A state of the nation report on legal aid · Views from the profession — Legal Aid Practitioner’s Group (LAPG) ... however, legal aid still existed in recognisable form — effectively

A state of the nation report on legal aid

Can we safeguard access to justice?

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FOREWORD

by Joshua Rozenberg QCImagine a graph showing the number of people helped by civil legal aid in England and Wales. At the beginning of 2013 it was running at a little over 130,000 cases a quarter. By the summer of that year, it had dropped — by two-thirds — to around 40,000 cases a quarter, excluding court representation (which was also cut). Slicing through the graph is a line marked LASPO — the legal aid legislation that came into force at the beginning of April 2013.

If you want public funding for your civil or family case, you have to pass three tests. All of them were made harder by LASPO. Many areas of the law were excluded from the scope of legal aid. Means testing was tightened so that only a quarter of the population were eligible for free or contributory legal aid. And the merits test was amended in order to exclude borderline cases.

That’s certainly saved the government money, at least from the legal aid budget. In 2013, total civil legal aid spending was £1,063m. Two years later, it had fallen by 20% to £852m. Spending on advice and assistance — excluding representation in court — fell by nearly half over three years.

But LASPO has also left many more people without proper legal representation. This puts much greater pressure on the courts. Some lawyers will continue to work without charge but there are limits to what pro bono can do. And with less paid work there will be fewer working lawyers.

The judges’ answer to these problems is to refashion their courts. Software will take the place of solicitors. Counsel will be replaced by computers. The help button will take the place of a helping hand.

Legal aid — as we knew it — is never coming back. Will online courts make up for its loss by providing simpler, cheaper justice? The government certainly thinks so. It is investing £738m over five years on reforming the courts and tribunals of England and Wales, based on expected net savings of more than £200m per year from 2019/20.

If we are to restore and maintain access to justice for those who need it most, digitising the courts is the one reform that must not fail.

CONTENTSThe legal aid timeline: how did we get here? ...................................................................................................................................................................... 2

Views from the profession — Legal Aid Practitioner’s Group (LAPG) ....................................................................................................................... 3

Access to justice — the view from the courts .................................................................................................................................................................... 4

Views from the profession — Immigration Law Practitioners’ Association (ILPA) ................................................................................................ 5

A new narrative … of injustice? ............................................................................................................................................................................................... 6

Views from the profession — StepChange Debt Charity ............................................................................................................................................... 7

Access to justice—plugging the gaps.................................................................................................................................................................................... 8

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In the beginning

Legal aid made its debut in 1949, along with George Orwell’s novel, Nineteen Eighty-Four, and Ealing Studios’ comedy Kind Hearts and Coronets.

The Legal Aid and Advice Act was enacted at a time when post-war debt accounted for 245% of GDP. The Act established a system of legal aid allowing access to the courts by state-paid lawyers for approximately 80% of the population. Its reach and ambition were remarkable, and legal aid quickly became part of our constitutional DNA—one ingredient of the package that came to define the modern welfare state for the next 30 years.

Cuts to legal aid are not just a recent occurrence

Since the 1980s the legal aid budget has become a regular, if hidden, target for government review and cost cutting — the eligibility criteria have become ever more restrictive, while remuneration levels for most legal aid lawyers have declined. In spite of these sporadic attacks, however, legal aid still existed in recognisable form — effectively underpinning our justice system and the rule of law.

Fast forward to 2010, and the austerity budget presented to the House of Commons by the new Chancellor George Osborne. In the wake of the global banking crisis, the Chancellor presented a stark picture; the country faced an unprecedented economic crisis with an unsustainable public debt — then at 64% of GDP — and a huge deficit. The solution presented was one of necessary cuts to public spending. These would be painful and likely to affect many aspects of life and the welfare state as we knew it, but decisive action was essential and the £2bn annual legal aid bill in England and Wales was an obvious target.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) has brought about fundamental changes in the arrangements for obtaining access to justice and civil litigation costs, removing financial support for most cases involving housing, welfare, medical negligence, employment, debt and immigration.

Remembering what these numbers represent

When lawyers across the land did not attend courts (in cities across England and Wales) in protest at the cuts in January 2014, BBC Legal affairs correspondent Clive Coleman noted that this situation was about far more than simple numbers and cuts to a sector:

‘So strongly ingrained is the idea of “fat cat” lawyers in people’s minds, that it’s never going to be easy for lawyers complaining about pay rates to gain the sympathy of the public. But this dispute is about more than just pay. When the state brings all of its powers to bear in prosecuting someone for a crime, it is critical that the defendant whose liberty, reputation and future is at stake, has access to good quality legal advice and representation.’

