2 The cost and operation of the current
system
The current system
5. For twenty years from the inception of the
modern legal aid system in 1949, legal aid was mainly provided
in criminal cases and in matrimonial and divorce cases. In 1970,
its scope was widened to encompass representation for individuals
(businesses being specifically excluded) in most court proceedings,
other than defamation. The Access to Justice Act 1999 removed
most personal injury and boundary disputes from the scope of legal
aid; it also established: the Criminal Defence Service (which
provides criminal legal aid); the Community Legal Service (which
provides legal aid for civil and family cases); and the Legal
Services Commission (LSC), which administers the two schemes.
CRIMINAL LEGAL AID
6. Free, non-means-tested, advice and assistance
is available for anyone being questioned by the police in connection
with a suspected criminal offence and such advice may be provided
by the client's own solicitor, by the Duty Solicitor or by telephone,
via Criminal Defence Service Direct. Other services relating to
criminal cases including advice and assistance (which
might include a solicitor's help in writing letters or preparing
a case, for example), advocacy assistance, and representation
are provided in the magistrates' courts, subject to both
a means test and an interests of justice test (the latter considers,
for example, whether the charge is sufficiently serious that it
could result in imprisonment or loss of livelihood, and whether
the individual has the capacity to represent themselves). In
the Crown Court defendants are automatically deemed to have met
the interests of justice test.
7. Means-testing was re-introduced in the magistrates'
courts in 2006 and in the Crown Court in 2010 (having been removed
in 2001 following the Access to Justice Act 1999). People under
the age of 18, on low incomes, or who are entitled to certain
"passport" benefits are deemed to have met the means
test. To those not meeting any of those criteria, in the magistrates'
court, free representation is available for those whose income
is within prescribed limits; in the Crown Court, free legal aid
is provided for those whose disposable income and capital are
below a threshold, while those whose income and capital are above
the threshold are eligible for legal aid provided they make a
contribution.[6]
8. In 2009-10 the Criminal Defence Service facilitated
1,534,000 acts of assistance, which were provided via the 1,700
contacts held with providers.[7]
CIVIL AND FAMILY LEGAL AID
9. The Community Legal Service offers various
levels of legal help and advice (for example, through face-to-face
meetings at citizens advice bureaux, law centres or solicitors'
offices, or telephone advice via the Community Legal Advice Helpline)
as well as legal representation in courts and, exceptionally,
at tribunals. An intermediate level of service - Family Help
- is available in private and public family proceedings and can
facilitate negotiation or referral to mediation services.[8]
The number of acts of assistance provided under the legal aid
scheme within each area of civil and family law in the last six
years was as follows:[9]
Table 1: Volumes
|
| 2004-05
| 2005-06 | 2006-07
| 2007-08 | 2008-09
| 2009-10 |
Family | 407,143
| 419,115 | 413,106
| 381,506 | 412,049
| 451,154 |
Mental Health |
31,085 | 34,509
| 34,547 | 35,663
| 36,718 | 38,632
|
Immigration |
96,095 | 93,032
| 92,826 | 86,646
| 97,268 | 101,633
|
Debt | 58,686
| 102,954 | 121,689
| 111,834 | 133,378
| 147,196 |
Housing | 95,050
| 135,170 | 172,993
| 169,455 | 186,241
| 184,944 |
Welfare Benefits
| 72,630 | 98,999
| 125,200 | 126,628
| 137,605 | 143,865
|
Employment | 9,578
| 23,145 | 22,309
| 22,702 | 28,261
| 31,796 |
Community Care |
4,048 | 4,904
| 5,186 | 5,549
| 8,449 | 9,605
|
Actions Against police
| 5,475 | 5,483
| 5,721 | 5,336
| 5,799 | 5,898
|
Consumer | 4,458
| 4,413 | 4,336
| 3,812 | 3,577
| 3,250 |
Clinical Negligence
| 9,322 | 7,941
| 7,919 | 7,697
| 7,480 | 7,472
|
Education | 3,177
| 7,668 | 12,298
| 9,284 | 7,362
| 5,541 |
Personal Injury |
3,449 | 2,933
| 2,823 | 1,900
| 1,668 | 1,747
|
Public Law | 2,609
| 2,958 | 2,955
| 3,302 | 3,897
| 3,959 |
Miscellaneous |
11,146 | 12,017
| 11,058 | 7,962
| 7,765 | 5,592
|
10. Most services provided under the Community
Legal Service are means-tested, although "in certain types
of proceedings, legal aid is available and free to all, for example,
