3The damaging effects of legal aid reforms
Legal aid reform in England and Wales18
23.In 2010 the Coalition Government announced its intention to reduce the legal aid budget in England and Wales. It wished to discourage cases from coming to court when they might better be resolved by other means, such as mediation. The reform package had four key objectives:
- To discourage unnecessary and adversarial litigation at public expense;
- To target legal aid to those who need it most;
- To make significant savings to the cost of the scheme; and
- To deliver better overall value for money for the taxpayer.19
24.To these ends, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) made significant changes to civil legal aid. The legislation amended the financial eligibility criteria and took many areas of civil and family law out of scope. Previously, any type of case would be within scope for legal aid unless it was part of a (relatively short) list of exclusions.
25.The LASPO reforms left criminal legal aid largely untouched, although the subsequent “Transforming Legal Aid” programme went on to make significant changes to criminal defence policy.
Criminal Legal Aid
26.While the focus of our evidence has largely been on the impact of civil legal aid reforms, it must be noted that the situation facing law firms doing criminal legal aid work is now severe, as is currently very well publicised.20 While criminal legal aid has not been restricted in the same way as civil legal aid, reform of criminal legal aid contracts and significant fee reductions have meant that many law firms providing criminal legal aid have gone out of business or are at risk of doing so, or law firms have closed their department undertaking this work. Young Legal Aid Lawyers told us: ‘It is vital to the legitimacy of the criminal justice system that there is a sufficient number of lawyers with expertise and experience in criminal law to advise and represent defendants.’21 The Justice Select Committee has recently taken oral evidence on criminal legal aid from The Bar Council, the Criminal Bar Association, the Law Society and the Criminal Law Solicitors’ Association.22
Civil Legal Aid
27.The impact of LASPO on access to civil legal aid has been dramatic. It has resulted in large reductions in the number of legal help (initial advice and assistance) cases being funded, with the overall trend having then levelled out at around one-third of pre-LASPO levels.23 The number of civil representation certificates fell by a smaller proportion than legal help, before levelling out at around two-thirds of pre-LASPO levels, (see Graph 1).
Graph 1: Longer term trends in civil legal, legal help/controlled legal representation and civil representation, Jan–Mar 2010 to Jan–Mar 2017.24
Source: Legal Aid Agency - Ministry of Justice
28.The effects of LASPO on the ability of individuals to enforce their wider human rights have been widely commented upon by a range of select committees, regulatory bodies, trade unions, professional bodies and NGOs.25 In its 2016 ‘Cuts that Hurt’ report, Amnesty International UK concluded that access to justice has been significantly damaged, which, it argued, amounted to a regressive measure in human rights terms.26
29.LASPO has had deleterious and discriminatory effects on particular groups.27 For example, the revisions to the financial eligibility criteria for legal aid have had a disproportionate impact on various groups, including disabled people, women, children and migrants. These experiences are explored in more detail below.
