Legal aid lawyers are used to waiting: for applications to be processed, for training contracts to open up, for dysfunctional systems to be fixed, for a review that has been promised under the last three secretaries of state. We are used to change, with whole areas of law removed from scope overnight, leaving hundreds of thousands of people unable to get legal help. Advice deserts now range across England and Wales. We are also acutely aware of the need to pick up arms and fight for the justice system we believe in.
It seems that we are going to have to wait a little longer, and to fight a little harder, as the Ministry of Justice (MoJ) told the All-Party Parliamentary Group on Legal Aid
this week (17 April 2018) that the government’s long-awaited review
on its legal aid reforms may not be published in 2018. While the lord chancellor, David Gauke MP, has declared his reluctance for the review to slip into 2019, Matthew Shelley (deputy director, legal support and court fees policy at the MoJ and head of the post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)) told the meeting that civil servants may not report to ministers until the end of this year. He also took pains to correct Andy Slaughter MP’s suggestion that the MoJ, facing more cuts to its budget, would be aiming for a cost-neutral result. The MoJ is open to the idea that there may be other sources of support – it may be that the answer is legal aid, but there may be other sources.
Change was the topic on everybody’s lips at a meeting that saw discussion of how litigation has made inroads into LASPO over the past five years. The meeting heard from Public Law Project’s Polly Brendon, Olive Craig on behalf of Rights of Women, Jo Cecil from Garden Court Chambers and the Criminal Bar Association, and Simon Creighton on behalf of the Howard League for Penal Reform. The areas of law were different: exceptional case funding (ECF); domestic violence gateway reforms; fees paid to criminal barristers; and legal aid for prisoners. Yet the stories told were eerily similar, with a David and Goliath theme running through each.
In the areas of law discussed by the speakers, they reported that litigation had resulted in some success. Polly Brendon reported changes made to the Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 104, simplified forms and new guidance in respect of ECF. Olive Craig highlighted the changes made to accepted forms of evidence to get legal aid in cases involving domestic violence. Simon Creighton reported that the Court of Appeal found that the justice system could not guarantee fairness in three areas of prison law: pre-tariff parole hearings; category A decisions; and selection for close supervision centres (R (Howard League for Penal Reform and Prisoners’ Advice Service) v Lord Chancellor  EWCA Civ 244
). The three civil law speakers expressed their fears about the emergence of advice deserts, while Jo Cecil mourned the lack of a sustainable criminal Bar, with its ageing profession and inability to attract a diverse group of young people because of an uneconomic fee system.
There are a number of different ways to fight for change, from successful litigation to direct action. To those, we can now add: making our voices heard through the LASPO review.