Legal Aid and access to justice post COVID-19
This piece was written by YLAL members Chloe Darcy and Ella Cornwall.
How does Legal Aid need to be reformed in order to ensure access to justice in a post COVID-19 society?
The effects of the COVID-19 pandemic on society are on-going and serious. Public services are being re-modelled, the economy is being re-shaped and there’s a greater focus on social equality and justice which calls into question principles and practices of the law. In this context, the on-going debate about the place and effectiveness of Legal Aid becomes more relevant and urgent. This article explores whether the case for change around Legal Aid has now reached a critical point and examines what the future may hold.
The history of Legal Aid in the UK
The position of Legal Aid within the government budget since the implementation of the Parliament Act 1949 has been controversial for both lawyers and citizens in need of access to justice. Its decline from being, in the famous words of Lord Beecham ‘one of the greatest pillars of the post-war welfare state’ came from a series of cuts in 2004, 2007 and 2010. These cuts introduced fixed fees for certain types of cases and led to many providers pulling out of more complex publicly-funded areas like immigration and asylum.
Eventually, eligibility for legal aid dropped to 29% pre-recession in 2008. These cuts and changes to eligibility meant that those who, under the 1949 Act, may previously have received help are now being refused. In areas that remain in scope for Legal Aid, justice is only accessible to either the very rich or the very poor, leaving middle bracket earners in limbo.
The final cut? The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)
The biggest impact on the availability of Legal Aid was made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’), which came into force in 2013. The proposed changes included:
- Reducing eligibility. Members of households with disposable incomes of over £3,000 a month would no longer be eligible. Prisoners unhappy with treatment would no longer receive Legal Aid. Newly arrived migrants would have to prove that they had been lawful resident in the UK for at least a year in order to receive Legal Aid (although this has since been successfully challenged).
- Lessening the scope of Legal Aid. Huge areas of civil law were removed alongside private family cases that do not involve domestic violence. Immigration was also affected and welfare benefits, debt and most housing disrepair cases were generally taken out of scope. Criminal cases remained in scope but became subject to means testing.
- Fees. Fees for solicitors on most civil cases were cut by 10% while criminal practitioners had their fees cut by 8.75%.
On 12 August 2020, the Office for National Statistics reported that UK GDP was down by 20.4% in the second quarter. The pre- and post-2008 recession statistics for Legal Aid may be a precursor of things to come post-pandemic.
The approach of recent governments to Legal Aid in a post-recession society has generally been to cut it. But, as stated by the Secret Barrister in an interview with the Guardian, ‘people can only enforce their rights, or defend themselves against the state, if they have access to legal advice and representation’.
The impact of LASPO
In response to the wave of criticism around the enactment of LASPO, the Law Society conducted a 2017 review of its impact and found that:
- Legal Aid was no longer available for many people who need it;
- those who were eligible were struggling to access it;
- wide gaps in provision were not being addressed; and
- the cuts imposed by LASPO had had a wider and detrimental impact on society.
The review shows the impact of cuts to Legal Aid on the justice system and society more generally. The primary objective of LASPO was to reduce the legal aid budget which was then estimated to cost in the region of £2bn per year, which was said to make it one of the most expensive in the world.
But why is the UK legal aid budget so high in comparison to other countries? The UK justice system is based on common law and is an adversarial system, unlike most other EU countries which use inquisitorial systems. Inquisitorial systems, by their nature, cost much less because the court has a greater role in determining the issues and so much is settled out of court. A direct comparison is, therefore, misleading.
Learning from the mistakes of LASPO?
In February 2019, the Government released a post-implementation review on the impact of LASPO. The review recognised that, although LASPO appears to have achieved its economic goal, it is not the well-oiled machine it was intended to be. Consequently, the Government began to undertake a review of the means test, of criminal fees and structures, and vowed to re-introduce face-to-face advice in debt, discrimination and special education need cases.
For these initiatives to have any real impact, there needs to be serious investment in Legal Aid. The Ministry of Justice, having reviewed the criminal legal aid fees, outlined a plan to improve access to legal support services including a £50 million offer. However, pre-pandemic, the Law Society criticised the plan on the basis that it would not adequately address the crisis in the criminal justice system and was especially inadequate given the years of chronic underfunding.
The wide-reaching and long-term detrimental effects of LASPO on both the criminal and civil justice systems cannot be underestimated. Given the timing of the post-implementation review, there was little opportunity for progress to be made before events were overtaken by the public health emergency.
When considering the impact of COVID-19 and the changes that need to be made, it is important to remember that we are still at square one. We have a system that does not adequately safeguard access to justice and a number of key areas which are now vitally important because of the pandemic, such as welfare benefits and debt, remain out of scope for Legal Aid.
The shock of COVID-19 on the Government and justice system
The COVID-19 pandemic has meant a decrease in the volume of cases progressing through the courts, which has increased the already present backlog. At the same time, criminal firms have experienced an 80% drop in income. The number of criminal legal aid firms fell from 1,271 in 2019 to 1,147 this year, and more are likely to follow. This means that the Ministry of Justice’s commitment to £50 million is even less of a drop in the ocean than it was in the pre-pandemic landscape.
Government response to the pandemic
In response to the pandemic, the Government outlined its commitment to supporting the legal aid sector during the crisis up until 30 September 2020. This support package included:
- contingency plans aimed at providing continuity of operations including reducing administrative burdens on providers so that they can focus on clients;
- the suspension of time limits for delegated function applications, substantive amendments, deadlines to submit appeals of assessment claims and appeals against Legal Aid Agency decisions;
- the granting of an extension to the time limit of emergency certificates; and
- an extension time for probationary representatives to complete tests, allowing them to continue carrying out contract work as normal during this extension period.
Many practitioners, however, say that these measures are not enough to prevent the imminent collapse of the legal aid sector.
The call for urgent reform in light of COVID-19
In May 2020, the shadow secretary, David Lammy MP, and the shadow attorney general, Lord Falconer, stated that Labours key objectives to support the justice system now and post-pandemic are to:
- scrap LASPO;
- make early legal advice available during and after the COVID-19 emergency;
- provide support for the legal profession at large as ‘many solicitors and barristers will not survive another 18 months like the last’; and
- continue to increase the scope of remote hearings, where appropriate and possible, and online streaming of cases.
In June 2020, the Law Society called for the following changes to Legal Aid in light of COVID-19:
- adjustments to the method of payment in order to help organisation with cash flow problems;
- relief from business rates;
- a reversal of the 8.75% cut on Criminal Legal Aid;
- a widening of the overall support package to promote sustainability; and
- an investigation into the sustainability of Civil Legal Aid.
An independent thinktank estimates that the government will need to spend £220 million over the next two years to clear the backlog and return waiting times to 2019/20 levels. This is in stark comparison to the £50 million offered by the Ministry of Justice and highlights just how much damage both LASPO and the pandemic have caused the system.
COVID-19 has accelerated the need for change to Legal Aid. The lessons of the past are that when change has been forced, either through political desire or economic necessity, it has led to wider detrimental impact and greater inequality.
Economically and socially disadvantaged groups were those most negatively affected by LASPO and it is this same group that have been disproportionately affected by the crippling effects of COVID-19. In order for the system to change in a meaningful way, reforms need to be sustainable and efficient.
Legal Aid needs to be reinvigorated, not downgraded further. As social equality becomes more urgent, now is the time to invest in Legal Aid to ensure access to justice for all. When faced with the prospect of the biggest recession the UK has ever seen following the 2020 public health crisis, it has never mattered so much.