Reform of Legal Aid in England and Wales: the Government Response Part 42
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This is Part 42 of the government response to Reform of Legal Aid in England and Wales. Please read the other parts for a full picture. Used under the terms of the Open Government Licence http://www.justice.gov.uk/downloads/consultations/legal-aid-reform-government-response.pdf.
Annex K: Impact Assessments (IA) and Equality Impact
Assessments (EIA)
Introduction
1. The consultation asked:
Question 49: Do you agree that we have correctly identified the range of
impacts under the proposal set out in this consultation paper – Please give
reasons.
Question 50: Do you agree that we have correctly identified the extent of
impacts under these proposals – Please give reasons.
Question 51: Are there forms of mitigation in relation to client impacts that
we have not considered –
2. There were 1,361 responses to question 49. 88 (6%) agreed that we had
correctly identified the range of impacts of the proposals for reform, 1,104
(81%) disagreed, and 169 (12%) neither agreed nor disagreed. There
were 1,161 responses to question 50, of whom 50 (4%) agreed , 1,036
(89%) disagreed, and 75 (6%) neither agreed nor disagreed. 636
respondents offered views on forms of mitigation that had not been
considered in the consultation.
3. A number of respondents also submitted new data or research, or
referred to other existing information which could be used to support the
impact assessment of the proposals and build on the analysis set out in
the initial IAs and EIAs. We have included consideration of this evidence
in the relevant sections of the final IA and EIA that accompany this
response document.
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Key issues raised in consultation
4. Comments on the IAs and EIAs from individuals, legal practitioners,
representative bodies and most other stakeholders were largely negative,
although some welcomed the level of analysis and detail that had been
provided to assess the impact of the proposals.
5. Many respondents highlighted the impacts and evidence gaps identified
in the IAs and EIAs in their arguments against the reforms with many, in
particular, raising the potential for the proposals to affect women, BAME
people and disabled people.
6. Others criticised the IAs and EIAs for not identifying the full range or
extent of the impacts of the proposals and / or identified additional
potential impacts that the reforms might have. While many respondents
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See footnotes 3 and 4.
251 Reform of Legal Aid in England and Wales Government Response
considered that the impact assessments did identify the extent of the
impacts on clients sufficiently, others argued that the impacts would be
more severe, stressing the vulnerability of many legal aid clients.
7. Respondents also criticised the lack of mitigations proposed in response
to the impacts identified, although some agreed that the possible forms of
mitigation were limited by the nature of the proposals. Where mitigations
were proposed, mainly in relation to the proposals to expand the role of
the telephone helpline, these have been considered in the relevant
section of this response and the final IA and EIA.
8. Other key issues raised included that:
– the impact assessments had failed to fully take account of the
impacts on other Government departments and public bodies,
including local authorities;
– litigants-in-person would cause increased costs in other parts of the
civil justice system;
– clients are often vulnerable and some important potential impacts on
clients, including the potential for increased ill health as a result of
legal problems going unsolved, had not been taken into account;
– the effect of reforms on children, including in divorce and contact
cases, had not been taken into account;
– because of these additional impacts on clients and other public
bodies the wider costs of the proposals could outweigh any legal aid
savings, and current legal aid expenditure saves money for other
parts of the public sector;
– reducing legal aid fees would deter young people from becoming
solicitors and barristers undertaking legal aid work, and that as only
those with significant resources would be able to do so in future, the
diversity of the professions would suffer.
9. Respondents also raised specific equalities issues and these are set out
in more detail in the relevant sections of the EIA that accompanies this
response to consultation.
The Government response
10. The initial IAs and EIAs, which were published alongside the consultation
Proposals for the Reform of Legal Aid in England and Wales, set out our
assessment of the potential impact of the reforms. Following consultation
we have made changes to the proposals for implementation and have
now published a final IA and EIA, reflecting these changes and
incorporating feedback on the proposals and impact assessments from
respondents to the consultation.
11. This feedback includes additional information on the potential effect of the
changes submitted by respondents including, for example, the report
commissioned by the Law Society on the potential impact of the reforms
252 Reform of Legal Aid in England and Wales Government Response
on legal aid firms. We have also undertaken a review of the research
identified and referred to by respondents on a range of issues related to
the legal problems that people face, including a review of the data
collected by the Civil and Social Justice Survey conducted by the Legal
Services Research Centre (LSRC), to identify relevant additional
information.