for parents in care or supervision proceedings and in child abduction
proceedings, and for certain types of mental health or capacity
proceedings where an individual is challenging his or her detention
and for the child where they are a party in family proceedings".[10]
Where means tests do apply, those people on passporting benefits
are automatically eligible; services are also provided free to
those whose disposable income and capital fall below certain thresholds
and, for those whose income and capital is between certain thresholds,
on a contributory basis. Other than in public family proceedings,
various merits tests are applied; for example, in relation to
legal help, assistance is provided contingent on sufficient benefit
being likely to accrue to the client; in relation to representation,
consideration must be given as to whether Conditional Fee Arrangements
or other alternative sources of funding are available, and full
representation "will be refused if the prospects of success
are unclear or if they are borderline (save if there is a wider
public interest) or poor. Any potential damages must justify
the likely costs of the case. Some cases (for example, representation
of parents in a case where their children may be taken into care)
are not subject to a merits test, so clients are represented even
if they have extremely poor prospects".[11]
THE FINANCIAL CONTEXT
11. The context in which the Government is proposing
to reform the legal aid system is one in which dramatic savings
have to be found and public expenditure curtailed. Legal aid
constitutes approximately 25% of the Ministry of Justice's budget,[12]
and the proposed reforms are intended to make a "substantial
contribution" to the MoJ's target of a real reduction of
23% in its budgetapproximately £2 billionin
2014-15.[13] The
Government's dramatic proposed reform of legal aid is consequent
upon the need to make drastic reductions in public expenditure
the
Ministry of Justice must cut its spending by almost a quarter,
and reductions in legal aid costs will form an important part
of that. In that context we accept the necessity of certain changes,
and the fact that there are other grounds for making some of them,
but we make specific recommendations about how we think the Government's
proposals should be refined.
The cost of legal aid in the last
decade
12. Between 2000 and 2010 expenditure on legal
aid rose by almost 3% in real terms. Spending peaked at £2,414
million in 2003-04 but has since stabilised at approximately £2,100
million in each of the last four years. The relative proportions
of the budget consumed by criminal and civil legal aid have shifted
over the same period. In 2000/01 expenditure was split almost
equally between criminal and civil cases, but as the cost of civil
legal aid has fallen (by 6%), that of criminal legal aid has risen
(by 9%), so the former now accounts for only 44% of the annual
spend.
Table 2
£m cash
(at 2009-10 prices)
| 2000-01 | 2001-02
| 2002-03 | 2004-05
| 2005-06 | 2006-07
| 2007-08 | 2008-09
| 2009-10 |
Civil | 998
| 905 | 972
| 1,044 | 956
| 923 | 869
| 928 | 941
|
Criminal | 1,101
| 1,211 | 1,310
| 1,370 | 1,348
| 1,330 | 1,258
| 1,207 | 1,205
|
Total Legal Aid |
2,099 | 2,117
| 2,282 | 2,414
| 2,304 | 2,253
| 2,128 | 2,135
| 2,146 |
Source: AJ 61
SPENDING ON CRIMINAL LEGAL AID
13. Expenditure on criminal legal aid peaked
at £1,370 million in 2003-04 but has since fallen to approximately
£1,200 million per annum. Over the last ten years, there
has been a 6% drop in costs for defence services provided at police
stations and magistrates' courts, whereas for those provided at
Crown Courts or higher courts costs have risen by 9%. Expenditure
on very high cost cases peaked at £125 million in 2007-08
and has since stabilised at approximately £98 million.
Spend on Criminal Legal Aid (CDS) at 2009-10
prices

Table 3
£m cash
(at
2009-10 prices
| 2000-01 | 2001-02
| 2002-03 | 2003-04
| 2004-05 | 2005-06
| 2006-07 | 2007-08
| 2008-09 | 2009-10
|
Crime Higher |
532 | 285
| 680 | 750
| 771 | 773
| 690 | 723
| 712 | 734
|
Crime Lower | 569
| 627 | 630
| 621 | 577
| 556 | 568
| 509 | 495
| 471 |
Total criminal |
1101 | 1211
| 1310 | 1370
| 1348 | 1330
| 1258 | 1232
| 1207 | 1205
|
Source: AJ 61
SPENDING ON CIVIL LEGAL AID
14. The cost of civil legal aid has also fallen
since 2003-04, from a peak of £1,044 million, but costs have
been rising since 2006-07 and do not appear to have stabilised.
