an increase in income under the new fees, but these do the
majority of the work in that region.
Phase 1 Civil Fixed Fee Schemes Review
21. The review of phase 1 civil fixed fee
schemes was established as part of the agreement with the Law
Society following the Unified Contract Judicial Review in April
2008. Publication of the review findings is expected early in
2009. This will recommend appropriate amendments for consultation
during 2009, to apply from 2010 to ensure the sustainability of
client access to legal aid services.
22. The review is being taken forward in
conjunction with the Civil Contracts Consultative Group (CCCG)
also set up as part of the agreement with the Law Society. Membership
of the group consists of:
Legal Services Commission;
Advice Services Alliance;
Legal Aid Practitioners' Group;
Association of Lawyers for Children;
Mental Health Lawyers' Association;
Immigration Law Practitioners' Association;
Housing Law Practitioners' Association.
Early Legal Services Commission analysis
23. Whilst it is still too early to predict
the outcome of the review of phase 1 civil fixed fee schemes,
the LSC has been analysing their own early data. This indicates:
New Matter Starts (numbers of
cases started by legal aid providers): Face-to-face matter
starts have dropped by a small percentage, 3% overall on a comparable
period from 2006-07, since the phase 1 fee schemes were introduced.
Such a small change is not unexpected due to changes in the definition
of new matter starts in some categories (such as Mental Health
Client diversity: There have
been no significant changes to client diversity post phase 1 fees.
Provider diversity: Data from
the review so far shows no adverse impact on BME, women or disabled
providers, or change in the composition in supply. The LSC is
currently looking at the impact on rural, urban and small legal
Cost Neutrality and fee levels:
From the data gathered so far, it is still too early to tell if
the phase 1 fee schemes are cost neutral. Although at this stage
of the analysis, the fixed fees generally exceed profit costs
claimed (i.e. what would have been paid on hourly rates). However,
the LSC expects to see the difference between providers' actual
costs and fixed fee paid reducing as bills start to come in for
the longer, more complex cases.
Exceptional cases: It is not
expected that the review will have sufficient time to reflect
a full cycle of exceptional cases. This is due to the length of
such cases, their complexity, and the time lag of provider submissions.
The average exceptional case length is 14.8 months (excluding
the longer childcare cases). A communication has been circulated
to providers to encourage the claiming of exceptional cases.
Family scheme structure:
The new scheme structure was introduced
to incentivise earlier settlement. The proportion of private law
family cases concluding without the need to issue proceedings
has increased by 2% (comparing April 2007 to September 2007 and
October 2007 to March 2008);
As fixed fees were introduced for
solicitor advocacy preparation, there was a concern this would
increase the unnecessary instruction of counsel in childcare cases.
However, the number of cases using counsel has not increased as
a result of the introduction of fixed fees;
In childcare cases to assist families
to negotiate with local authorities, funding for pre-proceedings
advice has been introduced, and 18% of the cases using this help
have led to the best resolution being achieved for the children
and families without the need for legal proceedings;
The data to end-September 2008 shows
that the grant of legal representation to children in childcare
proceedings is declining. This would seem to be attributable to
the introduction of two key reforms to the childcare proceedings
system: revised statutory guidance to local authorities issuing
childcare proceedings, and a new judicial case management tool,
the Public Law Outline (PLO). The Review of the Child Care Proceedings
System in England and Wales, published in 2006, estimated that
the combined impact of these reforms would be a reduction in the
volume of childcare proceedings of 813%. The Government
has commissioned an evaluation of the initial impact of these
reforms, and this is expected to be published in April 2009.
TENDERING (BVT) FOR
24. In December 2007 the LSC published the
consultation document on the principle and initial detail of best
value tendering for legal aid work in police stations and magistrates'
courts: Best Value Tendering for Criminal Defence Services. The
LSC published a response in July 2008. As part of this initial
consultation the LSC held almost 50 provider events around England
and Wales which were attended by almost 1,000 practitioners.
