Expect legal aid lottery, say experts

Legal expenses insurers have welcomed the Government's proposals on legal aid, which they believe will boost the legal insurance market .

Bob Gordon, technical director of Greystoke Legal Services, said legal expenses insurance offered some hope to clients. “People need to know there are alternatives to legal aid which are available now,” he said. He predicted the legal expenses insurance market would grow and said “in a relatively short time it will become normal”.

Brian Raincock, managing director of Litigation Protection, agreed. “The insurance industry can help make litigation funding available to more people, including many who are currently disadvantaged by the existing legal aid system.”

Legal groups are campaigning to put their side of the story in the legal aid debate after the publication of the White Paper on legal aid reform last week.

Lord Mackay's White Paper, Striking the Balance, has been attacked by lawyers who say the reforms are over-bureaucratic, will turn legal aid into a lottery and will ration justice.

The Law Society, Bar Council, Law Centres Federation and Solicitors Family Law

Association all condemned Mackay's proposals and the Legal Aid Practitioners Group warned they would “create a bureaucratic nightmare of NHS proportions” leading to a “legal aid lottery”.

Legal groups say they are now concentrating on negotiating with the Government, campaigning for a parliamentary debate on the paper and trying to spark off an informed public debate on legal aid.

Vicki Chapman, Legal Action Group policy officer, said the Government's claim that undeserving people often got legal aid had to be countered.

But last week the Lord Chancellor defended his White Paper and called on lawyers to co-operate in implementing the reforms. Responding to the barrage of criticism, he said: “I think lawyers have a good opportunity here to develop a quality service which will satisfy the public.” Insisting that the proposals would benefit lawyers, he added: “I think that a degree of venture and co-operation is required.”

He refuted the suggestion that under his reforms fewer people would accept legal aid.

He said his proposed graduated scale for calculating contributions, in which applicants would pay more if they became better off, would mean legally-aided litigants at the lower end of the scale would pay less than they do at present.

But, he insisted, legally-aided litigants should not have an “unfair advantage” over non-assisted parties when costs were awarded.

Mackay also acknowledged the White Paper did nothing to help those not eligible for legal aid but said his proposals should be seen in the light of the Woolf civil justice reforms, which aim to make litigation cheaper and more accessible.

White Paper proposals

Fixed budgets

The legal aid budget will be capped and priorities and deserving cases will be targeted. There will be separate pre determined budgets for criminal, civil and family legal aid.

Merits test

A merits test for civil cases will take into account whether there is an alternative way to help the applicant and whether a case deserves a share of the public funds available.

Criteria will include: the chances of winning; the importance of the case; and likely cost compared to likely benefit.

The Legal Aid Board will initially apply the test but this may be later delegated to contracted providers.

Applicants with access to other ways of paying, such as legal expenses insurance, will not be eligible for legal aid. The Government will consider whether a conditional fee agreement should be taken into account when awarding legal aid.

The test for criminal cases will remain the same – legal aid will be awarded if it is in the interests of justice. But the test will later be applied by solicitors contracted to the LAB instead of by the courts. Applicants can ask for a review of a refusal to grant legal aid and there will be a right of appeal.

Increased liability

A minimum contribution from all legally aided people for most types of cases.

Liability for contributions after the case until the cost is met, based on a graduated scale and depending on income. The Government will consider imposing an upper limit on the amount payable and a maximum period over which contributions remain payable.

Legally aided people will be liable for the other party's costs but the maximum cost of a case an assisted person might have to pay will be set in advance.

In criminal cases there will be free advice at a police station and on the first appearance before a magistrates court. Free assistance and representation will be available for those on benefits in the early stages of a magistrates courts case. Other legally-aided defendants pay a fixed contribution on their second court appearance. There will also be a detailed means assessment for longer cases.


Contracts will be introduced between the LAB and service providers for specified services of defined quality at agreed prices. Regional legal services committees will advise the LAB about local needs and the best way to meet them.

In criminal cases the Government is considering contracts for advice and assistance and duty solicitor sessions under which providers will have to give help to all people who come to them over a period.

New providers

The scheme will be extended to new types of providers and services, including advice agencies. The Government has decided not to give legal aid for representation in tribunals but the Lord Chancellor says this measure might be implemented in the future.