A big day for legal aid and access to justice

In between the news from the front line in Ukraine and its repercussions around the world, on 15 March 2022, the Ministry of Justice (MoJ) issued two important and long-awaited consultations, on its proposals for criminal legal aid in response to Sir Christopher Bellamy’s independent review and on means testing for both criminal and civil legal aid.
The consultations run for 12 weeks, until 11:59 pm on 7 June 2022. The consultation papers, including the accompanying impact and equalities assessments, run to over 430 pages.
The press release that preceded the publications talked of the ‘biggest pay boost in a decade’ for criminal lawyers, many of whom immediately pointed out that that the proposals in fact offer Sir Christopher’s recommended minimum as the maximum the government is prepared to give.
The Secret Barrister, among others, was also quick to point out that claim in the press release that the taxpayer will now be footing an annual bill of £1.2bn a year for criminal defence is ‘nonsense of the highest order’, as it will mainly made up of the ‘money that the government has been forced to spend reopening the courts it closed’.
Practitioners also expressed concern that the government has refused to apply the 15 per cent uplift to pages of prosecution evidence (PPE) and trial length of the litigators’ graduated fee scheme (LGFS), apparently to ‘avoid further embedding perverse incentives’ (para 4 of the criminal legal aid consultation executive summary).
The focus on ending so-called ‘perverse incentives’ was trailed heavily in the press release as a reason for the focus on investing in legal advice at the early stages of the criminal process, stating the proposals would ‘boost pay for lawyers representing suspects in police stations by 15 per cent to tackle the perverse incentive that currently encourages lawyers to wait and represent defendants in Crown Courts because it pays better’. Practitioners familiar with the criminal justice system will be relieved to hear that despite this bizarre analysis, which would suggest that somehow matters can be resolved in their entirety at the police station, there is no plan in the response to introduce police courts – yet!
Less noticed, but in keeping with the focus on sucking people into the system rather than out of it, was the fact that the 15 per cent increase recommended by Sir Christopher for all areas of criminal work has not been accepted in full by the MoJ: prison law has been excluded. The only reason given for this is that the government ‘wants to focus reform on improving early engagement in the early stages of criminal cases and reducing the court backlog’ (para 217 of the criminal legal aid consultation paper). The government has formed this view while noting the independent review’s finding that ‘prison law cases are complex and that the fixed fee and the current escape fee mechanism did not reflect this complexity’ (para 215 of the criminal legal aid consultation paper) – the review in fact suggested that prison law should not only get the 15 per cent increase, but be reconsidered more widely for further investment.
As the prison population looks set to rise to an unprecedented 100,000 over the next few years, it is hard to see how the needs of this particularly vulnerable cohort will be met, if the number of firms doing prison law continues to decline as it has over the last decade. The number of prison law offices has declined by around two thirds in the past decade and, without the so-called boost that the rest of the criminal legal aid will get, this trend will surely continue.
More positive are the government’s views on the need to support the next generation of lawyers. As the Westminster Commission’s Inquiry into the Sustainability and Recovery of the Legal Aid Sector found, criminal legal aid is an ageing profession, with many firms finding it difficult to recruit new and younger lawyers. The independent review found that in 2018/19 around 80 per cent of firms doing criminal legal aid work had no new trainees at all. As the founder of Young Legal Aid Lawyers who worked closely with the Legal Services Commission to introduce training contract grants, I was super excited to read in the press release that the ‘proposals will also give more people the opportunity to forge a career in criminal law, whatever their background, by funding the training and accreditation of solicitors and solicitor advocates’. It was equally disappointing, then, to see that this section of the response appears to have no concrete plans and simply invites comment on training and accreditation programmes. Still, this broad commitment must be met with resounding support for a large-scale programme of properly funded training contract grants or equivalent by the sector, with a particular focus on social mobility and diversity.
Much more exciting was the detail in the legal aid means test review that makes some hugely important progress on a number of issues that many in the sector have been asking for over many years. The thresholds will increase both for capital and income, and certain costs that are currently essential for most people but count for the purposes of eligibility will no longer be factored in, including the levy taken from prisoners for the victims fund, which is money a prisoner never sees but currently counts towards income for the purpose of legal aid.
Although these changes are not anticipated to come in for a while, they are broadly welcome and the government estimates that they will see an additional 2m people eligible for legal aid and increase legal aid funding by £20m.
But let’s keep this in context: the current population of England and Wales is around 68m, so that is a three per cent increase in the proportion of people eligible for legal aid. For any ordinary person who can bear to get their head around legal aid eligibility, the whole concept is bizarre: even my closest friends who have been listening to me banging on about access to justice for years are still shocked when I confirm that a woman with children earning a decent but not excessive wage, with, say, £1,000 of disposable income a month, would not be eligible for legal aid to get a court order to get an abusive partner out of the family home.
The extra money for legal aid lawyers is also going to be contingent on people being able and willing to do the work. Advice deserts need tackling urgently.
The proposal to remove the means test for legal help in relation to inquests that relate to a possible breach of human rights, or where there is likely to be a significant wider public interest in the individual being represented at the inquest, can only be a good thing.
There are also really positive proposals about removing means tests for children. For example, children who require civil legal representation (a legal aid certificate) will no longer be means tested. Children in prison requiring what is left of prison law legal aid will also be automatically passported. The rationale for this is admirably clear, humane and sensible with the MoJ making the point that aggregating parents’ means with those of children in prison may result in unfairness: it ‘accepts that a child or young person’s experience of the criminal justice system will play a critical role in determining how they will be reintegrated into their families, education and wider society’ and that an inability to access appropriate legal support ‘may result in their feelings or needs not being heard’ (para 312 of the means test consultation paper). It is therefore perplexing that the same rationale has not been applied to children for all forms of legal help work.
This progress is soured by an odd proposal to require people with household earnings above £500 per month who get universal credit to go through an income assessment rather than being passported, as at present. The equalities assessment states that Black, African, Caribbean and Black British people will suffer a net detrimental effect of five per cent as a consequence of this proposal. Surely, all those on universal credit should be passported for all forms of legal aid? As Stephen Armstrong argues in The New Poverty (Verso, 2017), many workers are already below the breadline. As the cost of living rises, this will worsen.
Although a massive step forward from the current position, the premise of the paper misses the crucial point. As LAG has always argued, people should not be financially crippled by having secured access to justice. The whole point of the legal aid scheme at its inception over 70 years ago was to enable those of moderate means to get access to justice. The past few years have shown that government can act quickly and radically when required or when it wants to, whether that is to eradicate homelessness in the pandemic or to pursue expensive train projects. It should not be that difficult to simply and expand the legal aid scheme to bring it back to its original purpose and design.
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