It is apt that the Legal Aid and Advice Act was introduced in the same year that a black comedy (where a man awaits his fate in prison), and a dystopian novel (which presented a world where men are powerless against the state) were both released. Apt, if you consider who loses the most should legal aid cuts go further.

In view of the current situation, and the passions that it provokes, disagreements and apportioning blame will not help those litigants who rely upon legal aid and have been affected. The questions must now be: what is the future of legal aid? Can we safeguard access to justice? And how? What is done cannot be undone.

What happens next, however, can still be decided.

Chris Minnoch — Legal Aid Practitioner’s Group (LAPG)

LAPG represents solicitor firms and not-for-profits delivering legal aid services. The changes introduced in 2013 by the Legal

The legal aid timeline: how did we get here?

The state of the nation — a numerical perspectiveJust before Christmas 2015, the Ministry of Justice (MoJ) published a statistical snapshot of what remains of the civil social welfare law scheme post LASPO 2012.

The previous survey was in 2005 and, during that time the legal and not for profit (NfP) landscape has ‘changed significantly’. Ten years ago there were 3,226 publicly funded NfP agencies, in 2015 there were 1,462. This amounts to a 55% decrease

Other figures reveal the impact of the cuts introduced by LASPO 2012. For example:

• according to the Law Centres Network’s 2014–15 annual review, law centres lost on average 40% of their income under the Coalition government, including cut of over 60% to legal aid revenue.

• according to MoJ figures, of the agencies surveyed, one in ten expected to shut down; over half of NfPs (54%) agreed that the LASPO 2012 reforms required them to make ‘major changes’, and nearly two-fifths described themselves as ‘uncertain’ as to their funding for legal advice.

• Jeremy Corbyn MP — in an address at a Justice Alliance event in January 2016 — described cuts as ‘brutal’ and said that a 25% reduction in the legal aid budget had seen the number of social welfare cases falling from 470,000 in 2010 to just 53,000.

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Legal Aid, Sentencing and Punishment of Offenders Act fundamentally changed the legal aid system, taking large areas of law out of scope particularly in the areas of family, immigrations and benefits. For example, disputes over the custody of children are only covered by legal aid when there has been domestic abuse, and only if the applicant can satisfy strict evidence requirements. Restrictions to judicial review, payment rates that haven’t kept pace with the cost of delivering services, the imposition of a mandatory telephone service for some areas of law, regular and often confusing auditing measures and stricter means-testing have all affected practitioners and clients. When combined with the reduced scope of the scheme, it is little wonder that the number of people receiving legal aid has plummeted, as has the number of agencies providing services.

However, the single biggest issue affecting the viability of legal aid practitioners is probably the imposition of an online system for making legal aid applications and submitting bills. The system has been mandatory since April 2016 but, despite over three years of trials and upgrades, it still does not meet the needs of practitioners and clients. While all practitioners agree that a digital system is needed, the current system is cumbersome, fraught with techical issues, and is often more time consuming than the predecessor paper system.

Views from the professionWhat do practitioner bodies in key sectors of legal aid profession make of the challenges and opportunities now facing their industry?

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Impact on the courts

While government cuts to legal aid services have forced many changes on the professionals and institutions that make up the UK justice system, nowhere are those consequences so clearly visible as at the coalface that is the country’s courts.

It is clear to see that changes have fast made themselves felt in court routine. Figures from the Magistrate’s Association estimated that a full quarter of all 2014 court appearances saw litigants left to represent themselves. And if the statistics are cause for alarm, then so too is the likelihood that the trend has long been accelerating. Sir Henry Brooke, a retired judge now engaged with a number of access to justice causes including Labour’s Commission on the matter, is to the point in his assessment:

‘The main impact has occurred since I retired in 2006. By that time, more litigants were representing themselves in civil appeals. This took up scarce resources, both in staff and judicial time, chasing papers, correcting procedural shortcomings, eliminating appeals doomed to fail (although the litigant would not accept this); and consuming much more three-judge and two-judge time in the appeals that were allowed to proceed to a hearing.’

‘Since then, many more litigants appear in person at first instance trials, and I hear from all sides how much this slows the trial process down and makes justice far harder to achieve.’

What does the future hold?