Spending on civil representation has fallen by 9%, whereas that
for legal help has risen by 15%, contributing to a 7% fall in
overall expenditure over the last decade.
Spend on CLS (at 2009-10 prices)
Table 4: Spending on community legal services
between 2004 and 2010
Expenditure (£m)
| 2004-05 | 2005-06
| 2006-07 | 2007-08
| 2008-09 | 2009-10
|
Family | 554
| 598 | 590
| 609 | 634
| 597 |
Mental health |
54 | 31
| 30 | 33
| 32 | 36
|
Immigration |
193 | 113
| 88 | 91
| 89 | 89
|
Debt | 9
| 28 | 26
| 22 | 27
| 33 |
Housing | 53
| 54 | 56
| 54 | 60
| 60 |
Welfare benefits
| 12 | 26
| 25 | 23
| 24 | 28
|
Employment | 6
| 8 | 6
| 6 | 6
| 8 |
Community care |
5 | 3
| 4 | 4
| 5 | 6
|
Actions against police
| 7 | 6
| 6 | 5
| 5 | 5
|
Consumer | 7
| 3 | 1
| 0 | 3
| 2 |
Clinical negligence
| 32 | 32
| 28 | 29
| 28 | 16
|
Education | 6
| 6 | 5
| 4 | 3
| 3 |
Personal injury |
-1 | -1
| -6 | -7
| -4 | -4
|
Public law | 8
| 6 | 6
| 6 | 9
| 7 |
Misc. | 12
| 12 | 5
| 7 | 9
| 55 |
Total | 957
| 924 | 872
| 888 | 932
| 941 |
Sources: AJ 61 and HC Deb, 19 Jan 2011, col 810W.
Figures have been adjusted to 2009-10 prices
Note: Values are net expenditure which is the
total amount paid on final bills together with payments on account
(POAs) in ongoing cases, less recoupment of POAs together with
income from contributions and recovery of costs and damages on
behalf of assisted persons. As some payments will relate to cases
completed in previous years some categories appear as negative
spend.
Cost drivers
15. We sought an explanation of the key factors
that have contributed to the trends in spending described above
from some of our witnesses. Sarah Albon, Director for Civil, Family
and Legal Aid Policy at the Ministry of Justice told us that the
level of expenditure is primarily dictated by the volume of cases.[14]
CRIMINAL LEGAL AID
16. The Ministry of Justice attributed the shift
in the distribution of costs of defence services from lower to
higher courts that has characterised spending on criminal legal
aid to changes in the volume of cases received at Crown Court
relative to the magistrates' courts since 2006. Over this period,
there was a 26% increase in cases received for trial at Crown
Court, stemming from 33% more triable either way cases and 14%
more indictable only cases, and a 13% reduction in the number
of defendants proceeded against in the magistrates' courts. A
35% increase in Crown Court cases resulting in a guilty plea has
further exacerbated the rise in Crown Court costs. Extraneous
factors affecting costs per case include advances in digital technology
fuelling an increase in the volume of evidence in criminal cases;
in Crown Court trials the average page count has increased by
65% in the last six years.
17. Other drivers of the higher cost of criminal
cases include the greater complexity of legal work, for example,
as a result of changes to criminal justice legislation which have
increased the time that cases take to pass through the court system
and created additional avenues of appeal.[15]
Many new criminal offences have been created in recent years.
Furthermore, additional legal mechanisms require more time to
be spent on individual cases, for example, those relating to bad
character applications and applications for the use of hearsay
evidence.
CIVIL LEGAL AID
18. The overall reduction in the cost of civil
legal aid since 2000 masks shifts in the balance of expenditure
between civil representation and legal help and for specific areas
of law. For example, within the context of a 10% fall in expenditure
on civil representation, a higher volume of public law children
cases in the aftermath of the Baby Peter case has, along with
a higher cost per case, contributed to an 8% increase in expenditure
on civil representation over the last four years. On the other
hand, outlay on immigration has been flat over the same period
as case volumes have fallen and the nature of legal issues has
changed, resulting in fewer asylum cases and more immigration
and nationality cases. By contrast, the 19% increase in spending
on legal help over the last 10 years can be attributed to increased
demand in areas of social welfare law, including debt, housing,
employment, and welfare benefits. The Ministry of Justice and
Legal Services Commission have found no evidence that the complexity
of law has operated as an inflationary pressure for the costs
of civil and family legally-aided work.
