Legal aid: why equality before the law no longer exists in the UK in 2016
updated on 01 February 2016
Legal aid is financial assistance given by the government to people who need legal representation and access to the court system, but who cannot afford to hire a lawyer themselves. A few examples of the kinds of cases which have traditionally qualified for legal aid include: when someone with dementia is facing eviction and cannot fight the case against their local authority by themselves; when a victim of domestic violence needs to ensure safety for themselves (and in many cases also their children); and when someone has been accused of a crime. Clearly, a career as a solicitor or barrister working on legal aid cases is very different to commercial law; high-profile corporate clients and a big salary are instead replaced by helping ordinary people - particularly vulnerable groups such as children, immigrants, the elderly and people with mental health issues - for a smaller pay packet. Those who choose to work in the areas of law traditionally covered by legal aid are therefore usually not so much driven by making money as a genuine desire to help others - this kind of career is a vocation.
A properly funded legal aid system is essential because it ensures that whether rich or poor, all are equal before the law and have the right to a fair trial, where the facts of a case determine its outcome. Unfortunately, massive budget cuts implemented as part of this and the previous government's policy of austerity, along with the use of unrealistic criteria for provision and huge increases to court and tribunal fees, mean that the vast majority of people who need legal aid now cannot access it. Britain's most senior judge, Lord Thomas of Cwymgiedd, has reported that "our justice system has become unaffordable to most".
In 2016, the ability to defend or assert your rights and get a fair hearing is often only available to the wealthy. "The legal aid system has been so badly cut that on the civil side, there is very little left," explains Patrick Allen, managing partner of renowned civil liberties, family law and personal injury firm Hodge Jones & Allen. "This means that we have got to a very sad state of affairs where although we are apparently living in a fully functioning democracy, people of modest means now have no way of accessing the courts in most areas of civil disputes. This is a disaster because you cannot have a properly functioning democracy unless people are able to exercise their legal rights - and that means being able to defend themselves or assert their rights in the courts, in proper cases."
The new landscape has also created a climate of deep uncertainty for lawyers working in the areas of civil and criminal justice. We set out to learn more about the effects of the cuts on lawyers and the public, as well as what more can be done to remedy the lack of access in the current system.
How legal aid has been cut
The erosion of legal aid has been going on for years. Between 2006 and 2009, the government imposed a fixed-fee regime on legal aid services. This was followed in 2010 by strict new rules governing civil litigation through the Jackson Reforms, which changed the rules governing no win, no fee cases - previously one of the main ways that a law firm could fight a legal aid case and still recover its costs through a success fee. "One of the exceptions is personal injury, where it is still possible to get no win, no fee agreements," explains Allen. "However, LASPO and the Jackson reforms have curtailed even this, so although no win, no fee was filling a gap, this is no longer possible in many areas such as professional negligence and contested probate. If lawyers can't recover their success fees, they can't recover their insurance premiums, which means that to run cases on a no win, no fee basis has become economically unviable in many instances."
In 2011 there was a further 10% cut in fee rates across all legal aid services, but the biggest blow came in April 2013, when the cuts imposed by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 came into effect, slashing the legal aid budget by £350 million - mainly in the areas of family, immigration, welfare benefits, employment and clinical negligence - despite widespread opposition in the legal profession, from the Law Society and even the House of Lords. LASPO has ensured that many clients being funded through legal aid face an uneven playing field when going up against more wealthy individuals and organisations able to spend more on fees and expert evidence, creating a legitimate concern that many cases in the United Kingdom can now be influenced by the parties' bank balances, as well as the relevant facts. It has also created a punishingly complex system for legal aid lawyers, who are finding it more difficult than ever to open and pursue cases that were previously eligible for funding.
The simple fact is that legal aid is now unavailable to the majority of people who need a lawyer to help resolve a civil issue.
A series of ill-considered decisions compounded the situation when Chris Grayling became the justice secretary in 2012 - the first non-lawyer in 400 years to hold the position. Grayling, widely derided as the most incompetent minister in this and the last government, decided to introduce mandatory court charges, with it costing less to plead ‘guilty' and a hefty charge to plead ‘not guilty' and have a trial when accused of a crime. The charges are designed to make a profit from the courts, as they are far higher than the administrative cost of the service. After a disastrous three years in charge, Grayling was reshuffled to the position of leader of the House of Commons, where failed cabinet ministers are put out to pasture, and replaced as justice secretary by Michael Gove, who has busily been trying to clear up the mess left ever since - such as with the reversal of the ludicrous ban on prisoners receiving books from their loved ones.
