Legal aid and the post-implementation review

The current civil and criminal legal aid schemes are governed by Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 – also known as LASPO – and by an array of supporting secondary legislation.

LASPO was introduced by the Coalition Government, which argued repeatedly that it had to make savings from the legal aid budget in England and Wales. It also wished to discourage cases from coming to court when they might better be resolved by other means, such as mediation. Critics of the changes, on the other hand, argued that people seeking help with legal problems might be left with nowhere to turn.

The most significant changes made by LASPO were to the scope of the civil legal aid scheme. Under LASPO, civil legal matters are excluded from the scope of legal aid unless they are one of the matters listed in Schedule 1 to LASPO. Many areas of civil law which had been covered by the previous legal aid scheme were therefore removed from the scope of legal aid.

There have also been significant changes to criminal legal aid, particularly in relation to means testing of applicants and to rates of pay for solicitors and barristers undertaking criminal work. These changes have largely been implemented by secondary legislation, rather than by LASPO itself.

The Coalition Government had committed to review LASPO within three to five years of its implementation. This commitment was reiterated by the Conservative Government following the 2015 election.

There was no further progress until 30 October 2017, when the then Lord Chancellor David Lidington presented the Government’s post-legislative memorandum for LASPO to the Justice Committee: see Legal Aid, Sentencing and Punishment of Offenders Act 2012: Post-Legislative Memorandum, Cm 9486, October 2017.

He also announced that he had asked Ministry of Justice officials to commence the promised post-implementation review of LASPO, and set out its proposed terms of reference in a Written Ministerial Statement. He indicated that the review would conclude before the start of the 2018 summer recess.

However, in March 2018 David Gauke, who had succeeded David Lidington as Lord Chancellor, indicated (in evidence to the Justice Committee) that this timetable was likely to slip in order to ensure that the review was conducted properly. He set out further details of what he described as the “engagement phase” of the review in a letter to the Justice Committee, and said that this phase would begin in the coming weeks.

Further details were published on the gov.uk website: see Post-implementation review of LASPO. This includes details of the agendas from the first round of consultative meetings, which give an idea of the issues under consideration. The first round of consultative meetings took place in April 2018, and the second round was due to take place in July 2018.

The Government has said it is committed to completing the review by the end of 2018.