2.26The years since have shown a continuation of the trend. The first quarter of 2016 saw a further 13 per cent fall in Legal Help matter starts compared with the same period of 2015, though the number of certificates rose. Overall, Legal Help is now running at around one third of pre-LASPO levels, and certificates at around two thirds. Lower crime work fell 15 per cent between 2015 and 2016, Crown Court work by 19 per cent, and prison law virtually disappeared following further cuts in scope (see below). There were 13 per cent fewer civil providers, and 8 per cent fewer crime providers, in 2016 than in 2015.2See LAA statistical bulletins at www.gov.uk/government/statistics?departments%5B%5D=legal-aid-agency/.

2.27Those practitioners who remained in the system reported greater difficulties in getting funding even when work remained in scope, through a combination of falling demand (perhaps because clients believed all legal aid had been abolished) and ever tighter bureaucratic requirements – implemented by the LAA, some felt, in an arbitrary and heavy-handed way. A particularly contentious example was the introduction, and later mandatory use, of the LAA’s online processing system for civil work CCMS. The system has been beset by delays, technical problems and periods when it has been unavailable altogether. Many practitioners report that submitting applications and bills through the system continues to be more difficult and time-consuming than the paper-based system it replaced.

2.28Having steered LASPO through Parliament, Ken Clarke was replaced as Lord Chancellor by Chris Grayling. Soon after taking office, in April 2013, Grayling announced3See http://legalaidhandbook.com/2013/04/09/government-consults-on-further-legal-aid-cuts/ for a full list. of the original proposals, and http://legalaidhandbook.com/2013/09/05/transforming-legal-aid-what-the-government-now-propose/ for what emerged from consultation. further cuts to both crime and civil work. He proposed removing a further £200 million from the crime budget through a combination of fee cuts and restructuring of the market. He also proposed further cuts to civil legal aid – this time aimed not at cutting expenditure but ‘restoring public confidence’. The measures included restrictions on judicial review, the introduction of a residence test as a qualification for civil legal aid and removing funding from ‘borderline’ cases, as well as removing the bulk of prison law from scope. Fees in child care cases, and for all non-family civil barristers, as well as experts, were to be cut.

2.29The subsequent two years saw the professions fight these further cuts, with varying degrees of success. The proposed fee cuts have all been implemented (with the exception of cuts to advocacy fees in the Crown Court, and the second tranche of cuts to solicitor fees in crime which at the time of writing is still suspended). But the government dropped proposals for price competitive tendering and abolishing client choice in crime.4http://legalaidhandbook.com/2013/09/05/transforming-legal-aid-what-the-government-now-propose/. Following a series of court cases the government also dropped a controversial new crime contract, instead implementing a transitional contract that essentially replicated the terms of the old one – but not before many firms had prepared for the new contracts and been through significant upheaval. In civil, ‘borderline’ cases were removed from scope, but later restored as a by-product of litigation over the exceptional funding scheme (see below).

2.30After the 2015 general election, Chris Grayling was replaced first by Michael Gove and then Liz Truss. In office, both focussed on other aspects of the justice brief. Gove’s main impact on legal aid was to cancel the 2015 crime tender process, and postpone the second 8.75 per cent fee cut that would have come in alongside the new contracts. He also consulted on changes to Crown Court advocacy5See https://legalaidhandbook.com/2015/10/02/moj-consults-on-crime-advocacy/ for details. – at the time of going to press, well over a year later, no final policy announcements had been made.

2.31The impact of LASPO on litigants and the courts has been considerable, with a sharp rise in litigants in person, especially in family cases. This has led to a series of expressions of judicial displeasure.6See, for example, http://legalaidhandbook.com/2015/03/10/justice-has-had-to-be-sacrificed-on-the-altar-of-public-debt/ and http://legalaidhandbook.com/2015/03/02/legal-aid-in-mental-health-cases/. One senior judge, the President of the Family Division, Sir James Munby, even tried to create a shadow legal aid scheme by directing the Court Service to fund the representation of some litigants in person,7Q v Q; Re B; Re C [2014] EWFC 31. but the Court of Appeal made very clear that there was no power to do so.8Re K and H (Children) [2015] EWCA Civ 543. Munby P accepted that there is no such power, but at one point appeared to be contemplating requiring the local authority to fund representation of an otherwise unrepresented parent.9M (A Child), Re [2015] EWFC 71 para 12, citing D (A Child), Re [2014] EWFC 39. A further consequence of the rise in litigants in person has been increased judicial and political concern at family cases where alleged perpetrators of domestic abuse have cross-examined in person their alleged victims. As we went to press, the government announced an urgent review of the problem. Ministers suggest a bar on unrepresented litigants cross-examining complainants in person, with a scheme to fund representation specifically for that proposal, but no formal proposals or legislations changes have emerged.