25. The MoJ and the LSC are working with
independent economic consultants, NERA, looking at how any system
of competition could best be introduced into the criminal legal
services market. The impact of any system will need to be subject
to a full assessment. Any system of competition would be piloted
before a final view was taken on national implementation.
26. Criminal VHCCs (cases estimated to last
more than 40 days at trial) have been managed under contract by
the LSC since 2001. These arrangements were introduced in response
to the rapidly growing expenditure being incurred in long and
27. Lord Carter argued that better value
for money could be obtained for this work by giving defence teams
some probability of increased or more consistent volume in return
for some reduction in hourly rates. To do so involved limiting
access for the VHCC panel to defence teams who can show a track
record of experience in working on VHCCs and meet appropriate
28. The LSC launched the first panel for
VHCCs in March 2008. However, the Government was disappointed
that such a significant number of advocates failed to sign the
contracts they tendered for and were subsequently offered. Only
225 of the 2,300 Advocates offered contracts signed, including
around 130 Barristers (of which three were QCs).
29. In order to secure sufficient counsel
to act for defendants in VHCCs, the maximum rates payable to both
advocates and solicitors in those cases were adjusted. This adjustment
has been made on a cost-neutral basis. The proposed increases
of the top rates from £145 to £152.50 per hour for both
litigators and advocates will be funded through a reduction in
spend on cases where two advocates are assigned. These new rates
were authorised by the Criminal Defence Service (Funding) (Amendment
No 2) Order 2008 to reflect the new rates for non-panel advocacy
from 13 November 2008. Non-panel advocates may be instructed,
with the agreement of the LSC, if there is not a suitably qualified
member of the panel available to take the case.
30. The MoJ, LSC, Law Society and Bar have
been engaged in positive discussions to develop a scheme to replace
the first panel, possibly involving some form of graduated fees
arrangement. The target date for implementation is July 2009.
All parties continue to work toward this.
31. There is no evidence to suggest that
BME majority owned firms would be less able to compete effectively
for work than white majority owned firms, or that BME clients
will be adversely affected in the quality of service they receive.
This is monitored on an ongoing basis and there is no indication
that the changes have had a negative impact on BME owned or managed
firms, or on smaller firms.
32. The LSC's latest BVT (Best Value Tendering)
proposals would allow for firms of all sizes, including small
and BME owned providers, to be able to compete effectively within
the tender model that is being developed in consultation with
providers. Any final BVT proposals will need to allow for a range
of business models to succeed, although it is clear that this
success will be defined by a combination of efficiency (and value
for money for the taxpayer) and quality of service as defined
by Peer Review and other measures. The Government is committed
to ensuring that the legal services procured reflect the communities
that they serve as widely as possible. The Government does not
accept that the concept of BVT is inherently discriminatory, or
that it will necessarily have a disproportionate adverse impact
on BME firms, lawyers or clients. Any second consultation on a
fully worked up scheme for BVT would be accompanied by a full
Equalities Impact Assessment.
33. The LSC introduced fixed fees in October
2007 for the Not for Profit (NfP) sector, bringing payment arrangements
in line with that for solicitors. Under the system, cases are
paid at a fixed rate at the close of a case rather than at hourly
rates and at the start of a case. This ensures that cases are
dealt with efficiently and that a larger number of people can
be helped within the limited legal aid budget. Where cases are
assessed as exceptionally costly, the LSC will continue to pay
for these at hourly rates, meaning that providers are not discouraged
from undertaking complex cases.
34. The LSC consulted NfP representative
bodies prior to the introduction of fixed fees and agreed transitional
arrangements for all NfP providers. Between April and October
2007, the LSC changed the payment system for NfPs by moving from
quarterly payments in advance to monthly payments in advance to
help NfP providers to prepare for the new fee schemes. Other transitional
arrangements were introduced to give a staggered approach and
gradually align reconciliation processes with that for solicitors.
As part of this, the LSC introduced a transitional buffer up to
31 March 2010, allowing agencies to be overpaid by up to three
times their average claim value (based on a 12 month average)
at 31 March 2008; falling to two times at 31 March 2009.
