2017: Year in Review
2017 was another busy year in politics, law and current affairs. We have rounded up all of the most important stories from our regular legal aid news updates throughout 2017.
January started on a positive note: the announcement of the long-awaited review of the legal aid cuts. Then-Justice Minister Sir Oliver Heald told a meeting of the All Party Parliamentary Group on Legal Aid (which YLAL and the Legal Aid Practitioners Group co-organise) that the government “now considers enough time has passed for the reforms to have bedded in for us to begin the review process” of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The announcement was welcomed by many, including YLAL’s committee members: Sinead Hayes wrote about it for The Justice Gap, Katherine Barnes for the Solicitors Journal, and YLAL co-chair Oliver Carter for openDemocracy As Rachel Logan of Amnesty wrote, “the government needs to fix the mess it has created. The long-term human rights cost of failure is simply too high to contemplate.”
In particular, the withdrawal of legal aid for prison law in 2013 marked “a devastating turn towards chaos and crisis in our prison system”, according to Laura Janes, director of the Howard League for Penal Reform, writing in the Justice Gap. It was this crisis which prompted the Howard League and the Prisoners Advice Service to bring a judicial review challenging the cuts, which was heard at the Court of Appeal at the end of the month.
February saw the hard work pay off of Rights of Women and other domestic violence organisations which have been fighting the restrictive domestic violence legal aid eligibility criteria. The government announced that it will remove the five year time limit for evidence of domestic violence for applications for legal aid in family court hearings, as well as expanding the range of evidence which can be used to provide evidence of domestic violence. Rights of Women director Estelle du Boulay called it “a victory for women and also for common sense”.
For those of us who battle daily with the Legal Aid Agency’s digital billing scheme, the Client and Cost Management System (CCMS), the exchange in Legal Voice between Fiona Bawdon and the Legal Aid Agency about the system’s functionality (or lack thereof) would have been of interest. The LAA stated that it understands “the importance of a full functioning and reliable CCMS”, but it failed to give any assurance that legal aid lawyers who speak publicly about their experiences with it will not be subject to any backlash from the LAA.
YLAL kept itself busy by responding to a number of consultations – perhaps most importantly for our members, those by the Solicitors Regulation Authority (SRA) and the Bar Standards Board (BSB) on reform to the education and training of solicitors and barristers. We said that these provided “a unique opportunity to impress upon the regulators the need for legal training to promote access to the profession for all”.
Finally, amid a sometimes bleak-looking landscape in legal aid, the opening of the Greater Manchester Law Centre made for some very welcome news.
Following January’s announcement of the timetable being set out for the LASPO review, the spring saw sustained discussion about the impact of the cuts to legal aid. Richard Miller, head of legal aid at the Law Society, concluded, “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”, while Bob Neill, chair of the Justice Select Committee took to Twitter to say that the coalition government had gone “too far” in cutting legal aid.
The Ministry of Justice’s consultation on reform to the two fee schemes for criminal legal aid (the Advocates’ Graduated Fee Scheme (AGFS) and the Litigators’ Graduated Fee Scheme (LGFS)) closed in March. You can read YLAL’s responses here and here, but briefly, we explained our reservations to both of the proposals, and urged the MoJ to reconsider their impact, in particular on junior lawyers.
March also saw the Supreme Court hear a legal challenge by UNISON regarding employment tribunal fees. The Law Society President, Robert Bourns, accused the government of being “wilfully blind” to their impact, while the parliamentary Joint Committee on Human Rights said employment tribunal fees are a “barrier to justice”. Judgement was reserved (see July).
April saw the announcement of the outcome of the challenge to prison law legal aid cuts: a major victory for the Howard League and the Prisoners’ Advice Service, and as Laura Janes, the Howard League’s Legal Director and YLAL’s founder hailed it, a victory for justice too. The Court of Appeal ruled on 10 April that the cuts made in 2013 had been inherently unfair and unlawful.
The Solicitors Regulation Authority announced that it plans to press ahead with the introduction of the Solicitors Qualifying Examination (SQE), with effect from 2020. You can read YLAL’s responses to the two SRA consultations on the SQE here and here; we voiced our concern 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.
In May it was confirmed that the families of eight of the victims of the Birmingham pub bo
mbings have been granted legal aid for representation by their Northern Ireland-based solicitors. However, it later emerged that the lawyers acting for the families would not receive any backdated payments beyond February of 2017, and the consequence of this was that the families would not be represented by a QC at an important pre-inquest hearing.
May also saw renewed debate over the role of pro bono –‘polyfiller for the justice gap’ – with Jon Black of BSB Solicitors arguing in Legal Voice that the profession should not be promoting pro bono schemes, but should instead lobby the government for a levy on city firms to fund legal aid. James Sandbach, director of policy and external affairs at LawWorks then responded, asserting that pro bono is something the profession should celebrate and promote, and said that “the idea of an inherent conflict between pro bono and legal aid is profoundly wrong”. Diane Astin subsequently argued for a ‘third way’ focussed on the needs of clients as the starting point.
