By the time this article is published, the election will have taken place and a new Government will have been formed. Although initially justice and the rule of law was low on the list of priorities leading up to the election, as the campaign gained momentum there was increasing public concern about the constitutional implications of the recent swift erosion of a justice system which, while far from perfect, has been the envy of the world.
In an age of austerity, it is all too easy for rationing to be introduced under the simple smokescreen of need for budgetary restrictions. The reality is, however, that early intervention in resolving legal problems saves money for the welfare state, fosters greater social harmony, protects the vulnerable and even saves lives. According to the report of the National Audit Office (November 2014) the legal aid cuts have resulted in a significant underspend. However the Justice Select Committee confirmed that whilst the budget was indeed cut (and cut drastically), the areas selected for reduction were not supported by any rational evidence base. The only imperative appears to have been to reduce the budget regardless of the impact on society or any knock-on costs. The focus was not on prevention, only on budget reduction.
The legal aid system is an essential part of the justice system and is inherent to the practical implementation of the rule of law. It was created to ensure that those without means to pay for legal advice and representation are still able to obtain help from a group of solicitors and barristers who are willing and able to offer their services at legal aid rates of pay. For decades legal aid has been the fundamental cornerstone of a justice system operating through a network of organisations offering help to the poor in society, via Law Centres, community advice centres, charities, traditional high street practices, and the legal aid Bar.
However, the last two years has seen a remarkably swift devastation of this fragile yet vital support system. With the introduction of LASPOA, the Legal Aid Sentencing and Punishment of Offenders Act 2012, for the first time whole areas of law were removed from scope of legal aid. The Act’s framework also changed fundamentally so that only legal problems in a defined list in the Schedules to the Act remained within scope. Additionally, access to civil legal advice was restricted and channelled through certain routes more closely managed through contracts operated by the Ministry of Justice, such as the mandatory telephone gateway. Following a series of judicial review challenges, just before the election, the Ministry announced its intention to proceed with further cuts through its tightly managed tender for contracts for criminal legal aid, limiting the number of contracts to only 527.
The impact has been momentous. Victims of domestic violence have been unable to obtain protection. Children have been denied the right to see parents and grandparents through the removal of private family law from scope. Legal advice about employment, debt, and most welfare benefits problems has been made inaccessible overnight. There has been a significant rise in litigants in person, at great cost to the taxpayer through the extra time required by the judiciary, the courts system, and the assistance required from other representatives, where they exist. Advice centres and high street law firms have closed, cutting off any source of assistance to those in need.
Whichever party (or parties) forms the next Government, there will be a real and pressing need to take swift action to review and remedy some of the most destructive reforms we have seen in recent years.
The Legal Aid Practitioners Group has undertaken the complex and unenviable task of reviewing the generality of the legal aid changes and also each individual area of law where the changes have had most detrimental effect. The legal aid system is incredibly complex. As specialist practitioners we know how the system works and where clients are most disadvantaged. We have compiled a comprehensive list of proposed changes which, if implemented, would go a considerable way to address the recent reforms. Many of these changes would save money to the state overall and improve access to justice. Others would cost relatively small sums to implement. All are vitally important.
General system wide changes we recommend include:
- reviewing the impact of LASPOA to consider where key groups such as children, vulnerable and disabled people are disadvantaged by the removal of areas of law from the scope of the legal aid system
- development of an effective legal aid system for criminal justice in conjunction with the professions and no further fee reductions
- prioritising those in need, such as vulnerable families, victims of domestic violence and people at risk of abuse and neglect, so that the way that the legal aid system is implemented does not disadvantage these groups
- development of a new threshold and process for accessing ‘exceptional funding’ for civil legal aid so that those who are most marginalised can obtain help to apply for funding
- reversal of the recent barriers to ordinary people holding Government and public body decision makers to account for extraordinary decision making, by way of judicial review
- implementation of the independent recommendations of the Low Commission for housing and social welfare law
- abolition of the ‘mandatory telephone gateway’ as the only route to accessing certain civil legal aid services
- ceasing action on reintroducing the ‘residence test’ which is discriminatory and has already been declared unlawful
- amendment of the financial means test for legal aid to correct new injustices, for example disregarding the equity of the main home below a maximum threshold and disregarding children’s savings, removing the capital test for those on passported benefits, and allowing for care costs and costs of disability to be taken into account
- creation of an independent organisation to review rates of pay on legal aid cases so that the system is sustainable in future years, and restoring the 2011 rates with no further cuts pending independent review
- ensuring that any fees payable to access the court system are subject to a proper, fair and accessible scheme for exemption and means testing
- simplification of the administrative steps in applying for legal aid, removing bureaucracy wherever possible and ensuring that any digital system is fit for purpose.
In addition to these recommendations we have made detailed suggestions for review and amendment of Regulations as well as adjustments to guidance in specific areas of law including family, housing, clinical negligence, special educational needs, community care, prison, and mental capacity.
We have also drawn attention to the pressing need for the Government to ensure that where legal aid remains in scope, the general population knows that it is available and how and where to access it. There has been a remarkable reluctance to address this problem and transparency is essential.
The Manifesto for Legal Aid is not a simple request for reversal of all the legal aid cuts. It is a pragmatic and constructive document which has been carefully drafted by practitioners to highlight the need for a review of the legal aid system in the short to medium term.
The impact of the reforms has not just been on scope. A whole generation of legal aid lawyers may have been lost through these ill thought through reforms. Skilled practitioners in complex areas of law such as welfare benefits, housing, employment etc have disappeared. Together with changes to the legal aid system there is a need for stability in the sector, so that the next generation of practitioners can again build their skills to serve clients. Talented entrants, from all backgrounds, are needed to work in the legal aid sector. This is imperative for the long-term sustainability of the profession and maintenance of quality standards for clients. This applies whether legal aid services are provided by the Bar, private practice, Law Centres or the advice sector. If there is to be a quality civil and criminal justice system in future years, it is the next generation who will provide this, supported by the organisations with the expertise and skills to train them. Both elements are necessary for the justice system to survive for the next generation and beyond.
In the 800th year anniversary of Magna Carta, we are further reminded of the importance of fundamental rights to justice, for rich and for poor. Access to justice is not an optional extra. Legal aid and the practitioners who work for clients are vital to the upholding of the rule of law.
Nicola Mackintosh QC (Hon)
Co-Chair, Legal Aid Practitioners Group