The asset of a judge with a comparative experience of court functioning across almost three decades is considerable. It is notable, however, that in contemporary issues of access to justice, the profession is butting-up against problems every bit as political as they are legal. Sir Henry Brooke’s prognosis for constructive change is straightforward:

‘I would like to see greater political sensitivity concerning the cost to the legal aid fund of complex new legislation and bad departmental decision-making. It is also time for greater political recognition that early legal help eliminates greater expenditure on avoidable disputes later on.’

Constraints are not only felt on the part of judges, however. Doug Bell, Senior Listing Officer at the Chancery Division also notes the ramifications for his daily job:

‘I can say with some certainty that there are many more individuals who now issue and prosecute their own proceedings. This in turn has meant that the administrative staff are called upon regularly to assist with guidance on practice and procedure.’

Despite the changes on show, the legal profession — which so often deals in hidden areas of society — should be only too aware that some issues are problematic by virtue of their very invisibility. With 20% fewer parental custody cases now even making it to court, there are fears that — whatever the cost savings — the resolutions being found outside of justice systems are inferior to those on offer within.


Access to justice — the view from the courtsJulian Sayarer looks at the impact legal aid cuts have had on the courts and speaks to legal professionals who have experienced the changes first-hand.

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Alternative support for litigants

As with any period of profound change there are nevertheless opportunities and solutions on offer. New organisations are gaining a presence in courts, and Ray Barry of the McKenzie Friends Directory notes the growing number of supporters for otherwise unrepresented litigants that ‘15 years ago you could count on one hand the number of McKenzie Friends (MF).’

With the legal charity Transform Justice citing a 15% increase in the chance of unrepresented people getting wrong or tougher sentences, the stakes are obviously such that any help is crucial. One litigant who paid the small fee for support of an MF talks of the immense support that it was to have someone to talk to about her case and to walk to the court building with her.

Anything that can help familiarise litigants with the daunting presence of a court is welcome, but is this any substitute for professional legal advice? More pertinent is whether a false-binary opposition is being created; whereby litigants are expected to want either the professional authority of a lawyer or the reassurance of informal help such as can come from an MF. Is the reality that there might well be much to be said in favour of both provisions as complementary, rather than as adversary?

If courts are the location at which the theoretical ideas of law intersect with the reality of human lives, then without good care they are also one of the first places at which stresses between the two can emerge. If courts are the body that performs justice, there is a real worry that surgery performed in central government cuts has not been sufficiently deft.

Where these lines of enquiry lead will be crucial for the functioning of UK courts, and therefore equally, the delivery and effectiveness of UK justice. With many different perspectives giving rise to an even greater number of opinions, those who spend their working life in the courts offer invaluable experience to help us adequately answer key questions for our justice system.

The views expressed are not necessarily those of the proprietor.


Alison Harvey, Legal Director at the Immigration Law Practitioners’ Association (ILPA)

The complexity of immigration law results from layer upon layer of inadequately thought out, hastily drafted, legislation all too often incompatible with human rights’ and rule of law guarantees, since the mid-1990s. Many persons with an immigration case have no right to work and no entitlement to any, other than subsistence, support. Yet, with effect from April 2013, legal aid was withdrawn from most immigration cases. The Ministry of Justice is consulting on increasing fees in the Immigration and Asylum Chambers of the Tribunals to six times the current levels. Many appellants are unable even to make the case for a fee waiver unaided. The result is access to justice denied and resultant breaches of human rights, or persons obtaining the money through, for example, exploitative, dangerous andunlawful work.

It is a criminal offence to provide immigration services in the course of a business, whether or not for profit, unless a practising solicitor, barrister, legal executive or someone regulated by the Office of the Immigration Services Commissioner. Exceptions are narrowly drawn. Thus, persons under immigration control cannot obtain advice from generalists. A system with the potential to protect persons in need of immigration advice from exploitation or incompetent advice, when alternative sources of advice are available, increasingly appears to put bureaucracy and uncertainty in the way of good generalist or pro bono advice without an adequate quid pro quo of protection.

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A new narrative … of injustice?Sir Henry Brooke looks at those affected by the cuts in legal aid: the public. Sir Henry Brooke retired from the Court of Appeal in 2006. He is now Patron of the Public Law Project and a member of the Bach Commission on Access to Justice.

Perceptions and misconceptions will exist in any walk of life. The idea that all lawyers are simply ‘fat cats’ is one such example. But that is not just. The legal aid lawyers who used to operate our front-line services in law centres and advice agencies were never attracted by the lure of large salaries and annual bonuses. They did their work, for low pay, out of a sense of vocation, and their return is badly needed.

