By: Emily Clothier
Lawyers across the country are up in arms over the volatile future of legal aid, and it is clear the sector is in crisis. Last month ahead of the autumn budget announcement from the Treasury, the All-Party Parliamentary Group (APPG) on Legal Aid published the Westminster Commission’s inquiry into the sustainability and recovery of the legal aid sector. This was vital as court backlogs caused by years of cuts and compounded by the pandemic, and policies narrowing the scope of who can apply for legal aid have been eroding the right to access to justice. Overburdened practitioners have been vocal to the government and on social media about the gravity of the situation. Many have questioned whether the recommendations founded by the APPG’s report go far enough and though they are deemed to be the bare minimum there is still pessimism around whether they can and will be put into effect. One thing that most agree on is that unless there is an overhaul of the sector, it is likely to be the final days of legal aid.
What is Legal Aid and why is it currently unsustainable?
Legal aid is publicly funded legal assistance that provides access to justice for those who are unable to pay for their own legal advice and representation in court. The provision of legal aid was created through the 1949 Legal Aid and Advice Act, much like the NHS which was also introduced in the aftermath of World War Two as part of Clement Attlee’s plan for social security. Legal aid is intended to protect the most vulnerable people in society, but its knock-on effects benefit others due to it enhancing social cohesion and supporting the delivery of a broad range of social policy objectives.
Access to Justice is Being Squandered
At the time of its conception, legal aid was available to 80% of the population and therefore had an almost universal reach. However, over the decades this has decreased significantly for several reasons and now sits at just 20%.[1]This narrowing of the scope of who has access to legal aid has been particularly prominent over the last decade and if we take the example of applications for legal assistance for cases heard before the magistrate’s court the difference over the last ten years is drastic. For example - in the fiscal year 2010-2011 there were 465,166 applications for legal aid funding for cases heard before the magistrate’s court, with 431,834 being granted.[2] By 2020-2021 the number of applications fell by 62% to just 174,026, with 167,155 grants. Although applications have more than halved over a decade, the chance of having your application approved has also increased by 4%, though this is due to the scope of those who can apply having significantly narrowed.
Lawyers are Leaving at an Alarming Rate
The APPG report comes at a time when lawyers are leaving the legal aid sector at an unprecedented rate with hundreds of barristers having quit since 2016 and a third of publicly funded barristers considering other career options over the coming years.[3] The report found that lawyers are “forced”[4] to leave the profession because working in the legal aid sector is not conducive to earning a decent wage and not compatible with a good work/life balance. This was a major concern highlighted by lawyers who took to social media to express their distress over the situation. Many lawyers feel disillusioned by a system that they entered with good intentions and a passion for helping people but are facing the reality that this is not something they can sustain.
A brief history of the descent into crisis
Not much changed in the first two decades since the introduction of legal aid and access to justice was limited. Legal practices were not well dispersed throughout the country and were primarily found in wealthy areas. This meant that people in need of legal assistance in disadvantaged areas were unlikely to be able to find a lawyer and therefore legal aid expenditure was relatively low. However, this all changed after the opening of North Kensington Law Centre in 1970[5], the first of its kind. Soon after legal centres appeared across the country and naturally the number of pro bono cases and dispensation of legal aid advice increased. Despite this, accessibility remained high and by the end of the decade 79% of the population still had access to legal aid, just one percent less than when it was introduced two decades prior.[6]
Although legal aid had up till this point remained a relatively quiet topic in politics, it became a subject of controversy in 1980 when expenditure reached its highest ever level at £342 million per year.[7] The new Conservative Thatcher government was adamant that tough budgetary policies across the board would help to ease tensions in the wake of the winter of discontent[8] because cuts to public spending meant a promise of lower taxes for individuals. Cuts to legal aid began in 1986, and while these were being introduced, applications for legal aid were at an all-time high due to an increase in social welfare claims, and a soar in asylum cases because of a tighter immigration policy. Simultaneously, publication of the “Green Papers” drove a wedge between solicitors and barristers due a dispute as to who should have rights of audience.[9] Thus, the foundations were laid for the problems seen today: inadequate funding for an overburdened system, and a division between barristers and solicitors.
