Legal aid news: October 2018

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

Legal aid backdating challenge: October got off to a fantastic start with the government agreeing to amend the Civil Legal Aid (Procedure) Regulations 2012 to expressly allow for legal aid certificates to be backdated to the date of application for legal aid.

Legal aid firm Duncan Lewis was the Claimant in a claim for judicial review of the LAA’s refusal to backdate legal aid certificates, even where solicitors have made a legal aid application as promptly as possible and it is necessary to begin work in order to secure access to justice for a client before the certificate is issued. The principal argument was that the LAA has failed to recognise that the regulations must contain an implied power to backdate certificates, or are ultra vires. You can read more about the legal arguments here.

The Government’s concession that backdating certificates is necessary will help countless people to challenge decisions made by public bodies which must be considered urgently, such as unlawful removals and unlawful detentions by the Home Office, and the failure of local authorities to provide accommodation for people at risk of being made homeless. It will avoid strong claims being stifled because of delays in the grant of legal aid. It will also ensure that solicitors can begin work as and when needed to secure the legal rights of their clients.

More United Campaign: The campaign group More United, set up after the death of Jo Cox MP, have launched a campaign to save legal aid and access to justice. You can read about the campaign here. More United are campaigning to restore access to early advice and welfare advice and simplify the criteria for those who need legal aid. They secured a debate on legal aid in Parliament during Justice Week and are now urging people to write to their MPs asking them to back legal aid. You can write to your MP using this link.

Political interference in the LAA’s decisions: On 5 October, a report by Buzzfeed News revealed that people bringing challenges against the government were refused legal aid after ministers’ private offices discussed their applications for legal aid applications, calling into question the independence of the Legal Aid Agency.

The internal emails, marked “OFFICIAL SENSITIVE”, reveal ministerial staff contacted the LAA to find out if legal aid had been granted in cases where the government was the defendant. An internal memo sent among LAA staff on 4 April 2014 listed three high-profile cases with pending applications for legal aid that needed to be briefed on.

One such case was a legal challenge to a ban on prisoners receiving books. In that case, emails seen by BuzzFeed News show legal aid was rejected after a phone call from Chris Grayling’s office and a series of messages between the government and the LAA. Despite the LAA saying the case was not strong enough to merit legal aid, the prisoner won in the High Court after the lawyer took it on pro bono and the law was overturned.

Richard Burgon, shadow justice secretary, said: ‘This is deeply concerning and the government appears to have serious questions to answer. Any political interference — or even just the perception of political interference — risks undermining public trust in the Legal Aid Agency. This will only add to the pressure for the Legal Aid Agency to be replaced by an independent body that operates fully at arm’s length from the government, as recommended by the Labour Party–initiated Bach Review into access to justice.’

Criminal legal aid cuts: On 10 October, YLAL responded to the Ministry of Justice consultation on ‘Amending the Advocates’ Graduated Fee Scheme’ (AGFS). The AGFS is the scheme which sets out how criminal legal aid work by advocates is remunerated.

YLAL’s response to the consultation can be found here. In summary, we told the government that whilst we welcome the much-needed injection of additional funding into the AGFS, we wish to make it absolutely clear that it is not enough. Without greater funding for criminal legal aid, we believe there is a serious risk that there will not be a sufficient number of criminal defence lawyers to ensure that people charged with criminal offences receive adequate representation. The government must address this looming crisis in the criminal justice system before it is too late.

We conclude that the underfunding of the AGFS, together with the significant difficulties concerning disclosure of criminal evidence, create a grave danger of miscarriages of justice. We say that a long-term solution for criminal legal aid is urgently needed, and call on the government to:

1. Commit to an independent review of the long-term sustainability of criminal legal aid
2. Index link fee schemes to inflation
3. Adopt the recommendations of the report by the Bach Commission on Access to Justice, ‘A Right to Justice‘

YLAL would like to thank Audrey Cherryl Mogan and Stephen Davies for preparing this consultation response.

In the Law Society’s response to the consultation, they called for an independent review into the economic sustainability of legal aid and that the £15m that the MoJ is proposing will not reverse the recruitment crisis among solicitors and barristers.

Law Society president, Christina Blacklaws, said, ‘struggling junior bar and solicitor advocates will have little incentive to continue a career in criminal law under these proposals. Soon there will not be enough young lawyers entering the field of criminal law and many of those who have the training and experience no longer see a viable career doing criminal legal aid work.’

In its response to the government’s proposals to settle the dispute over legal aid rates, the Law Society added that the value of the proposed package is highly dependent on assumptions about case types and volumes of work which vary considerably from year to year.