Following LASPO, the government consulted over a new set of drastic proposals aimed at cutting a further £220 million from the civil and criminal legal aid budget by 2018/19. In April 2013, the Ministry of Justice (MoJ) published the consultation paper "Transforming Legal Aid: Delivering a More Credible and Efficient System", which contained particularly controversial proposals, including price competitive tendering of criminal legal aid services (essentially selling legal aid contracts to the lowest bidders). There was huge concern that the proposals would undermine quality, lead to miscarriages of justice and put many firms out of business and in July 2013 the MoJ - then still headed by Grayling - was forced by the High Court to hold a second consultation on revised proposals.
Price competitive tendering was eventually removed and the final proposals featured a competition for a limited amount of contracts for the on-call solicitors' rota (under which firms that bid successfully would be contracted to provide a share of advice and assistance in police stations in a particular area), but would also allow qualified providers to take on an unlimited amount of ‘own client work', which means the work solicitors receive from regular clients whom they have represented before. The London Criminal Courts Solicitors Association (LCCSA) and the Criminal Law Solicitors Association (CLSA) forced a further consultation in September 2014 by successfully challenging Grayling's failure to consult on the expert reports on which the MoJ had decided the limited number of duty contracts. The judge agreed to a judicial review, saying that Grayling's decision making process was "so unfair as to result in illegality". A consultation for 527 on-call solicitor rota contracts followed, although a further challenge by the LCCSA and CLSA was thrown out. Criminal solicitors found out whether their bids had been successful on 15 October 2015. An assessor of the tender bids made a series of claims to the Law Society Gazette criticising the assessment process, but the Legal Aid Agency denied the allegations.
"Since LASPO came into effect in 2013, fewer and fewer people have been accessing advice on civil legal matters"
The MoJ then announced that it had been forced to delay the commencement of the new contracts until 1 April 2016. "The big news last year was for crime practitioners, who have had another difficult year," explains Carol Storer, director of the Legal Aid Practitioners Group (LAPG). "Firms bid for contracts and before and after the allocation, there was litigation to challenge the process and the decision making. Setting aside the access to justice point, lawyers had been running their businesses with no ability to plan for the future while bidding for contracts and waiting for decisions to be made." Thankfully, on 28 January 2016 the unworkable new regime was abandoned by justice secretary Michael Gove in an embarrassing climb-down for the government, ending the prospect of the ill-conceived contract bidding scheme which would surely have seen many local solicitors firms go under, and putting a further fee cut for solicitors on hold. The government has been accused of wasting £15 million on the failed proposals, while it also refused to apologise to firms which have been forced to make staff redundant, cut salaries and spend thousands of pounds on a now-defunct bidding process - all of which now sees some firms preparing to launch compensation claims against the government.
However, although the abandonment of the two-tier bidding scheme is welcome, the lack of funding for legal aid still means that lawyers and the public find justice barred to them in a way unprecedented since the 1930s.
Effects of the cuts to legal aid funding
On the public
The simple fact is that legal aid is now unavailable to the majority of people who need a lawyer to help resolve a civil issue. "We used to have a reasonable consensus on the need for a legal aid scheme since it was created in 1947, but it has gradually been falling apart," says Allen. "The current government doesn't really believe properly in a legal aid scheme, in my view, because it is rather inconvenient for the government and for corporations that people are able to exercise their rights. Making that difficult could therefore be part of the agenda - we were spending about £2 billion a year on civil and criminal legal aid, split roughly down the middle, and although around a billion is still being spent on criminal legal aid, civil legal aid has been reduced to a very small figure. This means that civil legal aid is now available for very few things, with funding accessible for when your home is at stake, where there are human rights issues and for a certain amount of domestic violence cases."
However, although legal aid for domestic violence cases has officially been protected, the new rules are so ill-considered that many victims of domestic violence end up being denied representation. "People who parliament implied were going to get legal aid, such as victims of domestic violence, are not getting it because the hurdles that have been put in place to access legal aid are so difficult and unrealistic," explains Storer. "When you are in crisis and may have fled home, you may not have access to the bank statements and other records that the government demands to see before you can access legal aid. It's shocking that the government has said that these people can apply for legal aid, with the inference being that they will be covered by the scheme, only to discover that are not able to access the advice and representation that they so desperately need."
