Legal aid news: August and September 2018

Welcome to our update of the latest legal aid and access to justice news from August and September 2018.

Criminal legal aid cuts

August got off to a fantastic start – the Law Society were successful in their challenge to the most recent cuts to criminal legal aid in what the Law Society described as a “ray of light to the justice system.”

Under reforms to the litigators’ graduated fee scheme (LGFS), which remunerates solicitors for Crown Court work, the Ministry of Justice capped the number of claimable pages of prosecution evidence (PPE) at 6,000 rather than 10,000. This meant that in complex Crown Court cases, solicitors would not be paid for considering evidence which exceeded 6,000 pages. The Law Society challenged the regulations which implemented this scheme.

In the Divisional Court’s judgment, R (The Law Society) v The Lord Chancellor [2018] EWHC 2094 (Admin) the regulations were deemed unlawful because the key analysis relied on in making the scheme was not disclosed to consultees. The court considered that the new regulations used methods that were statistically flawed, making it irrational to rely on the analysis. The court also criticised in strong terms  some of the arguments put forward by the Lord Chancellor, commenting: "It is difficult to express in language of appropriate moderation why we consider these arguments without merit. The first point, which should not need to be made but evidently does, is that consultees are entitled to expect a government ministry undertaking a consultation exercise will conduct it in a way which is open and transparent." The court ruled the MoJ’s failure to disclose the statistical analysis underpinning the scheme made the consultation unfair. That analysis was disclosed only during the course of the litigation.

In the Law Society’s press release, President (and legal aid lawyer) Christina Blacklaws said, "The changes to the Litigators Graduated Fee Scheme (LGFS) were introduced in December 2017 and have meant a huge amount of work on the most complex crown court cases has gone unpaid. Defence solicitors have faced earning up to 37% less for some large cases, yet the Legal Aid Agency has expected them to undertake precisely the same amount of work."

In a statement following the judgment, a spokesperson for the MoJ said: “Defence solicitors do valuable work. The changes we made to the LGFS scheme were intended to ensure payments better reflect the work being done in legal aid-funded criminal proceedings. We will carefully consider the content of the judgment and determine next steps.”

LASPO review and the impact of legal aid cuts

The government are in the process of reviewing the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”). When LASPO first came into force in 2013, the government committed to conducting a post-implementation review within 3-5 years. The terms of reference of the review can be found here.

The government invited responses from interested parties over the summer. YLAL’s response to Part 1 (in respect of the scope and financial eligibility for legal aid) can be found here and our response to Part 2 (which relates to the ways civil claims can be funded) is here. In summary, YLAL concluded that the overall impact of LASPO on the justice system and access to justice in England and Wales has been hugely detrimental and we urge the government to take urgent steps to repair our justice system before it is too late. Not only have the cuts impeded access to justice, they also place huge obstacles in access to the profession for aspiring and junior legal aid lawyers, which limits the pool of people able to access the profession.

On 28 September, the Guardian reported that the President of the Law Society Christina Blacklaws, condemned the cuts. She described the justice system as facing a “cliff edge scenario” and that British justice now existed “only for the wealthy, or the small number on very low incomes lucky enough to find a solicitor willing and able to fight a mountain of red tape to secure legal aid … If people cannot effectively enforce and defend their rights, then for all practical purposes those rights do not exist.”

On the means test for both civil and criminal legal aid, she said: “The means test bites at such a low level, and because more and more solicitors are giving up battling the bureaucracy and uneconomic rates of pay that accompany legal aid work, [there are] growing advice deserts across the country.”

Further, on the issue of the provision of early legal advice, Blacklaws said: “There is clear evidence that providing legal aid for early legal help, particularly in housing and family matters, is far more cost-effective than denying it. Just as people expect an NHS doctor to treat them when they fall sick – they should be able to get legal advice if they have a serious legal problem.

Writing for the Guardian on 13 August, Labour peer Willy Bach urged the government to take action to restore confidence in a “battered system.” He described the growing numbers of litigants in person representing themselves in Court as a “travesty of justice”. A study on this issue conducted by the Ministry of Justice in May found that more than half of judges questioned voiced concerns about Defendants not understanding that a guilty plea could lead to a reduced sentence. Similarly, in the family courts, there were concerns about the impact on witnesses of being questioned by people who may have harmed them, while litigants in person are reported to have difficulties presenting legal arguments or complex financial information. The Ministry of Justice was under investigation by the Information Commissioner over claims by Buzzfeed News that it failed to publish its research in full when ordered to, opting instead to publish a short, inaccurate and incomplete summary. The Information Commissioner has now closed the investigation on the basis that there was insufficient evidence to prove that the MoJ deliberately hid the report.

Writing for the Guardian on 21 August, Polly Toynbee described the justice system as nearing collapse. Unlike ambulances stacked up outside overflowing A&E departments, missed bin collections or potholes on the roads, she said, the collapse of the justice system is barely visible to the public. She went on to say “The tottering edifice is only kept going by the superhuman goodwill of the dwindling numbers operating it. Who else sees it, beyond frequent-flyer criminals? The public – victims, witnesses and jurors – may only touch it once in a lifetime: then they find delays, adjournments and collapsed cases deeply distressing.”

