Supplementary evidence from the Ministry
of Justice following the evidence session with the Secretary of
State on 15 December 2010 (AJ 49)
FOLLOW UP QUESTIONS ON ACCESS TO JUSTICE
LEGAL AID
Commentators have noted that the perpetrators
of domestic violence will become ineligible for legal aid for
private family law cases under the Government's proposals and
will become litigants in person, allowing them to cross-examine
their victims. How will victims be protected in these circumstances?
It is worth noting that this is a situation that
will already arise within the current system: there will be private
law family cases where a perpetrator of domestic violence is unrepresented,
whether because he fails the tests for legal aid and / or because
he has simply chosen to go unrepresented. Judges have the powers
and training to manage this situation and to ensure that it is
handled sensitively for the victim, ordering "special measures"
if necessary. For example, they can intervene to prevent inappropriate
questioning, or have questions relayed to the witness, rather
than asked directly. I consider that it would be inappropriate
to provide legal aid for the perpetrators of domestic violence
in this situation, especially when we are consulting on removing
legal aid for family private law more generally.
The consultation says that "there is no reason
to believe that such [private family law] cases will be routinely
legally complex". However rule 9.5 private law family cases
are by definition complex, and can involve allegations of sexual
and physical abuse. Why has the Department decided that legal
aid should not be available to parents in these
cases?
Rule 9.5 proceedings arise in cases where a judge
considers that the interests of the child ought to be separately
represented. We are proposing that legal aid for children should
be retained in such circumstances. As you note, such cases may
be factually complex, and could involve allegations of sexual
and physical abuse. However, this does not mean that they will
be legally complex. As such we do not consider that legal
aid should routinely be available to parents in these situations,
as they could still be expected to navigate the case themselves,
whereas clearly this would not be feasible for a child. We do
however propose that parents in individual cases will be able
to receive exceptional funding where some measure of legal representation
is required for the UK to meet its international or domestic legal
obligations.
The Government proposes that legal aid be confined
to cases where people are in imminent danger of losing their homes,
life or liberty. CAB has told the Committee that it is usually
more effective, and cheaper, to intervene in matters early. Why
has the Department reached the conclusion it has? What research
on this subject has it consisted?
The Government proposes to focus legal aid on those
who most need help, for the most serious cases in which advice
or representation is justified. We recognise that there are arguments
that the withdrawal of legal aid for any issue could lead, by
a chain of events, to serious consequences. However, the Government
has been clear about the need to save money from these proposals,
and therefore considers it appropriate to direct resources to
cases where there are likely to be very serious direct
consequences for the client.
The Government considers that many issues currently
addressed through legal aid could in fact be addressed through
other, less specialist means, including through action by individuals
themselves. For example, parents who wish to challenge a school
exclusion can find information available from a variety of websites
and advice agencies. Where parents are disappointed by an admissions
decision, they can appeal, and this requires them to set out in
writing why they disagree with the admissions decision. Parents
do not necessarily have to present legal arguments. The local
authority choice advisor can assist parents, and can attend the
appeal hearing with them. Advice is also available from the Advisory
Centre for Education, and from Parent Partnerships, which are
established by statute in every local authority area.
The legal aid consultation says that people should
"generally" be able to represent themselves, for example
at discrimination and education tribunals. Concerns have been
raised about people with limited English, learning difficulties,
mental health problems, or who are illiterate. What provisions
will be made in such cases?
It should be remembered that under the current arrangements
legal aid is not available for representation at the great majority
of tribunals. This is because tribunals are designed to allow
people to represent themselves. Interpreters are provided for
those with limited English. For example, the Special Educational
Needs (SEN) Tribunal is designed to be accessible to individuals
without legal assistance, and they can generally present their
case without specialist legal knowledge or representation. Individuals
should only need to present the facts to the Tribunal; it is for
the judge to interpret them in the light of the law. The Tribunal
provides written guidance to appellants, and a free DVD (The
Right to be Heard) which explains what to expect when attending
the Tribunal. In addition, there is statutory advice and support
for parents on SEN issues through Parent Partnership Services
available in every local authority area, and Independent Parental
Special Education Advice also provides free advice and assistance
on SEN matters, including Tribunal appeals.
