Steve Hynes discusses the report of the post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and what it has to say about fee cuts, the falling numbers of legal aid suppliers and the replacement of the Legal Services Commission with the Legal Aid Agency.
Fee cuts associated with the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) have had an impact on access to justice. For many civil and criminal legal aid practitioners the fall in their income has led them to undertake less or withdraw completely from legal aid work.
Fee cuts and numbers of legal aid suppliers
The post-implementation review (PIR) report, Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)
(CP 37, Ministry of Justice (MoJ), February 2019),1Unless otherwise specified, page and paragraph numbers refer to this document.
provides analysis of the impact of the changes to civil and criminal legal aid fees introduced by the coalition government. Cuts to fees were not directly imposed by LASPO, but were announced in the paper, Proposals for the reform of legal aid in England and Wales
(Consultation Paper CP12/10; Cm 7967, MoJ, November 2010) (LAR), which also detailed what became the main provisions of the Act. The controversy over the LASPO changes was still raging when, a few months after its implementation, the then lord chancellor, Chris Grayling MP, announced a further round of fee cuts in the paper, Transforming legal aid: next steps
(MoJ, 5 September 2013) (LAT).
Civil legal aid
Family mediation cases were exempt from the LAR cut as the government wanted to offset reductions in scope imposed by LASPO with an increase in mediation in family cases. This policy initiative rather bombed.
A 10 per cent reduction in fees was imposed by the coalition government for most civil legal aid cases. Family mediation cases were exempt from the LAR cut as the government wanted to offset reductions in scope imposed by LASPO with an increase in mediation in family cases. As discussed last month (March 2019 Legal Action
8), it would be fair to say this policy initiative rather bombed.
The MoJ estimates that the 10 per cent cut introduced by LAR has led to a spending reduction of £60m in family and £6m in non-family civil cases (para 781, page 186). The reduction in spend for family cases is twice the original estimate, but the MoJ argues that this is mainly due to the post-LASPO increase in public law family cases. The reduction in spending for non-family cases has exceeded the MoJ’s original estimate by £1m. According to the MoJ, LAR led to average fee reductions of nine per cent for non-family civil cases and 14 per cent for family cases (para 780, page 184).
Overall, the MoJ estimates that the cuts made by the LAR and LAT changes totalled around £110m in 2017/18 (para 789, page 188). Table 1 below breaks down the figures.
Overall savings from both LAR and LAT fee changes
Adapted from Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), figure 10, page 189.
As regards civil practitioners’ incomes, the biggest losers were barristers, as their average fees for lower court civil cases fell by 22 per cent (para 788, page 187) after the introduction of a merged fee scheme (until LAT, barristers had a separate non-family civil court advocacy scheme). The MoJ concludes that LAR and LAT on balance ‘represent ... overall value for money’ (para 802, page 191). It is dismissive of the damage that legal aid providers argue the fee cuts have caused to the supplier base, arguing that the data from the Legal Aid Agency (LAA) indicates that ‘current provision is sufficient’ (para 800, page 191).
The report provides a useful synopsis on the number of suppliers. There are now 1,578 organisations with civil legal aid contracts providing services from 3,568 offices, down from over 4,000 offices prior to the implementation of LASPO (figure 12, page 194; see below). The drop in the number of solicitors’ firms undertaking legal aid work has been significant, but perhaps not as dramatic as might have been expected given the levels of fee and scope cuts. The impact has been masked to an extent as firms have tended to downsize departments and reduce the number of fee-earners undertaking legal aid work rather than withdrawing completely (Impact of legal aid changes, Law Society, para 75, page 30).
Figure 12: number of providers completing civil work, by area of civil from 2012–13 to 2017–18
Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), page 194. © Crown copyright, 2019.
I’d argue that the MoJ has chosen to ignore the abundance of anecdotal evidence about advice deserts across the country.
In its submission to the review
, the Law Society cited its research on the availability of housing specialists
as an example of the type of geographical gaps that are appearing across the country: ‘Almost one third of legal aid areas have just one and – in some cases – zero law firms who provide housing advice which is available through legal aid’ (para 818, page 195). I’d also argue that the MoJ has chosen to ignore the abundance of anecdotal evidence about advice deserts across the country. For example, Bob Neill MP referred to the lack of legal aid firms in his constituency at the latest meeting of the All-Party Parliamentary Group on Legal Aid (see page 6
of this issue).
The scope cuts – especially those in benefits and immigration law – have hit not-for-profit suppliers hard, leading to a reduction in their services. Citizens Advice reported a loss of 350 specialist advisers from its centres and the Law Centres Network reported in 2015 that one in six of its centres had closed as a result of the scope cuts (para 825, page 196).
The PIR report concludes that the LAA regularly monitors coverage and that, ‘with the exception of four housing and debt procurement areas and one immigration and asylum area’ in last year’s contract round, there is sufficient coverage (para 822, page 196). As I argued in the first part of this article, the main problem with this assertion is that the MoJ does no research into what the potential demand is for legal aid services.
