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Frictions over legal aid

22 April 2016

Alexandra Cardenas discusses the legal aid residence test and the judicial review challenge to domestic violence evidence requirements.

Please find below a summary of this week's key political developments and announcements of interest to the Law Society.

Monday 18 April


House of Commons: written answer - Courts and Tribunals: digital technology

Holly Lynch (Labour) tabled a question to Michael Gove, the secretary of state for justice, with reference to his written statement of 11 February 2016, on HM Courts and Tribunal Service (HMCTS), on whether the Ministry of Justice's (MoJ) plans for updating the technology at Halifax County Court have been revised following the announcement of additional court closures; and if he will publish his plans for technology investments in the Calderdale Local Justice area over the next four years.

The question was answered by the minister for the courts, Shailesh Vara, who stated that the overall investment plans have not been changed following the announcements of court closures, and no new technology equipment will be installed into courts that are now planned to close. 

He went on to state that with regards to the Calderdale local justice area, the HMCTS Reform programme is designed to deliver an improved service nationwide, and that there are no intentions to publish plans specifically for technology investments in that area. 


Ministry of Justice: legal aid residence test proposal rejected by Supreme Court

The government's plans, spearheaded by lord chancellor Michael Gove, were rejected by all seven Justices on the Supreme Court. Led by Lord Neuberger, they ruled against the proposed civil legal aid residence test in the draft Legal Aid, Sentencing and Punishment of Offenders Act, stating that it is ultra vires [beyond the powers of the legislation] and unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998. 

The reasoning behind the MoJ's proposal is that only those who have an established link to the UK should be entitled to legal aid, which is a scarce and costly resource that must be rationed. The surprise ruling will prevent the lord chancellor from proceeding with plans to introduce the scheme this summer. The Ministry will now wait for the full written judgement to consider their next move. 

Read our response to the ruling

The chancellor's speech -  HM Treasury analysis on the EU referendum

On Monday morning, the chancellor of the exchequer George Osborne delivered a speech marking the publication of HM Treasury's (HMT) analysis of the costs and benefits of EU membership, and setting out HMT's analysis of the "realistic" alternatives to EU membership (the Norway, WTO and Canada models). 

Read the speech in full

Mr Osborne said that the HMT analysis was a "sober and serious" look at the costs and benefits of EU membership, not just for the British economy but for British families.

The chancellor, accompanied by environmental secretary Liz Truss, work and pensions secretary Stephen Crabb, and energy secretary Amber Rudd, argued that all alternative models would lead to a significantly diminished status for the UK, both politically and economically. All of the ministers spoke of the importance of the single market for the British economy and British public, arguing that outside the single market our openness and interconnection with the rest of the world would be significantly diminished. 

The ministers emphasised the importance of Britain's newly negotiated special status and how the new deal gives Britain the "best of both worlds". They argued that Brexit would reduce British GDP by around 7.5 per cent, depending on the alternative model, and the chancellor stated that people would be "permanently poorer" if we were to leave the EU, highlighting the headline statistic that British families would be £4,300 worse off every year. Osborne added that a Brexit would force income tax up by eight pence per pound to compensate for the impact of leaving the EU.

Read HM Treasury's analysis of the long-term economic impact (PDF)

Tuesday 19 April


House of Commons: written question tabled - clinical negligence

A question was tabled by Helen Jones MP (Labour) to the Secretary of State for Health on what estimate he has made of the annual costs incurred in clinical negligence legislation due to the failure of the NHS Litigation Authority to:

(a) properly investigate claims early in the process, and;

(b) offer a realistic settlement at the earliest possible time; and if he will make a statement.

This question will likely be answered in the week commencing 9 May, as Parliament is in recess 28 April to 6 May, and we will monitor for the answer.

Wednesday 20 April

Nothing to report.

Thursday 21 April


House of Commons: written ministerial statement - civil legal aid

Shailesh Vara, minister for the courts and legal aid, made a statement in the House with regards to the Court of Appeal's judgment (made on 18 February) on an appeal in a judicial review challenge to the domestic violence evidence requirements under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). 

Mr Vara, in outlining how the government is responding to the court's concerns, said that legal aid is a fundamental part of the justice system, but the limits to resources are an issue. He stated that the overriding approach to legal aid reform is to reduce the burden on the taxpayer of paying for legal aid, while ensuring that it is targeted at the highest priorities. 

He went on to say that in the judicial review, the Court of Appeal 'found that the regulations frustrated LASPO's purpose in two specific areas. First, in that they required evidence to have been obtained within a two-year period before the application for legal aid. Second, because they lacked provision for victims of financial abuse.'

Mr Vara said that the Ministry of Justice continues to believe that victims of domestic violence in private family disputes should receive legal aid where evidence is provided, and the Court of Appeal has agreed that the lord chancellor has the power to make arrangements in regulations to allow this. But there are areas where his department need further information, for example, the number of individuals who have evidence over two years old. 

The minister assured the House the MoJ has begun work with domestic violence support groups, legal representative bodies and colleagues across government to gather data and develop understanding of these issues. These findings will be used to inform an evidence-based solution to the court's concerns, with the aim of drawing up replacement regulations.

In this interim period, the government is taking immediate action, through provisional regulations laid before Parliament to change our arrangements, by more than doubling the original time limit for evidence (increasing it from two to five years) and introducing a provision for the assessment of evidence concerning financial abuse. The Ministry is expediting implementation of these changes so they will come into effect on Monday 25 April in order to make sure that victims of domestic violence can receive the support they need as soon as possible, and to give certainty to those considering applications for legal aid.

Written ministerial statement - consultation on fee proposals for immigration and asylum proceedings

The minister for human rights and civil liberties, Dominic Raab, issued a statement on Thursday, highlighting the government's publishing of a consultation paper, proposing increased fees for proceedings in the First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber).

The consultation proposes increasing fees in those immigration and asylum proceedings where a fee is payable so that the fee meets the costs of those proceedings in full.

These are the proposed increased fees:

• First-tier Tribunal from £80 to £490 for an application for a decision on the papers and from £140 to £800 for an application for an oral hearing.

• A new fee of £455 for an application to the First-tier Tribunal for permission to appeal to the Upper Tribunal.

The consultation also proposes a fee of £350 for an application to the Upper Tribunal for permission to appeal, where permission has been refused by the First-tier Tribunal, and a fee of £510 for an appeal hearing where permission is granted. To ensure the most vulnerable are protected the government will consult on further extensions to the exemptions scheme. 

Friday 22 April

Nothing to report.

Tags: politics | Westminster weekly update | legal aid | access to justice | Brexit

About the author

Alexandra Cardenas is Head of Public Affairs and Campaigns at the Law Society. Public Affairs manages the relationships with parliament and government. She is a dual qualified solicitor in England and Wales (2014), and Colombia (2002). Prior to the Society, she practised as a human rights lawyer and worked at Macmillan Cancer Support and Animal Defenders International.

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