The stringent rules governing access to a lawyer have also led to a huge rise in litigants in person - people forced to represent themselves, without a lawyer - particularly in the family courts. "I think there are injustices resulting from people having to represent themselves - they are in stressful situations, which is the only reason most people need litigation in the first place, so to have the added pressure of self-representation with no legal training is often too much," says Storer. "There is a level of injustice which you can't see in the official reports, because no one is recording how many people are walking away and resigning themselves to their situations in the face of hurdles that seem insurmountable. No one is measuring how many fathers want access to their children, but end up having to walk away and perhaps never see them again, or mothers who want to sort out things for their children following a history of domestic violence, but cannot face their abusers directly in court - which can ultimately mean children being left in potentially dangerous situations, too. There is such a complex mix of issues, from evidential problems for clients trying to access legal aid to the perception that legal aid just isn't available in many areas, meaning that it is hard for clients to know where to go if they have a problem. For example, we have been told that in Reading there is no legal aid contract for housing, meaning that clients must travel to Slough to access legal advice - if they know about the provision in Slough in the first place and can afford to spend the time and money to travel there."
The current situation is untenable for the public and needs to change. "When it comes to litigation, which is the last resort but is sometimes the only way left open, it should not be the case that the strongest, the most violent or the richest always get their way - a civilised society needs the sensible resolution of disputes and we don't have that," argues Storer. "To make a trite point, you wouldn't expect to be able to remove your appendix yourself on the kitchen table, just as you can't expect to advance a homelessness decision to judicial review on your own," adds Allen. "Skilled lawyers, like skilled doctors, come at a cost and there used to be consensus that the state would provide the necessary funding to people who could not otherwise afford representation. That consensus seems to have been lost, with the result that we have turned the clock back to before the Second World War, when law was - and now is again - a lot like the Ritz: anyone can go, as long as they are wealthy. We have a two-tier system now where wealthy individuals, corporations, local authorities and the government can access the law, but ordinary people by and large cannot."
On lawyers
Many of the headlines about legal aid in recent months have centred on crime and the court action brought by solicitors nationwide against the proposals. However, in that time the collapse of civil work has continued for solicitors working in areas such as family, employment and housing law. "Since LASPO came into effect in 2013, fewer and fewer people have been accessing advice on civil legal matters," explains Storer. "Many agencies are now not able to provide advice on welfare benefits, as it falls outside the scope of legal aid except for a tiny handful of cases - which also raises questions about who is actually answering people's questions on welfare. Meanwhile, some housing practitioners' work has remained fairly stable, while others have reported finding it much more difficult to get legal aid for clients in housing cases than they imagined it was ever going to be."
The rise in litigants in person has also made life much more difficult for the lawyers still working in these areas. "In situations where one party has a solicitor, that solicitor can end up doing a lot of work that they are not supposed to do because it is the only way to progress the case," explains Storer. "Lawyers are far more aware of how to run cases and in particular what information is needed in court than litigants in person, and are able to resolve cases much more quickly, either out of court or in court. A trained lawyer will only use what is relevant to the case, whereas an aggrieved individual will - understandably - want to raise every issue, even if it is not relevant to the case. This also means that judges are having to sift through vast amounts of irrelevant paperwork to find the relevant stuff, which even then is likely to have not been completed properly - and how would it be, when we are talking about untrained members of the public being forced to represent themselves? The cuts are perversely making cases cost more time and money."
A whistleblowing district judge has also said that the under-resourced system has even made the courts dangerous in some cases - citing death threats and violence in addition to constant overwork and stress.
The lack of resources has forced many firms to merge, which has made it difficult to measure how many solicitors are being made redundant as a result. "It is also rare for firms or not-for-profit organisations to publicly announce that they are dropping an area of legal aid work," Storer continues. "I find out, but it won't be reported in the press. It is very difficult to monitor exactly how many lawyers are left doing a particular area of law, but generally legal aid cases are dropping either because practices can no longer afford to do many of them, or because they cannot get clients across the evidential thresholds."
