By Paul Oliver Stokoe Partnership
Legal aid has been an essential feature of the British justice system for the better part of a century. A key part of the extension of the welfare state under the post-war Labour government, the Legal Aid and Advice Act 1949 provided free access to legal aid for those who could not afford the services of a solicitor. However, with the 800th anniversary of the Magna Carta being celebrated this year, we must remind ourselves that the principle of proper access to justice in our country has, in fact, a much richer heritage.
Whilst the vast majority of the principles enshrined in the Magna Carta in 1215 have lost relevance in the modern era, the unwavering messages of legal equality and access to justice could not be more important in light of recent changes to provisions of legal aid in England and Wales.
Legal aid cuts: past and present
On 1 July 2015, solicitors’ fees in England and Wales were cut by a further 8.75%, following an identical cut of 8.75% in March last year. Solicitors’ fees have, therefore, been cut by a total of 17.5% in just over a year. If these cuts were not already significant enough, plans are already in place for further cuts in January 2016 that provide for a fee reduction of more than 50% in some cases. An independent assessment of the impact of the new arrangements on access to justice and the quality of services has been promised from July 2016, although only time will tell whether this promise will be kept.
It is clear that legal aid would have suffered regardless of the outcome of the recent General Election, with the Ministry of Justice a target for cuts for all major parties except the Green Party. The Green Party was the only major party that pledged to reverse the £600m of legal aid cuts implemented by the coalition government over the course of the last Parliament. Labour promised only to halt further changes and review the initial 8.75% cut implemented in 2014.
The Conservatives continue to cut legal aid irrespective of the manifestly negative impact of the near £600m cuts launched by the coalition, which saw criminal justice expenditure drop from £2bn a year in 2010 to approximately £1.5bn. £320m of the cuts were provided under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which came into effect in April 2013. LASPO removed many types of case from the scope of legal aid funding, including private family law, personal injury, debt, housing and benefit issues, and certain types of employment, education and immigration law. This means that a huge number of vulnerable people facing cases in these underfunded areas are no longer eligible to access free legal aid.
The short and long-term impact of legal aid cuts
Much like last year, solicitors and barristers across England and Wales have risen up in protest against the cuts. Many have gone further in the boycott by rejecting legal aid work and, as a result, criminal prosecutions will stall in any case where a defendant needs government funding in order to pay for a lawyer. The disruption that this has already caused to the court system demonstrates how fundamental the everyday work of solicitors is to the ability to enforce the law and carry out justice.
The boycott is a necessary means of showing how drastically the attack on legal aid can impact the effective running of the courts in England and Wales. Nonetheless, the real impact of the cuts will be felt in the longer-term. The report published last year by the Bar Council on the impact of LASPO one year removed from its passing has highlighted some of the mounting detrimental consequences of legal aid cuts for the British justice system.
Firstly, there has been a noticeable increase in the number of litigants in person (people who have been forced to represent themselves in court), especially in the underfunded family courts. This in turn has a direct impact on the courts; when people resolve to take the law into their own hands the result is longer court hearings, greater costs, and an increased burden on court staff and judges. Many of the poorest and most vulnerable in our society will have to rely on the support of charities to help them gain access to justice.
In addition, solicitors and barristers will, due to the underfunding of many key areas of law, become increasingly less inclined to take on complex, low-value litigation, instead opting to take on more specialist cases. This will deny many access to the legal advice and representation, and means that any aid that can be accessed in these areas will likely be of lesser quality.
The incomes of smaller law firms are also likely to receive a blow. The heavy reduction of fees means that it is no longer tenable for many solicitors to continue to take on the low-value litigation cases which form the pillar of their day-to-day work. There have been several instances of solicitors being forced to close their practice due to the cuts, as bigger law firms consume much of the available work. The long-lasting repercussions of the cuts made over the past five years may indeed make young people question whether a future career in law is a viable one.
On the most basic, yet fundamental level, the diminishing of access to justice due to the cuts will result in a decreasing lack of respect for the law within our society, as well as for the image of British justice globally. Miscarriages of justice will run rampant throughout England and Wales as people cannot afford adequate support to help them pledge their case, and hundreds of thousands will be denied redress.
A two-nation legal system
The Government continues to propagate the illusion that the legal aid cuts will do more good than damage to the British justice system. The Justice Secretary and Lord Chancellor, Michael Gove, has also denied that the court system was experiencing delays as part of the boycott. Although the negative impact of the cuts is highly measurable, Gove, in his first speech as Justice Secretary, blamed the so-called ‘wealthy lawyers’ for the emergence of a ‘two-nation’ legal system. Addressing law firms, Gove argued that lawyers do not contribute enough pro bono legal work each year, meaning that only the wealthy receive the ‘gold standard’ of British legal services, whilst the poor go without sufficient legal aid.
We must not forget that one of the central principles of the British justice system is that all lawyers are not to provide a lesser quality service to clients whom had been granted their help through legal aid. Recipients of legal aid should and could expect the same high standards of legal support and representation provided to private clients. Michael Gove appears to be in support of this notion by suggesting that a ‘two nation’ system should not exist. Yet the Government’s cuts not only encourage the emergence of a ‘two nation’ system, but make it inevitable. The cuts represent a fundamental shift in access to justice – one that is not going to be ameliorated by a few extra hours of pro-bono work conducted by well-intentioned City lawyers looking to add legal aid clients to their list of philanthropic and charitable enterprises.
Thus the real reason why so many people are now left with little or no access to justice is not because wealthy lawyers refuse to provide sufficient pro bono work, but rather, quite evidently, because of the huge cuts to legal aid implemented firstly by Chris Grayling during the last Parliament, and now by his successor, Michael Gove. The cuts tarnish not only the historic and respected traditions of the British justice system, but also the legal profession in England and Wales itself by undervaluing the importance of the everyday work conducted by solicitors and barristers. The vast majority are not ‘wealthy lawyers’ – these are professionals who care deeply about access to justice, and who diligently carry out their work, whether paid or pro bono.
Imagine, you face the prospect of being sent to prison for something you didn’t do. Wouldn’t you want the best legal team to do all they can to look at all the evidence, to point out the flaws in the prosecution case and to leave no stone unturned to search for evidence to exonerate you? That requires time, resources and above all expertise and professionalism – the type we have come to expect from our legal aid lawyers. This is the legacy of Magna Carta which is being celebrated this year.
The legacy of this Government’s proposals for criminal legal aid will put all that at risk. It will result in a rump of poorly paid, poorly resourced legal aid practices who will struggle to properly defend their clients. Lawyers cannot compromise their professional duty to their clients, the courts and the principles enshrined in the Magna Carta.
About Stokoe Partnership
Stokoe is a leading criminal litigation practice that specialises in defending very serious crime.
Paul Oliver is an experienced solicitor who specialises in criminal law cases, ranging from minor offences to larger, serious cases. Paul also has experience in criminal appeals, most notably in cases involving health and safety and challenging policing decisions.
Paul’s full profile can be found here.