The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Civil Legal Aid (Merits Criteria) Regulations 2013 (S.I. 2013/104) (“the Merits Criteria Regulations”), which make provision for the criteria which the Director of Legal Aid Casework (“the Director”) must apply when determining whether an individual or legal person qualifies for civil legal services under Part 1 of, or Schedule 3 to, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10).

Regulation 2 amends the merits criteria which the Director must apply in relation to determinations for legal representation in certain cases. Regulation 2(2) omits the category of “very poor” prospects of success and amends the definition of “poor” prospects of success to mean that a case has less than a 45% chance of obtaining a successful outcome. It also creates a “marginal” category of prospects, which is a 45% or more chance, but a less than 50% chance, of obtaining a successful outcome. Regulation 2(4) amends regulation 43 of the Merits Criteria Regulations to provide that the prospects of success criterion is only met if the Director is satisfied that the prospects of success are “moderate”, “good” or “very good” (as defined by regulation 5(1) of the Merits Criteria Regulations), or where the prospects of success are “borderline” or “marginal” and the case is of significant wider public interest or a case with overwhelming importance to the individual. Where an application for civil legal services is subject to an assessment of its prospects of success, it will no longer fulfil the merits criteria if the case is assessed as having a “poor” prospect of success. Paragraphs (5) to (13) of regulation 2 make equivalent amendments to other provisions of the Merits Criteria Regulations which apply a “prospects of success” test, although in some cases, a modified prospects of success test will be applied. Regulation 2(3) makes consequential provision.

Regulation 3(1) provides that the amendments made by regulation 2 do not apply to applications for civil legal services that are made before 22nd July 2016. Regulation 3(2) provides that regulation 42 of the Merits Criteria Regulations has effect in relation to civil legal services that are provided as a result of an application for civil legal services that is made before 22nd July 2016 as if the amendments made by regulation 2(2) and (3) had not been made.

A full impact assessment of the effect that this instrument will have on the costs of business, the voluntary sector and the public sector is available from the Ministry of Justice, 102 Petty France, London SW1H 9AJ and is published with an Explanatory Memorandum alongside the instrument on www.legislation.gov.uk.