‘A turning point for access to justice?’

‘Justice is at the centre of a safe, fair and prosperous society and this Government is committed to protecting and guaranteeing access to justice for future generations.’

Who could disagree with the sentiment behind this concluding line from the executive summary of the long-awaited review of cuts to legal aid by the Ministry of Justice? Certainly not the Supreme Court, which in theUnison case concerning employment tribunal fees proclaimed that, in principle, people must have ‘unimpeded access’ to the courts in order for the rule of law to be upheld.

But perhaps a better question is: ‘What price justice?’ Reforms by the Coalition Government in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) have devastated access to justice, reducing the annual legal aid budget by almost one-third and cutting off hundreds of thousands – if not millions – of people from advice and representation.

The review of LASPO assesses the reforms (read: ‘cuts’) against their objectives, and its action plan sets out the changes the Government will make to improve access to justice. The Ministry of Justice acknowledges that access to justice is ‘a fundamental principle underpinning the rule of law and is at the heart of our justice system’.

First, some background: where are we now?
Before LASPO, annual spending on legal aid had been capped by the Access to Justice Act 1999, and was falling in real terms before the Coalition came into office. Nevertheless, the austerity agenda meant savage cuts to legal aid, and LASPO wholly or partially removed significant areas of law, including family, housing, debt, welfare benefits, immigration and prison law, from the scope of legal aid.

The number of people provided with early legal advice, including in social welfare law cases covering areas such as debt, benefits, employment and housing, fell from 573,737 in 2012/13 to 140,091 in 2016/17. Given the reforms to the welfare system and the huge increase in homelessness in recent years, it seems unlikely that the number of people needing advice in these areas has fallen.

Another insidious barrier to access to justice has been the decision not to adjust the financial means test for legal aid in line with the cost of living since 2010. This has served to reduce the proportion of people who are financially eligible for legal aid each year: it has been estimated that only around 20 per cent of people are now poor enough to be entitled to civil legal aid.

In fact, research last year by Professor Donald Hirsch for the Law Society concluded that the means test ‘is set at a level that requires many people on low incomes to make contributions to legal costs that they could not afford while maintaining a socially acceptable standard of living’ (Priced out of justice).

This process of declining financial eligibility started decades ago: in 1980, around 80 per cent of the population was eligible for legal aid, falling to 53 per cent in 1998 and 29 per cent in 2008. The same is true of the rates paid to legal aid lawyers, which have not been increased – even in line with inflation – for over 25 years. There have instead been several cuts to rates in that time.

Successive governments have, through both action and inaction, made it increasingly difficult and uneconomic for lawyers to take on publicly-funded work. Young Legal Aid Lawyers (YLAL) and other representative groups have real concerns about where the next generations of legal aid lawyers will come from and how they will maintain viable practices to serve their communities.

The many problems in access to justice are described effectively in The Right to Justice, the final report of the independent Bach Commission on Access to Justice from September 2017, which also makes wide-ranging recommendations to resolve these problems. The brutal cuts to legal aid – and to the wider budget for the Ministry of Justice, which will have been cut by 40 per cent between 2010 and 2020, more than any other government department – have created a crisis in the justice system.

It is right to acknowledge that the Government has made concessions and reversed some of the cuts – including in prison law, criminal legal aid, domestic violence, judicial review and employment tribunal fees – and indeed, the Minister for Legal Aid, Lucy Frazer MP, trumpeted these improvements at an access to justice fringe event at the Conservative Party conference in October 2018. It is also correct to point out, as I did while sitting next to the Minister, that all of these reversals have come after the Government lost litigation brought against it.

That’s the context: what does the future hold?
At the time of passing LASPO, the Government promised to review the impact of the cuts to legal aid within five years. Almost six years later – LASPO took effect in April 2013 – the Ministry of Justice has published its Post-Implementation Review of Part 1 of LASPO, alongside a separate review of legal aid for inquestsand a Legal Support Action Plan setting out the Government’s ‘vision of a modern system of legal support’ and the steps it will take following the review of LASPO.

