This year marks the 70th anniversary of legal aid in this country. It was introduced in 1949 to ensure that ordinary people, and not just the rich, could afford to solve their legal problems. But this year also marks the seventh anniversary of the legislation which has done so much to roll back the extent of provision of publicly funded advice and representation.
Although previous administrations had tinkered with the fees paid to legal aid lawyers, the Coalition government’s Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) made sweeping changes to the scope of civil law entitlement, leaving many types of problem unprovided for altogether. With certain exceptions, nearly all employment, private family law, housing, immigration, welfare and education cases were no longer in scope. Even for those more critical claims for which legal aid was still available, the threshold of eligibility was raised with the intention of excluding all but the poorest clients. An ‘exceptional funding’ scheme proved a lot less generous in practice than expected. At the same time, further cuts in criminal case funding were made.
In the face of protests by lawyers, the government began a campaign, enthusiastically supported by the press, of briefing against ‘fat cat’ lawyers, said to be milking a legal system that was excessively generous and wasteful. In the face of austerity, lawyers were expected to tighten their belts; which is all well and good, but what about the poor clients? What about the equality of arms and a fair trial? One result of the cuts was a massive upswelling in the numbers of those attempting to navigate the court system unrepresented, as litigants in person (LIPs), or driven to seek help from unregulated and often unqualified ‘McKenzie Friends’.
All this and more has been widely documented, not just in the media (see, in particular, Justice in a Time of Austerity on the Justice Gap website, and Emily Dugan’s reporting for Buzzfeed News) but also in many judgments and the speeches of judges exasperated over the unforeseen costs and consequences of the cuts. (See, for example, MG v JF  EWHC 564 (Fam);  FLR 424 at  and , and Lindner v Rawlins  EWCA Civ 61 at .)
Calls for review
In 2015 the House of Commons select committee on Justice published its Eighth Report, on the Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (HC311). This noted that the changes had been introduced without adequate prior research, and that “while it had made significant savings in the cost of the [legal aid] scheme, the Ministry had harmed access to justice for some litigants and had not achieved the other three out of four of its stated objectives for the reforms”.
In November 2016 the Labour party launched an interim report on “the crisis in the justice system in England & Wales”, published by the Commission on Access to Justice chaired by Labour peer Lord Bach, whose final report, The Right to Justice, was published in September 2017.
Finally, in January 2017, the government itself promised to review the effects of LASPO. However, thanks to the snap election that year, the inquiry only got round to announcing its terms of reference more than a year later, in March 2018. After several postponements, it eventually published its Post Implementation Review last week. But if anyone thought the government was going to have a change of heart and reverse the savage cuts, they were sadly mistaken.
While the review accepts that in principle “everyone must have the ability to avail themselves of the justice system when they require it”, it argues that legal aid has to be “sustainable” in “the context of the economic downturn”. LASPO may have “achieved its objectives of delivering significant savings” but its impact, the review admits, has created “a number of challenges”.
The review reveals that reduced fees for civil and family lawyers has led to a drop of 32 per cent in the number of providers doing legally aided work, leading to legal aid ‘deserts’ in some parts of the country; and that “the legal profession is no longer attracting the next generation of legal aid lawyers”. In criminal cases, legal aid grants in the magistrates’ courts have decreased by 45% and those in the Crown Court by an estimated 27 per cent over a seven year period. In immigration cases there has 85 per cent reduction in legal help for non-asylum immigration matters since LASPO, and a 62 per cent reduction in full representation.
Much of the evidence suggests that (a) early intervention saves money and (b) problems often occur in clusters, so it doesn’t make sense to provide aid for some problems but not others. Lack of awareness of the help that is available means that, even when it hasn’t been cut, legal aid isn’t being used.
Looking to the future
The government appears to recognise the problems, or some of them, and has promised to “conduct a review into the thresholds for legal aid entitlement, and their interaction with the wider criteria” in civil and family matters. There will be some more money, in some limited areas, but its main proposal is an ‘action plan’ called Legal Support: The Way Ahead (CP40). The general idea behind this is to provide help and intervention to people before their problems require legal advice, let alone litigation. (It includes ideas such as ‘co‑location of support services’, e.g. providing a legal advice hub, staffed by students, in a medical practice.) In his foreword, the Lord Chancellor David Gauke says:
‘For too long our approach to supporting access to justice has been concentrated on funding for court disputes. There are too many people entangled in the justice system for a variety of issues, and some may not necessarily need to be there. Our ambition must be to give people the tools to resolve their problems well before this point, before they become legal problems that require a court visit and a lawyer. Early intervention is key and it is upon this that our new vision for legal support is founded.’
In a sense this ‘new vision’ chimes with the idea that ‘prevention is better than cure’. It also chimes with the philosophy of the massive court modernisation programme, known as HMCTS Reform (which we wrote about here), namely that the legal system should be designed around problem-solving for users, rather than as a system depending primarily on the involvement of lawyers. This is all very well for simple factual or financial disputes, but works rather less well with more complex issues involving human emotions and human frailty, and in cases where users need help and support in understanding their rights and how to enforce them.
It also makes sense for the Ministry of Justice and HMCTS to work together on providing tools and support for those needing legal advice in association with projects like the online court, and to engage the help and support of public interest projects (as, to be fair, HMCTS is already doing, eg with the Good Things Foundation in its assisted digital programme). Better funding for organisations like Citizens Advice, Personal Support Units, and voluntary enterprises like the Family Court Information project in Bristol and the South West would be a start.
But it’s one thing to sound positive and open to new ideas, and quite another to put the necessary money where one’s mouth is. Launching the action plan, justice minister Lucy Frazer said the government would roll back on the cuts to some (albeit limited) extent to ‘expand the scope of legal aid to cover new areas of family law” and that it would also “launch a review of legal aid eligibility thresholds’. (You wonder why they hadn’t already done that, given the material already before them.) Frazer also promised to ‘invest up to £5m in delivering innovative services and test new methods of support to help people resolve their problems quickly and easily, in the way that best works for them’ (which presumably means without going to court, or even lawyers if possible). Funding to help litigants in person would also be increased from £1.5m to £3m.
A lukewarm reception
Commenting on Twitter, Steve Hynes of Legal Action Group (LAG) observed: ‘The LASPO review consists of a few small scale (though welcome) tweaks around the edges and a commitment to review of eligibility, as well as some pilots on early advice. These in no-way compensate for the loss of access to justice for the public LASPO has caused.’
Other commentators gave the Post Implementation Review an equally lukewarm reception. The chair of the Bar, Richard Atkins QC said the review was a ‘wasted opportunity’ and that £8m extra moneys promised “are but a drop in the ocean given the impact LASPO has had on restricting individuals’ access to justice.” Jo Edwards, chair of Resolution’s family law group, said: “the simple fact is that, without access to tailored legal advice, many vulnerable individuals will be left to deal with the family courts with little or no help”.
We’ve had our seven lean years. No one expected the Biblical seven fat ones to follow, but the government will need to work hard to convince the legal professions that its action plan is really a plan of action, and not just an excuse to continue squeezing the justice system of funds and leaving it to struggle on (for another seven lean years) with fewer courts, poorer lawyers, and failing IT systems.
Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project. His book, Transparency in the Family Courts, co-authored with Lucy Reed and Julie Doughty, is published by Bloomsbury Professional.
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