35. Many agencies have adopted successful
structural, performance and management approaches that have enabled
them to make the successful transition to fixed fees. However,
others have been less successful. Even with the buffer arrangements,
the change to the remuneration process has had an impact on some
providers' cash flow and caused them operating difficulties.
36. The Ministry of Justice values the contribution
of the third sector in delivering legal advice and will work with
NfP organisations to help with their transition to the reform
programme. Regular ministerial meetings are held with NfP providers
and representative bodies, such as the Law Centres Federation,
to discuss reform issues and their impact. Ministers also closely
monitor the position of NfP organisations that are experiencing
37. The LSC has been working closely with
agencies affected by the move to fixed fees to understand their
situation and to try to develop manageable approaches to their
situation. The LSC has also allowed NfPs greater flexibility in
reconciling payments and claims over the life of their contract
and will continue looking at this. These arrangements should enable
most agencies to manage the transition and will assist those providers
who are experiencing short-term cashflow problems.
38. The LSC, however, is not the only funder
of advice providers. Some NfP organisations receive funding from
a variety of other sources, such as local authorities, the Big
Lottery Fund and other grant-making bodies. Changes to these funding
streams for their own reasons have contributed to the problems
experienced by a number of providers.
39. The evidence around the funding of the
advice sector and root cause of some providers' financial difficulties
is patchy. In the coming period, the Government will be bringing
together the available evidence on NfP funding arrangements at
the local level and considering issues around the sustainability
of advice services with providers, other government departments
and local authorities.
Monitoring the impact of Community Legal Advice
40. The Legal Services Research Centre (LSRC),
the independent research division of the LSC, is conducting a
study of Community Legal Advice Centres (CLACs) and Community
Legal Advice Networks (CLANs). Representative groups such as the
Law Society and the Advice Services Alliance are on the steering
group. The study will look at the impact of new initiatives on
service users and at delivery and implementation issues. A report
is due in December 2009.
Criminal Legal Aid
41. The LSC continues to provide complete
coverage of England and Wales for the duty solicitor schemes in
police stations and the magistrates' courts. The number of acts
of assistance has remained around 2.5m since 2004-05. Included
in this are:
70,000 occasions when funded duty
solicitors and CDS Direct service gave legal advice to people
being held at police stations, and
560,000 people who received representation
for magistrates' court appearances each year.
42. It is expected that more people will
be helped as the reforms continue to drive further efficiencies
throughout the legal aid system.
Civil Legal Aid
43. There continues to be approximately
2,700 providers (solicitors and Not for Profit organisations)
offering family legal aid in England and Wales.
44. The LSC introduced new national fixed
fees for social welfare advice in October 2007. The new scheme
will mean that different providers will be paid the same for the
same work regardless of where they are in the country.
45. Social welfare legal advice is a critical
tool to help combat social exclusion. Currently less than 1% of
contracted providers hold contracts with the LSC to deliver advice
in all five social welfare law categories: community care, debt,
housing, welfare benefits and employment. To better structure
advice provision to address access problems, the LSC is looking
to integrate provision of all five categories of social welfare
46. Local Community Legal Advice Centres
and Networks are primary sources of providing legal information.
The MoJ and LSC have been, and will continue to, develop partnership
arrangements with those, such as local authorities, with an interest
in advice provision. By being tailored to the requirements of
local areas they are better placed to help tackle the common causes
of local problems, and meet the needs and priorities of local
47. As client need is not uniform, advice
is made accessible in as many formats as possible. For example,
in addition to traditional face-to-face advice services, the LSC
also offers advice and information over the telephone and online
through the service Community Legal Advice (CLA), which provides
free information and advice to everyone by phone (0845 345 4345),
the Internet (www.communitylegaladvice.org.uk) and a range of
legal leaflets. If callers are worried about the cost of calling
the service, they can text "legalaid" and their name
to 80010 or complete a webform on the CLA website and an operator
will call them back. Pilots in delivering family advice through
CLA and booking callers directly into face-to-face appointments
are currently taking place.
