Presented to Parliament by the Lord High Chancellor by Command of Her
Majesty
December 1998
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The Government's White Paper, Modernising Justice, is published by
the Stationery
Office, price £9.20.
The text of the White Paper is also
published on the LCD Internet website.
© Crown Copyright December 1998
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INTRODUCTION BY THE LORD CHANCELLOR
A fair and efficient justice system is a vital part of a free society.
The criminal justice system exists to help protect us from crime, and to
ensure that criminals are punished. The civil justice system is there to
help people resolve their disputes fairly and peacefully. This Government
has a radical programme of reform for the whole country. The justice system
cannot be left out. We want a clearer, fairer, better system, that will
make justice available to all the people.
We will meet people's needs. Many people are put off getting help
with legal problems, because the legal system is slow, expensive and difficult
to understand. But the legal system should be for everyone. Our new Community
Legal Service will ensure that people's needs are properly assessed, and
that public money is targeted on the cases that need help most.
We will deliver value for money. Taxpayers have been paying more
and more for legal aid, while fewer people have been helped. By introducing
contracting for legal services and abolishing restrictive practices, we
will increase competition among lawyers and help keep costs down.
We will create new avenues to justice. By extending conditional
fees, and modernising court procedures, we will open up civil justice to
those who are currently denied it and help develop a wider range of legal
services. People do not have to go to court if there are better ways to
solve their problems. The Community Legal Service will improve access to
information and advice, to the benefit of everyone.
Irvine of Lairg
Lord Chancellor
Legal Aid Average Costs, Actual - Civil Legal AidLegal
Aid Average Costs, Actual - Other Catagories
THE GOVERNMENT'S OBJECTIVES
What are the Government's aims?
Our twin aims are to:
- bring about a significant increase in access to justice.
- obtain the best value for the taxpayers' money spent on legal services
and the courts.
What are the problems?
- Apart from the very rich or poor, many people are excluded from justice
because it is too difficult and expensive to obtain legal information
or advice, or to bring cases to court.
- The taxpayers' help is focused on enabling a few people to seek expensive
court-based solutions to their problems.
- Spending on legal aid is not properly controlled.
How will the Government achieve its aims?
We will achieve our aims by:
- providing better access to information, through a Community Legal
Service, so that people know what their rights and obligations are,
and where they can get help to avoid or resolve legal problems.
- promoting affordable legal services for those who need them, and
developing alternative ways of resolving disputes outside the courts.
- improving the management of the courts, and simplifying their
procedures, so they provide a more effective, efficient and user-friendly
service.
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THE COMMUNITY LEGAL SERVICE
There are many sources of legal information, advice, assistance and representation.
Much of this is paid for by the taxpayer in one form or another. About £800
million a year is spent on lawyers' fees under the civil legal aid system.
Another £150 million a year from local government, central government, charities
and businesses is spent on the voluntary advice sector, including Citizens'
Advice Bureaux, law centres and other advice centres.
What will the Government do?
| We want these sources of advice to be better co-ordinated, so that
people with legal problems are able to find the information and help
they need. Every community should have access to a comprehensive network
of good quality legal service providers. We will set up a new body,
the Legal Services Commission, to take the lead in establishing
a Community Legal Service, which will provide this co-ordination.
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We believe it is also important to co-ordinate the provision of information
and basic advice with that of more specialised services that lawyers provide.
The Legal Services Commission will therefore manage the Community Legal
Service fund, which will replace legal aid in civil and family cases.
How will the Community Legal Service help?
- The Community Legal Service will develop common systems, agreed by all
funders, for defining and assessing needs and priorities, and for setting
and monitoring appropriate standards of service.
- It will be a co-ordinated system for planning provision and funding
services, based on local assessments of needs and priorities.
- The Community Legal Service fund will replace the current civil legal
aid system. In the future this money and the money spent on the voluntary
agencies will be considered as a whole. As we achieve proper control over
the legal aid budget, it will be possible to re-focus spending to develop
the Community Legal Service.
Why replace civil legal aid?
Taxpayers spend £800 million a year through the civil legal aid system
on buying legal services from lawyers for those who cannot afford to pay
for themselves. The Government believes that this system now needs radical
change.
- It is too heavily biased towards expensive court-based solutions to
people's problems.