What can be done: pro bono, IT and investment in the courts
The cuts to legal aid funding are not the whole problem, which is exacerbated by court closures and lack of investment in IT by the government. IT in particular could help to provide better and more efficient access while still providing some of the costs savings desired by the government. "There appear to be plans to correct the lack of investment, but I will believe it when I see it, as I have been part of a number of IT working parties for the courts over the last 10 years only for them to be cancelled - often at great expense," says Allen. "Nonetheless the government is talking a lot about IT, particularly online dispute resolution. However, civil justice is not the same as an eBay dispute and a lot of cases require the witness to actually be seen, heard and cross-examined before you can decide who is telling the truth. Furthermore, lots of people who need justice may not have access to IT - they might not own a computer; they might be too young to use one; they might have mental health issues, a shaky grasp of English or just live in a part of the country where the Internet is rubbish. IT has a part to play, but for all these reasons it is not a universal solution."
The good news for anyone with an ambition to practise these essential areas of law is that a lot of people are still doing their best in very difficult circumstances.
There is also an onus on the legal profession to find ways of providing the public with the representation it needs; pro bono has also been touted as a way to fill the gap left by the legal aid cuts, with Michael Gove calling on wealthy commercial firms to take more responsibility for the justice system. "Pro bono has a role to play, but it is only a sticking plaster and is no substitute for a proper system of provision," argues Allen. "There is a lot of pro bono being done, but often it is by lawyers who are not expert in the areas that need covering - City solicitors don't necessarily have the right knowledge to fight a housing case or progress a case to judicial review. It's not the case that these cases are simple just because these are legal problems affecting poor people."
There are ways that lawyers can do more to help the public and Allen is a staunch advocate for them. However, he warns that these measures will not be enough without a change in attitude from government too: "We can innovate and need to do as much as possible to be accessible at the right price to our clients - and there is no doubt that IT has a role to play in that. There are also measures we can take such as ‘unbundling', whereby you give a layperson access to relevant legal precedents at a reduced cost, but it is inescapable that you also need a properly funded legal aid system. You cannot have law, democracy and justice on the cheap, which means properly paid people who are expert specialists in their field being accessible to those of modest means, as well as the wealthy."
The Labour Party, traditionally the other of the two main political parties and the main opposition to the government when out of power, has launched its own review into legal aid headed by Lord Bach. The party's leader, Jeremy Corbyn, has also described access to legal representation as a "basic human right" - an indication that the opposition is now taking legal aid provision more seriously than it did during the last government. However, there has been no indication of the government reviewing its position, so as it stands, the public will continue to be unable to access legal aid. "It's not the case that when we get to a budget surplus, we are going to reinstate the legal aid scheme and reopen the libraries - as far as the government is concerned, these things are being abolished forever," says Allen.
Outlook for aspiring lawyers
The good news for anyone with an ambition to practise these essential areas of law is that a lot of people are still doing their best in very difficult circumstances. "The work previously covered by legal aid is incredibly important and needs to be done, but it is now going to be an incredible struggle for people to do it because the places where you can get help, such as law firms which do legal aid and law centres, are being reduced in number," explains Allen. "There are still charitable organisations out there and the network of Citizens Advice Bureaux, so people will be doing their best to plug these gaps and the need for these services is never going to go away, so if this is what anyone reading this wants to do, I would encourage them wholeheartedly to get involved. For many people this is a vocation - they don't want to be City lawyers handling mergers and acquisitions and the buying of aircraft engines; they want to do law which actually helps people in their lives. Legal aid will have to come back, in my view, because I don't think the current approach of cutting is sustainable. You cannot take rights and facilities from the poor and give them to the rich, which is essentially what is happening, without something giving - it won't work in the end and people will decide that they have had enough."
However, the number of training contracts in these areas at the moment remains very small. Initiatives such as the Justice First Fellowship (which is part of the Legal Aid Foundation) are doing as much as they can to fund legal aid training contracts and ensure that there is a next generation of lawyers to serve the public in essential areas of social welfare. The Fellowship started training nine solicitors last year and, as the Guardian reports, is now simultaneously putting together a second cohort of aspiring solicitors and developing a program for pupil barristers. If you are looking to get into legal aid work, this would be a good place to start - although initiatives such as this will not, on their own, be able to offset the problems caused by the cuts. "As far as students are concerned, there are still dynamic, vibrant firms delivering legal aid and a lot of interesting public law being practised," says Storer. "But we also have to acknowledge that although firms are doing their best, many are finding it very, very difficult and that far too many people are being let down by the justice system - and that will continue to be the case for the foreseeable future."
Josh Richman is the senior editor of LawCareers.Net.