The unexpected result of the general election found us grappling with yet another new team at the Ministry of Justice, with David Lidington replacing Liz Truss as Justice Secretary and Lord Chancellor, and Dominic Raab taking the role of Minister for the Courts and Legal Aid. News that the government had located the magic money tree for its £1.5bn deal with the DUP prompted (unsurprisingly) renewed calls for more funding for legal aid; you can read Catherine Baksi’s article about this here.
The Law Society published its report on the consequences of legal aid cuts made by LASPO, concluding that the Act has had a wide and detrimental impact on the state and on society. It called on the government to commit to and continue the post-implementation review of LASPO announced at the beginning of the year. Lord Neuberger, President of the Supreme Court, said that society will fragment without access to justice.
Following the tragic fire at Grenfell Tower in Kensington in June, North Kensington Law Centre stepped up to coordinate efforts to ensure survivors and families could access legal advice. Housing lawyers commented on the ‘ineffective and insufficient’ law governing housing standards which meant that residents who tried to get legal advice over their safety concerns before the fire would have been advised that there was no effective challenge.
YLAL produced another consultation response, this time on changes to the financial eligibility criteria for legal aid arising from changes to the welfare benefits system, in particular the introduction for Universal Credit to replace several means-tested benefits; you can read it here.
In July, the availability of legal aid for families in cases concerning the withdrawal of life-sustaining medical treatment was in the news again as a result of the Charlie Gard case.
Charlie Gard’s parents were ineligible for legal aid because their income and/or capital exceeded the allowed threshold. We understand that their lawyers acted pro bono.
The High Court judge, Mr Justice Francis, said that Parliament cannot have intended for legal aid not to be available in such cases: “However, it does seem to me that when Parliament changed the law in relation to legal aid and significantly restricted the availability of legal aid, yet continued to make legal aid available in care cases where the state is seeking orders against parents, it cannot have intended that parents in the position that these parents have been in should have no access to legal advice or representation… I am aware that there are many parents around the country in similar positions where their cases have been less public and where they have had to struggle to represent themselves. I cannot imagine that anyone ever intended parents to be in this position.” The full judgment is available here.
In response a Ministry of Justice spokesperson told Legal Voice that no application for legal aid had been made in Charlie Gard’s case – although if they were financially ineligible for legal aid there would have been no point in making an application.
Employment Tribunal fees: In a landmark judgment for the rule of law, access to justice and workers’ rights, the Supreme Court held that the employment tribunal fees imposed by the Coalition government in 2013 were unlawful. Unison, the trade union which brought the case, hailed the judgment as “a major victory for employees everywhere” following its four year fight to overturn the fees, which had resulted in an almost 70% reduction in the number of employment tribunal cases brought by workers.
The unanimous judgment by the Supreme Court emphasised the importance of the rule of law and, in particular, the constitutional right of access to the courts which is inherent in the rule of law. The full judgment and a press summary are available on the Supreme Court website.
Lord Neuberger on access to justice: The former president of the Supreme Court, Lord Neuberger, warned that society will fragment without access to justice and that it is “very hard to defend the current legal aid system”, in a speech to the Australian Bar Association reported by Legal Voice and the Law Society Gazette. Lord Neuberger said: “Access to justice is a practical, not a hypothetical, requirement. And if it does not exist, society will eventually start to fragment. It is a fragmentation which arises when people lose faith in the legal system: they then lose faith in the rule of law, and that really does undermine society.” He argued that “it verges on the hypocritical for governments to bestow rights on citizens while doing very little to ensure that those rights are enforceable.” Hear, hear. You can read the full speech by Lord Neuberger on the Supreme Court website.
Children’s Society report and petition: In August, the Children’s Society also released its report on the impact of excluding separated and migrant children from legal aid, concluding that the supposed safety net for the most vulnerable children, Exceptional Case Funding, is not working, and calling
on the government to reinstate legal aid for unaccompanied and separated migrant children in immigration cases. The Children’s Society also set up a petition to reinstate legal aid for unaccompanied migrant children.
Pro bono levy: Greater Manchester Law Centre set up this petition calling on the mayor of Greater Manchester, Andy Burnham, to fund pro bono and charitable legal services by introducing a levy on Manchester’s corporate legal sector. Meanwhile, YLAL committee member Ian Browne wrote for Legal Voice about his research trip to study the pro bono landscape in the United States and consider whether there are any lessons for the UK.
The Right to Justice: In September, the Bach Commission on Access to Justice published its final report, The Right to Justice. The report calls for a new Right to Justice Act which will codify existing rights and establish a new right for individuals to receive reasonable legal assistance without costs they cannot afford. The report also recommends reform of the financial eligibility and scope rules for legal aid in order to create a simpler, more generous system which will enable many more people to access publicly funded legal help.
You can read YLAL’s initial response to the report here. YLAL co-chairs Oliver Carter and Katherine Barnes said: “YLAL welcomes The Right to Justice and believes this report by the Bach Commission represents a vital contribution to the public debate about access to justice and legal aid. We believe it could form the blueprint for access to justice policy for decades to come.” Ollie wrote for openDemocracy about The Right to Justice.