Having spent 45 years in the justice system (as I did before I retired from the Bench ten years ago) it is impossible not to have witnessed examples of injustice. This is a theme which I have focused upon recently via my website: the stories of injustice to (often vulnerable) individuals who do not experience one of the most valuable rights a state can bestow on its citizens: good legal advice and access to a court (if necessary).

For example, a Romani gypsy who faced a cruel set of circumstances. He left his pitch under one local authority to care for his sick father at another. Due to unlawful amendments made to written statements by the local authority overseeing his father’s pitch, upon the death of the father, this man was denied the right to inherit his father’s pitch. He had to resort to roadside encampments from which he has consistently been forced to move. This situation could have been avoided had either father or son been able to seek counsel to challenge the unlawful amendments made to tenancy statements: but this is not now within the ‘scope’ of legal aid. A situation where not only was the law not followed, but the system did not protect those directly affected.

Equally, how about a mentally ill man in possession of a knife? A crime for sure, and one where a custodial sentence for a first-time offender is very likely. In this case, a solicitor was asked to represent this man by a local homelessness unit. Together, they sent off an application for legal aid. On the morning of the court hearing the solicitor was informed that this application had been refused because it was ‘not in the interests of justice’ to grant legal aid. The solicitor decided that there was no way he could allow a mentally ill man with no previous convictions to be unrepresented on such a potentially serious charge. An appeal was launched against the Agency’s decision (and was ultimately successful) and the solicitor eventually obtained a conditional discharge for his client. No matter what your thoughts are about this specific case, it represents a pattern. One where cuts to legal aid place a strain upon the system which leads to incomprehensible decisions being taken by inexperienced staff

within the Legal Aid Agency. These lead to delays, avoidable expense and injustice. How could justice be served by allowing a mentally ill man to be unrepresented in court when he faced such a potentially serious charge? Furthermore, the solicitor is one of many who are increasingly taking the risk that payment might never be received in order to represent someone in real need of legal representation. When a situation emerges where justice relies upon goodwill, that is seriously unfair.

And what about the woman who, having been subject to sustained physical and mental abuse by her husband and his family, developed serious mental and physical health problems but was not allowed to claim legal aid for divorce proceedings? This was due to ‘errors’ by the professionals who had seen her, meaning that she was not classified as domestic abuse victim until much later?

Each story raises the question: ‘how is this justice?’ These are not one off cases. They are cases which need not arise — situations where either the law, or the legal system (or both) has failed somebody. These are examples which will, I hope, prove how the government must now embark on its promised review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) as the people in these stories have been affected by LASPO and the other cuts to justice services in recent years.

Put simply, it must never be forgotten that ‘no one is above the law’. Such a rule of law is the foundation for the development of peaceful, equitable and prosperous societies. There must be equality under the law, transparency of law, an independent judiciary and access to legal remedy. Furthermore, if no one is above the law, then equally no one should be beneath the law or outside of the law: either in terms of its sanctions or its protection. The simple fact is that cuts to legal aid have led to a situation where not everyone can get access to justice: placing people outside the protection of the law.

How is this justice?

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StepChange Debt Charity

“People can have extremely complicated financial problems and for many, legal aid has been a vital tool. Cuts to legal aid have put more pressure on the supply of independent debt advice as people who were receiving legal aid now look elsewhere for help.

This presents a challenge for the debt advice sector because more people are seeking advice, but funding has effectively reduced, leaving the sector un-funded for this increased demand. As the UK’s largest free debt advice provider, StepChange Debt Charity will feature prominently among people’s choices.

As the Government cuts debt advice funding, it must help in other ways, especially as our research shows that Government creditors can be among the most unfair, particularly councils collecting Council Tax and HMRC or DWP chasing overpayments.

The Government also needs to improve the help available for people in financial difficulty. A statutory ‘breathing space’ scheme, with interest and charges frozen and enforcement action halted when someone takes debt advice, could help people get back on their feet quickly and avoid problem debt.

Overall, the Government must ensure that debt advice is adequately funded and suitably equipped to deal with demand so it is available to everyone who needs it.”

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Access to justice — plugging the gapsJulian Sayarer looks at the challenges facing the most vulnerable in society and speaks to those who are working tirelessly to drive change and improve access to justice.

Background

After six years of steady reductions to public spending, the UK legal aid system is an area where £350m in annual government cuts have had a particularly pronounced impact. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) has opened a new landscape in the provision of legal support to society’s most vulnerable. But with those in the industry still citing a climate of uncertainty, the changes are viewed in different ways.