In June 2017, YLAL and the Criminal Bar Association launched a crowdfunding campaign to provide all 650 MPs with a copy of the Secret Barrister’s book, “Stories of the Law and How it’s Broken.” According to the article, a survey of MPs’ summer reading found it to be the third most popular book. Toynbee predicts that if politicians read the book, they should return to Westminster “boiling with indignation. What have they been doing, prattling away about “sovereignty” and the supremacy of our laws over European courts, when gross injustice is done here daily by a legal system in meltdown?”

Similarly, in a letter to the Guardian on 17 August, retired Magistrate Christine Walters urged the government to listen to the people who the system is failing. She stressed the importance of early legal advice in all areas of law: It means that people can deal with a problem before it becomes a crisis. Early advice may well save court time if people with unmeritorious cases are told that.”

In the year before the cuts (2012-13), she explains, 573,737 people were advised under the early legal advice scheme. That covered all areas of civil law such as family, immigration, welfare benefits and housing. In 2017-18, the figure is 140,091. When the cuts were introduced, the government expected advice agencies and law centres to fill the gap, they have also had their budgets cut. In reality, those who would have had access to advice before, now have to either struggle on their own or give up.

A report published by the Equality and Human Rights Commission (EHRC) on 4 September 2018, “The impact of LASPO on routes to justice”, details the human suffering caused by the LASPO cuts. Over 100 people living in and around Liverpool were interviewed. They were facing problems in the areas of family, employment and welfare benefits. Due to the loss of legal aid, some of the interviewees could not take any action to resolve their legal issues. They spoke to one woman who said she had not seen her husband for five years, but could not divorce him because private family law matters are outside the scope of legal aid. Another woman lost a case concerning parental responsibility for her child because her evidence of domestic violence was not recent enough to qualify for legal aid. According to the report, many of those interviewed experienced severe financial difficulties due to not being able to obtain legal advice because of the LASPO cuts. A lack of advice also led to further problems; for example, some people interviewed were unable to receive advice about employment law problems, which then caused issues with welfare benefits.

Finally, an article in the Financial Times on 27 September highlighted the impact of the cuts on ordinary people in need of debt and family law advice. It describes the story of Tony Rice, previously described as the “real life Daniel Blake”, who was left unable to work after a serious violent assault on him but was not entitled to benefits because welfare officers assessed him as fit to work (despite the contrary opinion of his GP). He was almost evicted from his home because he was only eligible for legal aid when he was £10,000 in rent arrears and faced eviction proceedings. Fortunately his barrister, Mary-Rachel McCabe, managed to persuade a judge, whom she described as “visibly shocked” by the tale, to give Rice more time to sort out his finances. If he had been able to talk to a lawyer earlier, Rice’s problems could have been fixed long before this crisis hit.

Equality and Human Rights Commission inquiry into legal aid for victims of discrimination

In September, the Equality and Human Rights Commission (“EHRC”) launched an inquiry to consider whether legal aid provides effective access to justice to people who raise a discrimination complaint.

The inquiry will look at:

  • How discrimination cases are funded by legal aid;
  • How many people receive legal aid funding for discrimination claims;
  • Whether there are barriers to accessing legal aid;
  • Whether some people experience specific difficulties in accessing legal aid;
  • The operation of the telephone service as the access point for most discrimination advice;
  • If legal aid provides effective access to justice for people who complain of discrimination;
  • Whether improvements could be made to reduce barriers and improve access to justice.

The findings and recommendations will inform the UK government’s review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).

If you are based in London and interested in learning more, YLAL’s London meeting, in conjunction with the Discrimination Law Association, on Wednesday 14 November will be on this topic.

Labour party conference

On 24 September, at the Labour party conference, shadow justice secretary Richard Burgon announced Labour’s plans to provide more legal assistance for people and communities struggling under austerity policies, in addition to reinstating early legal advice and bringing family and housing matters back into the scope of civil legal aid. Burgon told a fringe event ‘The Future of Justice in the UK’ that Labour will “return legal aid to be a pillar of the welfare state and properly support law centres as engines of empowerment for working-class communities”.

Burgon is working with the Law Centres Network to draft proposals to “put this into reality when we come into government”. He said that Law Centres are key to this commitment and Labour will be working with the Law Centres Network to draw up a plan for bolstering access to justice. He placed particular emphasis on reintroducing early legal advice, calling the coalition government's legal aid cuts of 2013 a "false economy" that shifted public costs elsewhere.

On access to the profession, he said "I want to see each and every Law Centre getting a serious boost to the number of lawyers they have and becoming a key training ground for a new generation of lawyers from their communities and representing their communities. We are committed to boosting the role of Law Centres throughout the country so that communities can have better access to legal support.”

Lord Wilson’s speech: On 25 September, in a speech to the law school at Northwestern University in Chicago, Supreme Court judge Lord Wilson said that the UK government is dismantling the UK’s “precious system of legal aid”, placing access to justice under threat. The disadvantaged who needed to be acquainted with their human rights and helped to enforce them were unlikely to be able to do so without free legal advice and representation, he said. He continued “Even where it is required to continue to provide free legal aid, for example to defendants to criminal charges and to parents threatened with the removal of their children, the UK is dismantling it indirectly by setting rates of remuneration for the lawyers at levels so uncommercial that, reluctantly, most of them feel unable to do that work. Access to justice is under threat in the UK.” You can read more in the Guardian’s report here.