Labour’s Shadow Lord Chancellor, Richard Burgon, described the report as the beginning of the fightback against legal aid deserts. Burgon told a fringe event at the Labour conference that the Bach Commission report will form a key part of the party’s next manifesto.
LASPO review: In October, the review of LASPO was finally announced by the Ministry of Justice, in a post-legislative memorandum presented to the Justice Select Committee. It is to be completed by summer 2018. Following this announcement, the cuts imposed by LASPO were publicly criticised by politicians and the judiciary. In an interview with Buzzfeed, the chair of the Justice Select Committee, Conservative MP Bob Neill, said that “budget pressures” and an “unwillingness to listen to professionals” meant changes to legal aid were rushed through Parliament and went too far. He said that he believes cuts to legal aid may have been a false economy because the rise in litigants in person means that judges have to spend time helping litigants through a case. He said “the amount of judge time all that involves may potentially outweigh in large measure the savings.”
This was echoed by Mr Justice Bodey, in a speech to mark his retirement reported by the Guardian, who warned the government of the “shaming impact” of legal aid cuts.
Legal aid for inquests: At the end of the month, the long awaited Angiolini review was published. The report was ordered by Theresa May in 2015 when she was Home Secretary, which recommends that families of people who have died in police custody should receive “free, non means-tested” legal advice from the start of the process through to an inquest.
Criminal legal aid: The Ministry of Justice announced plans to cut the fees paid to criminal defence solicitors. The announcement came just 5 days after the Office for National Statistics published figures showing that crime has increased considerably in England and Wales. Under the plans, payments will be slashed for paper-heavy crown court cases. The rationale was that more pages of evidence are now being served by the Crown Prosecution Service (CPS), and that average costs per case are increasing. In the Law Society’s press release, its President Joe Egan said “More pages of evidence are being served by the CPS because cases are now more complicated. Terror cases, fraud cases and serious historic sex cases require a large amount of work, for which solicitors should be paid… These cuts are a quick-fix, money-saving solution.”
Legal aid for prisoners: In November, the Government withdrew its application to the Supreme Court to appeal the Howard League’s successful challenge to legal aid for prisoners. This means that legal aid has been restored in three main areas: pre-tariff reviews by the Parole Board, category-A reviews and decisions on placing inmates in close supervision centres.
The Autumn Budget: On 22 November, Philip Hammond presented the Autumn Budget to Parliament which announced further cuts to the Ministry of Justice’s budget. The Treasury committed to reduce the MoJ’s spending from £6.6bn in 2017/18 to £6bn by 2019/2020.
In the Law Society’s press release of the same date, vice-president Christina Blacklaws said “These cuts are having a real impact on the ability of the most vulnerable in our society to access justice. Whilst we acknowledge the government’s recent announcement to review LASPO, the significant cuts to the justice budget are still preventing effective justice for all.” The Shadow Lord Chancellor, Richard Burgon MP, went further, saying the cuts threaten to take the justice sector from “repeated crisis to full blown emergency.”
Legal aid for inquests: On 13 November 2017, Labour MP Ellie Reeves laid an Early Day Motion (EDM) before Parliament calling for the government to provide state funded legal representation for bereaved families at inquests. This comes after the Chief Coroner’s annual report, urging the government to fund legal representation for bereaved families. In a letter to Richard Burgon MP, the shadow Justice Secretary and Diane Abbott dated 6 November, Theresa May confirmed that as part of the LASPO review, the Lord Chancellor will consider the issue of publicly funded advice and representation at inquests.
Legal aid for victims of domestic violence: On 7 December 2017 the Justice Minister, Dominic Raab, laid a Statutory Instrument before Parliament to amend the eligibility requirements for legal aid for victims of domestic violence. Our press release can be read here.
Previously, legal aid was available to victims of domestic violence and c
hild abuse, or
those deemed at risk, as long as they could provide evidence of abuse within the past two years. Under the new rules, the controversial five-year limit has been removed and new forms of acceptable evidence have been introduced, including from social services, medical professionals and domestic violence support organisations.
This comes after Rights of Women successfully challenged the lawfulness of the previous rules in the High Court and the Court of Appeal. The Court of Appeal found that the Regulations were unlawful as they required ‘verifications of domestic violence to be given within a 24-month period before any application for legal aid’ and because they did ‘not cater for victims of domestic violence who have suffered from financial abuse’.
Proposed reforms to qualifying as a solicitor: On 20 December 2017, YLAL responded to the latest consultation by the SRA on its plans to introduce a Solicitors Qualifying Examination (SQE). The consultation, ‘Looking to the future: phase two of our Handbook reforms’, concerns a number of issues, including the introduction of the SQE and the streamlining of the SRA’s current character and suitability requirements for solicitors.
In our response to the consultation, we urge the SRA to ensure that the new system does not impose any additional financial burden onto our members as they work to qualify and that any reforms will make the profession more, not less, accessible.