Authors:Catherine Baksi
Last updated:2023-11-08
Legal Aid at 70: ‘There are reasons to be cheerful’
Marc Bloomfield
Speakers and delegates at the LAG Legal Aid at 70 conference managed to find some cheer among the understandable gloom at the current state of legal aid. Catherine Baksi reports.
Photos: Richard Gray/rugfoot photography
Description: Legal Aid at 70 conference Lady Hale and Stephen Knafler
Keynote speaker Lady Hale and Stephen Knafler QC, who chaired ‘Key achievements and omissions’, in which a panel of experts provided analysis of key legal developments and how to increase access to justice
Seventy years after the Legal Aid and Advice Act 1949 received royal assent, the mood at LAG’s conference was a mixture of despair and a determination to press on. Taking stock seemed the order of the day, celebrating the achievements and victories, addressing the setbacks and figuring out the future game plan.
Giving the keynote speech, Lady Hale, the president of the Supreme Court, summed up the tone, channelling Ian Dury and his 1970s hit with The Blockheads. ‘We shouldn’t get downhearted – there are reasons to be cheerful,’ she insisted, highlighting the number of important cases still being brought by individuals with legal aid.
The message must be that there is still a role for publicly funded legal services to play within our system.
Among the notable cases heard by the Supreme Court, Lady Hale picked out P v Cheshire West and Chester Council and another [2014] UKSC 19, the groundbreaking human rights case on deprivation of liberty, and Montgomery v Lanarkshire Health Board [2015] UKSC 11, in which the court moved away from medical paternalism and established a model of patient autonomy for informed consent to medical treatment. ‘The message must be that there is still a role for publicly funded legal services to play within our system,’ she stressed.
Describing herself as an ‘old LAG’, having been a supporter of the organisation since its early days, Lady Hale turned to Psalm 90, telling delegates that as they celebrated 70 years of the Legal Aid and Advice Act, she had passed her three score years and 10. She asked: ‘Have we enjoyed the heyday of legal aid? Will it fly away altogether in another 10 years? I don’t want that to happen, but we do need to take stock.’
Of the many casualties of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), Lady Hale said private family law had been the worst hit, resulting in a ‘patchy picture’ of help. It was ‘no surprise’, she added, that the removal of legal aid had led to the ‘explosion of family law cases and litigants in person’. While the government wrongly believed that discouraging the use of lawyers would keep people out of court and increase the take-up of mediation, the removal of legal aid, she said, has led to the ‘near collapse’ of family mediation, because of the absence of lawyers to tell parties about the process. ‘It’s as if no one understood that lawyers’ jobs were to keep people out of court, especially in family law.’
To illustrate the paucity of the help available for those unable to afford a lawyer, Lady Hale described a typical situation of a woman in rural England suffering domestic violence. While in the past there may have been face-to-face legal advice, now there was just a local library and the internet. Putting herself in the shoes of the woman in need, she had been online to see what advice was out there. In her search, she reported a total absence, from the information available, of the fundamental principle that the welfare of the child is paramount.
In response to the government’s approach for the future, which is focused on technology and innovation, Lady Hale said it had been bombarded by advice from lawyers that people need early support and advice before matters escalate. But, she continued, the government would not restore funding to the levels of the past, ‘however well-meaning the lord chancellor’.
Considering another by-product of the cuts, Lady Hale said that the growing number of McKenzie friends assisting people without lawyers ‘can be extremely helpful’. But, she cautioned, ‘they are turning themselves into unregulated fee-charging services’, which raises the question of how they ought to be regulated.
Accepting the difficulties for students considering a future in the law, Lady Hale encouraged them to ‘be flexible and take the opportunities that come their way’. ‘That’s what I did,’ she said, ‘and that’s why I’m here today.’
‘Not where we want to be’
Opening the conference, the warm-up act, Steve Hynes, who earlier this year stood down as LAG director after 11 years, was similarly circumspect on the theme of technology. Policy-makers, he said, have sought to ‘take the lawyers out of the system. For the justice system to work, yes, you need innovation, but at the core of the system, you need people with knowledge’.
Looking back over the history and evolution of the legal aid system, he recalled that the 1949 Act came about as a result of a report from a Tory peer, Lord Rushcliffe – and when it came into force, 80 per cent of the population were eligible for funding.
Hynes described the ‘golden period of legal aid’ up to around 1984, when the system expanded and firms grew. Since then, he said, ‘we have seen a waxing and waning of the legal aid system’ with a trajectory ‘nibbling away’ at scope and the financial means threshold, ‘plummeting to where we are now’, with fewer than 30 per cent of the population eligible for public funding. It is, he said emphatically, ‘not where we want to be’.
Along the way, he remarked, there has been some positive innovation, notably the introduction of contracting and quality marks, although he accepted that others would disagree.
LASPO has been an absolute disaster for access to justice.