Legal help and representation is currently available
for a range of cases arising from allegations of unlawful discrimination
and the consultation paper proposes retaining legal aid for all
such cases presently within the scope of civil legal aid.
We also intend to replace the existing exceptional
funding scheme with a new scheme to provide legal aid for excluded
cases where the Government is satisfied that the provision of
some level of legal aid is necessary for the United Kingdom to
meet its domestic and international legal obligations, including
those under the European Convention on Human Rights (and, in particular,
Article 2 and Article 6).
Can the Department tell us more about the research
into litigants in person mentioned in the legal aid consultation.
Is it qualitative or quantitative? What questions is it addressing?
The Department is pursuing three avenues of research.
One is a literature review on the impact of litigants in person
on the courts. This will look at international evidence as well
as domestic research. It will look at questions such as
- who they are, how many there are, what are their
motivations;
- what impact they may have on court processes;
- whether litigants in person have different outcomes
compared to litigants with representation; and
- what action works in assisting litigants in person.
Ministry of Justice social researchers are conducting
the literature review, rather than an external researcher, as
they are better able to complete the project within the necessary
timeframe.
The second avenue of research is an analysis of court
case files for the Family Justice Review. Subject to the number
of cases obtained, we will explore this data to identify any findings
about unrepresented litigants. Lastly, we are exploring the quality
of administrative data held by HMCS with a view to analysing differences
between cases where litigants are represented and not represented.
This should enable us to better understand the impacts
and will help to underpin the analysis in the final Impact Assessments
due to be published alongside the legal aid consultation response
in spring 2011. In addition, there will be a post-implementation
review of any reforms.
JACKSON REVIEW
The civil court funding proposals are being implemented
before the impact on access to justice of the legal aid reforms
is clear. Why has the Department decided to do it in this order?
We believe that it is important to consider the changes
to methods of funding civil cases - both publicly funded legal
aid, and privately funded conditional fee agreements (CFAs) -
together and in the round. At the same time as seeking to make
savings from the legal aid budget, we are proposing to take forward
those priority measures recommended by Lord Justice Jackson to
address the disproportionate and unaffordable costs of civil litigation.
Most personal injury cases were excluded from the
scope of civil legal aid in 2000, and most personal injury claims
are now funded under CFAs. Certain categories of case, not least
clinical negligence, will be affected by both sets of proposals,
in that they are currently within the scope of civil legal aid,
and are also commonly funded by CFAs. It is vital that the changes
to civil legal aid scope (such as for clinical negligence cases)
and the proposals for a Supplementary Legal Aid Scheme are considered
at the same time as the proposals on reforming CFAs. The current
CFA regime with its recoverable costs causes a significant financial
burden on the NHS for example, and withdrawing legal aid for clinical
negligence without reforming CFAs could increase that burden significantly.
We are proposing to take clinical negligence cases out of the
scope of legal aid but it will still be possible for such cases
to be brought under reformed CFAs. However, we are seeking views
in both consultations, on how the proposals should be implemented
to ensure that these cases are appropriately funded.
Taken together, these proposals complement the wider
programme of reform which the Government will be bringing forward
to move towards a justice system which is more responsive to public
needs and which encourages more efficient resolution of contested
cases where necessary.
Lord Justice Jackson made extensive recommendations
on civil funding, a number of which the Department is considering,
awaiting reports on or will "take a view on in due course."
What has the Department done to identify possible unintended consequences
from the reforms, given they are not being designed or implemented
as a package?
Lord Justice Jackson made 109 formal recommendations;
it would not be practicable to consult on all of these at once.
The consultation paper therefore seeks views on the package of
proposals on the reform of CFAs and the associated recommendations
on litigation funding. Sir Rupert himself, at paragraph 8.1 of
his response to the consultation, acknowledges the "good
sense" in our decision to tackle these issues first.
In addition to analysing written responses to the
detailed questions posed in the consultation paper, we are actively
engaging with interested parties, to identify the potential impact
of the reforms. We have also published a draft impact assessment
as part of the consultation package, on which we also welcome
views. The Justice Minister, Jonathan Djanogly MP, and officials
have met with claimant and defendant lawyers, after the event
insurance providers, liability insurers and other interested groups,
to discuss the proposals. Officials are continuing to ask for
data from various parties to help assess the impact of the reforms.