- Despite a merits test, legal aid is sometimes used to fund cases that
appear to be undeserving.
- It is not possible to control spending effectively. From 1992-93 to
1997-98 spending on civil and family legal aid grew by 35% from £586 million
to £793 million; but at the same time, the number of cases funded actually
fell by 31% from 419,861 to 319,432.
- Lawyers are paid according to the amount of work claimed for, so there
is no incentive to handle cases quickly or work efficiently.
How will the Community Legal Service fund work?
- The fund will have a planning system, to allocate resources in
the light of national and regional priorities. Priority cases will include
those involving issues of fundamental importance to those concerned (such
as violence, care of children, or adoption); and cases where there is
a wider public interest.
- The Legal Services Commission will buy services for the public under
contracts. Only lawyers and other providers with contracts will
be able to work under the new scheme. This will enable budgets to be strictly
controlled, will help to ensure quality of service, and will provide a
basis for competition between different providers.
- A flexible 'Funding Assessment' will replace the existing merits
test. The assessment will ask whether there are better ways of dealing
with a particular case, such as mediation; whether the applicant could
fund a case in a different way, such as by a conditional fee; and whether
a reasonable person would be prepared to spend his or her own money to
pursue it.
Who will qualify for help?
The fund will be targeted on those people who are most in need of help,
and on high-priority cases. There will be no absolute entitlement to help,
and the fund will not be spent on cases which could be financed by other
means, such as conditional fees. The Government does, however, intend to
increase the number of people potentially eligible for advice and assistance
under the scheme, to bring this into line with eligibility for representation.
At the same time we will ensure that those who can afford to contribute
towards their legal expenses do so.
How will the Government help people who do not qualify for help from
the Community Legal Service fund?
- Everyone will benefit from the better co-ordinated provision of advice
brought about by the Community Legal Service.
- The Government will work with the insurance industry to develop affordable
and more extensive legal insurance, and will encourage more people
to take out such insurance, which already covers 17 million people.
- We will extend and improve conditional fees. These enable people
to fund most kinds of civil cases by agreeing with their lawyers that
they will only be paid if the case is won - in other words 'no win, no
fee'. We will make it possible for the winning side to recover their lawyer's
success fee and any insurance premium from the loser. We will extend conditional
fees to cover cases about the division of matrimonial property.
- We will ensure that lawyers provide full and clear information about
costs at the start of a case. With the changes we are introducing
in court procedure to make cases more quick and more certain, we see no
reason why, in time, solicitors should not be able to offer a fixed price
for a case, or at least give a firm estimate of the cost.
- We will remove unnecessary restrictions which reduce competition
between lawyers, such as the rules which prevent employed barristers and
most solicitors from appearing in the higher courts.
THE CIVIL COURTS
The Government is concerned to modernise and simplify court procedures
wherever possible, and to reduce delay.
What will the Government do?
- Produce a unified code of procedural rules, written in
plain English, to replace the separate High Court and county court
rules.
- Introduce 'pre-action protocols' setting standards and
timetables for the initial stages of cases before they reach court.
Judges will be expected to enforce the protocols strictly and to
punish those who breach them.
- Introduce a 3 track system for dealing with civil cases
in court according to the value and complexity of the case.
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How will the 3 track system work?
- Most cases worth less than £5,000 will be dealt with informally by a
district judge in the small claims procedure.
- Cases worth from £5,000 to £15,000 will be dealt with under a fixed
timetable in the fast track procedure.
- Cases worth over £15,000, or which are unusually complex will be dealt
with under a multi-track procedure, closely supervised by a judge
and tailored to each case.
Appeals in civil cases
We will ensure that the appeal process is not clogged up with weak cases
by requiring parties to seek leave to appeal, and by allowing only one appeal
to take place in normal circumstances.
CRIMINAL JUSTICE
The Government's aims for the criminal justice system are to reduce crime
and the fear of crime, and their social and economic costs; and to dispense
justice fairly and efficiently, to promote confidence in the rule of law.
What will the Government do?
| We intend to modernise the criminal justice system, to:
- eliminate unnecessary delays.
- improve services to victims and witnesses.
- enable the sentences of the courts to be enforced more effectively.
- ensure that the system works as a coherent whole, and that its
component parts are managed efficiently.
