The Government’s Plans on Legal Aid and Conditional Fees

Publication Date01 Jul 1998
AuthorMichael Zander
The Government’s Plans on Legal Aid and Conditional
Michael Zander*
Reform of legal aid
Radical proposals for the reform of legal aid were brought forward by Lord
Mackay, Lord Chancellor in the then Conservative Government, in a Green Paper
published in May 19951and then a White Paper published in June 1996.2Lord
Mackay’s proposals were subjected to fierce criticism by lawyers and non-lawyers
alike.3Lord Irvine of Lairg, writing as Shadow Lord Chancellor, castigated them.4
In particular, he rejected Lord Mackay’s proposed cap on legal aid expenditure,5
though on the other hand, he said that there would be no more money for legal aid
under a future Labour Government. He did not explain how this circle would be
squared. Lord Irvine’s first pronouncement as Lord Chancellor on his policy with
regard to legal aid was in his speech to the Law Society’s annual conference in
Cardiff on 18 October 1997. It appeared from his speech that his plans for legal aid
were even more radical and controversial than anything proposed by Lord Mackay.
He said that conditional fee agreements (CFAs) would be extended to all money
and damages actions and that legal aid for all such claims would be abolished. This
proposal produced consternation and a storm of criticism. It was attacked by, inter
alia, the Bar Council, the Law Society, the National Consumer Council, the
Consumers’ Association, Shelter,the Child Poverty Action Group, JUSTICE, the
Legal Action Group, the Law Centres Federation, the National Association of
Citizens’ Advice Bureaux and the Advice Services Alliance.6They were also
savaged by Edward Garnier, the Conservative Front Bench spokesman, in a
powerful hour-long critique in the House of Commons debate on the proposals.7
This battering had some result.8On 5 March 1998 Lord Irvine published a
Consultation Paper – Access to Justice with Conditional Fees9– in which the
Government outlined those of its proposals on legal aid that it thought could be
The Modern Law Review Limited 1998 (MLR 61:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
* Law Department, London School of Economics.
1Legal Aid – Targeting Need Cm 2854 1995.
2Striking the Balance – The Future of Legal Aid in England and Wales Cm 3305 1996.
3 See for instance National Consumer Council, Legal Aid: Striking the Balance or Striking out the
Poor? November 1996.
4 ‘The Legal System and Law Reform under Labour’, in D. Bean (ed), Law Reform for All (London:
Society of Labour Lawyers, 1997) 7–10.
5 Lord Irvine quoted extensively from the writer’s critique – subsequently published separately as
‘Twelve Reasons for Rejecting the Legal Aid Green Paper’ (1995) 145 New LJ 1098 – which he
described as ‘a devastating attack on the Green Paper’, n 4 above.
6 A joint letter from eleven of these organisations said they ‘believe that the withdrawal of legal aid for
money and damages claims could lead to the exclusion from the justice system of millions of the
poorest and most vulnerable in society’.
7 HC Deb vol 301 cols 547–562 21 November 1997.
8 For analysis of the Law Society’s campaign see The Lawyer 3 March 1998 11.
9 Referred to below as the Consultation Paper.

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