Recent attempts to reduce costs
19. Several attempts have been made to control
and ultimately prevent the escalation of costs
of legal aid in recent years.
CRIMINAL LEGAL AID
20. The Ministry of Justice has implemented a
number of initiatives with the aim of reducing the costs of criminal
cases, including:
- the introduction in 2001 of
graduated fees for Crown Court advocates, which were extended
to cracked trials and guilty pleas in 2005, revised in 2007 and
further extended to include cases of up to 60 days in July 2010;
- the introduction of individual case contracts
for all very high cost cases (VHCCs) from 2004-05;
- the re-introduction of means testing in magistrates'
courts from 2006-07;
- the introduction of civil and family fixed fees
and revised magistrates' courts standard fees in 2007;
- the introduction of Crown Court Litigators' fees
and Police Station Duty Solicitor fees in 2008;
- the re-introduction of means testing in Crown
Courts in April to June 2010.
CIVIL LEGAL AID
21. Despite a sharp increase in the volume of
mental health cases, expenditure in this area fell after the introduction
of a new fees scheme in 2008. Nevertheless, as the majority of
civil and family work is already funded by fixed fees, the volume
of cases is the key cost driver and therefore the obvious focus
for efforts to reduce cost. There are limits to what can be done
to control extraneous factors affecting volume, such as the recession
and the impact of the Baby Peter case. However, the Access to
Justice Act 1999 has succeeded in reducing costs by limiting the
scope of civil representation, specifically by removing personal
injury and other money claims. Expert fees, particularly in family
law and child protection cases are an additional driver of cost
per case.[16]
International comparisons of
spending
TRENDS IN COMPARATIVE SPENDING ON
LEGAL AID
22. When announcing the Government's proposed
reforms, the Justice Secretary stated that England and Wales currently
has "one of the most expensive legal aid systems in the world".[17]
In seeking explanations for the relatively high costs of the system
we discovered that international comparative research on legal
aid is surprisingly limited.
23. In October 2009, the Ministry of Justice
published a comparative study, commissioned from the University
of York, of publicly-funded legal services and justice systems
of England and Wales, Australia, Canada, France, Germany, Netherlands,
New Zealand and Sweden. The data examined covered the period 2000-01
to 2006-07.
24. The Council of Europe also publishes comparative
data on European judicial systems compiled by the European Commission
for the Efficiency of Justice (CEPEJ) bi-annually. Table 5, composed
from a combination of these data, illustrates that the cost of
legal aid per inhabitant in England and Wales is higher than ANZAC
countries, continental European jurisdictions and other nations
in the United Kingdom and the Republic of Ireland.
Table 5: Comparative costs of legal aid per inhabitant
Country | Amount per inhabitant in Euro (from 2006 CEPEJ data)
|
Australia | 13.05 (Note 1)
|
Canada | 11.84
|
New Zealand | 14
|
France | 4.8
|
Netherlands | 21.1
|
Norway | 32.4
|
Ireland | 15
|
England and Wales | 56.2 (Note 2)
|
Northern Ireland | 55
|
Scotland | 46.9
|
Note 1: ANZAC costs relate to 2004 data from the
University of York study
Note 2: This had fallen to 34.5 Euro by 2008
Factors contributing to high
costs
25. Professor Roger Bowles, one of the co-authors
of the University of York study, explained that "on almost
all of the components of the [legal aid] expenditure" more
was spent in England and Wales than in the comparator countries;
he attributed this to a "particularly unusual combination
of
high volumes [of cases supported] and high costs per
case."[18] According
to the report, other contributory factors are: high income ceiling
on eligibility; wide (if narrower than previously) coverage of
areas of law; and the adversarial legal tradition of a common
law country which necessitates a higher level of representation
in court.[19] Professor
Bowles considered that there are "lots of reasons" underlying
this, including: the intention behind the establishment of the
legal aid system; the way in which the system has evolved and
grown; and the way in which people are accustomed to resolving
disputes.[20]
CRIMINAL LEGAL AID
26. The comparatively high number of legally-aided
criminal cases identified in the report as the most important
single driving factor of higher expenditure was explained
by a combination of: higher rates of recorded crime in England
and Wales; a high proportion of cases being brought to court;
and a higher proportion of defendants in those cases receiving
legal aid.[21] The key
indicator of differences in levels of demand for legal aid between
EU and Commonwealth countries is the ratio of the number of criminal
cases being brought to court relative to the crime rate; in continental
Europe a higher proportion of cases were resolved without resort
to court;[22] this may
be a reflection of the way that legal advice is delivered.[23]
The authors concluded that there was no evidence of a "common
law" effect producing higher spending per capita.