Throughout the 80s and 90s expenditure continued to rise and more and more cuts were made. Tony Blair’s government attempted an overhaul of the sector in 1997 but the policies put into place in the late 1990s only served to drastically reduce the number of people eligible to apply for legal aid. A hard cap was introduced on civil legal aid expenditure[10] and by the mid-2000s only a quarter of the population were eligible which in turn resulted in most private firms discontinuing legal aid work.[11]
The final nail in the coffin was the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) which stripped down the scope to seven categories of cases - neonatal clinical negligence; child welfare; mental health law; environmental law; asylum; eviction; and most judicial reviews. To be eligible in one of these categories the applicant must have less than £8000 in capital assets, and either be on universal credit or earn less than £2657pcm and have less than £733 disposable income per month. On top of this, an application must have more than a 50% chance of success for it to be filed and the benefits of receiving the aid must outweigh the costs.[12] LASPO also saw a reduction of fees for lawyers, reportedly up to 80%[13] which has led lawyers to exhaustion from being overworked and underpaid. This has been exacerbated by the COVID-19 pandemic which has only increased the court backlogs and compounded strain on the sector, although lawyers have been quick to point out that the backlogs were not caused by COVID-19, though it has of course made the situation worse.
The APPG’s Report
The objectives of the inquiry were to assess the ability of practitioners to enter and remain in the legal aid profession and establish how many organisations are currently working in legal aid and their capacity to meet client needs. In doing so the goal was to forecast how many legal aid firms and not for profit organisations will be practicing legal aid in the future. The report is 177 pages long and it has been lauded as the most comprehensive look into the condition of legal aid that has been produced since conception of the service.[14]
The outlook of the report is bleak across the board. It highlights the unsustainability of a career in the field, recruitment issues that have led to an ageing demographic in the profession, and the inability to retain lawyers that has created a vacuum and put more burden on those who remained. From the perspective of legal aid as a service, the report is also scathing about the decimation of access to justice, particularly the detrimental effects of LASPO in drastically reducing the scope of who can apply for legal aid and diminishing the chances of applications being approved. The findings of the report are that the government has overlooked the necessity of legal aid and it is not given sufficient weight in budget planning and current policies reflect a misunderstanding of who needs legal aid what legal aid support is required to sustain access to justice - “the government must improve its understanding of the scale of legal need and of the consequences for individuals, society and public services of failing to meet legal need”[15].
So, what does the report recommend?
The issue of finances has been given significant attention as organisations, firms and individual practitioners have claimed that any reforms to legal aid would be impossible without an immediate influx of funds. One of the first recommendations suggested is a reform to legal aid fees aiming to reverse years of cuts. This includes reversing the 8.75% cuts to criminal legal aid fees and increasing fees across the board in line with inflation which would be overseen by an Independent Legal Aid Review Panel.
To counteract the stripping away of access to justice, the report advocates restoring aid for early legal advice to the pre-LASPO era and proposes expanding access to legal aid for those seeking protection from domestic abuse, private family law cases, and bereaved families for inquests, and all judicial review cases should be funded regardless of the outcome. The report recommends the Exceptional Case Funding Scheme and the Means Test be overhauled so that those without means still have access to justice.
In terms of recruitment and retention, the report endorses MoJ funded training and qualification placements within legal aid firms, NFPs, and publicly funded chambers with the aim of encouraging more to join the profession. The report does not claim to have all the answers and suggests further research into how to improve capacity of existing legal aid providers and the development of a mechanism to measure the need for legal aid.
Do the recommendations go far enough, and will they be put into place?
No matter what happens, the publication of the report is an impressive achievement that entailed hours of oral evidence sessions and analysing 2,300 responses from legal aid providers, former practitioners, and students who wish to work in the field. Stephen Davies, a criminal defence solicitor who has specialised in legal aid and access to justice, was one of the individuals who gave oral evidence used in the report and has been one of many lawyers vocal online about the dire situation of legal aid. Speaking to the Verdict, he said that “the only respite I have been afforded is the comfort that the APPG report - something that I helped with - is a report I am happy with from a lawyer's perspective. It sings the right tune.”[16] Although the report is a move in the right direction and shows solidarity with those who have been campaigning for reform, it is still considered by Davies as the ’bare minimum' and he has reservations about whether the recommendations will come into fruition. He suggests that it is ’arguably politically naive’ to ask for money from the Treasury.
Despite this, the autumn budget announced on the 27th of October has provided some optimism. The MoJ has increased the budget by £3.5 billion making a total budget of £11.5 billion in 2024-25.[17] £477 million has been allocated to addressing the criminal justice backlog, with £324 million allocated to tackling backlogs in civil, family and tribunal jurisdictions.[18] Law Society president Stephanie Boyce has expressed ”great relief that we learn that the UK government has listened to us and has pledged to invest in the sustainability of the civil legal aid market”[19]. Importantly, the government has vowed to expand the threshold of the means-tested legal aid which means that we could be seeing a wider scope of those who can apply for and be granted legal aid.
