With the general election campaign in full swing, a new government will take office at some point in the coming days, or maybe even weeks if deals need to be done to assemble a majority in parliament. Whatever the political complexion of the new administration, LAG will continue to advocate policies to provide better access to justice, especially for the poor and vulnerable. This article sets out our thinking on the key issues that we believe the new government should urgently address.
Paying the price
All the main parties are promising a boost to public spending as part of their pitch to the electorate. In what was seen by Labour as ‘grubby electioneering’,1Dearbail Jordan, ‘Chancellor Sajid Javid declares end of austerity’, BBC News, 4 September 2019.
back in September chancellor Sajid Javid announced extra cash for departments, including a 4.9 per cent budget increase for the Ministry of Justice (MoJ) from 2019/20 to 2020/21.2Spending round 2019, CP 170, HM Treasury, September 2019, para 2.15, page 12.
While we welcomed the chancellor’s loosening of the purse strings, the MoJ will need considerably more cash than this if the new government is going to end austerity in the justice system.
Since 2008, the MoJ has endured disproportionately higher cuts than most other government departments, with 27 per cent lopped from its overall budget by 2018.3Professor Martin Chalkley, Funding for justice 2008 to 2018: justice in the age of austerity, The Bar Council, 1 November 2018.
Cuts to legal aid were 32 per cent. By comparison, in the same period, health spending increased by 25 per cent and the economy overall grew by around 13 per cent.
Research published in July this year shows an overall drop of over 50 per cent in the availability of free legal services.4‘The legal services market is failing to support consumer engagement and low income consumers accessing justice’, Legal Services Consumer Panel press release, 30 July 2019.
A glance at the quarterly statistics for legal aid supplied by the MoJ reveals a significant part of the reason for this decline. In less than 10 years, civil legal aid has gone from serving 1.44m people (in 2009/10) to just 296,000 (in 2018/19).5Legal aid statistics England and Wales tables April to June 2019, MoJ/LAA, 26 September 2019, table 1.2 and Legal aid statistics England and Wales tables Jan to Mar 2016, MoJ/LAA, 30 June 2016; update 1 July 2016, table 1.2.
The not-for-profit (NfP) sector has also seen huge cutbacks in its funding, which have led to reductions in the number of people those organisations can assist.6See Owen Bowcott, ‘Legal advice centres in England and Wales halved since 2013–14’, Guardian, 15 July 2019.
LAG believes that it is the poor and vulnerable who are paying the price for the reduction in the availability of free advice and representation. Extra cash was announced this year for legal tech and support services to litigants in person (LIPs), as part of the review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).7Legal support: the way ahead, CP 40, MoJ, February 2019, page 26. See also March 2019 Legal Action 4.
While we welcome such initiatives, we believe ministers sometimes give the impression that they think information and support services are enough to ensure that people can use the justice system effectively.
We are calling on the new government to unequivocally acknowledge that, in many instances, state-funded advice and representation are necessary to guarantee access to justice. Legal aid needs to be restored to at least pre-LASPO levels to do this, as well as a substantial investment of public funds to reverse the decline in the NfP advice sector.
Replacing LASPO and the Legal Aid Agency
More cash will not be enough to solve all the problems in the legal aid system. Ideally, LAG would like to see LASPO replaced with new legislation to re-energise legal aid as an integral part of the justice system, with a clear objective to provide access to justice for all.
While legal advice and representation would remain the core activity, we envisage the inclusion of public legal education and other support services, including digital ones, in this re-cast service under independent governance. We would also like the legal aid service to be proactive in leading innovation, for example, in establishing advice services in health settings, an idea that the Low Commission8The role of advice services in health outcomes: evidence review and mapping study, Advice Services Alliance/The Low Commission, June 2015.
and others have promoted.
LASPO established the Legal Aid Agency (LAA) to replace the Legal Services Commission. The administration of legal aid, no matter what the governance structure, has always attracted criticism – it should be remembered that for much of its history (1949–1988) it was administered by The Law Society. We believe the current arrangement where it is under the MoJ’s direct control is so fundamentally flawed that it needs to change.
At a well-attended meeting of legal aid lawyers held in October, practitioners talked about the ‘hostile environment’ and ‘culture of refusal’ that has taken hold at the LAA.9See November 2019 Legal Action 4.
Much of the administration of legal aid seems to be to the detriment of the end-users – members of the public – who increasingly cannot find legal aid lawyers as they are abandoning a system that too often frustrates access to justice rather than facilitates it.