Liberty challenge on legal aid for PSPOs: Liberty has launched a legal challenge against the Legal Aid Agency for blocking access to justice for residents seeking to take local authorities to court. The LAA will not grant legal aid to people who cannot afford to pay lawyers if
they want to challenge potentially unlawful Public Space Protection Orders (PSPOs). PSPOs allow councils to ban activities they deem to have a detrimental effect on the lives of others. Many have been used to ban rough sleeping – wrongly equating poverty with antisocial behaviour. Liberty has now asked the High Court for permission to challenge the Agency’s position and we understand that the permission decision is pending.

Conservative Party Conference: At the Conservative Party conference, Lord Chancellor David Gauke did not even mention the words ‘access to justice’ or ‘legal aid’ in his keynote speech, preferring to concentrate on prisons and rehabilitation policy.

At a fringe event hosted by YLAL and LawWorks, Lucy Frazer QC (the minister responsible for legal aid) was asked by YLAL co-chair Oliver Carter what the Conservatives could offer aspiring legal aid lawyers. She said that the government was meeting with practitioner groups to ensure access to the profession, that the government has ensured that AGFS money would go to junior criminal barristers and that the government has discussed recruitment and retention in the legal aid sector with the Law Society.

Bob Neill MP, chair of the Justice Select Committee, told the same fringe event he now regrets voting for LASPO in its present form – ‘We went too far in a number of areas. If we were able to put some money into early advice that is money well spent. There is no doubt about the pressure being brought on courts by the growth in litigants in person. It takes longer and is a false economy.’ On disclosure in criminal law, he added: ‘The system is wrong when it does not reward the solicitor and barrister for looking at unused material.’

Also speaking at the fringe event, YLAL’s co-chair Oliver Carter told attendees ‘the scale of the cuts in recent years has caused huge damage to access to justice. Access to justice is fundamental to the rule of law. But the Courts have found that the government has (often!) acted unlawfully in cutting legal aid and restricting access to justice.’

You can read more about the fringe event on the Law Society Gazette’s coverage.

Support for law students and junior lawyers: On World Mental Health Day (10 October), writing for the Law Society Gazette Elizabeth Rimmer CEO of LawCare called for law firms and universities to make wellbeing a priority to combat the growing problem of stress in the legal profession. 45% of calls to the LawCare helpline are from students or junior lawyers, struggling with a range of issues, including anxiety, panic attacks, sleep problems, financial worries, difficulties with bullying, and homesickness. Many are questioning whether they are in the right career, or will have their training contract terminated or prolonged unexpectedly. In addition, the results of the 2018 Junior Lawyers Division Resilience and Wellbeing survey found that over 82% of respondents reported either regularly or occasionally feeling stressed in the month before completing the survey, with 26% of those individuals being severely/extremely stressed.

Equipping law students with the right skills to manage life in the law and to successfully transition into practice, together with the ability to bounce back from setbacks and challenges, could mean a lower drop-out rate in the early years of practice, as well as supporting better wellbeing, Rimmer said.  Further, once in practice, she explained that senior leaders need to do more to train, support and mentor junior staff and support a working culture that positively encourages wellbeing. What can really help is having an open, transparent culture where senior leaders are approachable and talk freely about the stresses and strains of working in the law, overcoming difficult situations, making mistakes and what success really looks like.

Legal aid for inquests: In a letter to the Guardian on 12 October, the charity INQUEST and a number of families of those who died in state custody called for emergency legal aid for representation at inquests into the deaths of their loved ones. The letter said, ‘Without funded representation, families are denied their voice and any meaningful role. The absence of representation weakens investigations into state action, denying opportunities to interrogate the facts and ensure that mistakes or harmful practices are brought to light. Funded representation of the bereaved can safeguard lives, and should be of vital interest to us all.’

This comes one year after the Angiolini review recommended that automatic funding of legal representation without means-testing for families in cases in which state agencies, such as the police, prison service or NHS, have been involved in a death.

A MoJ spokesperson said: ‘While legal representation is not necessary for family members at the vast majority of inquests, we understand there are circumstances where it is and legal aid funding is available to them. Last year, funding was granted for over 50% of such applications but we are reviewing whether bereaved families have the legal aid support they need in complex inquests.’

Solicitors Qualifying Exam: The new Solicitors Qualifying Exam (SQE), an assessment for all future solicitors instead of the LPC, is due to be introduced in late 2020. City lawyers have mooted the idea of requiring some prospective solicitors to get a ‘City specific’ background by embarking on ‘LPC or GDL equivalents’ to prepare them for the ‘super-exam’. The Law Society Gazette has reported that this could fuel speculation that this could lead to a ‘two-tier’ profession. The Law Society’s Junior Lawyers Division has already warned that the profession could be split between those who have taken SQE preparatory courses and those who have not and may have a negative impact on social mobility in the profession.