JUSTICE REINVESTMENT
AND REHABILITATION
Has the Department conducted the type of economic
modelling that the previous Committee recommended in paragraph
302 of its report on Justice Reinvestment?
The MoJ has continued to develop and improve its
capacity and capability in terms of data analysis and economic
modelling along the lines as that set out in the Justice Reinvestment
report.
Recent examples include:
- The publication of an Evidence Report alongside
the recent Rehabilitation and Sentencing Green Paper, including
latest evidence of what works in reducing reoffending.
- The development of a set of cross-CJS models
and financial planning tools to inform the recent Spending Review
bid.
- Establishing a forecasting and modelling unit
to ensure that we have reliable, consistent and accurate forecasts
of Criminal Justice workloads.
- The ongoing engagement with the academic community
in developing Criminal Justice policy.
- Commissioning a cost benefit analysis of the
HMP Peterborough pilot by RAND Europe.
- Working across government departments to develop
models of interventions to tackle drugs, mental health and worklessness.
Why has the department chosen to pilot payment
by results rather than testing place-based budgets to encourage
local partnerships to meet their statutory duties to reduce re-offending?
We recognise that, in the past, significant amounts
of money have been spent on rehabilitating offenders without properly
holding services to account for results they achieve. The Green
Paper, Breaking the Cycle, outlines our commitment to move to
a new approach where providers are increasingly paid by their
results at reducing re-offending. Payment by results is intended
to change the way in which services are commissioned to deliver
better outcomes for the public at the same or less cost. It also
supports the concept of justice reinvestment as it will ensure
that providers retain a focus on achieving long-lasting rehabilitation
of offenders, and will encourage the development of innovative
practices.
We intend to apply the principles of payment by results
for all providers of offender rehabilitation services by 2015.
However, we know that introducing a change of this order to the
criminal justice system will need careful design and testing on
a smaller scale before national roll out. We will therefore introduce
at least six payment by results pilots, covering a significant
proportion of the offender population and testing a range of potential
models. As part of this these pilots will be subject to economic
evaluation.
We are strongly supportive of the work underway to
provide local areas with more freedom and flexibility in how resources
are used at a local level; and we are committed to addressing
the barriers to local joint working. In particular, the Ministry
of Justice is contributing to the cross-government initiative
to test community budgets for families with complex needs in 16
local areas. Many members of these families are offenders or will
become offenders. Intervening with them at an early stage will
benefit both the families and their communities by reducing current
re-offending and interrupting cycles of intergenerational crime.
The Ministry of Justice will support the development and delivery
of the 16 pilots locally and nationally, and continue to work
with the Department of Education on our response to families with
multiple problems.
The Green Paper also outlines our commitment to pilot
a local approach to payment by results. We are currently developing
a model which will share the savings if the local area is able
to reduce crime and hence demand on criminal justice services.
The savings could then be reinvested in further crime prevention
activity at the local level. To test the local area approach,
we will run two projects from April 2011 for two years in Greater
Manchester; and across a number of London Boroughs, including
Croydon and Lewisham.
Finally in response to a question from Elizabeth
Truss MP, about international comparisons (Q50) you said that
you would try and find out more information about other countries
experiences of successfully implementing effective rehabilitation
are, particularly with regards to payment by results. I would
be grateful if you could share any relevant information your Department
has.
We are keen to learn from others' experiences of
implementing effective rehabilitation programmes. As you are aware,
we published, alongside the Green Paper, a very comprehensive
summary of the evidence base for rehabilitation and the approaches
proposed in the Green Paper including payment by results.
The use of payment by results to reduce offending
is in the early stages of development. We will be evaluating the
pilots as they develop and initial lessons learned from the Social
Impact Bond pilot in Peterborough will be published in May 2011.
The Green Paper consultation provides a further opportunity for
all stakeholders to shape the design and development of our work
on payment by results; and to influence how reductions in reoffending
should be measured going forward.
January 2010
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