Posted by Neil Rose, Editor, Legal Futures
As someone who has been immersed in Jackson from the start (in fact, I broke the story that the review was going to happen), there are a couple of points slightly off the usual Legal Futures agenda that I would like to draw out of the announcements yesterday around the Legal Aid, Sentencing and Punishment of Offenders Bill.
The predictable flood of outraged press releases followed publication of the bill and now the lobbying effort that had been cranking up for weeks will really go into overdrive. Those particularly concerned about the Jackson reforms have the hardest task to make their voices heard above the more politicised debates on legal aid and sentencing. Symbolically, civil costs reform is the one element of the bill not mentioned in its elongated title.
First is the introduction of a supplementary legal aid scheme (SLAS). This will take a 25% slice of the damages of any civil case lucky enough still to receive legal aid funding, making it not that different from a post-Jackson conditional fee agreement.
But those who have tracked the development of the SLAS policy will know that when it was first recommended by the Civil Justice Council in 2007, the hope was that it could eventually be used to fund cases that were outside the eligibility or scope of legal aid and so increase access to justice.
There is no suggestion of this in the green paper response – it sounds purely like a measure to offset the cost of the legal aid fund. It rather takes the “supplementary” out of the SLAS.
This, presciently, was the fear of Lord Justice Jackson in his discussion of the SLAS in his final report. Either way, though he by no means dismissed the idea, he considered that “a SLAS could only ever be a supplementary means of funding for a minority of cases”.
In the meantime, the Bar Council is continuing its work in modelling a contingent legal aid fund (CLAF), which is essentially the same as a SLAS except that it is independent of the legal aid fund. It held a debate on this work just last night.
Second is the use of before-the-event legal expenses insurance (LEI) to fill some of the gap left by legal aid cuts. Both this government and its predecessor, along with Lord Justice Jackson, offered many warm words about LEI and how they would like to see the market expand, with no practical suggestion as to how this could be achieved (in the case of the judge, there was the heavy caveat that it needed to be a model not driven by referral fees).
Anyway, hidden away deep in the green paper response (page 260) is the conclusion that “the government does not believe that there is scope in the short term to promote greater use of legal insurance”.
This position was prompted by seeing the overwhelming difficulties of making LEI compulsory, plus insurers telling the government that the premiums would not be affordable for those currently eligible for legal aid.
This will come as a surprise to precisely nobody. It has taken the Ministry of Justice some time, but it has finally agreed with virtually everyone in the LEI market that insurance is not the panacea for legal aid cuts.