- assessing the implications of new government proposals on courts and legal aid
If you are working on government policy development within DCA or other government departments you must consider whether there will be either a potential impact on the workload of the courts or a legal aid cost. This section includes guidance to help you determine this; provides a background to the legal aid scheme in England and Wales; and includes the contact details of our legal aid policy team who you should contact to obtain further guidance and help with costing the impact.
When you need to contact us
Legal Aid Impact Test - stage one preliminary
Legal Aid Impact Test - stage two costing impact
Legal aid schemes in England and Wales
The Community Legal Service
The Criminal Defence Service
Whenever consideration is being given to the introduction of new criminal sanctions or civil penalties we must be consulted at an early stage in the development of the proposal. It will always be necessary to discuss and agree the consequences, including the resource implications, of the new proposal for the workload of the courts and legal aid. Central to this consideration will be the completion of a legal aid impact test. This is not a difficult process but it is very important that it is carried out to ensure that there are no subsequent problems with securing policy approval for your proposal. The results of the test and any impact identified should be reflected in the enforcement and sanctions section of the regulatory impact assessment (RIA).
Legal aid is not just about funding cases in court. In civil and family matters in particular, help and assistance is available to advise people of their rights and obligations, and entitlement. For example, to explain how new legislation impacts on them individually or to advise on the entitlement and amount of state benefits payable.
You can contact our legal aid strategy team to determine whether legal aid is an issue. The contacts are:
You should have the following information to hand when you make contact:
We will provide you with an assessment of whether there are any implications for legal aid and the work of the courts arising from your proposal. If none are identified this can be stated in the "Enforcement and Sanctions" section of the RIA. However, if an impact is identified you will need to proceed to stage two.
Once you have established that there is an impact on legal aid and the work of the courts you will need to obtain an estimate of costs. To do this you need to contact our expenditure modelling and analysis branch, Chris Lancaster 020 7210 8679, who will advise on financial aspects. You will need to provide the same information as at stage one plus an estimate of the number of people likely to be affected by your proposal. We will provide you with text, which will need to be inserted in the RIA under "Enforcement and Sanctions" after agreement has been reached on where responsibility for any new resulting costs will lie.
Legal aid in England and Wales currently costs more than £2 billion per annum, accounting for two-thirds of the total budget of the Department for Constitutional Affairs (DCA). 65% of that expenditure is driven directly by decisions taken outside of the department, in particular by the police and prosecutors in criminal cases, and by local authorities in public law child care and child safety proceedings.
Legal aid (also known as public funding) falls under two distinct headings.
In fact, legal aid is available for many aspects of the law (subject to means and merits tests) which are triable in a court in England and Wales (Scotland and Northern Ireland have their own legal aid schemes). Therefore many new proposals brought forward by central government departments will directly impact on legal aid expenditure (e.g. changing the criminal law or changing sentencing guidelines, or improving or affecting in any way the rights of individuals) without that impact being readily or immediately apparent.
It is therefore essential that an assessment is made, as early as possible, on how policy change might impact on legal aid. At the same time we will also make an assessment of any possible impacts on the work of the courts.
Costing around £900m a year the CLS provides help in the following areas (this list is not exhaustive) -
Within the CLS there are two main stages - legal help and legal representation. Legal help provides initial advice on any aspect of law and benefit entitlement. Qualification is subject to the individual's financial circumstances.
Legal representation provides for comprehensive help including representation at court. To qualify two tests must be met. The first involves financial eligibility and depending on the applicant's personal circumstances he/she may receive free help or may have to pay a monthly contribution towards the cost of the case. Just under 85% of claimants are currently not required to make a contribution.
The second test involves the merits of the case. The test will vary depending on the type of case; for example, in a typical civil non-family case there must be at least a 50% chance of success and the cost-benefit ratio sufficient to outweigh the cost of the case. In public law children cases (i.e. those involving care proceedings) there is no means or merits test. Exceptionally the CLS can provide funding in other areas if it is considered to be of public interest to do so (e.g. some coroners inquests).
The proportion of households currently eligible financially for CLS funding is 48% - more in matters ancillary to divorce where the husband and wife are assessed separately rather than jointly as they are in other civil proceedings.
The Criminal Defence Service costs more than £1.2 billion per annum, consuming 57% of the total legal aid budget. There are three levels of service -
Approximately 40% of people appearing in the magistrates' court on a criminal charge receive full representation. In the Crown Court the proportion is 97%.