Expressing the view held by all but the Ministry of Justice (MoJ), Hynes remarked: ‘LASPO has been an absolute disaster for access to justice.’ He pointed to the crumbling courts with leaking roofs to highlight the gradual destruction of the justice infrastructure. He was, however, hopeful for positive change that would come out of the LASPO review,1Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), CP 37, February 2019. with potential alterations to the means test and the reintroduction of early advice, though he accepted that he was ‘probably over-optimistic’.
Crucial to achieving change, he continued, was the need for Treasury support, because without more money, the legal aid system would be ‘a pier jutting out into a sea of need’. With the criminal justice system in crisis, Hynes called for the civil legal aid budget to be separated from the criminal fund. Otherwise, he warned, ‘for understandable reasons, the criminal legal aid budget will eat into the civil budget’. He added that in order to avert the ‘crisis brewing in recruitment’, the fees for civil legal aid work had to rise.
Picking up this theme, Sue James, director of Hammersmith and Fulham Law Centre, told delegates that it was her son’s 22nd birthday, noting that ‘in his lifetime there has been no increase in legal aid’. Rather, she stated, in the decade to 2023, the MoJ’s budget will have been cut by 50 per cent.
Epitomising the scale of the destruction of the justice system, she gave the example of Ebbw Vale, in Wales, where there are no legal aid lawyers, no Citizens Advice offices and no Law Centres, but where they do have a food bank – in the old magistrates’ court.
In place of legal aid, she said, clients were increasingly turning to crowdfunding to pay for their cases. As an illustration of the absurdity of the current system, James pointed to the County Court at Brentford, which was chosen by HM Courts and Tribunals Service (HMCTS) to pilot the extended hours court sitting scheme, even though the court currently has so little work that three of its courtrooms stand empty.
Looking at the positives, she reflected that using the law was a key tool for achieving social change, especially when MPs are so caught up with the Brexit shambles. Achieving this, she said, required collaboration with other professionals to take strategic litigation and challenge unlawful decisions, as well as collecting, analysing and using data.
We need the public to care about access to justice in the same way that they care about the NHS.
Lawyers, James said, also need to get better at telling their clients’ stories and using social media to spread the word. ‘We need the public to care about access to justice in the same way that they care about the NHS,’ she continued, adding that the Windrush scandal showed that the public could be engaged.
A hindrance in harnessing public support, she said, is the fact that they do not understand what legal aid lawyers do or how they differ from fat cat commercial lawyers. ‘We need to change our image,’ she said, suggesting they rebrand as ‘social justice lawyers’.
Her positive message to the conference was: ‘Learn the law, use the law, change the law.’ Although at a session later in the day, she admitted that daily struggles with the Legal Aid Agency (LAA) made her want to give up legal aid work. ‘It’s just too hard,’ she said. ‘It sometimes feels like the LAA is your second opponent.’
Different problems, same lack of solutions
In a lighter moment while looking at the dire situation for victims of domestic violence, especially migrant women, Cris McCurley of Ben Hoare Bell revealed that before becoming a legal aid lawyer, she had wanted to be a spy.
After years of doing what she called the ‘LASPO hokey-cokey’, struggling to secure funding for domestic violence victims, she said it was ‘outrage’ at the unfairness of that Act that kept her going. Demonstrating the lack of provision in the Domestic Abuse Bill, which is designed to plug some of the gaps, she said the government seems to believe that the best way to protect migrant women is to deport them.
Seventy years is a great legacy, but we need to continue the fight to make sure that legacy goes forward.
Reflecting on the legal aid journey, McCurley concluded: ‘Seventy years is a great legacy, but we need to continue the fight to make sure that legacy goes forward.’
In the area of community care, which remained in scope even after the LASPO ravaging, Karen Ashton of Central England Law Centre said she had never seen a greater need for quality legal advice, due to the impact of the government’s policy of austerity. She cited figures showing a huge decline in provision, with the number of providers down from 178 in 2011/12 to 104 in 2017/18, and the number of new cases falling by over 70 per cent from 8,500 in 2009/10 to 1,800 in 2018/19.
Turning to public law and inquests, Public Law Project’s Sara Lomri echoed earlier statements on the need to use strategic litigation to drive change as Brexit overshadows parliamentary business.
Marcia Willis Stewart QC (Hon) of Birnberg Peirce highlighted the injustice of not giving legal aid to bereaved families to enable them to be represented at inquests. She said the call for funding had been on the agenda since the publication of the Macpherson report into the death of the London teenager Stephen Lawrence,2The Stephen Lawrence Inquiry: report of an inquiry by Sir William Macpherson of Cluny, Cm 4262-I, February 1999. and had been recommended in several later reports. But she lamented that the government ruled it out in the recent review of legal aid for inquests.3Final report: review of legal aid for inquests, CP 39, MoJ, February 2019; see also page 15 of this issue.
Legal aid/social justice lawyers are alive and kicking.