The review assesses LASPO against its four original objectives: making significant savings; discouraging unnecessary litigation; targeting legal aid at those who need it most; and delivering better value for money. It concludes that LASPO has been ‘partially successful’ in meeting these objectives.

Clearly, significant savings have been made to the cost of the legal aid scheme, although justice campaigners would argue that greater knock-on costs have been generated for other parts of the state. It is ‘impossible to say’ if LASPO achieved the objectives of discouraging unnecessary litigation or targeting legal aid at those who need it most, and ‘more evidence needs to be considered to assess the extent to which value for money in this broad sense has been achieved’.

At best, then, the jury is out as to whether LASPO has succeeded even on its own limited terms. And it is fair to say the objectives are not those which would have been chosen for LASPO by legal aid lawyers. We might have wanted something about improving access to justice. After all, do we target education or healthcare only ‘at those who need it most’? And if not, why should we ration justice?

More promisingly, the review identifies ‘wider themes’ which emerged through engagement by the Ministry of Justice with over 100 interested parties, including YLAL, legal aid firms, charities and representative bodies. The six broad themes ‘delivered strongly’ by those engaged with in the review were: the removal of areas of civil and family law from the scope of legal aid; that people who need legal aid cannot access it; the Exceptional Case Funding scheme is not working; fees for legal aid work are inadequate; there has been a rise in unrepresented litigants; and ‘advice deserts’ have developed in certain geographical areas.

The Legal Support Action Plan ‘outlines the changes the Government intends to make and the future direction for legal aid and support’, and does contain some specific, positive reforms which will materially improve access to justice. It also includes some rather less tangible commitments to ‘review’, ‘pilot’ and ‘consult’ on further changes, which the chair of the Justice Select Committee, Bob Neill MP, said ‘risk being seen as kicking the can down the road’.

In the former category, the decision to reintroduce access to face-to-face advice in debt, discrimination and special educational needs – previously only accessible via a mandatory telephone gateway – is a very important change. Similarly, extending the scope of legal aid for family law to include special guardianship orders and providing non-means tested funding for parents opposing applications for placement or adoption orders will be welcomed.

In the latter category, the Government will ‘bring forward proposals to pilot and evaluate the expansion of legal aid to cover early advice in a specific area of social welfare law’ by autumn 2019 and there is to be a ‘comprehensive review’ of legal aid eligibility (i.e. means testing) by summer 2020. The criminal legal aid fee schemes and structures will also be subject to a ‘comprehensive review’ by summer 2020.

There has also been some disquiet about the meaning of ‘legal support’, as opposed to good old-fashioned legal advice and representation. For the Ministry of Justice, legal support means ‘the totality of support available to people from information, guidance and signposting at one end of the spectrum to legal advice and representation at the other’. Improved public legal education and access to information is undoubtedly a good thing, but this can only go so far without a properly resourced scheme of public funding to allow for advice and representation from qualified lawyers where this is necessary.

Regrettably, in its review of legal aid for inquests the Government has decided not to introduce non-means tested legal aid for inquests where a public body is represented, thus perpetuating the inequality of arms which bereaved families face in the Coroners Courts. Where there is alleged state involvement in a person’s death, many families will continue to be unable to access representation at the inquest, while public bodies which may bear responsibility for the death can continue to instruct lawyers at the taxpayers’ expense. To quote Ian Hislop, if that’s justice, then I’m a banana.

The director of INQUEST, Deborah Coles, was more eloquent in her righteous indignation: ‘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.’

Whether the review of LASPO marks a turning point for legal aid and an opportunity for the Government to start to repair the damage done to the justice system in recent years, as YLAL hoped for in our initial statement following publication of the review, may depend to a significant extent on the outcomes of the review of means testing and the pilot of early advice in social welfare law.

The role of legal aid lawyers is often to stand up for the underdog against the might of the state, a callous employer or a rogue landlord. In the campaign for access to justice and legal aid, we are the underdog, and we will continue to stand up for ourselves, our clients and the communities we serve.

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