27. Despite the income ceilings at which defendants
were eligible for legal aid in criminal cases being high in England
and Wales, they were not significantly disproportionate to those
of other high income EU countries (with the exception of France)
but were much higher than levels in the ANZAC countries; it should
be noted that the period of this study coincided with the abolition
of means-testing, which has since been reinstated in both Crown
and Magistrates' Courts.[24]
CIVIL LEGAL AID
28. The number of civil and family legally aided
cases is higher in England and Wales than other countries although
the variance is much smaller than for criminal cases. The average
spending per case was also 30% higher. The report notes that there
were significant changes in the composition of expenditure in
England and Wales over the period studied; family matters accounted
for less than half of civil legal aid spending in 2001 and more
than two-thirds by 2007. Factors driving these changes included:
the high number of divorces and the legislation applying to procedure;
and eligibility rules. Professor Bowles observed that merits tests
are "comparatively standard"; they tend to focus on
whether a private individual with moderate means would spend their
personal money on the matter in question.[25]
29. Notwithstanding differences in the volume
of cases, the cost per case was also relatively high. Ms Albon
and Ms Downs agreed that there was no "definite evidence"
of the contributory factors to high cost per case.[26]
On the other hand, Professor Bowles believed that this was primarily
due to the level of "legal inputs into a typical criminal
case" including the way in which expenditure on such services
is managed, and the amount of legal services used in a particular
case, which is determined to some extent by the operation of law
and procedural issues for example, related to the operation
of the courts that dictate the steps that must be followed.[27]
He cited, for example, the relative expense of using the Crown
Court for those offences that are triable either way, and the
level of resources that are inevitably expended prior to a guilty
plea being given in Crown Court.[28]
The Ministry of Justice noted that almost 60% of defendants in
either way cases tried in the Crown Court received a sentence
on conviction that a Magistrates' Court could have imposed and
that a guilty plea was entered in 73% either way cases committed
for trial at Crown Court.[29]
30. Professor Bowles described difficulties in
calculating hourly rates for legal services that could be usefully
compared across jurisdictions. He stated that it would be necessary
to unpick variances in a range of areas, including, for example:
the way in which courts work and the level of the court involved;
the way cases are heard; the role that is assigned to the person
who is making the decisions relative to what matters have to be
discussed by legal representatives; the complexity of legal issues;
the kinds of lawyers used; and the involvement of counsel.[30]
Ms Albon highlighted further limitations in collating quantitative
data of sufficient quality to provide more definitive evidence
in terms of the resources required, for example, for data and
IT systems and to cover the human cost of monitoring and analysis.[31]
We are disappointed in
the dearth of evidence on legal aid expenditure at case level
to enable the identification of key influences on cost. We note
the difficulties in collating quantitative evidence for useful
national and international observations to be made, and we believe
that a series of small-scale domestic qualitative research studies,
examining the drivers of cost per case, would provide the Government
with more valuable data to inform its efforts to reduce spending.
It may be possible to reduce the amount of legal work required,
for example, by reducing the complexity of particular areas of
law, and thereafter to adjust the level of fixed fees accordingly.
Legal aid in the context of
spending on the wider justice system
31. Continental systems tend to have higher judicial
and court costs. Council of Europe data on judicial systems across
Europe illustrate that when the costs of courts, public prosecution
services and legal aid are combined, the budget in England and
Wales as a percentage of the GDP per capita is equal to the average.[32]
Expenditure on running the courts and on public prosecution in
England and Wales was comparatively low, suggesting that the high
legal aid costs may be offset by lower budgets elsewhere in the
system. The lower expenditure may be attributed to the major role
played in England and Wales by the lay magistracy, at much lower
cost than the professional judges who deal with all or most cases
in other European countries.