30.The reforms have also made obtaining legal representation in order to access justice more difficult for many without the financial means to pay for it.28 This is acknowledged by senior judicial figures. In his 2015 annual report to Parliament, the then Lord Chief Justice, Lord Thomas of Cwmgiedd wrote that “our justice system has become unaffordable to most.”29
Financial eligibility for legal aid
31.Under LASPO, the financial eligibility criteria for civil legal aid are more restrictive than previously. The levels of income-based contributions have been increased to a maximum of approximately 30% of monthly disposable income and all applicants are now subject to means testing regarding their capital. This means that those on benefits, such as income support or universal credit, are now only passported in respect of the income part of the means test. Nicola Mackintosh QC (Hon), Sole Principal at Mackintosh Law; told us:
“In the welfare benefits system, when the state means tests people it ignores the value of their dwelling house, recognising that they have to live somewhere, but the legal aid system takes that into account and presupposes that they can raise money on the value of that property to pay privately for their legal advice. That is not realistic. It is not living in the real world.”30
32.Rights of Women cited this quotation from a woman responding to a survey about legal aid they carried out in 2014/15:
“I earn a low income, yet I’ve been assessed as having too much disposable income [ … ] and when you aren’t eligible you’re expected to pay full solicitors costs - there’s no help anywhere in between. I’ve had to face my violent ex-partner in court twice now, and will have to continue to do so as I simply cannot afford costs “31
33.The revised financial eligibility criteria have impacted disproportionately on disabled people. For many disabled people, moving house to release equity to pay for legal costs is not an option due to the chronic shortage of accessible housing, and in any event not within the three-month timeframe for taking a judicial review. Inclusion London told us that they are aware of numerous cases where Deaf and Disabled people have not been able to obtain representation to take legal action to enforce their human rights due to being ineligible for legal aid following these changes.32
34.The Supreme Court ruling in the Unison case is instructive. In the judgment their Lordships held that in order for employment tribunal fees to be lawful, they would have had to be set at a level that everyone can afford, taking into account the availability of full or partial remission. They also specified that fees must be affordable in the sense that they can reasonably be afforded and that this meant individuals should be able to afford them without foregoing an acceptable standard of living. Nimrod Ben-Cnaan, Head of Policy and Profile at Law Centres Network told us that the case had “reasserted not just the principle but the practice of assessing affordability of access to justice as a practical test of whether people, on legal aid or not, can assert their rights.”33
35.The Ministry of Justice (MoJ) does not routinely estimate the percentage of the population eligible for civil legal aid. However, they did attempt to do so for a single year, 2015; estimating that around 25% of the population were eligible for free or contributory legal aid.34 Previous estimates suggest this figure has dropped from 52% in 1998, and 29% in 2007.35 By comparison, in Scotland 70% of the population are eligible for civil legal aid.36
36.Many of those who contributed written submissions to the inquiry asserted that this reduction in the coverage of legal aid in England and Wales over a long period of time has left a large proportion of the population unable to afford to access justice. Young Legal Aid Lawyers said:
“The means test for civil legal aid does not bear a direct relationship to applicants’ actual ability to meet the costs of privately obtaining legal advice and representation. In reality, the result of the current financial eligibility criteria is that almost anyone who is not in receipt of means-tested state benefits will be financially ineligible for civil legal aid. In our view this represents a widespread denial of justice to the people of this country.”37
37.When we put it to the Lord Chancellor that the majority of the population could neither afford to access legal assistance nor obtain legal aid in the event they needed to enforce their human rights, he responded that the review of LASPO that his Ministry is currently undertaking will look at the availability of legal aid and the impact it is having on individuals. He also noted that the Government still spends £1.6 billion a year on legal aid.
38.The ongoing Government review of the legal aid reforms must look again at the financial eligibility criteria with a view to widening access to a larger proportion of the population. At the least, it should consider extending the passporting of those on welfare benefits so that the part of the means test focussing on capital is aligned with welfare benefits criteria, thus making it fairer and more administratively expedient.
Exceptional Case Funding
39.Section 10 of LASPO provides for funding when the Director of Legal Aid casework makes a determination that it is an exceptional case. Exceptional Case Funding (ECF) should be available in cases engaging human rights where a failure to provide funding would mean that an individual’s human rights are not enforced and there is no effective remedy. This is a vital safety net for an individual’s ability to enforce their rights.