2.32There have been several major Parliamentary reports critical of the implementation and effects of LASPO,10Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, House of Commons Justice Committee, HC 311, March 2015; The UK’s compliance with the UN Convention on the Rights of the Child; Human Rights Joint Committee, March 2015. including by the influential Public Accounts Committee11www.parliament.uk/business/committees/committees-a-z/commons-select/public-accounts-committee/news/report-implementing-reforms-to-civil-legal-aid/. (following on from a report by the National Audit Office12https://www.nao.org.uk/report/implementing-reforms-to-civil-legal-aid/.). A review of the effects of LASPO was promised between three and five years after implementation, but has not so far been forthcoming.

2.34A challenge to the reduction in the number of crime contracts lost in both the High Court and Court of Appeal13R (London Criminal Courts Solicitors Association and others) v The Lord Chancellor [2015] EWHC 295 (Admin) and R (The Law Society, The London Criminal Courts Solicitors Association and others) v The Lord Chancellor [2015] EWCA Civ 230. (though the reduction was eventually stopped by Michael Gove as Lord Chancellor), but cases involving civil legal aid have seen more mixed results.

2.35The only case so far to make it all the way to the Supreme Court concerned the residence test. Originally proposed during Chris Grayling’s tenure, the test would have restricted civil legal aid – with certain exceptions – to those who could show twelve months continuous residence in the UK in the period immediately leading up to their application. The draft regulations implementing the test were laid before Parliament, but declared unlawful by the High Court.14R (Public Law Project) v The Secretary of State for Justice [2014] EWHC 2365 (Admin). The Court of Appeal15Public Law Project v The Lord Chancellor [2015] EWCA Civ 1193. allowed the Lord Chancellor’s appeal before a seven-justice Supreme Court16R (Public Law Project) v Lord Chancellor [2016] UKSC 39. decided that the test was ultra vires the LASPO powers. A secondary argument, that it amounted to unlawful discrimination, was not considered.

2.36The result is that the test cannot now be implemented by secondary legislation. When Prime Minister, David Cameron was reported as personally supporting it as a means of preventing claims being brought against the armed forces by those caught up in actions in Iraq and Afghanistan. The new government under Theresa May has been no less vigorous in publicly opposing such claims, but as we went to press no primary legislation had been introduced and so there remains little prospect of the residence test being implemented in the near future.

2.37In the field of family law, a main area of contention has been the domestic violence gateway to private family law funding (see chapter 6). A High Court challenge to the gateway was unsuccessful,17R (Rights of Women) v The Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin). but the Court of Appeal found that a requirement that evidence of domestic abuse date from within the 24 months preceding the application, and a failure to cater for other forms of abuse, specifically financial abuse, were unlawful.18R (Rights of Women) v The Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91. In response, the Lord Chancellor increased the time limit from two to five years and introduced a discretion for the Director to accept evidence demonstrating financial abuse.19Civil Legal Aid (Procedure) (Amendment) (No 2) Regulations 2016 SI No 516. As we went to press, the Ministry of Justice briefed its intention to remove the five-year limit and widen the range of acceptable evidence,20Owen Bowcott, ‘Legal aid shake-up hands lifeline to domestic violence victims’, Guardian 23 February 2017. but no changes to the regulations had been published.

2.38Some of Chris Grayling’s second round of cuts have also featured in litigation. Regulations making payment in judicial review cases conditional on permission being granted were struck down by the High Court,21R (Ben Hoare Bell Solicitors and others,) v The Lord Chancellor [2015] EWHC 523 (Admin). but instead of appealing the Ministry of Justice re-introduced the regulations in a slightly altered form22Civil Legal Aid (Remuneration) (Amendment) Regulations 2015 SI No 898. – changed enough to deal with the grounds on which the Court found the old regulations unlawful, but still making payment conditional on permission being granted or a roll-up hearing or oral renewal being heard, the defendant conceding, or on a residual discretion to allow payment. See chapter 13 for more information.

2.39However, a challenge to Grayling’s removal of prison law from scope failed in the High Court. The Court of Appeal gave permission following an oral hearing,23R (The Howard League for Penal Reform and Prisoners’ Advice Service) v The Lord Chancellor [2015] EWCA Civ 819. and the full hearing of the appeal took place in January 2017. Judgment is awaited as we go to press and will be covered on legalaidhandbook.com. This is, we understand, the first LASPO case to be funded via a litigation crowd funding platform.24www.crowdjustice.org/case/prisoners/.

2.40There have also been a series of challenges to the exceptional funding regime, which are covered in chapter 4.