Legal aid news - April 2017

After an Easter break, welcome to a bumper edition of the latest legal aid and access to justice news from March and April 2017.

Prison law legal aid: the Court of Appeal ruled on 10 April that cuts to legal aid for prison law made in 2013 were inherently unfair and unlawful, in a significant victory for access to justice. The challenge was brought by The Howard League for Penal Reform and Prisoners’ Advice Service. The judgment is available here, and you can read reports (of varying levels of agreement or sympathy with the judgment) by the BBC, The Guardian, The Telegraph, The Daily Mail, The Independent, The Sun, The Mirror, Buzzfeed, Solicitors Journal and the Justice Gap.

If you want the expert view, however, we suggest you read the analysis by Dr Laura Janes, legal director of The Howard League and founder of YLAL, for openDemocracy. Laura hailed the Court of Appeal ruling as an important victory for justice. The government has not yet announced whether it will seek to appeal the judgment or how it intends to give effect to the court’s ruling. We will keep you posted on any developments, and will also be writing about this judgment in our next column for Legal Action magazine in June.

Criminal legal aid: the Ministry of Justice consultations on reform to the two fee schemes for criminal legal aid, the Advocates’ Graduated Fee Scheme (AGFS) and the Litigators’ Graduated Fee Scheme (LGFS) both closed in March – on 2 and 24 March respectively. You can read YLAL’s response to the AGFS consultation here, and our response to the LGFS consultation here.

In our response to the consultation on the AGFS, we set out our view that the proposals as drafted are extremely detrimental to junior criminal barristers. In light of the already precarious position of this part of the profession, YLAL believes that this has the potential to be extremely detrimental to both social mobility and the sustainability of the profession. It is clear that the overall trend of the proposed new fee design is to redistribute expenditure away from junior advocates in favour of more experienced barristers. We also used our column for Legal Action magazine in April to discuss the criminal legal aid consultations, the context of the proposed fee reductions and the overall sustainability of the profession.

Following the closure of the AGFS consultation, Legal Cheek reported on a warning by the Junior Lawyers Division (JLD) of the Law Society that “there is no incentive for junior lawyers to qualify into criminal law, which is already an area that has been subject to considerable fee cuts through legal aid reforms, and the MoJ’s proposals only seek to reduce the potential for junior lawyers to earn a living even further”. The JLD’s comments were also reported by Legal Voice. The Law Society president, Robert Bourns, told Solicitors Journal that further cuts to criminal legal aid are untenable and short-sighted.

In our response to the consultation on the LGFS and fees for court appointees, we stated our opposition to all three of the proposals contained or referred to within the consultation: the potential reintroduction of the suspended second 8.75% cut, the reduction of the Pages of Prosecution Evidence (PPE) limit and the cut to fees for court appointed advocates.

We have urged the MoJ to reconsider the impact of its proposals for reform of both the AGFS and LGFS, in particular on junior lawyers. We await the MoJ’s response to the consultations – which will not be published until after the election on 8 June – and will update members further in due course. Meanwhile, the Ministry of Justice has refused to publish its research about unrepresented defendants in the Crown Courts, as reported by the Law Society Gazette.

LASPO review: the government announced in February 2017 that the long-awaited review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) will begin soon, and will be completed by April 2018. It is not clear whether the upcoming general election will affect the timing of the review, or whether the review will take place at all. We will be calling on all political parties to commit to urgently and objectively reviewing the impact of LASPO.

Richard Miller, head of legal aid at the Law Society, wrote for Legal Voice that the evidence is already clear: LASPO isn’t working. He referred to reports on the impact of LASPO by the Bach Commission, the National Audit Office, the Justice Select Committee, Amnesty, the Trades Union Congress and even the United Nations. Miller concluded as follows: “LASPO is not working for the taxpayer, for the government, for people who need to protect and enforce their rights, or for those working within the system. This review gives the government an opportunity to correct, or at least mitigate, one of the coalition government’s bad mistakes.”

Bob Neill, the chair of the Justice Select Committee, told Legal Cheek that legal aid cuts have been “very counterproductive” and he is hopeful that the direction of travel may change. Neill believes the government “gets the sense this just isn’t sustainable. We have taken out as much as we can, we cannot take out any more”. On 19 April, Neill also used Twitter to say that the coalition government “went too far” in cutting legal aid, and the government needs to “look at some areas again”.