48. In four years of operation (since July
2004) the legal aid telephone service has helped more than 950,000
taking on legal cases for 300,000
referring another 400,000 to face-to-face
legal aid providers; and
giving over 250,000 people details
of other helplines or information that enabled them to solve the
The website has also had more than 3.3 million
visitors each year.
49. The LSC is currently undertaking a tender,
which closed on 21 November, to increase the availability of advice
for clients who prefer to access legal aid services over the telephone
through the CLA service.
50. Unprecedented numbers of acts of assistance
for people with civil legal problems are being provided. Excluding
asylum and immigration, there were nearly 800,000 civil and family
acts of assistance provided in 2006-07, compared with 595,000
in 2004/05. This rises to a million acts of assistance delivered
to the public in 2007-08 when civil cases that required representation
Public Legal Education
51. Early intervention in many forms of
dispute, actual and potential, can support positive prevention.
The Government aims to help citizens by early intervention in
disputes, making sure they get the extra support they need when
it can make the most difference. This is taking on a greater importance
given current economic circumstances when additional families
and individuals may be drawn into risk of debt.
52. To make sure people can develop the
confidence and skills needed to deal with disputes, the Government
aims to improve access to justice in the community by providing
people with an awareness and understanding of legal issues and
of their rights. In practical terms this means helping people
recognise when they may need support, what sort of advice is available,
and how to go about getting it.
Other activity to monitor impacts and address
any issues around access to legal aid
53. The LSC undertakes periodic bid rounds
to increase provision in priority categories of law and where
analysis indicates provision can be improved. In July 2008 the
LSC ran a bid round to increase access to civil and family services
(including the priority areas of childcare and domestic violence).
This was for £10 million worth of contracts and equates to
some 40,000 extra cases of face-to-face civil legal aid. Over
400 bids were received, including 90 from law firms or third sector
agencies wanting to start civil legal aid work for the first time.
70 bids were also received from existing firms who wished to expand
and setup new offices to provide legal aid services under fixed
54. Prior to the introduction of the phase
1 fee schemes, many stakeholders argued that the reforms would
lead to a reduced interest from providers in legal aid work. The
experience in practice has been different. New and existing providers
are showing an appetite for civil legal aid work, as is demonstrated
by the large numbers of bids the LSC has been receiving in response
to tenders for work since 2007.
55. Other areas of work have also attracted
significant interest from providers. Bid rounds in summer 2008
for Immigration advice at police stations attracted 18 bids for
4 contracts. Bid rounds at the same time for advice provision
in Immigration Removal Centres attracted 69 bids for work in 9
centres. The Government is also pleased by the high level of response
to the 2008 bid round for Housing Possession Court Duty Schemes.
56. Key continuing work streams are set
out at Annex C (Legal Aid Reform: Phase Two).
57. The reform programme is supported by
LSC work such as the awarding of £3 million of training grants
to 150 organisations. These help to train young legal aid solicitors.
Each grant is worth up to £20,000. More than 220 solicitors
and Not for Profit organisations across England and Wales applied
58. The MoJ will also keep working closely
with other government departments to ensure that when they initiate
policy changes that could affect the legal aid budget, proper
impact assessments are undertaken
59. By achieving best value for money as
many people as possible can be helped within the available resources.
The reforms build on the successful introduction of fixed fees
in the majority of both civil and crime work so far. Fixed and
graduated fees encourage and reward efficiency by moving away
from paying practitioners by the hour (where appropriate) towards
paying for what they actually deliver. By giving practitioners
a real stake in the wider justice system, legal aid will also
contribute to, and benefit from, wider government reforms that
encourage the speedy and effective resolution of cases. The Government
will continue the legal aid reforms to develop a system that operates
more efficiently, is sustainable, and provides fairness, equality
and further improved access to justice over the coming years.
This Annex summarises the key publications on
legal aid reform since the conclusion of the Fundamental Legal
Aid Review in 2005.
A Fairer Deal for Legal AidJuly 2005
Followed the Fundamental Legal Aid
Review carried out by the then Department for Constitutional Affairs
in conjunction with the Prime Minister's Strategy Unit and the
Treasury, in response to concerns around escalating costs without
apparently commensurate improvements in delivery.