Criminal legal aid
As the PIR report confirms, there have been big reductions in case volumes and changes to the litigators’ graduated fee scheme and the advocates’ graduated fee scheme that make it difficult to assess the impact of the LAR and LAT (pages 200–202). Due to the combination of these factors, spending on criminal legal aid fell from about £1.18bn in 2010/11, when the coalition government came to power, to £890m in 2017/18 (para 846, page 202).
LAR changed the system of remuneration for payment in trials, arguing that the system was unfairly skewed towards paying more for a guilty plea later while preparing for a hearing rather than being remunerated at the rate for a case that does not proceed to trial for whatever reason (referred to as a cracked trial) (page 206). Other changes included harmonising payments for cases that could be heard in either the Crown Court or the magistrates’ court (referred to as either way cases), aligning fees paid for murder and manslaughter cases, and combining fees for dishonesty cases (paras 862–864, page 207, and paras 868–869, page 208). The MoJ estimates that the changes have saved around £140m from the budget but acknowledges that, due to the other factors affecting costs in the system, this can only be a rough estimate (para 890, page 214).
Not surprisingly, the report rather skirts around what I would argue is the main difference between the civil and criminal schemes: the ability of providers to fight off changes to the system. LAT attempted to introduce a 17.5 per cent cut to solicitors’ fees for criminal legal aid work (see para 874, page 210), and a further paper published in April 2013 announced the government’s plans for competitive tendering for police and magistrates’ court work. Michael Gove MP reversed the second 8.75 per cent tranche of the fee cut in January 2016 and went on to reverse the decision to introduce competitive tendering.
There are 14 per cent fewer solicitors’ firms and barristers providing criminal legal aid and the MoJ estimates that there has been a 12 per cent drop in the number of criminal advocates since 2012/13.
As so well documented by the Secret Barrister
, there are clearly profound problems in the criminal justice system caused by cuts. Overall, there are 14 per cent fewer solicitors’ firms and barristers providing criminal legal aid (para 952, page 234) and the Law Society presented evidence to the review that the current cohort of police station duty solicitors is ageing and not being replaced (see para 968, page 239). The MoJ estimates that there has been a 12 per cent drop in the number of criminal advocates since 2012/13 (para 972, page 240). The review of criminal fees that is now ongoing (see Monidipa Fouzder, ‘Government embarks on wider criminal legal aid review
’, Law Society Gazette
, 10 December 2018) is not due to be concluded for over a year, but the mood among practitioners is such that the government might well have to find more cash before then, as the system seems to be teetering on the verge of collapse.
Abolition of the Legal Services Commission
The Legal Services Commission (LSC) was so unpopular with practitioners that there was little opposition to it being replaced by the LAA. The LSC operated with a degree of independence from ministers as it was an executive non-departmental public body. LASPO abolished it and created the LAA, which is under the direct control of the MoJ. The Bach Commission has argued that this has led to a ‘blurring of boundaries between Whitehall and the administration of the legal aid scheme’ (The right to justice: the final report of the Bach Commission
, Fabian Society, September 2017, page 35; see para 1118, page 269 of the PIR report).
A mere one paragraph deals with the controversy surrounding the CCMS, something that Legal Action and others have continually highlighted over the years.
The PIR report gives the LAA a rather glowing write-up, arguing that it has reduced administrative costs ‘significantly’ (para 1123, page 269) and remained below the one per cent error target for the payment of legal aid bills set by the National Audit Office (para 1125, page 270). The Civil Justice Council, though, observed that in 2017/18, 53 per cent of appeals against refusals of funding were successful (para 1131, page 270). A mere one paragraph (para 1132, page 271) deals with the controversy surrounding the CCMS (client and cost management system, the digital system for processing claims), something that Legal Action and others have continually highlighted over the years. I’d argue that the above is symptomatic of an all-pervading ‘computer says no’ culture that has developed in the LAA in response to ministers’ entreaties to cut the legal aid budget.
Maintaining access to justice is the purpose of the legal aid system and the report observes that the responsibility for this ultimately lies with the lord chancellor (para 1137, page 271). If the lord chancellor prioritises the demands of the Treasury over this, though, there is no one, other than practitioners, to speak up for legal aid.
LASPO was mainly about cutting expenditure as part of the then coalition government’s wider austerity drive. As the PIR report concludes, in many areas it achieved this (para 1140, page 272) and delivered on the objective of better value for the taxpayer. It acknowledges, though, that it largely failed in its second objective of discouraging unnecessary litigation (paras 1141–1145, pages 272–273) and concludes that it is impossible to tell if LASPO led to the more effective targeting of legal aid (paras 1146– 1153, pages 273–274).
This is the second of a two-part article, the first of which was published in the March 2019 issue and looked at the report's findings on the impact of the various scope cuts.