Lessons from international research
for efforts to reduce costs
32. Professor Bowles told us that "dramatic"
changes would be required to bring about significant savings.[33]
Indeed his report concluded that: "[a] major overhaul of
criminal law in England and Wales, including changes in the role
of judges and legal representatives, would be needed before a
reduction in the number of court cases (per offence committed
or suspect charged) might be anticipated. The investment costs
of such reform would be huge."[34]
Nevertheless, several proposals were made in the report for addressing
cost issues, including:
- more effective gatekeeping
or triage that matched people with legal problems, through a consultation
process, to a variety of possible solutions, not just approaches
that relied on formal legal process;
- greater use of mediation and other forms of dispute
resolution, similar to practices in Sweden, particularly in family
law;
- review of cases or firms where the postponement
of hearings occurred frequently;
- review of the scope for procedural change to
enable reductions in the proportion of matters in which court
hearings were required i.e. enabling cases to be assigned to administrative
bodies (this had been controlled more effectively for criminal
cases in other common law jurisdictions[35]);
and
- continuing analysis of legal aid expenditure
at case level to identify key correlates of high spending per
case and high demand for support.[36]
33. Professor Bowles drew our attention to two
more radical approaches with the potential for bringing down the
legal aid budget: 1) to find mechanisms to enable disputes to
be internalised within a particular sector, comparable to contingency
fee arrangements introduced for personal injury and 2) to rely
more heavily on legal expenses insurance, as is the case in Germany.
For each of these options there is a risk that costs will still
fall on the public sector, albeit from a different budget, although
this may be partially offset by a greater incentive to operate
within the law.[37]
34. Some caution should be exercised in learning
lessons and more importantly in transferring policies
from other jurisdictions on the basis of comparative research.
By the co-author's own admission, the study that the Ministry
of Justice commissioned was "relatively small-scale"
and did not probe into legal systems and cost drivers in any "great
depth".[38] In the
report, the authors explained that "additional analysis of
data collection methodologies might have revealed alternative
explanations for some of the differences found."[39]
For example, commenting on 2006 data collated by the Council of
Europe, Professor Bowles noted that the disproportionately higher
level of spend in Scotland, Northern Ireland and England and Wales
than other EU countries "prompted the question of whether
the British data had been collected in a way that differs in some
critical respect from the way data were assembled for other countries.
A further analysis of the technicalities of the data collection
methodology might be revealing but would take us beyond the study
remit."[40] In addition,
no judgments were made about the comparative quality of the legal
work delivered. In seeking to learn how best to reduce costs from
other jurisdictions, Ms Albon admitted that the Ministry of Justice
had found it "difficult to find some other area, look at
it and think they are providing a much better and cheaper service
than us. Mostly, when they are spending a lot less, it is because
they are buying a lot less."[41]
35. Furthermore, the authors note that significant
differences in the methodology and the reporting of data associated
with justice systems means that making comparisons is complex
and that any conclusions should be treated with caution. They
identified two particular issues: "First, particularly in
the federal systems such as Australia and Canada, there was sufficient
variation even within single countries, at provincial level, to
preclude [comparison] from being feasible within the time and
space limits. Secondly, as regards the EU countries surveyed,
the sources of comparative data were regarded as insufficiently
robust to support much in the way of inferences."[42]
36. In addition, as noted above, legal aid expenditure
has stabilised since the period studied. This may suggest that
measures that have already been introduced to reduce the inflation
of costs, including the extension of fixed fees and the reintroduction
of means testing, have had some success. Council of Europe data
indicates that in England and Wales costs per inhabitant fell
by 23% between 2004 and 2008, in the context of a 23% average
rise across Europe.[43]
37. Professor Bowles cautioned against making
significant changes to the legal aid system based on practice
in other jurisdictions, for example, taking whole areas of law
out of scope, without deeper understanding of the wider legal
and policy frameworks in which legal aid arrangements are embedded.[44]
He explained that although such reforms may be attractive as a
means of controlling expenditure, it is difficult to unravel the
likely consequences and cost implications as legal aid arrangements
develop over long periods of time: "Legal aid as a public
resource to settle matters can be a costly option, but there is
then also the issue of what the cost would be of not having those
arrangements in place. Those can be considerable for people as
well."[45] The
Ministry of Justice told us that it had consulted other jurisdictions
about their approaches both to legal aid and to court procedures,
in particular in relation to family law, including, for example,
some US states, Australia and Canada as well as Scotland and Northern
Ireland.[46]
The Ministry of Justice needs to develop a greater understanding
about what is driving demand and the cost of cases in order for
there to be confidence in its estimates of the impact of its proposals
for reform. Reducing spending on legal aid may have financial
implications and
indeed may inflate costs in
other parts of the legal system.
