A year of austerity justice
Last month LAG’s director, Steve Hynes, spoke at a conference in Manchester organised by the Access to Advice campaign (see pages 3 and 4 of this issue). This article is based on his remarks to the conference.
It is one year on since the scope changes to legal aid brought in by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012. Many Legal Action readers were active in the campaign against the cuts, but we won only limited concessions. The bulk of the cuts announced originally in a consultation launched in November 2010 by the then Lord Chancellor Kenneth Clarke went ahead. So, what has been the impact of these cuts and what are the prospects of persuading politicians to reverse them and repair the damage they have caused?
Civil legal aid targeted
At the root of the government’s policy on legal aid is its austerity programme; however, the decision to target civil legal aid was a deliberate choice made by ministers in the Ministry of Justice (MoJ). Kenneth Clarke had little appreciation of the need for advice on civil legal matters and wanted to prioritise preserving expenditure on criminal legal aid. Ironically, given the current proposals on criminal legal aid (to cut fees by as much as 30 per cent and reconfigure police station work), his minister Jonathan Djanogly believed that criminal legal aid could be squeezed for bigger cuts, though this does not mean that he wanted civil to be spared the axe. Kenneth Clarke prevailed in the argument.1Steve Hynes, Austerity Justice, LAG, 2012, p85.
The MoJ had been set a target of cutting 23 per cent of its budget within the spending review period April 2011 to March 2015. Kenneth Clarke had promised a ‘rehabilitation revolution’ to reduce reoffending and to cut the number of prisoners with the useful spinoff of reducing his department’s largest item of expenditure: prisons. Conservative backbench opinion, though, would not tolerate any change of emphasis away from imprisonment in law and order policy. This led to a U-turn, instigated by the Prime Minister, a few weeks before the bill was due to be published.
In early June 2011, Number 10 vetoed Kenneth Clarke’s plan to allow remission for guilty pleas and, according to Liberal Democrat MP Tom Brake, this prevented ‘any room to manoeuvre’ with the civil legal aid budget.2See note 1, p98.
A total of £350m, according to the government, needed to be shaved off the legal aid budget, and the bulk of these cuts, £279m, was to fall on civil legal aid.
Measuring the impact
Linda Lee, the then president of the Law Society, summed up the feelings of many at a meeting in Westminster the week after the LASPO Bill was published: ‘I am disappointed and heartbroken; this attack on civil legal aid is an attack on the most vulnerable.’3See note 1, p101.
The government’s equality impact assessments (EIAs) published with the consultation on the bill illustrated starkly the disproportionate impact the changes to scope would have on people protected by discrimination law. The EIAs updated in June 2012, for example, show that disabled people make up 19 per cent of the population, but form 54 per cent of the client group who are now no longer receiving help funded by legal aid with benefits problems.4Reform of legal aid in England and Wales: equality impact assessment, June 2012, p127.
According to the government’s estimate, 623,000 people are missing out on help with civil legal problems due to the LASPO Act cuts.5See note 4, p125.
Over one-third of these, 232,500, are private law family cases, including divorce and disputes over contact with children after a relationship has broken down. The next biggest category cut from scope is welfare benefits, with 135,000 people who previously received help funded by legal aid now missing out.
Over the last year, we have seen redundancies in civil legal aid firms and not for profit advice agencies as a consequence of the cuts. Law Centres have been particularly badly hit. Since January, five Law Centres have either closed or are in the process of doing so (see March 2014 Legal Action 5). As advice providers close or are forced to withdraw from giving advice in areas of law no longer covered by legal aid, the options available for members of the public needing help dwindle, which helps feed the myth that no legal aid or other help is available for them.
One year into the LASPO cuts we are still largely dependent on the government’s original projections of the number of people who would lose out on a service once the scope cuts were implemented. Many lawyers and advisers talk to LAG about the clients they now have to turn away because they are no longer able to assist them, and there are many thousands more potential clients who never contact an adviser. Quantifying the numbers missing out on advice, and more importantly understanding the impact on their lives of not getting the help they need, is difficult, as large sample groups are needed to do this along with a rigorous methodology to produce results which are meaningful.
The Legal Services Research Centre (LSRC), a victim of the demise of the Legal Services Commission (LSC) under the LASPO Act, pioneered the use of large-scale surveys to study the incidence of legal problems and whether people had been able to obtain help with these. In its last survey, 2006–09, the LSRC found that 36 per cent of respondents had reported a civil justice problem.6Report of the 2006-9 English and Welsh civil and social justice survey, 2010, p13, available at: www.justice.gov.uk/downloads/publications/research-and-analysis/lsrc/2010/2010CSJSAnnualReport.pdf.
One-half of the people who reported a problem were successful in obtaining advice (page 49). LAG is currently conducting research using a similar methodology to try to measure the impact of the LASPO Act scope cuts, and we hope to have some preliminary findings from this later in the year.