In some respects, legal aid had a head start on other public services made to feel the pinch. Access to justice was always a core question in the legal profession, used to dealing with those in society’s margins long before austerity became a key word at the Treasury. Whether it was Law Centres, McKenzie Friends or pro bono advice, the legal profession already knew it had to reach the hard-to-reach, and had some idea of how to do so.

What does the future hold?

But does the current situation bode well or ill? Are pared back legal aid services the realisation of David Cameron’s old, benevolent vision for a ‘Big Society’ in which voluntary actors and small, reflexive organisations take on the roles of an oversized state? Or are we inheriting a sector in which cost-cutting establishes a business environment that is dominated by cottage industry law firms and large outsourcing corporations; circumstances where those most in need can slip through gaps defined by what work is least complex and most profitable?

‘With recent political upheaval, it is difficult to have a clear vision so far ahead,’ says Nimrod Ben Cnaan of the Law Centres Network (LCN), ‘The core offering of law centres — free legal services in social welfare law — will not change; this is a fundamental condition they must abide by.’

‘The way that some services will be delivered, however, is likely to diversify: I expect to see a growth and variation in pro bono and digitally-assisted services. Law centre services are also likely to become more multidisciplinary. I think more and more law centres would branch out into cross-over services, for example in conjunction with food banks or healthcare services.’

Examples of these developments are already starting to appear. The LCN ‘Living Rights’ project, which helps make EU citizens in the UK aware of their rights, are an example of how law centres are adapting to external events — in this case the EU referendum — to provide support that is responsive and relevant.

The role of technology

In keeping up with change, access to justice will no doubt be an area in which technology plays a part. On the south coast, Advice Brighton & Hove is taking advantage of remote working opportunities by offering online drop-ins and web-based assessments. Simon Whitwell, who runs the project with support from the Advice Service Transition Fund (in turn funded by a Big Lottery grant) says the funding structure cuts out some of the more prescriptive elements of legal aid.


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Closer to the cutting edge, Hackney Law Centre helped bring about a law ‘hack’ day, a 36-hour session in which coders from around the world worked on problems common in securing access to justice. A winning programme outline, submitted by a team from Freshfields Bruckhaus Deringer, sought to help firms retain the staggeringly high proportion of legal aid clients with whom contact is lost after a first meeting. Advances in IT systems can help organisations operating on shoestring budgets that can only afford rudimentary tech packages.

Human resources

Technology alone is unlikely to save us, however, especially in an environment where the crucial cost of human time is often lacking. While pro bono legal advice is developing a wider-ranging role, one no longer confined to initial advice, Ben Cnaan is diligent in pointing out that training a lawyer from a corporate background to help a legal aid client is no simple matter. It requires inputs of staff time from already stretched resources.

Emily MacLoud, of the Bar Pro Bono Unit (BPBU), is clear that ‘Pro Bono Legal Work is always only an adjunct to, and not a substitute for, a proper system of publicly funded legal services.’ Nobody, however, is under the illusion that things are standing still. BPBU client numbers increased by 30% year on year from 2012 to 2014 or since LASPO 2012 was implemented, and new processes to maximise the effectiveness of these engagements are to be implemented by January 2017.

A false economy?

In the background, meanwhile, problems mount. It is argued that cuts to supposedly less important civil claims have created a false economy where those issues — as they often do — deteriorate into funded but more complex (and costly) difficulties such as homelessness. Broader political questions once again come into play, and lawyers are frank in suggesting that former Chancellor George Osborne’s ‘Bedroom Tax’ (or ‘Spare Room Subsidy’) proliferated the need for quality legal advice on housing in particular.

There have been tentative efforts at trialling fees, payable by those receiving advice, but legal aid likely has to remain free at the point of access. This is precisely because those who need it are invariably in such a precarious situation that any costs are likely to deter them; thereby exacerbating the very problems adequate and timely legal aid can help rectify. Dignity and justice aside, a key consideration is whether, in cutting funding so heavily, might the government inadvertently be creating problems more substantial than any savings?

Among many questions, there can be no doubting that access to justice is an area getting the mixture of scrutiny and creative thinking it clearly requires. Legal professionals in the industry are hoping that this concentrated energy, invested on behalf of society’s most vulnerable, is met with a consistent and coherent policy response from the Ministry of Justice, who ought to be watching closely.

The views expressed are not necessarily those of the proprietor.

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Documents

A state of the nation report on legal aid · Views from the profession — Legal Aid Practitioner’s Group (LAPG) ... however, legal aid still existed in recognisable form — effectively