Set out a long-term strategy for
Commissioned Lord Carter to conduct
his review into legal aid procurement looking at two areas:
to re-balance the legal aid budget
to put it on a sustainable footing and ensure that the Government
is procuring a quality, efficient and diverse service at the best
price for the taxpayer; and
to ensure that the proposals were
in line with the aims of the wider Criminal Justice System.
Getting earlier, better advice to vulnerable peopleMarch
Followed from a proposal in A Fairer
Deal to develop Government strategy for helping vulnerable people
to better resolve problems and disputes.
The recommended strategy was that:
advice is people focusseddealing
with the many problems individuals may face rather than each problem
advice is right first timeenabling
access to the right advice; and
we learn from our mistakesusing
peoples advice requirements as an indication of where services
are failing to deliver.
Review of the Child Care Proceedings System in
England and WalesMay 2006
Undertaken at the same time as the
review by Lord Carter, this was done in partnership between the
then Department for Education and Skills and the Department for
Constitutional Affairs, and the Welsh Assembly Government.
The Review recommended:
ensuring families and children understand
proceedings, and are engaged with the system;
encouraging, where safe, exploration
of alternatives to court proceedings;
improving quality and consistency
of applications to court;
improving case management during
encourage closer working between
Legal Aid: A Market-Based Approach to ReformJuly
Lord Carter's findings and proposals
to move to a system of best value tendering for the procurement
of legal aid services, with extension of fixed and graduated fees
as a interim step.
Legal Aid: a sustainable futureJuly 2006
The Government response accepting
Lord Carter's proposals in principle.
Recommended that the proposals be
achieved through a phased implementation.
Introduced new procurement and remuneration
structures in both civil and family and criminal legal aid.
Set out the details of proposed standard
fee schemes for legal aid worksubject to full consultationas
part of interim measures to prepare the legal services market
Legal Aid Reform: The Way AheadNovember
The key publication setting out how
the Government will deliver a new system of sustainable legal
Pulled together the Government response
to the sustainable future consultation and to several more detailed
consultations on specific aspects of legal aid.
The key principals were set out as:
good quality legal advice and representation;
sustainable, effective and efficient
value for money for the taxpayer;
contribute to efficient operation
of the Criminal Justice System.
Implementing legal aid reformJune 2007
A response by the Government to the
recommendations in the Constitutional Affairs Select Committee
report (Implementation of the Carter Review of Legal AidJune
2007), explaining the strategic background and the purpose of
legal aid reform.
The legal aid reform strategy has been taken
forward whilst ensuring legal aid continues to support effective
operation of the Criminal Justice System and meets the needs of
a wide range of clients and practitioners. The first phase of
legal aid reform work has now been implemented. This has included:
Introduced standard fee scheme for
magistrates' courtsRevised fees implemented in 16 urban
Crown CourtIntroduced revised
advocates graduated fee scheme.
Commenced new general criminal contract.
Expanded the Defence Solicitor Call
Centre to "own client" work.
Phased expansion of the Defence Solicitor
Call Centre and CDS Direct to those elements of "own client"
work suitable for telephone advice.
Crown CourtImplemented litigators
graduated fee scheme.
Police StationsIntroduce new
fixed fees and revised "boundary areas".
Police StationsPhase two of
CDS Direct expansion rolled-out in all of England and Wales.
Implemented new General Criminal
Contract for Police station, Magistrates court and Crown Court
work (except VHCCs).
Publication of a "route map"
setting out future direction of criminal legal aid reform programme.
Published outcome of consultation
on Best Value Tendering (BVT).
Recovery of Defence Costs Orders
(RDCO) regulations amended to better target defendants and encourage
more Orders to be made.
Agreement with the Bar Council and
Law Society on the interim VHCC arrangements.
Publication of consultation papers
on Crown Court means testing and Central Funds reform.
Implemented new civil legal aid contract
covering both solicitors and Not for Profit organisations.
