We have, at LAG, highlighted that civil legal aid is 70 years old this year. We have celebrated its achievements at our Legal Aid at 70 conference, backed this up with articles, and this month we are enclosing with the magazine a booklet of major cases produced by the Justice Alliance.1LAG would like to thank Garden Court Chambers for providing a grant to support the distribution of the booklet.
In the past 70 years, possibly the most important change to the scheme has been the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which was supposed to end years of civil legal aid salami-slicing, overhaul it completely, save the government money and leave some basic legal aid availability where the government felt it could not cut any further. The coalition government said that there would be a post-implementation review (PIR) of the Act within five years. Ironically, within days of LASPO coming into force, it consulted on further cuts to the civil legal aid scheme alongside criminal law reforms.
In February 2019, the PIR of LASPO was finally published, along with the Legal Support Action Plan (Legal support: the way ahead
, CP 40). Ministry of Justice (MoJ) officials have now been tasked with carrying out various pieces of work and reporting by certain times, eg, to complete a review of the legal aid eligibility regime by summer 2020 and to launch a campaign to improve awareness of how people can access legal support, including legal aid, by autumn 2019. There is a very good summary of the action points
on The Law Society website.
Many people contributed to the PIR and may not feel that they have any more to add. However, this period is crucial – some of the MoJ officials were not on the team that prepared the PIR, and if they are to persuade the Treasury to release funds, they need good examples and strong arguments. Above and beyond the arguments for the rule of law and effective participation in a democracy? Yes.
It should also be noted that the composition of ministers in the MoJ is likely to change depending on who wins the Conservative Party leadership election. If there are changes, it is essential that this work is not delayed. It must be delivered on time. The review, for all its limitations, is a thoughtful piece of work and could lead to significant improvements for people seeking access to justice.
Over 5,000 people responded to the government’s LASPO proposals. Almost all warned of the problems it would cause. Now that so much of what was of concern then has happened, it is essential that as many people as possible assist the current team with their work and help them meet their timescales. To do that, there needs to be transparency over what work is being carried out, and what assistance is needed and by when.
But we have to ask, is the action plan too little too late? It was my view in 2000 that running a legal aid practice in London was not financially viable and I led my practice into a merger with the specific aim of carrying out more private work and less legal aid work. Low rates, too much unbillable work, inability to retain staff as they could obtain higher salaries in firms not carrying out legal aid work, the failure of lawyers to have a decent work/life balance ... yet 19 years later, the situation is much worse.
T A Law has recently closed (see May 2019 Legal Action
5) and Ewing Law has announced
that it will no longer do criminal legal aid work, while Community Law Partnership has blogged
about the frustrations of obtaining funding. Many people leave legal aid work without a fanfare, quietly slipping away to private practice. Meanwhile, the criminal bar has taken action
on behalf of its members because of the fee regimes, while everyone involved in both the criminal and civil justice systems continues to highlight the chronic underfunding at all levels.
Justice delayed is justice denied – talk to people waiting for their trials; to people whose cases are constantly adjourned because of shortages of courtrooms or judges; to people who have not tried to see their children because they could not manage their cases alone; to people who have lost their homes because they could not obtain help until too late, if at all; to people who have contacted five, 10, more firms and organisations for help and found nobody able to take their cases on.
The importance of the post-PIR team producing sensible proposals within the time frame they set is vital. Too many people are receiving no advice on life-changing events. Some may receive limited help at a very late stage. In a democratic country, it is vital that people can receive assistance when they have a problem, that any digital solutions that are brought in are carefully thought through, that face-to-face advice remains available to all who need it, and that the court service is open for business.
The government must not be allowed to present a picture of a thriving sector where there is a digital service, telephone advice, and courts and tribunals are open as usual. Every part of the system needs to be working effectively and innovation must be harnessed based on the needs of a functioning democracy, not on a facsimile of justice. The best place to start? Look at the hurdles faced by anyone with a civil or criminal problem and plan their way through the system now. Make it better. Make it effective.