Civil Legal aid (Merits Criteria) (Amendment) Regulations 2016

Christina Rees Excerpts

Thursday 20th October 2016 General Committees

[Christina Rees (Neath) (Lab/Co-op)]

It is a pleasure to serve under your chairmanship, Mr Turner. I thank the Minister for his kind words and for his explanation of the statutory instrument. I confirm that we do not oppose it, but I should like to make some observations.

The Civil Legal Aid (Merits Criteria) Regulations 2013 for full representation were implemented in April of that year to give effect to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. In April 2013, the Government consulted on further cuts to legal aid, in their consultation “Transforming Legal Aid”. When that consultation first proposed removing civil legal aid for borderline cases, there was widespread opposition. At the time, legal aid was granted for certain case types that were assessed as having borderline prospects of success. The consultation acknowledged that those were

“high priority cases, for example cases which concern holding the State to account, public interest cases, or cases concerning housing.”

The regulations themselves were later amended to make the merits test less restrictive, following the July 2015 High Court judgment in the case of IS v. Director of Legal Aid Casework, which, among other things, found:

“The rigidity of the merits test…is…not reasonable.”

That case was a challenge to the exceptional funding arrangements, and the judge’s findings on the merits test were made in that context. The decision was subsequently overruled in the Court of Appeal, and the July 2016 amendments essentially see the merits test revert to the original 2013 position. The High Court’s decision meant that more people would potentially qualify for legal assistance under the revised regulations, and many lawyers working in the affected areas of practice would have been content for that position to remain unaltered. At the time of the “Transforming Legal Aid” consultation, given the significance of the cases described, many questioned why the “borderline” category was to be abolished.

Determining the prospects of success of a case is not a scientific process; it is a subjective exercise. Lawyers can attest to many cases to which the “borderline” description was attached, but that when funded went on to lead to changes in the law. The Law Society’s consultation response at the time warned that

“it can be particularly difficult in public law cases and test cases where often the prospects of success can only be assessed as borderline due to the uncertainty in the law the case is intended to clarify.”

We respect the Court of Appeal’s decision, however, and to that extent the reinclusion of some borderline cases is welcome. Labour remains concerned that the reforms that became LASPO went too far in restricting the availability of civil legal aid. The Government have long said that they would conduct a review into the impact of the reforms and cuts to legal aid introduced by LASPO after three years. I should be grateful if the Minister did one very simple thing and told us when that review will be carried out. I thank him again for presenting the statutory instrument to the Committee, and I hope he will answer my question.