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Modernising the magistrates' courts
Magistrates' courts provide local justice dispensed by local people. The
Government will uphold this principle, but we believe that local justice
must be supported by a modern framework.
- We will promote early hearings of cases in magistrates' courts, usually
a day or two after someone has been charged.
- We will introduce a streamlined procedure for sending cases from the
magistrates' court to the Crown Court.
- We will improve witness services in the magistrates' courts.
- We will improve the management of magistrates' courts, and the legal
support given to lay magistrates, by separating the two functions more
clearly.
- We will set targets for reducing delay and improving the collection
of fines, and will require courts to have Charters covering waiting time,
facilities for disabled court users, and the provision of separate waiting
areas for victims, witnesses and defendants. Courts will have standard
IT services, and other modern facilities.
- We will align the boundaries of Magistrates' Courts Committees more
closely with those of other criminal justice agencies.
Modernising the Crown Court
The Government is also making major changes affecting the Crown Court.
We are:
- improving standards of service to those who use the Crown Court. Electronic
data links will put the court in immediate contact with other criminal
justice agencies. Electronic diary systems will enable cases to be listed
for trial more efficiently. Witnesses who are unable to travel will be
able to give evidence by video link.
- reviewing the way in which pre-trial procedures in major fraud trials
are conducted. This review will be completed early next year. We are also
considering possible alternatives to jury trial in these cases.
CRIMINAL DEFENCE SERVICE
The Government will maintain the fundamental principle that those facing
a criminal trial should not be afraid that lack of resources and proper
representation might lead to their wrongful conviction. But the current
criminal legal aid system has serious weaknesses:
- The cost has risen from £507 million in 1992-93 to £733 million in 1997-98
- an increase of 44%. At the same time the number of cases dealt with
has increased by only 10%.
- Although standard fees are now paid in many cases, the most expensive
cases are paid in the traditional way by calculating the bill after the
event. This gives lawyers an incentive to boost their fees by dragging
cases out, and these cases take up a disproportionate amount of money.
- The system for means testing defendants to see whether they should contribute
to the costs of their case is a waste of time and money. The test has
not stopped some apparently wealthy defendants from receiving free legal
aid, and 94% of defendants in the Crown Court pay no contribution.
What will the Government do?
| The Government intends to replace the current criminal legal aid
scheme with a new Criminal Defence Service (CDS). The CDS will
be run, at least initially, by the Legal Services Commission, but it
will be an entirely separate scheme from the Community Legal Service,
with a separate budget.
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The Commission will develop contracts for different types of criminal
defence services and implement them following pilot schemes. All contracts
for criminal defence services will include quality requirements, and wherever
possible prices for the contracts will be fixed in advance. Fixed prices
create an incentive to avoid delay, and reward efficient practice.
Eventually, contracts with solicitors firms will cover the full range
of defence services, from advice at the police station to representation
in court. If a case requires the services of a specialist advocate in the
Crown Court, this is likely to be covered by a separate contract.
What about expensive cases?
Very complex and expensive cases - where the trial is expected to last
25 days or more - will not be covered by ordinary contracts. A defendant's
choice of solicitor will be limited to firms on a specialist panel, and
a separate contract will be agreed in each case.
Will the Government introduce a salaried defender service?
The Government believes that the CDS should be free in principle to employ
lawyers directly to offer services to the public, as well as contracting
with lawyers in private practice. We would expect the CDS to take account
of the current pilot scheme involving public defence solicitors in Scotland.
Will the Government's proposals limit client choice?
In most cases, suspects and defendants will be able to choose any lawyer
who has a current contract with the CDS. The fact that lawyers have a contract
will also be a guarantee that they have met the relevant quality standards.
In very expensive cases, where special skills and experience are often
needed, the defendant's choice will be limited to those lawyers who are
on a special CDS panel and have demonstrated their ability to handle cases
of this type.
Who will decide whether to grant criminal representation, and how?
As now, it will be for the court to decide whether to grant a defendant
representation at public expense, according to the interests of justice.
But the current requirement for a means test will be abolished. Instead,
after a case is over we will give a judge in the Crown Court the power to
order a convicted defendant to pay some or all of the costs of his defence.
This will mean that assets frozen during criminal proceedings, and any assets
which only come to light during proceedings, will be taken into account,
so some wealthy criminals will pay much more than they do now.
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