Legal aid news - January 2017

Welcome to our update of the latest legal aid and access to justice news from January 2017. If you would like to catch up on the most important legal aid news from 2016, read our Year in Review.

LASPO review: the long-awaited review of the legal aid cuts has been announced at last! At a meeting of the All Party Parliamentary Group on Legal Aid (co-organised by YLAL and the Legal Aid Practitioners Group) on 18 January, Justice Minister Sir Oliver Heald announced the timetable for the review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Heald told the APPG that the government “now considers enough time has passed for the reforms to have bedded in for us to begin the review process”, as reported by the Law Society Gazette. The government will submit a post-legislative memorandum on LASPO as a whole to the Justice Select Committee by May 2017 in order to begin the review process. The memorandum and the review will, Heald said, provide the government “with a robust evidence-based picture of the current legal aid landscape and how it's changed since LASPO”.

Amnesty welcomed the announcement of the review of legal aid cuts with this blog by Rachel Logan, who joined us at our January meeting in London on 11 January. Logan wrote: “It's all very well to have a Human Rights Act, good judges, good laws. But if ordinary people can't access them, then that's only half the job. The government needs to fix the mess it has created. The long-term human rights cost of failure is simply too high to contemplate.” YLAL committee members have also been busy responding to the news of the review: Sinead Hayes wrote for The Justice Gap that the impact of LASPO has been catastrophic and a review can't come soon enough, Katherine Barnes said the government must listen to the mounting evidence of the damage caused by LASPO in this article for Solicitors Journal, and YLAL co-chair Oliver Carter wrote for openDemocracy about the review of the legal aid cuts and the government's decision to delay its plans to repeal the Human Rights Act.

Steve Hynes, the director of Legal Action Group (LAG), also wrote this month for Halsbury's Law Exchange about the recent flurry of damning reports on the civil legal aid cuts. Hynes and LAG suggest that “if the government is serious about access to justice it needs to put back capacity into the system so that people can get early advice on their legal problems”. Chris Minnoch, the operations director of the Legal Aid Practitioners Group, used this article for Legal Voice to describe the LASPO cuts to legal aid as an entirely predictable catastrophe and urged everyone to participate in the review.

Criminal advocacy fees consultation: the Ministry of Justice opened a consultation on proposals to reform the Advocates Graduated Fee Scheme (AGFS), as reported by the Law Society Gazette. Oliver Heald said the current system “does not focus enough on the skilled work that barristers and solicitor-advocates demonstrate every day in the Crown court. I want to change that to ensure the system is simpler and fairer”. The Bar Council welcomed the new AGFS plan, which it said “will mean fairer pay for advocates” because fees would no longer be based on “outdated and distorting factors such as the number of pages in a case, but instead [would be] paid according to the seriousness and complexity of the work.” The Criminal Bar Association was similarly supportive, with its chairman, Francis FitzGibbon QC, describing the scheme as “a great improvement on what has gone before” as, despite being cost-neutral, it would “redistribute the money more equitably, so that junior advocates in particular would fare better than they have in recent years.”

However, the reaction from the solicitors' branch of the profession was less positive. In a statement in response to the consultation, the London Criminal Courts Solicitors Association said the real issue is that fees are inadequate, and “fiddling with fees is simply the orchestra playing on the deck of a sinking ship”. The Criminal Law Solicitors Association said the impact of the proposed changes “cannot be underestimated” and highlighted some of the key points arising from the consultation. The Law Society's initial view is that the proposed scheme “appears to advantage QCs at the expense of junior barristers and solicitor advocates”, and its press release said that “already well paid QCs look set for a pay increase of around 10 per cent”, while payments for advocates towards the bottom of the pay scale will stay the same or receive much smaller increases.

YLAL will be considering the consultation, which closes on 2 March 2017, in detail and will be preparing a response. If you are an aspiring or junior criminal lawyer and would like to help draft our response, please email us.

Prison law legal aid: the judicial review challenge to prison law legal aid cuts brought by The Howard League and Prisoners Advice Service was heard by the Court of Appeal at the end of January, with The Guardian reporting that legal aid cuts are extending prisoners' sentences by preventing them from challenging delays in access to places on rehabilitation courses. YLAL founder and legal director of The Howard League, Dr Laura Janes, wrote for The Justice Gap about the appeal and the ongoing crisis in our prisons, concluding that “access to the full force of the law as an equalising force is not a luxury but a necessity in the uniquely coercive environment of a prison. Legal aid for prisoners is a modest but simple way to achieve that.”

Birmingham pub bombings: in a welcome move from the government, it was reported that the families of the victims of the Birmingham pub bombings will obtain legal aid funding for representation at the new inquests, following a change in the law allowing the Legal Aid Agency to grant funding to lawyers based outside the jurisdiction of England & Wales. KRW Law, the firm which represents many of the families, is based in Northern Ireland. Justice Minister Oliver Heald said: “It would be a travesty for families to be denied justice simply because of a technicality. Which is why I have taken the decision to change the regulations around inquest funding. This will remove any barrier from the families' solicitors in applying for legal aid funding for the inquest.” Meanwhile, Andy Burnham tweeted that he will present a Bill to Parliament to create a 'Hillsborough Law' guaranteeing equal funding for bereaved families at inquests.

Record turnover for lawyers: the Daily Mail reported that the earnings of the British legal sector increased by almost a quarter over five years, and we “raked in £32.2bn” last year. This was, the Mail reported, “despite strikes by barristers over their pay levels and protests from senior lawyers who demand greater taxpayer subsidies”. Those familiar with the Daily Mail will be unsurprised to know that, in linking rising legal sector turnover to protests against legal aid cuts, its anonymous 'Daily Mail Reporter' has unfortunately fallen prey to alternative facts: while the total turnover (revenue before costs and tax) figure for 2016 released by the Legal Services Board was accurate, the fact-checking website FullFact concluded that although turnover in the legal sector overall has been rising, “legal aid is a relatively small and falling proportion of that”.

In case it wasn't obvious, FullFact pointed out that it's “perfectly possible for lawyers representing people granted government legal aid to be feeling the pinch, while those doing commercial work on the high street or for big corporate clients are growing their business”. It noted that turnover from legal aid work has been falling as a result of government cuts to publicly funded advice and representation. The blog A View from the North also took the Daily Mail to task for its “merry dance of juxtaposition of fact and fiction”.

Domestic violence: the Lord Chancellor, Liz Truss, set up an emergency review to ban perpetrators of domestic violence from directly cross-examining their victims in the family courts – it was reported that the review “will examine whether primary legislation is necessary to end perpetrator cross-examination, or whether it could be stopped through the provision of more legal aid”.

Sir James Munby called for a ban on cross-examination of vulnerable people in family proceedings, which he said was a matter for ministers as it would require primary legislation and involve public expenditure. The Guardian called on Truss to transform the court experience for vulnerable people by making representation compulsory where an individual accused or convicted of abuse wants to interrogate their partner, as is the case in criminal courts. Meanwhile, Pippa Allsop wrote for Solicitors Journal that legal aid cuts continue to damage vulnerable litigants, family lawyers, the courts and the judiciary, and iNews reported on the impact of legal aid cuts and secrecy in the family courts.

Other news: writing for openJustice, Roger Smith asked whether technology can save access to justice (his answer: it might be our only hope). Smith said it is “pie in the sky to think that civil legal aid and legal advice will ever return to the form that they were before the LASPO cuts. We will do well even to defend legal aid to its current extent.” In the era of austerity, the potential of technology “provides one of the few possible islands from which we can rebuild acceptable levels of assistance – and, indeed, resistance”.