The main problem with the new budget announcement, however, is the focus on the pandemic and not the pre-existing systemic issues that the pandemic simply compounded. It was frustrating to see the Treasury make assurances that “the funding will ensure that the justice system is equipped to respond to the impact of COVID-19"[20]. This overlooks the APPG on Legal Aid report’s extensive coverage of the pre-pandemic challenges to the sector and anyone familiar with the history of legal aid knows that it was in crisis well before 2019. It feels like the government are sticking a plaster on a bullet wound.
[1] “Legal Aid: How Has It Changed in 70 Years?” (The GuardianDecember 26, 2018) <https://www.theguardian.com/law/2018/dec/26/legal-aid-how-has-it-changed-in-70-years> accessed October 31, 2021 [2] Justice Mof, “Legal Aid Statistics Quarterly: April to June 2021” (GOV.UKSeptember 30, 2021) <https://www.gov.uk/government/statistics/legal-aid-statistics-quarterly-april-to-june-2021> accessed October 31, 2021 [3] Slingo2020-07-17T09:54:00+01:00 J, “29% Of Legal Aid Barristers Could Leave Profession next Year, Says Bar Council” (Law GazetteJuly 17, 2020) <https://www.lawgazette.co.uk/news/29-of-legal-aid-barristers-could-leave-profession-next-year-says-bar-council/5105058.article> accessed October 31, 2021 [4] The Westminster Commission on Legal Aid, ‘Inquiry Into The Sustainability And Recovery Of The Legal Aid Sector’ (APPG on Legal Aid, October 2021) [103]. [5] “The Founding of the North Kensington Law Centre” (North Kensington Law CenreJuly 21, 2020) <https://nklc.org.uk/the-founding-of-the-north-kensington-law-centre/> accessed October 31, 2021 [6] “A Brief History of Legal Aid” (Legal CheekJanuary 19, 2021) <https://www.legalcheek.com/lc-journal-posts/a-brief-history-of-legal-aid/> accessed October 31, 2021. [7] Ibid. [8] Pym H, “Margaret Thatcher: How the Economy Changed” (BBC NewsApril 8, 2013) <https://www.bbc.co.uk/news/business-22073527> accessed October 31, 2021 [9] Zander M, “The Thatcher Government's Onslaught on the Lawyers: Who Won?” in The International Lawyer Vol. 24, No. 3 (Fall 1990), pp. 753-785 [10] “A Brief History of Legal Aid” (Legal CheekJanuary 19, 2021) <https://www.legalcheek.com/lc-journal-posts/a-brief-history-of-legal-aid/> accessed October 31, 2021. [11] “A Brief History of Legal Aid” (Legal CheekJanuary 19, 2021) <https://www.legalcheek.com/lc-journal-posts/a-brief-history-of-legal-aid/> accessed October 31, 2021. [12] “A Brief History of Legal Aid” (Legal CheekJanuary 19, 2021) <https://www.legalcheek.com/lc-journal-posts/a-brief-history-of-legal-aid/> accessed October 31, 2021. [13] “Guest Post: An Open Letter to the Criminal Bar Association, the South Eastern Circuit and the Bar Council” (The Secret BarristerNovember 20, 2018) <https://thesecretbarrister.com/2018/11/20/guest-post-an-open-letter-to-the-criminal-bar-association-the-south-eastern-circuit-and-the-bar-council/> accessed October 31, 2021 [14] “Parliamentary Commission Publishes Report Following Comprehensive Inquiry into the Condition of Legal Aid” (Parliamentary commission publishes report following comprehensive inquiry into the condition of legal aid | Electronic Immigration Network) <https://www.ein.org.uk/news/parliamentary-commission-publishes-report-following-comprehensive-inquiry-condition-legal-aid> accessed October 31, 2021 [15] The Westminster Commission on Legal Aid, ‘Inquiry Into The Sustainability And Recovery Of The Legal Aid Sector’ (APPG on Legal Aid, October 2021) [182]. [16] Stephen Davies, “personal conversation”, 25th October 2021. [17] “Budget Response: Justice System given Crucial Investment” (The Law Society) <https://www.lawsociety.org.uk/contact-or-visit-us/press-office/press-releases/budget-response-justice-system-given-crucial-investment> accessed October 31, 2021 [18] Ibid. [19] Ibid. [20] Hyde J, “Budget 21: Moj Set for Windfall with 4.1% Real Terms Increase by 2025” (Law GazetteOctober 27, 2021) <https://www.lawgazette.co.uk/news/budget-21-moj-set-for-windfall-with-41-real-terms-increase-by-2025/5110300.article> accessed October 31, 2021