12. The results of this exercise are set out in greater detail in the final EIA
that accompanies this response. However, overall, we remain of the view
that our analysis based on Legal Services Commission (LSC) and LSRC
data is the most appropriate and robust way to assess the impact of the
proposals on clients and providers.
13. A comprehensive review of the available evidence on litigants-inperson,
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which as noted above was a particular issue identified by many
respondents, has now been undertaken and published alongside this
response to consultation. Again, while valuable additional information has
been considered, we believe that our initial assessment of the likely
impact on the wider civil justice system of an increase in the number of
litigants-in-person is robust and consistent with the evidence.
14. While respondents to the consultation suggested a range of possible
impacts on clients based on their personal circumstances, in the initial
EIA we focussed our analysis on the protected characteristics set out in
relevant equalities legislation. Changes to the equalities duties since the
consultation was published mean that the impact on people based on
their age, as well as other protected characteristics including religion and
belief must now be considered by public authorities. We have therefore
now considered these impacts and the relevant sections of the EIA set
out our assessment of the impact that the proposals might have on
children, as argued for by respondents to the consultation.
15. While we remain of the view that the initial IAs and EIAs appropriately
identified the range and extent of the potential impacts of the consultation
proposals, we have therefore addressed the key criticisms of the IAs and
EIAs made by respondents to the consultation. The final impact
assessment documents published alongside this Government response
to consultation set out a comprehensive assessment of the range and
extent of the impacts that the proposals will have, based on the full range
of evidence available
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See footnote 19 above.
253 Reform of Legal Aid in England and Wales Government Response
16. However, gaps in the evidence inevitably remain, as information which
would be useful in assessing the impact of the proposals is not collected.
For example, data on protected characteristics such as religion and belief
is not routinely collected by organisations working in the justice system. In
some areas this has meant that we are not able to undertake detailed
assessments of the impact of the proposals on particular groups. Our
approach throughout the initial and final IA and EIA has always been to
exercise caution, and take account of how robust the evidence is when
drawing conclusions about the impacts the proposals are likely to have.
Therefore, we have not discounted the potential for the proposals to affect
people because of gaps in the data.
17. Consideration of how the reforms have been amended in light of
feedback, and how the impacts of the reforms for implementation are
justified by the need to achieve the Government’s objectives, is set out
elsewhere in the relevant sections of this response documents. In order to
assess the actual effects that the reforms have had there will be a full
post-implementation review of the changes.
254 Reform of Legal Aid in England and Wales Government Response
Annex L: Alternative Proposals
Introduction
1. The consultation did not seek alternative proposals for making savings.
However, many of the responses, and in particular those from the Law
Society and Bar Council, suggested alternative ways of making savings in
legal aid expenditure, which it was said would reduce or remove any
financial imperative to make the changes proposed in the consultation.
Table 1 below contains a summary of ideas put forward by the Law
Society, together with comments from the Government on the costings
attributed to the Law Society savings.
2. Many of the proposals put forward by the Law Society and Bar Council
were supported by other representative bodies, such as, in the family
sphere, Resolution and the Family Law Bar Association. Other
respondents have put forward additional ideas of their own.
3. There are a number of common themes that can be indentified from the
alternative proposals put forward by respondents.
A. Proposals which reduce the initial volume of cases
4. A number of proposals seek to reduce spending on legal aid by reducing
the volume of cases. These include:
i) Simplification of legislation and of legal provisions
5. Included were proposals to simplify the law on housing tenure in
accordance with a Law Commission report
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in order to reduce the
incidence of disputes, and to repeal criminal legal provisions in respect of
hearsay and bad character which generate additional arguments. Other
proposals included removing duplicate sentences and simplifying
statutory language. The Immigration Law Practitioners Association
pointed out that the frequency and complexity of immigration legislation
drives costs, including legal aid.
The Government response
6. The Government considers all legal simplification proposals on their
merits, bearing in mind the relation between legal simplification and
clarity, and legal flexibility and adaptability. Wider costs may be
associated with inflexible legislation or with provisions which offer fewer
safeguards, which need to be balanced against any savings from
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