Legal aid statistics: the latest quarterly legal aid statistics were published by the Ministry of Justice and analysed by Legal Aid Handbook, which described them as “grim reading”, and Steve Hynes of Legal Action Group, who said the figures “confirm an ongoing spiralling decline in civil legal aid which could be terminal unless ministers take urgent action to address the problem”. Legal Voice reported on the increase in applications to the exceptional case funding ‘safety net’, as well as assessing the overall changes in case volumes. Speaking of exceptional funding, Alison Pickup of Public Law Project asked how safe the legal aid safety net is in this article for openDemocracy.

Financial eligibility: the government is consulting on changes to the financial eligibility criteria for legal aid arising from changes to the welfare benefits system, in particular the introduction of Universal Credit to replace several means-tested benefits. The Law Society Gazette reported that the government has denied that the proposed changes are a “cost-cutting exercise”. The consultation closes on 11 May, and the consultation paper is available here. YLAL will be responding to the consultation in due course – please email us if you would like to assist with this.

Social mobility and diversity: the Law Society Gazette reported that the legal profession is ahead of its rivals on social mobility, and “does more to support young people from disadvantaged backgrounds than businesses in IT and finance – or at least believes that it does”. We are currently in the process of preparing an updated social mobility and diversity report, following a survey of our members in December 2016. We will update members when a launch date is set for publication of the report.

The Solicitors Regulation Authority announced in April that it plans to press ahead with the introduction of the Solicitors Qualifying Examination (SQE), with effect from 2020, as reported by Lawyer2B, Law Society Gazette and Legal Cheek. As a result, the SRA will no longer require aspiring solicitors to complete the Legal Practice Course. The Law Society Gazette reported concerns that the SRA ‘super-exam’ could create a tiered system for aspiring solicitors. You can read YLAL’s responses to the two SRA consultations on the SQE here and here. We are concerned that the SRA should ensure that any reforms to legal education and training have a positive impact on social mobility and access to the profession.

At the other end of the career spectrum, a recent report by JUSTICE argued that the lack of diversity amongst the senior judiciary is a “serious constitutional issue”. The report called for targets “with teeth” to improve diversity, increased accountability and external review of selection processes. You can read about the report on The Guardian website here, and the report itself is on the JUSTICE website here. On openJustice, Tunde Okewale asked whether having fewer lawyers and judges of colour means more prisoners of colour, and Charlotte Threipland argued that it’s about time our judiciary started to reflect the people it serves.

We are currently working on our updated social mobility and diversity report, which we hope to publish in the near future – we will keep you updated!

The real Daniel Blakes: Sue James wrote this fantastic article for The Guardian about her work as a legal aid lawyer in a law centre representing people who are at risk of eviction and homelessness, describing her clients as “the real Daniel Blakes”. James said her clients “sit on the outside of everyday, acceptable society, they are invisible and unheard. I try to give them a voice.”

Employment tribunal fees: the government is “wilfully blind” to the impact of employment tribunal fees, according to the Law Society president, Robert Bourns, as quoted in the Law Society Gazette. The Law Society estimated that 14,000 people each year unsuccessfully attempted conciliation for an employment dispute but were unable to take their case to tribunal because of fees. Bourns said: “With employment tribunal cases having fallen by around 70% immediately after the fees were introduced, these 14,000 people are the tip of the iceberg.Tens of thousands of other cases have simply disappeared from the system, to be written off by the government as somehow unmeritorious or unworthy, adding insult to injury for those whose employment rights have been ignored.”

Reporting on the case for The Guardian, Aditya Chakrabortty said that access to justice is no longer a worker’s right, but a luxury, as fees have put employment tribunals out of reach for many. The parliamentary Joint Committee on Human Rights said employment tribunal fees are a “barrier to justice”. The Supreme Court heard the legal challenge brought by Unison to the employment tribunal fees in March. Judgment was reserved.

Hillsborough Law: the Public Authority (Accountability) Bill, otherwise known as the ‘Hillsborough Law’ was presented to Parliament by Andy Burnham. As well as imposing a duty on public authorities to act with “transparency, candour and frankness”, the Bill would ensure equality of arms at inquests by requiring that families whose relatives are killed in the care of the police or other public bodies have equal funding for legal representation at inquests.