38. The legal aid landscape in England and Wales
has changed significantly since the period considered in the University
of York study. Nevertheless, we are encouraged that the Ministry
of Justice has sought to learn from other jurisdictions to inform
its consideration of the potential for reducing legal aid costs.
The findings of the study have been valuable in enabling the Ministry
of Justice and the Legal Services Commission to gain a better
understanding of cost drivers and potential means of controlling
them. The research, however
exploratory, suggests to us that having critically scrutinised
the way our legal procedures have evolved there is potential for
the Government to devise longer-term options for reform, rather
than concentrating on simple options, such as reducing scope.
39. International comparisons
are difficult, because of the many variables between different
systems, and there are significant gaps in the research. However,
it remains the case that the legal aid system in England and Wales
is one of the most expensive in the world and, in the context
of the budget savings the Government needs to find, this strengthens
the case for examining legal aid costs to see where they can be
reduced.
6 The Government's Consultation Paper, p 23 Back
7
Legal Services Commission, Annual Report and Accounts 2009-10,
HC 575, pp 5-6 Back
8
The Government's Consultation Paper, p 25 Back
9
HC Deb, 19 January 2011, col 809W Back
10
The Government's Consultation Paper, p 25 Back
11
The Government's Consultation Paper, pp 25-26 Back
12
Ministry of Justice, Cumulative Legal Aid Reform Proposals,
Impact Assessment, p 5 Back
13
The Government's Consultation Paper, p 5 Back
14
Q 304 Back
15
AJ 61; Please note: Written evidence is referred to throughout
this Report by the prefix 'AJ', followed by a reference number.
The full list of evidence received, and the corresponding AJ reference
number, can be found at the back of the Report. Back
16
QQ 305; 306 Back
17
Ministry of Justice press release, Clarke unveils plans for
radical reform of justice, 15 November 2010, http://www.justice.gov.uk/news/newsrelease151110b.htm Back
18
Q 261; Q 275 Back
19
Ministry of Justice, International comparison of publicly funded
legal services and justice systems, Roger Bowles and Amanda
Perry, University of York, p 36 www.justice.gov.uk/publications/docs/comparison-public-fund-legal-services-justice-systems.pdf Back
20
Q 261 Back
21
Q 261; Ministry of Justice, International comparison of publicly
funded legal services and justice systems, Roger Bowles and
Amanda Perry, University of York Back
22
Ministry of Justice, International comparison of publicly funded
legal services and justice systems, Roger Bowles and Amanda
Perry, University of York, p32 Back
23
Q 277 Back
24
Q 206 Back
25
Q 277 Back
26
Qq 305-306 Back
27
Qq 264-6; Q 301 Back
28
AJ 61 Back
29
AJ 61. For cases committed to Crown Court the average total cost
of both litigation and advocacy is over £1,700 (for guilty
pleas) and just over £3,200 (for cracked trials), compared
to estimatedaverage fees available for all either way cracked
trials and guilty pleas in the magistrates' court of approximately
£295 (excluding VAT and disbursements). Back
30
Qq 266, 269, 273 Back
31
Q 340 Back
32
European Commission for the Efficiency of Justice, Efficiency
and quality of justice, Edition 2010 (data 2008), Council
of Europe Back
33
Q 275 Back
34
Ministry of Justice, International comparison of publicly funded
legal services and justice systems, p 32, Roger Bowles and
Amanda Perry, University of York, www.justice.gov.uk/publications/docs/comparison-public-fund-legal-services-justice-systems.pdf Back
35
Ibid, p 37 Back
36
Ibid Back
37
Q 280 Back
38
Q 272 Back
39
Ministry of Justice, International comparison of publicly funded
legal services and justice systems, Roger Bowles and Amanda
Perry, University of York, p 36 Back
40
Ibid, p 18 Back
41
Q 339 Back
42
Ministry of Justice, International comparison of publicly funded
legal services and justice systems, Roger Bowles and Amanda
Perry, University of York, p 1 Back
43
European Commission for the Efficiency of Justice, Efficiency
and quality of justice, Edition 2010 (data 2008), Council
of Europe, p 34 Back
44
Qq 281, 284 Back
45
Q 281 Back
46
Qq 338-9 Back
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