Legal aid news: January and February 2019

Welcome to our update of the latest legal aid and access to justice news from January and February 2019.

LASPO review: On 7 February, nearly 6 years after its introduction, the government published its long awaited post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The full review can be read here and the government’s ‘Action Plan’ can be found here.

LASPO was implemented in 2013 as part of the government’s response to the economic downturn. It saw entire areas being removed from the scope of legal aid. The four objectives of the reforms were to discourage unnecessary and adversarial litigation at public expense, target legal aid to those who need it most, make significant savings to costs and deliver better overall value for money.

The purpose of the government’s review was to assess whether LASPO had met its objectives. In summary the government concluded that ‘while the reforms to legal aid were very broad and varied in their nature and intent, we think that it can be concluded that collectively, as a package, the changes made to legal aid by and under LASPO have been partially successful at meeting these objectives.’

In an Action Plan announced alongside the review, the government pledged to:

Invest £5million in innovative forms of legal support;
Support litigants in person with an extra £3million over 2 years;
Review the legal aid means test (by summer 2020);
Bring forward proposals to expand legal aid to include separated migrant children in immigration cases (by spring 2019);
Bring forward proposals to expand legal aid to cover special guardianship orders in private family law (by autumn 2019);
Work with the Law Society to explore an ‘alternative model’ for family legal aid;
Consider introducing an emergency procedure for urgent matters to access the exceptional case funding (ECF) scheme (by the end of 2019);
Remove the mandatory requirements from the telephone gateway for debt, discrimination and special educational needs, and reinstate access to immediate face-to-face advice (by spring 2020).

The Bar Council described the promise to invest an extra £8million as a ‘drop in the ocean’ compared to the extent to which LASPO has restricted access to justice. Similarly, Law Society President Christina Blacklaws said ‘The government must give urgent attention to amending the means test thresholds because the current levels are preventing families in poverty from accessing justice; and remuneration rates for solicitors undertaking this vital work must be reviewed for civil as well as criminal work, to address the medium-term viability of the system. As a first step, they should be uprated in line with inflation ahead of further work to make the system sustainable’.

YLAL’s statement in response to the review is here. We welcomed the reinstatement of legal aid for face to face advice in relation to debt, discrimination and special educational needs by removing the mandatory telephone gateway for these areas. We also welcomed the commitment to carry out a thorough review of financial means testing and eligibility for legal aid and to run a pilot scheme to assess the impact of early legal advice and the cost savings that it brings to other parts of the state.

Legal aid for inquests: As part of the review, the Government rejected the widely supported proposal that there must be automatic non-means tested legal aid funding for families, for specialist legal representation immediately following a state-related death, rejecting widespread support dating back to the 1999 Macpherson report.

Deborah Coles Director of the charity INQUEST, who have been campaigning on this issue for decades, said “The Ministry of Justice have failed to confront the reality of the uneven playing field faced by bereaved families, and the considered recommendations of all those who have looked at this issue. This is a dishonest response and a betrayal of those who invested in this review in the hope of securing meaningful change. INQUEST and the bereaved families we work with will continue to campaign for what is so clearly needed: automatic non-means tested legal aid funding to families following a state-related death.”

In response to the review, INQUEST organised a meeting in parliament on 27 February to launch a campaign for legal aid for inquests, calling on the government to introduce:

Automatic non-means tested legal aid funding to families for specialist legal representation immediately following a state-related death.
Funding equivalent to that enjoyed by state bodies/public authorities and corporate bodies represented.

The petition has been signed by almost 4,000 people, you can sign here.

During the meeting in parliament, shadow Lord Chancellor Richard Burgon announced the Labour party’s pledge to provide automatic legal aid funding for the bereaved at inquests where their relative has died under the control of state agencies. Burgon said that it was outrageous that families were reduced to “shaking a collection tin” through online crowdfunding. He continued “the government’s recent review for legal aid inquests has let bereaved families down. As justice secretary, I would not be able to look myself in the mirror, bereaved families in the eye or our justice system with pride if we do not provide proper legal support to those who have been the victims of deaths in custody with legal aid representation.”

The Minister responsible for legal aid, Lucy Frazer MP, told the meeting she would talk to other departments to see if she could provide extra funding. She was interrupted by one family member who said “we don’t want guidance, we want funding!”

Legal aid in family cases: In February, the Independent reported a significant increase (up 134% since 2011) in the number of litigants in person in custody battles in the family courts. The figures, obtained through a parliamentary question, show the proportion of applicants going to court unrepresented surged from one in five in 2011 – the year before LASPO was enacted – to almost half of all cases in 2017.

One father told the Independent that going into court without a solicitor felt like “walking into the lions’ den.” He continued, “It felt unfair. They had laid out all these concerns without me being able to defend myself. I didn’t know what I could push for, what I could request. Unfortunately when you don’t know what you’re doing and you don’t know the law, you’re pushed into that corner. I can’t afford £25,000 plus to get a solicitor. It’s mad to think that if I went and robbed a bank tomorrow, I’d get legal aid – but I can’t get it for a case about my kids.”

