Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by The Law Society (LA 96)

Law Society oral evidence to the Public Bill Committee, 12 July 2011

When my predecessor as President of the Law Society, Linda Lee, appeared before the Public Bill Committee on 12 July, she undertook (Columns 53 and 54) to provide the Committee with further written evidence regarding legal aid eligibility in New Zealand and Canada, and evidence (Column 61) concerning the "drivers" of cost differences for the legal aid system in Canada and New Zealand compared with the UK.

I now enclose with this letter an additional memorandum of written evidence from the Law Society containing the comparative information about New Zealand and Canada. A further memorandum of evidence providing evidence in response to comments by Members and other witnesses questioning the alternative savings for the justice system proposed by the Law Society will be submitted separately.

Evidence in the memorandum is provided for:

1 - Comparison of eligibility for legal aid in England & Wales, Canada and New Zealand, showing broadly similar qualifying levels of income and assets in all three jurisdictions. The means tests in New Zealand are slightly more generous than in the UK.

2 - Analysis of the "drivers" of cost differences for the legal aid systems in England & Wales, Canada and New Zealand, showing that the biggest contributor is the cost of criminal legal aid, not the categories of civil law and family law where legal aid is being withdrawn under the proposals in the Bill. The number of legally-aided criminal defence cases in England and Wales is 298 per 10,000 population, compared with 102 in New Zealand and 79 in Canada. Civil legal aid costs in England & Wales have fallen by 6% since 2000/01 while criminal legal aid costs have risen by 9% (Justice Select Committee, March 2011).

3 - A summary of the findings of a report on cuts to "poverty law" legal aid in British Columbia, which found that the system there is now "failing to meet even the most basic needs of British Columbians." Linda Lee undertook to provide this report to the committee and a copy of the report is provided (Foundation for Change: Report of the Public Commission on Legal Aid in British Columbia, Leonard T Doust QC, March 2011).

Legal Aid, Sentencing and Punishment of Offenders Bill Committee

Law Society note on International comparisons on legal aid spending

Following the oral evidence session on 12 July, The Law Society agreed to provide the Public Bill Committee with further information about legal aid eligibility in other common law jurisdictions such as New Zealand and Canada. In Canada each province has it's own legal aid system so we will look at the system in British Columbia (BC) which has been the subject of a recent report. [1]

Financial eligibility

Different jurisdictions have different ways of means testing which makes exact comparison difficult, but overall we do not think the civil financial eligibility test for England and Wales is significantly more or less generous than BC or New Zealand. In England and Wales the maximum gross income for an average size family to be eligible is around £31,000 per annum, and it should be emphasised that for Licensed Work (i.e. work carried out under a legal aid certificate) a substantial contribution is payable by the applicant where gross income approaches the higher end of the eligibility range. In New Zealand the maximum income for the same size family unit to be eligible is $64,678 NZD (c.£34,000) which makes the New Zealand test slightly more generous. In BC the maximum annual income for eligibility is $43,920 CD (c.£28,300). However this figure is the maximum net income after allowable deductions are applied which suggests that the gross income figure would be significantly higher. We should also point out that in the recent Report of the Public Commission on Legal Aid in British Columbia the financial eligibility test was criticised for excluding too many low income working households.

Comparative spend

Much interest has been generated by figures that indicate that per capital legal aid spending in England and Wales is higher than in most other jurisdictions. It is probably now generally accepted that there is little to be gained by comparisons with continental European jurisdictions operating an inquisitorial system because of the significantly different nature of those systems where costs are more likely to be focussed on the investigative role of the courts rather than on legal representation. Comparisons with other common law jurisdiction countries is arguably a more useful exercise. Annual per capita spend on legal aid in England and Wales is approximately £38. In New Zealand it is around £20 according to the most recent research and, approximately £8 in BC. It should also be noted that BC has one of the lowest per capita spends of all the Canadian provinces.

It has been argued by some that too much is spent on legal aid in England and Wales, that cuts are not only necessary but desirable, and can be implemented without harming essential access to justice. We do not accept this argument. Currently our legal aid system is one of the most comprehensive in the world, but this is something to be welcomed rather than lamented in a country that is supposed to value access to justice for all and equality before the law. We should aim to be among the best rather than trying to emulate the worst. In some common law jurisdictions where spending is low, legal aid provision is woefully inadequate all we will say more about this later.

There are many factors which may explain the higher cost of legal aid in England and Wales. Some of them have been identified by Bowles and Perry [2] in their 2009 report commissioned by the Ministry of Justice.

· A higher crime rate in England and Wales than New Zealand and Canada.

· A higher number of legal aid criminal legal aid cases per capita than any other jurisdiction in their survey. England had Wales had 298 cases per 10,000 population compared to 102 in New Zealand and 79 in Canada. Bowles and Perry also took the view that this higher number of cases is unlikely to arise from more generous financial eligibility as eligibility in England and Wales is in line with other countries with well developed legal aid systems and 'thus unlikely of itself to be a major source of variation in legal aid spending per capita.'

· For non-criminal cases the number of supported cases per capita was also higher for England and Wales than for New Zealand and Canada.

· One factor that could explain the above is the higher divorce rate in England and Wales (31 per 10,000) compared to 26 in New Zealand and 24 in Canada.

Bowles and Perry also point out that whilst legal aid costs are higher in England and Wales than in other countries surveyed, this did not hold true for the overall costs of the justice system where spending in England and Wales on courts and public prosecutions is 'comparatively low'.

Risks of reducing the legal aid budget: lessons from British Columbia

The legal aid budget in BC has been subject to a series of cuts over the last decade. These cuts have included substantial cuts to 'poverty law' cases which includes similar areas of law to those categories of law that will be significantly cut or removed from scope by the Legal Aid Bill. The recent report by Leonard Doust QC [3] finds that the legal aid system in BC is now 'failing to meet even the most basic needs of British Columbians'. The report also finds that timely intervention of legal aid helps to prevent downstream costs such as 'the additional healthcare costs, the commission of criminal offences as a response to the failure to properly access welfare benefits, and further burden on the social welfare system'. Doust places 'poverty law' at the heart of his recommendations for reconstructing legal aid in BC. In view of this evidence we believe it would be tragic to make the same mistakes in England and Wales.

September 2011

[1] FOUNDATION FOR CHANGE: Report of the Public Commission on Legal Aid in British Columbia

[1] by Leonard T. Doust, QC March 2011


[2] Bowles and Perry: International comparison of publicly funded legal services and justice systems, MoJ research series 14/09, October 2009

[3] Doust (2011) ibid

Prepared 16th September 2011