Welcome to our update of the latest legal aid and access to justice news from January 2021.
In early January, YLAL held their first YLALVirtual of 2021, which considered access to justice for victims of trafficking. Hosted by One Pump Court, the event featured an expert panel discussing the importance of discretionary leave to remain (DLR), the developments and needs in supporting victims of trafficking (VOTs) and the representation of trafficking in the media.
In the second YLALVirtual of January, expert speakers joined together in a roundtable discussion on the Independent Human Rights Act Review. Themes featured in the discussion included the relationship between domestic courts and the ECtHR, the balance struck between parliament and the courts by the HRA, the motivation for review and how the HRA can be protected,
Bar Council Report: A legal aid system “kept going by nothing more than the goodwill of the legal profession”
The Bar Council published it’s civil legal aid research report in January, titled ‘Running on Empty’, following interviews with 16 civil legal aid barristers and clerks. Derek Sweeting QC, the Chair of the Bar of England Wales urged the government to “heed the findings of this report”, which found the legal aid system to be “kept going by nothing more than the goodwill of the legal profession”.
The report details how the lack of access to early legal advice, following the mass closure of advice centres and high street solicitors, has led to cases becoming “more complicated and urgent” for those able access support. As solicitors still able to take legal aid work are “stretched thin” and barristers taking cases that may not otherwise have reached court with earlier legal advice, working conditions are becoming more stressful and, due to the reduction in fees, developing into “all-hours, last minute working culture”. Similarly, there are concerns that such conditions combined with low rates of pay will affect the sustainability of junior civil legal aid practitioners; especially in terms of social mobility and the ability to recruit the best quality candidates.
The Legal Aid Agency itself was perceived by those in the report as having a “culture of refusal” and a “lack of transparency” in the decisions to award funding, which were described as feeling “arbitrary and lacking in due attention to the merits of the case”. There is also concern by practitioners on the lack of guidance as to how to structure legal aid application which leads to “huge amounts of wasted administrative work” and client left unsure as to their liability for legal costs.
The report also goes into the “severe inequality of arms” with bereaved families represented at inquests, stating the confirmation in 2019 that the Ministry of Justice would not be widening the legal aid provision to be “unsatisfactory”. Bereaved families are often represented by a single junior barrister, who “experience huge pressure” to complete additional unpaid work and “feel unable to compete” with more experienced state agency counsel.
Concerns over Covid-19 in Court and Prison
YLAL endorsed the LCCSA call for action, following concerns about the safety of magistrates courts during the third national lockdown. After the Lord Chief Justice announcement regarding the continued functioning of the justice system, various members of the LCCSA and other bodies reported worries of overcrowding in the courts and the inability to take precautions in light of the Covid-19 Pandemic. Such concerns include the lack of ventilation and social distancing in both courtrooms and consultation rooms, the underuse of remote applications and instances of symptomatic defendants being brought from the prisons and police station. A joint statement has been made by various legal professional bodies and unions, including the criminal bar association (CBA) and Criminal Law Solicitors Association (CLSA, for the immediate review of safety arrangements and remedial action – including the introduction of lateral flow testing to ensure court users are negative before entering the building.
Removal of mortgage cap for legal aid
Following a judicial review brought on behalf of a domestic abuse survivor by Public Law Project, a new regulation has now removed the mortgage cap that was previously used to determine legal aid eligibility. The new statutory instrument came into force on 28th January, after the Ministry of Justice agreed to remove the previous rule in December. Prior to the rule change, only £100,000 of mortgage debt could be deducted when calculating value of property. This resulted in not all debt being taken into account and created “imaginary capital”; with research by Law Society finding such means test to be preventing those below the poverty line from accessing legal aid. This was particularly problematic for domestic abuse survivors who, without legal aid funding for legal representation, could be cross-examined by their abuser; as stated by Family Lawyer Jenny Beck “about 1 in 5 women were denied legal aid to protect themselves and their families because of the application of the means test attributing to them capital which they couldn’t possibly access”. However, removal of this mortgage cap means more people may be able to qualify for legal aid – a welcomed “critical change”.
We are very grateful to YLAL member Emma Kiely for this write-up. If you'd like to volunteer to write up a future YLAL event, email firstname.lastname@example.org.