Civil legal aid in danger
In addition to the scope cuts, LAG has highlighted the reducing take-up of the legal aid cases which remain in scope. The figures for some of the areas of law, such as housing, are much lower than was originally predicted.7Civil legal aid – the secret legal service?, LAG, September 2013, available at: www.lag.org.uk/media/133089/legal_aid_secret_service.pdf.
A combination of factors seem to be in play here, including a fear that the public now believe that there is no longer legal aid for any civil legal cases, due to the publicity the cuts have received. Another important issue is the government’s failure to put enough resources into the promotion of legal aid, especially on the internet.
Another threat to civil legal aid is that firms and other providers are being forced to adapt to cuts in scope by offering unbundled and paid-for services for clients, many who would have previously received legal aid. Citizens Advice Bureaux and other not for profit services are also reacting to the changes by at least offering some services through the use of volunteers and pro bono lawyers. These are all good pragmatic solutions, but should not be seen as more than a stop-gap and certainly not a permanent fix to the crisis that the LASPO Act has unleashed on the availability of legal advice. Published MoJ figures show that a very low number of exceptional cases have been granted: only 35 as opposed to the 5,000–7,000 which had been predicted by the MoJ.8Ad hoc statistical release – Legal aid exceptional case funding application and determination statistics: 1 April to 31 December 2013, MoJ, March 2014, p1, available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/289183/exceptional-case-funding-statistics-apr-13-dec_13.pdf.
In LAG’s view, there are a number of problems with the system of exceptional cases which need to be addressed. The general point we’d make about the system’s failure is that it is symptomatic of what the Legal Aid Agency has become, subsumed as it was by the LASPO Act under the direct control of the MoJ. It now appears to see its primary purpose as controlling the legal aid budget and adopts a default position of saying ‘no’ to applications to fund cases, rather than promoting access to justice.
The failure of the exceptional cases rules to provide the safety net that they were intended to do could be attributed to an over-zealous interpretation of austerity policies. Similarly, to this end, choosing to target civil legal aid might have been politically expedient for Kenneth Clarke to do. However, the continued attacks on civil legal aid, and civil rights in general, goes beyond austerity measures and must be seen as ideologically motivated.
Amendments to legal aid such as the loss of prison law from scope (see page 4 of this issue), the introduction of the residence test and new rules on borderline cases will, arguably, save a few million pounds. These are changes, though, which are constructed deliberately to prevent access to justice for vulnerable groups, such as prisoners and migrants, who are used as scapegoats for economic and other failures of policy. We are also seeing the second attack within 12 months on judicial review. Along with many organisations, LAG believes that the changes to judicial review contained in the Criminal Justice and Courts Bill currently before parliament will reduce the right of ordinary citizens to hold the state to account.9Parliamentary briefing paper: part 4 Criminal Justice & Courts Bill (judicial review), Public Law Project, February 2014, available at: www.publiclawproject.org.uk/data/resources/159/PLP-Parliamentary-Briefing-Paper-11-March-LONG.pdf.
There is a distinctly neo-liberal tinge to the coalition government's justice policies. Taken together, the changes to legal aid and judicial review combined with attacks on individual rights, such as the introduction of fees for employment tribunals, indicate that the government seems intent on denying everyone – apart from the wealthy – access to the justice system. This is a policy which has more in common with a dictatorship, such as existed in Chile under General Pinochet, than a mature democracy.
The current Lord Chancellor, Chris Grayling, is the first non-lawyer in modern times to hold this ancient office. Mark George QC, head of Garden Court North Chambers, who spoke at the Access to Advice conference, criticised Chris Grayling for being ignorant of the law. LAG’s argument is that you do not have to be a lawyer to understand that everyone in a democratic society should enjoy the right of equality before the law. Our opinion-polling research demonstrates consistently that over 80 per cent of the public support the availability of free legal advice and, where necessary, representation in civil cases.10Social welfare law: what the public wants from civil legal aid. Findings from a nationwide opinion poll, LAG, 2012, available at: www.lag.org.uk/media/47770/social_welfare_law_what_the_public_wants_from_civil_legal_aid.pdf.
Chris Grayling, we believe, is not ignorant of the arguments around access to justice, he just chooses ignores them. His focus is on other political priorities, not least his next move in government. The main challenge we face in the run-up to the general election in 2015 is to make the devastating cuts introduced by the LASPO Act an issue that the politicians of all sides cannot ignore.
Full reinstatement of the cuts to legal aid, likely to be half a billion pounds by next year, is probably too much to ask from an incoming government. However, a substantial restoration of civil legal aid to better protect vulnerable groups, such as children and victims of domestic violence, coupled with the adoption of the key recommendations contained in the Low Commission report on access to advice and legal support on social welfare law are, LAG believes, are realistic policy goals which would enjoy widespread public support.11Tackling the advice deficit. A strategy for access to advice and legal support on social welfare law in England and Wales, January 2014, available at: www.lag.org.uk/media/147015/low_commission_report_final_version.pdf.