Despite the setbacks, she stressed: ‘Legal aid/social justice lawyers are alive and kicking.’ For students in the room, she said that it’s ‘a worthwhile and fulfilling career, so don’t be discouraged’, while for those lawyers still standing, her message was ‘keep standing’. Sharing a Jamaican saying as she reflected on legal aid at 70, Willis Stewart said: ‘The older the moon, the brighter it shines. And legal aid, shine on.’
Celebrating those lawyers whose work is done behind the scenes, in dusty, windowless offices, Amanda Weston QC of Garden Court Chambers gave a shout-out to the lawyers acting for clients at the Court of Protection. Quoting Eleanor Roosevelt, she encouraged them with the thought that ‘human rights begin in small places’.
We need cash, not computers
HMCTS’s controversial £1bn digital innovation project, to drive much of the courts’ business online and introduce more remote and virtual hearings, was a hot topic. Richard Miller, head of the justice team at The Law Society, warned delegates of the need to ‘tread carefully the tightrope between the zealot and the Luddite’. But in a stark message to the MoJ and HMCTS, as they develop their digital solutions, he said: ‘Access to justice through IT is not an alternative to access to justice through lawyers. Whether you use IT or not, you still need lawyers.’ He also stressed the need for effective services for those who are digitally excluded.
Martin Barnes, CEO of the charity LawWorks, warned that far from increasing the accessibility of court processes, technology might increase exclusion, noting that there are 3,700 fewer computers in libraries than there were in 2010, probably because many of them have closed. ‘Justice is not more accessible when your nearest court is a three-hour bus journey away,’ he added.
Representatives from the government were thin on the ground, but Fiona Rutherford, the MoJ’s deputy director of legal aid strategy and policy, stepped into the lions’ den. Stressing the ministry’s continued desire to work with the profession in a spirit of openness, she outlined its Legal Support Action Plan4Legal support: the way ahead, CP 40, MoJ, February 2019. flowing from the LASPO review. That included expanding the scope of legal aid to encompass separated migrant children in immigration cases and special guardianship orders in private family law, looking to simplify the exceptional case funding process and reviewing the means test. To help make the case for funding for early advice, she asked lawyers to provide evidence demonstrating the savings.
Description: Legal Aid at 70 conference Fiona Rutherford
Fiona Rutherford, the MoJ’s deputy director of legal aid strategy and policy, outlined the government’s legal support action plan
During a break-out session, Chris Minnoch, CEO of the Legal Aid Practitioners Group, noted that the ‘striking omission’ from the action plan was a review of civil legal aid fees. He observed that the poorly funded system only works because lawyers view the job as a vocation and will do whatever they need to to resolve their client’s case, even if they have to work for free.
Indicating that the LAA was aware of this, Minnoch informed the group that an agency employee had told him that fees were only enough for firms to score three out of five – the ‘threshold competent’ peer review standard. If firms were scoring one or two, the man said to him, they must have been doing a lot of work for free.
Still room to celebrate
Celebrating the achievements of the past 70 years, the conference was asked to vote for the best civil legal aid case of all time: Henrietta Hill QC of Doughty Street Chambers pitched for the Middleton case (R v HM Coroner for the Western District of Somerset ex p Middleton [2004] UKHL 10), which transformed the law relating to inquests; Garden Court Chambers’ Marc Willers QC suggested Porter No 1 (South Bucks DC v Porter [2003] UKHL 26), concerning the human rights of a Romani Gypsy family; Sir Nicholas Blake of Matrix Chambers spoke for the deportation case of Chahal v UK App No 22414/93, 15 November 1996; Ollie Persey of Public Law Project put forward Lumba v Secretary of State for the Home Department [2011] UKSC 12 on the detention of foreign nationals at the end of prison sentences; and Nogah Ofer of the Centre for Women’s Justice suggested the police misconduct case brought by the family of Linah Keza, who was stabbed to death by her ex-partner.
The case that won the day, put forward by Diane Astin of Deighton Pierce Glynn, was an everyday, low-key case showing the ‘real value’ of legal aid, which can not only change a client’s life, but also influence policy, changing others’ lives too. In this case, a 16-year-old homeless asylum-seeker was able to enforce his rights under the Children Act 1989, transforming his life.
Description: Legal Aid at 70 conference Angela Patrick Henrietta Hill QC and Marc Willers QC
Panel members Angela Patrick, Henrietta Hill QC and Marc Willers QC prepare to discuss the ‘greatest legal aid case of all time’
On that happy note, flying the flag for the daily random acts of kindness performed by legal aid lawyers, LAG chair Laura Janes paid tribute to Hynes for his service, and closed the conference: ‘Here’s to the next 70 years of making good law, and making the law good for everyone.’
On 30 July 1949, the Legal Aid and Advice Act received royal assent. The Act introduced the civil legal aid scheme the following year and updated the provisions for criminal legal aid in the Poor Persons Defence Act 1930. Legal Action is publishing a series of articles to mark the anniversary. LAG would like to thank Garden Court Chambers for providing a grant to support the publication of these articles.