Legal aid lawyers have endured the nightmare of CCMS (client and cost management system), the LAA’s case management and reporting system, which has increased the burden of bureaucracy on them.10See, for example, April 2016 Legal Action 4.
The LAA has also focused on running tendering exercises that have introduced uncertainty among legal aid firms, which are mainly dependent on a cohort of older lawyers who are not being replaced.11Monidipa Fouzder, ‘Criminal defence solicitors facing extinction’, Law Society Gazette, 17 April 2018.
LASPO included safeguards over individual decisions on legal aid cases by giving statutory powers to the post of Director of Legal Aid Casework (a role usually combined with that of the LAA CEO). LAG has long argued that, in both appearance and practice, this is not sufficient to guarantee independence in decision-making.12Steve Hynes, Austerity justice, LAG, 2012, pages 69–72.
New legislation to create an independently-governed legal aid system that would provide for representation from both legal aid providers and end-users would take time to pass through parliament and implement. We would argue that as well as an injection of funds, there are urgent issues that the incoming government can address immediately without the need for legislation.
Civil legal aid
Much of LAG’s commentary in recent years has focused on the decline of civil legal aid due to the scope cuts introduced by LASPO. The availability of early advice through the civil legal help scheme was one of the main casualties of these cuts. There seems to be a growing political consensus around the need to reinstate early advice capacity in the system.
Bob Neill MP, the Conservative chair of the Justice Committee, has described early advice as ‘essential’ and noted that the LASPO cuts have ‘created unintended consequences’.13Hansard HC Debates vol 648 col 430WH, 1 November 2018.
In the strategy document Legal support: the way ahead
, published in February this year as part of the post-legislative review of LASPO,14See footnote 7.
the government committed itself to a pilot study for face-to-face advice in social welfare law (SWL), to ‘test the impact of early legal advice in promoting early resolution’ (page 7). LAG would like to see the incoming government restore legal help in SWL cases immediately, or at the very least accelerate this early advice pilot.
The strategy document also committed the government to reviewing the thresholds for entitlement to civil legal aid. LAG argues that the income levels are set too low and notes that the caps for expenses such as utility bills have not been uprated on a regular basis. The system is also riddled with inconsistencies: for example, the capital levels are less generous than those to qualify for income support.15The amount of capital disregarded for income support and other benefits is £16,000, whereas it is only £8,000 when assessing for civil legal aid.
LAG understands that work is ongoing within the MoJ on this review of the rules around entitlement to legal aid. We would hope this work is not stalled by an incoming government and would ask for overhaul of the system to take place within a few months of the new government taking office.
Finally, LAG believes civil payment rates need to be reviewed urgently as they have, in many areas, become uneconomic.
Criminal legal aid
At the Conservative party conference, there was a co-ordinated pitch around law and order but no acknowledgement of the cumulative impact of 10 years of austerity on the criminal justice system.16See November 2019 Legal Action 6.
The Secret Barrister’s book17Stories of the law and how it’s broken, Picador, March 2018.
lifted the lid on the crisis, and the bar in particular has been vociferous in calling for an uplift in fees for legal aid work.
The MoJ announced a comprehensive review of the fee structure for criminal legal aid in December 2018, and this was followed by the publication, in April this year, of a document outlining the process for the review, which is due to be completed by 2021.22See Criminal legal aid review: programme overview, ibid, page 21 for a proposed timeline.
In July this year, the government agreed to an accelerated review of fees, including the AGFS, but due to the general election, announcements on the results of this have been delayed.23‘Criminal legal aid review: an update’, Law Society news release, 5 November 2019.
Any incoming government will have to prioritise an uplift in criminal legal aid fees or risk a boycott of cases by the criminal bar. LAG, however, would oppose any proposal to raid the civil legal aid fund to pay for increases in criminal legal aid fees.
Courts and tribunals system
In an otherwise gloomy picture for the justice system, the £1.2bn investment programme in the modernisation of the courts and tribunals system has been welcome. There are, though, concerns about the closure and sale of court buildings and the impact of this on access to justice.24See, for example, September 2019 Legal Action 10.
LAG believes that the next government should follow the advice in the recent Justice Committee report25Court and tribunal reforms. Second report of session 2019, HC 190, 31 October 2019.
and halt planned court staff cuts and further building closures.
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. This is the last of a series of articles published by Legal Action to mark the anniversary. LAG would like to thank Garden Court Chambers for providing a grant to support the publication of these articles.