Slowing the juggernaut of legal aid cuts
The last few years have been grim for access to justice, but the recent run of successful judicial reviews gives some hope for the future. With the election looming, we plan to keep up the pressure on all political parties, say Katie Brown and Connor Johnston.
With the political conference season now behind us, the parties are starting to gear up for the May 2015 general election in earnest, with each of them setting out the changes they would make, given the chance, over the next five years.
To put these political discussions in context, it is worth reflecting on the changes we have seen over the life of the coalition government. The first and most important of these was, of course, the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012. Proposed in November 2010, brought into force, virtually unchanged, in April 2013, and at a stroke removing swathes of family, immigration and social welfare law from the scope of legal aid. The Justice Select Committee (which warned at the time that the consequences of the LASPO Act would ‘sit uneasily with the government’s commitment to protect the most vulnerable in society’ (HC 681, March 2011)) is still grappling with the impact of the cuts. The committee received written evidence from December 2013 to April 2014 (from Young Legal Aid Lawyers (YLAL) among others), and is in the process of hearing oral evidence on the effect of the changes.
The 18 months following the enactment of the LASPO Act saw a host of other measures, largely implemented by means of secondary legislation, and thereby receiving little parliamentary scrutiny, chipping away at what remained of the legal aid system. December 2013 saw cuts to fees payable for civil, criminal and immigration work; the removal of legal aid for a significant number of issues facing prisoners; cuts to expert fees; and the introduction of means-testing in the Crown Court. January 2014 saw the removal of legal aid for ‘borderline’ cases: those where the merits of the case were uncertain, often owing to a lack of clarity in the law, but where the importance of the case would previously have merited funding in any event. Further cuts to fees in criminal legal aid came in March 2014; while April 2014, the anniversary of the LASPO Act, saw cuts in family law fees, as well as restrictions on the availability of legal aid for judicial review.
None of this makes for encouraging reading. But latterly the juggernaut that has been the government’s assault on access to justice has shown signs of stalling, as the courts have been asked to rule on the legality of the cuts, and the fairness (or lack of) in the way that the government has gone about implementing them.
On 1 May 2014, HHJ Leonard QC sitting at Southwark Crown Court, stayed the Operation Cotton prosecution on the basis that the defendants could not get representation as a result of cuts to criminal legal aid. The stay was lifted three weeks later by the Court of Appeal (R v Crawley  EWCA Crim 1028) but the decision forced the Ministry of Justice to confront the inadequacy of the system that it had put in place to deal with criminal Very High Cost Cases. Shortly after in June 2014, judgment was handed down in Gudanaviciene v Director of Legal Aid Casework  EWHC 1840 (Admin). The claimants, who were seeking to challenge immigration decisions, successfully argued that they should have been granted legal aid under the exceptional funding regime. Mr Justice Collins declared the Lord Chancellor’s guidance on exceptional funding in relation to immigration cases to be defective and unlawful. Challenges to the exceptional funding scheme as a whole, which has seen only 57 grants out of 1,519 applications, are to be heard later in the year.
July 2014 saw civil legal aid practitioners breathe a collective sigh of relief as a specially convened three-judge Divisional Court declared the forthcoming ‘residence test’ for civil legal aid to be ultra vires and discriminatory (R (Public Law Project) v Secretary of State for Justice  EWHC 2365 (Admin)). More recently, on 19 September 2014, the Criminal Law Solicitors’ Association and the London Criminal Courts Solicitors’ Association secured a richly deserved victory in their challenge to the legality of the government’s consultation over criminal legal aid contracts. The proposed system, critics feared, would have seen many firms go to the wall. According to Mr Justice Burnett, the Lord Chancellor’s failure to disclose crucial documents during the consultation rendered the process ‘so unfair as to be unlawful’ (R (LCCSA and CLSA) v Lord Chancellor  EWHC 3020 (Admin)). That same day, the High Court granted the campaigning group Rights of Women permission to proceed with a judicial review, challenging the legality of the threshold test that victims of domestic violence must satisfy to qualify for legal aid.
The government, it seems, has been tested and found wanting. So where now? At a Labour conference fringe event, organised by the Justice Alliance, the party blamed difficulties in communicating with civil servants as a reason for its current lack of clear policy proposals. More positively, Shadow Justice Minister Andy Slaughter MP hinted at changes to the exceptional funding scheme, as well as the possibility of compromise on legal aid for prisoners and migrants.1See: http://thejusticegap.com/2014/09/legal-aidlabour-pushing-manifesto-hope/.
While Justice Minister Lord Faulks, speaking on behalf of the Conservatives at a fringe event, refused to be drawn, commenting only that the government had committed to reviewing the impact of the LASPO Act after a period of three to five years.
Against that backdrop, we turn to the future. Next year, as a group, we will be ten years old. Despite what has happened over those years, we are still here. And we are regularly heartened by the numbers of keen, young students, trainees and junior lawyers who continue to attend our meetings and help with our various projects. To mark our 10th anniversary, we hope to stage a hustings-style event, to ask representatives from the main political parties to reflect on the above, and tell us where they would go from here. It may be that whoever forms the next government will need to keep a tight rein on public spending. But it is equally certain that the result of that election will be a close-run thing. Our 10th anniversary event, we hope, will provide a chance for us to tell our politicians that if they want our votes, they are going to have to work for them.