Authors:Jon Robins
Last updated:2023-09-18
The new lord chancellor faces a legal aid sector on the verge of collapse
Marc Bloomfield
Description: Lady Justice close up (Hermann Traub_Pixabay)
More evidence, as if any more were needed, of the fraying of the threadbare patchwork quilt of publicly funded legal advice. The latest stats from the Ministry of Justice (MoJ) indicate that 30 per cent of law firms and advice agencies with a housing contract – that’s 129 out of 431 – undertook no legal aid matter starts
last year. We are by now familiar with The Law Society’s legal advice desert ‘heat maps’ graphically illustrating the barren expanse where legal aid areas have just one or else no firms providing housing advice.
LAG has received the results of a freedom of information request submitted by Dr Jo Wilding, a barrister and academic at the University of Sussex, who has done much to expose the dysfunctional ‘market’ of publicly funded legal advice, notably in her work on immigration and asylum advice. Wilding has previously explained that the problem isn’t simply one of ‘deserts’ (as in geographical gaps in provision), but also ‘droughts’, where firms and advice agencies are not using case allocations despite demand for services because they are losing money on the fixed fees available.1May 2023 Legal Action 12.
LAG welcomes a new justice secretary, Alex Chalk KC. In his first outing in the job, Chalk told MPs that the ‘rule of law, access to justice and the independence of the judiciary are the bedrock of a safe, free and fair society’ (Hansard HC Debates vol 732 col 693, 16 May 2023). In a post-Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) world, it’s not clear what, if anything, the middle phrase means (and frankly the other two have taken a battering in recent years).
Our new lord chancellor needs to work out if ‘access to justice’ means, as it must do, a decent system of civil legal aid underpinned by a coherent policy and decent coverage. I am reminded of the words with which earlier incumbent Ken Clarke launched the LASPO Bill in 2011: ‘I genuinely believe that access to justice is the hallmark of a civilised society.’ In our book Justice in a Time of Austerity, Dan Newman and I argued that the phrase had been devalued by politicians of all colours who invoked it to sell policies to the public that, at best, paid lip service to the idea and, on occasion, actively sought to undermine it. New Labour’s Access to Justice Act 1999 both attempted to impose coherence on the patchy coverage offered by the civil legal aid sector and cap the legal aid budget by linking the civil and criminal schemes, in turn creating an artificial crisis within the system. Inevitably, social welfare law became smothered by a spiralling criminal budget fuelled in part by Labour’s obsession with law and order, as evidenced by the 3,600 plus new offences created during its tenure.
According to Dr Wilding’s latest stats, there has been a 20 per cent contraction in the housing sector between September 2021 and March 2023, leaving 345 offices compared with 431. There were nine procurement areas (out of 431) where no housing legal aid matter starts were reported, and another five where only one was reported.
As for welfare benefits, only 119 matter starts opened in the last contract year (September 2021 to August 2022). As of September 2021, there were a total of 51 offices; only 15 opened a legal aid matter start in the last contract year and 14 offices had withdrawn by March this year.
These dismal stats need to be understood against the latest MoJ figures revealing that landlord possession claims have increased by 23 per cent in the quarter ending March 2023 compared with the same quarter of 2022, and mortgage possession claims by 40 per cent over the same period.2Mortgage and landlord possession statistics: January to March 2023, MoJ, 18 May 2023. In May, The Law Society estimated that 25.3m people do not have access to a local legal aid provider for housing advice.3Housing legal aid increasingly out of reach as repossessions rise’, Law Society press release, 19 May 2023. According to Chancery Lane, the MoJ has been struggling to find providers to run its Housing Loss Prevention Advice Service (HLPAS), intended for urgent free help for people facing possession in areas including Liverpool, Bedford and Darlington.
‘Sadly, for many legal aid providers this type of contract is becoming increasingly difficult to make work financially,’ commented Law Society president Lubna Shuja. ‘As a result, some can simply no longer afford to provide this vital public service.’ The Law Society welcomed the government’s review of civil legal aid sustainability but, as Shuja pointed out, ‘unless we see significant and immediate investment across the legal aid system including housing, more of these schemes will collapse leaving people without help when they need it’.
Justice secretaries come and go; we have had 10 in as many years. Meanwhile, our system of publicly funded law, decimated by the 2013 cuts, goes through its death throes.
1     May 2023 Legal Action 12. »
3     Housing legal aid increasingly out of reach as repossessions rise’, Law Society press release, 19 May 2023. »