Harmonisation of solicitor family
remuneration between county and magistrates' courts.
Civil AdviceIntroduction of
new fixed fees for civil advice work.
Immigration and AsylumIntroduced
new immigration and asylum fee schemes covering most work.
single family mediation fee structure for solicitor and Not for
Profit mediation services.
Family Help (Private)introduced
new fixed fees for advice and negotiation in family private cases
(eg child contact/residence, ancillary relief).
Child Careintroduced new graduated
fee scheme for child care or supervision proceedings covering
most work other than advocacy.
Start of pilot for telephone family
Mental HealthIntroduced fixed
fee scheme for Mental Health covering most work
Agreement reached between MoJ, LSC
and the Law Society in a dispute over some of the provisions of
the civil legal aid contract.
As agreed with the Law Society, establishment
(i) the Civil Contracts Consultative Group, Representative
Body consultative groups in civil categories of work, and Stakeholder
consultative groups in civil categories of work;
(ii) a joint LSC/Law Society Quality Working
Group established to review and report on quality assurance systems
for civil and criminal legal aid work;
(iii) a review of the phase 1 civil fee schemes,
to be overseen by the Civil Contracts Consultative Group, and
to issue a consultation in January 2009 on any necessary changes
to the fee schemes from 2010;
(iv) a joint LSC/Law Society/National Audit Office
review of the Contract Compliance Audit system for civil and criminal
legal aid work; and
(v) publication of a "route map" setting
out future direction of civil legal aid reform programme.
Family Barrister FeesConsultation
published on changes to the family barrister fee scheme.
Increases agreed with the Law Society
to civil fixed fees take effect.
Publication of a consultation on
new civil legal aid contracts to apply from 2010.
Family helpline pilot extended until
it is replaced by a national service in 2009.
Criminal Legal Aid
Crown Court Means Testing: On 6 November the
Ministry of Justice and LSC jointly issued a consultation on the
reintroduction of means testing in the Crown Court. This supports
the Government's commitment that those who can afford to pay for
their defence do so, and follows from the introduction of means
testing in all magistrates' courts in October 2006. The proposals
include a pilot next summer in five Crown Court areas: Blackfriars,
Preston, Swansea, Norwich and Bradford. The closing date is 29
Awards of costs from central funds in criminal
cases: On 6 November the MoJ also issued a consultation on possible
reforms to the system of payment of acquitted defendants' legal
costs. This links in part to the proposals for Crown Court means
testing (although the Central Funds budget sits separate to that
for legal aid). To this end, the paper suggests two (not mutually
exclusive) options: The first would mean that individuals who
fail to apply for legal aid in Crown Court cases, and then instruct
lawyers privately, would no longer be eligible for their legal
costs from Central Funds if acquitted. The other option under
consideration is to cap Central Funds payments in all cases for
acquitted defendants, including companies, to the relevant legal
aid rates. Again the closing date is 29 January.
Develop Single Crown Court Graduated Fee: The
LSC is considering options for this and is currently undertaking
an economic analysis. It will consult fully at the appropriate
Post implementation reviews: In 2009 reviews
of the national implementation of police station fixed fees, and
of the litigators graduated fee scheme will be undertaken.
Civil Legal Aid
Civil contract consultation: On 31 October the
LSC published its consultation on civil legal aid contracts for
the period 2010 to 2013. The proposals specify the types of service,
where they will be delivered, how tenders will be invited, changes
to the scope of funding (including for experts), and amendments
to standard terms. Improving client access to civil legal aid
services and the quality of those services are key themes. The
closing date is 23 January.
Family graduated fees: A decision is to be taken
shortly on proposals to control expenditure on the barristers'
Family Graduated Fees Scheme. This follows the consultation that
closed in September.
Family fee harmonisation: The LSC announced
in its civil route map that it will lead a consultation in the
autumn on a new family advocacy fee scheme for solicitors and
barristers. Originally planned for 2008, this has been deferred
until 2010 as part of the agreement between the LSC, MoJ and the
Law Society, following the Unified Contract dispute.