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

Lord Keen of Elie Excerpts

Tuesday 25th October 2016 Lords Chamber

Moved by

[Lord Keen of Elie]

That the Regulations laid before the House on 21 July be approved.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the statutory instrument before the House today amends the Civil Legal Aid (Merits Criteria) Regulations 2013, to which I will refer hereafter as the merits criteria regulations, and broadens the availability of legal aid. The changes to this instrument enable the provision of legal aid funding in some cases where the prospects of success are marginal or borderline —that is to say, where prospects of success are less than 50% but at least 45% or where they cannot, by reason of disputed law, be quantified. These cases must generally also be of significant wider public interest or of overwhelming importance to the individual.

As noble Lords may be aware, the merits criteria regulations specify the criteria that are utilised to identify if an applicant for civil legal aid qualifies for funding under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO. The criteria are applied by the director of legal aid casework at the Legal Aid Agency when determining applications for legal aid. More generally, the merits criteria aim to determine if it is justified to provide public funding in an individual case. One measure that applies for applications for full representation is an assessment of a case’s prospects of success, known as the prospects of success test. It is this particular measure which the SI before us amends.

I shall briefly explain how we arrived at the amendments presented before noble Lords today. In 2015 a judicial review was brought against the merits criteria regulations and, specifically, the prospects of success test. The High Court ruled that certain aspects were unlawful, in particular the requirement for a case to have a 50% or higher prospect of success to receive legal aid for full representation. Noble Lords may recall that the Ministry of Justice introduced interim regulations to comply with this judgment while the case was appealed. These temporary regulations enabled funding for cases which had below 50% prospects of success when a refusal would breach, or risk breaching, the applicant’s rights under EU law or under the convention. I stress that this was a temporary measure in light of the judgment. Legal aid is a fundamental part of our justice system; while resources are not limitless, at all times we must strive to ensure that public confidence and value for money are maintained in the system.

The Court of Appeal overturned the High Court’s decision in May, and determined that the merits criteria regulations, as they were prior to amendment, were lawful. As a result of this judgment, the interim regulations introduced in light of the High Court judgment were no longer of effect and the Legal Aid Agency announced that it would no longer fund cases with less than 50% prospects of success.

There is no legal obligation to broaden the availability of legal aid, as the Court of Appeal ruled that the general requirement for 50% prospects of success is a proportionate approach to the allocation of legal aid, which cannot be condemned as arbitrary. The Ministry of Justice agrees with this judgment; as the aim of the merits criteria is to ensure that public funding is targeted at those cases which most justify it, it is reasonable to expect that publicly funded cases should, in general have at least 50% prospects of success. However, it should be noted that, when an assessment of the prospects of success test is applied, there have always been certain exceptions to the 50% threshold. These are cases which are of overwhelming importance to the individual or in the wider public interest, but would otherwise fail to qualify for legal aid because their prospects of success are slightly below 50% or not possible to quantify. The Government have decided, for these reasons, to make legal aid funding available for cases where prospects of success are marginal, meaning less than 50% but at least 45%, or borderline. This instrument removes the interim provisions introduced following the High Court judgment. Yet rather than simply reverting to the previous arrangements, it introduces these additional exceptions to the general 50% requirement.

To qualify for legal aid under these exceptions for cases with borderline or marginal prospects of success, the case must also be of overwhelming importance to the individual, or of significant wider public interest. In other cases when a non-standard prospects of success test is applied, such as domestic violence cases, the amendments made in this instrument mean that legal aid is available in borderline and marginal cases without meeting the additional criteria, or that funding would also be available for marginal or borderline cases when the substance of the case relates to a breach of convention rights. While the public purse is not limitless, the Government consider this funding to be justified for cases with borderline and marginal prospects of success.

However, the merits criteria applied are not uniform and depend on a number of factors. The type of legal service as well as the category of case for which funding is sought can determine which merits criteria must be applied. To give examples, prospects of success do not have to be shown for applications for funding for legal advice and assistance, Court of Protection cases and public law children cases. These changes were introduced through the urgency procedure provided for under LASPO. This was done to remove otiose provisions in the interim regulations, introducing the new exceptions for borderline and marginal cases and to provide clarity to the Legal Aid Agency and legal aid providers. Should these changes have been deferred until after the parliamentary Summer Recess, their introduction would have been significantly delayed.

In summary, this instrument introduces small but important changes to the merits criteria regulations, enabling the provision of legal aid for borderline and marginal cases. I am pleased that this instrument has been examined, without comment, by the Joint Committee on Statutory Instruments and Secondary Legislation Scrutiny Committee. Legal aid is a fundamental part of our justice system; while resources are not limitless, at all times we must strive to ensure that public confidence and value for money are maintained in the system. We judge these changes to be sensible and proportionate, and I therefore commend this statutory instrument to the House. I beg to move.

--- Later in debate ---

[Lord Beith (LD)]

My Lords, I hesitated to rise before the noble Lord, Lord Beecham, because I was sure he would have found there was something wrong with this instrument that I had not managed to discover. I am quite touched to find that he agrees with it as much as I do. It is a small but welcome improvement in the legal aid situation which has caused many people a great deal of anxiety. Although I fully recognise that legal aid resources are not—and cannot be— unlimited, their application was not always to the public good. There were many situations in which one party had the benefit of legal aid and the other party could not really afford the costs of privately financing the case. So the position is more complex than it sometimes appears.

The effect of this instrument, as I understand it from the Government’s memorandum, is that about 70 cases a year will attract legal aid which would not otherwise have done so, and about £250,000 has been found from somewhere to ensure that this can be financed. That is welcome news, and it opens up the possibility that there will occasionally be a case which is of real public value—because ultimately it will affect cases brought by other people—or is of fundamental importance to an individual, which would not have got legal aid and would not have been proceeded with, but which will now be satisfactorily dealt with by the courts system. That has to be an improvement, so I welcome the instrument. I also, of course, welcome the review—to which the noble Lord, Lord Beecham, referred, and which the House of Commons Justice Committee, which I then chaired, was particularly keen to see—of a piece of legislation that had such far-reaching effects on access to justice.

[Lord Keen of Elie]

I am obliged to noble Lords, particularly the noble Lord, Lord Beecham, for their observations. I shall respond to those. Of course a review of LASPO will have to take place before April 2018, and we will endeavour to keep the House informed as to when that review will take place. There is certainly no present intention to limit the scope of the review, but that will be addressed at the time when the review is determined. Again, we will keep the House advised on that point.

With regard to the point made by the noble Lord, Lord Beith, it is correct that additional funding has been found, for what is, I accept, a small, but nevertheless an important, change to the merits criteria regulations, which will at least embrace some further parties who would otherwise fall outwith the ambit of the legal aid regulations. I commend these regulations to the House.

Motion agreed.