Charlie Gard: the parents of Charlie Gard, a young boy with a rare genetic condition, were unable to obtain legal aid for the case concerning whether life-sustaining treatment should be withdrawn from their son. The judge reportedly described this as “remarkable”, and Anne Perkins of The Guardian found it “shocking to discover that even in a case where the court is having to decide a matter that is literally a choice between life and death, there is no legal aid”.

The Justice Gap reported that the judge asked why the family weren’t entitled to legal aid – it appears that they were unable to satisfy the stringent financial means test. The chair of the Justice Select Committee, Bob Neill, told the Daily Mail it was extraordinary that the family did not qualify for legal aid, and said: “To apply an ungenerous means test in effect without any regard to the nature of the case and evidence required isn’t fair. The way [legal aid] has been pared back in recent years has gone beyond what is reasonable and it only leads to injustice”.

ASBO breach: in another story about legal aid not being available, a district judge in Worcester was “disturbed” by the fact that a “fragile and vulnerable woman” who has difficulty reading and writing did not have legal aid for a case concerning breach of an anti-social behaviour order. District Judge Mackenzie concluded that the woman could have a fair hearing despite not having a solicitor, and sentenced her to 24 weeks in prison. The Guardian reported that the judge said: “It is wholly unsatisfactory that the system conspires against a vulnerable individual like this, so that she cannot get the legal aid and solicitor assistance that she really needs”.

Legal aid for inquests: in yet another story about legal aid not being available, The Guardian reported that the widow of a man stabbed to death in London in December 2015 has been denied legal aid for representation at her late husband’s inquest. Jeroen Ensink was killed by Femi Nandap, who had paranoid schizophrenia, and just days earlier had knife and assault charges against him dropped. Mr Ensink’s widow, Nadja Ensink-Teich, is using CrowdJustice to raise funds for legal representation.

Pro bono: the All Party Parliamentary Group on Pro Bono in conjunction with Hogan Lovells reported on the unmet legal need which means that MPs’ advice surgeries are becoming legal A&Es as a result of legal aid cuts, as constituents struggle with housing, immigration and welfare issues. You can read about the report here, on the Solicitors Journal website.

Legal Aid Lawyer of the Year Awards: the annual awards ceremony for lawyers carrying out publicly-funded work, the Legal Aid Lawyer of the Year (LALY) Awards, will take place on 5 July 2017 in central London. Chris Minnoch of Legal Aid Practitioners Group wrote about the importance of the LALYs for Legal Voice: say it loud, we’re legal aid lawyers, and we’re proud. Chris said – rightly, in our humble opinion – that “it takes a special kind of young lawyer to take on all the challenges that a career in legal aid entails – and that must be celebrated”.

Speaking of celebrating young lawyers, you can read about a ‘day in the life’ of former YLAL committee member Phil Armitage on Legal Voice here, and about the Justice First Fellowship which Katy Watts has undertaken at Public Law Project, also on Legal Voice, here. And on the subject of awards for inspirational legal aid lawyers, there are a number of excellent candidates shortlisted for the Solicitors Journal Legal Personality of the Year 2017, including Jo Hickman of Public Law Project and Marcia Willis Stewart of Birnberg Peirce & Partners.

Other news: Laura Cooper of the Youth Justice Legal Centre (YJLC) wrote for Legal Voice about the work of the YJLC and the importance of specialist expertise in youth justice. Sir Henry Brooke blogged about a new website, Your Rights, which aims to raise awareness of cuts to access to justice. The Equality and Human Rights Commission published a report on disability rights which concluded that cuts to legal aid have negatively affected disabled people’s access to justice.

YLAL committee member and co-ordinator of YLAL Liverpool Siobhan Taylor-Ward wrote for Solicitors Journal about the government’s decision to close the ‘Dubs amendment’ scheme which created a legal route for unaccompanied child refugees to enter the UK.

Meanwhile, in a reminder from across the pond that despite the deep cuts made by the government to the legal aid budget in recent years, things could still be worse, the Law Society Gazette reported on Donald Trump’s decision to withdraw all funding from the Legal Services Corporation, the largest funder of civil legal aid in the United States of America. Let’s hope Theresa May and Liz Truss aren’t taking tips from Trump on how to make a country great again.