A letter to the Guardian from a lay Judge in the family court also stressed the impact legal aid cuts have had on child welfare. Of litigants in person, the writer says ‘it was always obvious to me when I was chairing family courts that unrepresented parties were at a substantial disadvantage, especially where the other party was represented … the Children Act 1989 says
that when a court determines any question, the child’s welfare shall be the court’s paramount consideration. It is very difficult to see how the welfare of any child can be truly prioritised and safeguarded in the family court, whether involving state action, via the local authority, or a dispute between parents and/or carers, if any one of the parties is not properly legally advised and represented.’

YLALs urged to take MPs to work: On 28 January, we launched a campaign urging members to take their MPs to work to show the devastating impact of legal aid cuts. You can read more about the campaign on our website.

The scheme involves showing interested local MPs a snapshot of life as a legal aid lawyer, be it helping individuals to navigate their transition on to Universal Credit, working with people on the brink of losing their homes at a housing duty scheme or representing young people in a Magistrates’ Court. The campaign will show the vitally important work that YLALs do and highlight some of the problems LASPO has caused. Participating YLALs may work in any area of legal aid or in an area that was taken out of scope by LASPO.

This comes after pupil barrister Danielle Manson took her MP, Bambos Charalambous, to Thames Magistrates Court with her. Charalambous tweeted ‘Eye opening visit to Thames Mags. Court to see the criminal justice system in action with @daniellejmanson who only received her papers at 7.43am! I observed a court ill equipped to deal with a defendant in a wheelchair, an unrepresented man plead guilty and other shortcomings.’

YLAL co-chair Oliver Carter, told the Law Society Gazette, ‘As legal aid lawyers working at the coal face, we know that cuts to legal aid and sustained underfunding of the courts have resulted in a justice system that is creaking at the seams, functioning only through the goodwill of dedicated but overworked professionals within it. With the government review of LASPO due to be published soon, we believe it is vital to make sure MPs are aware of this crisis so that they can take action to restore access to justice.’

Jack Shepherd and legal aid for criminal appeals: Legal aid for criminal appeals made headlines in January after Richard Egan, the solicitor acting for Jack Shepherd in his appeal against conviction, received letters containing death threats. The former Lord Chief Justice, Lord Thomas, said the letter as an attack on the rule of law.

Jack Shepherd was convicted in his absence for gross negligence manslaughter after the death of Charlotte Brown in a speedboat crash. He has been given permission by the Court of Appeal to appeal his conviction.

The Justice Secretary, David Gauke tweeted that he was “very concerned” about the threats made to Shepherd’s lawyer and that such behaviour was “completely unacceptable.”

Law Society President Christina Blacklaws said a ‘fundamental principle’ of British justice has been lost in the media frenzy surrounding the case and that regardless of the crime, the accused is entitled to legal representation, and the government has a statutory obligation to ensure this happens where required. She continued: ‘Ensuring the defendant is properly advised and represented is a vital component of a fair trial. Often that advice will lead to a client pleading guilty; but if a client maintains their innocence, it is absolutely essential that a defence representative can challenge a case brought by the state.

YLAL’s statement on the matter can be found here. In summary, we wholeheartedly support the solicitors representing Jack Shepherd. We support the proper funding of our criminal justice system, regardless of the crimes of which a person has been accused. Justice necessarily includes everyone – we cannot withhold legal aid from a person simply because we consider the actions of which they are accused to be heinous. To do so would undermine the entire basis of our criminal justice system, particularly the central principle that a person is innocent until proven guilty.

Law society campaign to fix the broken criminal justice system: The Law Society has launched a campaign to fix the ‘crumbling’ criminal justice system, calling on the government to adopt their policy recommendations to save the justice system.

Simon Davis, the Law Society’s vice president, said: ‘The reputation of our justice system – one of England and Wales’ most precious assets – is in great danger at a time when the country needs it most. Justice and the rule of law are key exports for the UK – but their integrity depends on the whole system working effectively. Years of neglect have heaped colossal pressure on the whole system and those who work hard in it.

The Law Society identifies shortages of criminal duty solicitors, the restrictive means test, inefficiencies in the system, court closures and disclosure problems as the most significant failures in the system.

Their policy recommendations can be read here. They include:

The upper limit for the means test should be set at the level at which higher rate income tax is paid
The upper limit for the means test should be set at the level at which higher rate income tax is paid
The upper limit for the means test should be set at the level at which higher rate income tax is paid

Minimum salary for trainee solicitors: On 23 January, YLAL urged SRA to reinstate the minimum salary for trainee solicitors following the Law Society’s Gazette’s publication of updated statistics which show that a quarter of trainees are working for less than the Law Society recommended minimum salary – £21,561 in London and £19,122 outside of London.

Previously, a mandatory minimum salary was set by the SRA (£18,590 in central London and £16,650 outside London) but after abolishing that requirement in 2014 the regulator now stipulates only that trainees are paid the National Living Wage.

YLAL’s response can be found here. In summary, although we welcomed the finding that the percentage of trainees being paid below the Law Society recommended salary has decreased (from 35% in 2018), we stressed that 25% is still a significant figure and low salaries has a negative impact on social mobility in the legal profession. We will continue to lobby the SRA on the reintroduction of the mandatory minimum salary.