40.During the passage of the LASPO Bill through Parliament, the Government originally projected that 5,000–7,000 such exceptional cases would be funded per year.38 In reality, only 954 people benefited from the scheme in 2017.39 Initially, applications and grant rates were even lower, but they rose following amendments to the Lord Chancellor’s Guidance on Exceptional Funding (Non-Inquests) following a decision in the Court of Appeal that found the previous guidance to be incompatible with Articles 6(1) and 8 ECHR.40
41.Numerous submissions to this inquiry contend that despite these improvements ECF remains inaccessible in practice for those who need it, particularly those who are trying to apply without the assistance of a legal aid provider. This leaves them unable to secure their fundamental rights.41
42.One of the main problems is the complexity of the system. The Legal Aid Agency claims that individuals can apply directly for ECF without the assistance of a solicitor, but those submitting evidence to the inquiry, such as the Public Law Project, told us that the forms are extremely complex and almost impossible for most individuals to complete themselves:
“None of these forms is designed for completion by a person who is not familiar with the legal aid scheme. They are all designed to be completed by legal aid providers who have detailed knowledge of the legal aid contract and relevant Regulations.”42
43.A further barrier to take-up is that legal aid providers are not paid for compiling, completing and submitting applications on behalf of potential clients. Richard Miller from the Law Society told us:
“Lawyers say that it takes a good three to four hours minimum to complete the application forms here. That is work for which they are not entitled to be paid. Most lawyers feel that they cannot do this work. They cannot afford to do those many hours of unpaid work.”43
44.The Exceptional Case Funding scheme was expected to support up to 7,000 cases per year, whereas in reality it only funds hundreds of cases. Urgent reform is needed to ensure that human rights cases are properly supported and therefore to ensure meaningful and effective access to justice. The LASPO review should consider how to remove barriers to accessing Exceptional Case Funding where this is needed to secure effective enforcement of human rights. This should include ensuring simplification of the application process, and access to legal advice and assistance (legally aid funded where necessary) to navigate complex legal process forms.
Difficulties arising from the increase of Litigants in Person
45.Since LASPO, there has been a significant increase in the number of litigants in person (LiPs), individuals representing themselves in courts and tribunals.44 There have always been some people who have chosen to represent themselves, but since LASPO, many people have had no choice because they have found themselves ineligible for legal aid and unable to afford a lawyer. Those representing themselves face a complex legal system which they do not have the expertise to navigate effectively. These challenges are particularly acute if an individual is seeking to assert their human rights in a case where the State, with full legal representation, is their opponent. Given that human rights protect the individual from abuses of state power, this could pose a significant problem.45
46.Evidence suggested that the increase in LiPS has led to increased costs elsewhere in the system. For example, the Law Society told us that judges have estimated cases involving LiPs take 50% longer on average.46 This entails increased costs to the Court system. When we asked the Secretary of State for Justice, Rt Hon David Gauke MP, about this, he pointed to measures the Government has sought to put in place to support LiPs, but also acknowledged that the effects of the increase in LiP numbers should be considered by the LASPO review:
“One of the points that is often made is that there are costs that occur somewhere else in the system. Our challenge in engaging in the LASPO review is to look at the evidence on that and so on. It is perfectly fair to ask whether a false economy is being made here. That should be led by the evidence.”47
47.We welcome the fact that the Government is considering the impact of the increased number of Litigants in Person in the LASPO review and the impact that this is having on access to justice in those individual cases, but also the burdens on the justice system more generally. We recommend that the review looks specifically at what options might exist to ensure that the Courts are properly supported so that justice may be served in such cases, including whether better use could be made of an amicus curiae system to assist the court or tribunal and unrepresented individuals.
48.There are specific concerns about litigants in person in domestic abuse cases, where victims may be cross-examined by their abusers. In the first three quarters of 2017, 27% of applicants in domestic violence cases were unrepresented, compared with 16% in 2012.48 Before the 2017 General Election, the Government committed to ban this practice, and legislative measures to prevent it are currently subject to consultation.49 We will monitor progress on this issue.
Mandatory Telephone Gateway
49.LASPO introduced a telephone gateway for initial advice on debt, discrimination and education law. For those seeking advice in these areas, it is mandatory to go through this service to access legal aid. There is concern that this has created barriers for people for whom telephone advice is not appropriate, including those with physical and mental health conditions and those whose first language is not English.50There are also broader concerns about whether the gateway is delivering adequate access to legal advice. Since it was introduced, both the total number of cases received and the number of clients referred for face-to-face advice have declined. In 2016/17, no discrimination cases were referred for face-to-face advice.51
50.In February 2018, the Government announced that it had cancelled the procurement process for the delivery of gateway services for discrimination and education law from September 2018, due to a lack of tenders.52 In light of this, it is unclear how legal aid will continue to be made available in discrimination and education cases. In evidence, the Lord Chancellor told us that the Ministry is engaging with the Department for Education on this particular point.53
51.The Government must urgently resolve the question of how legal aid for discrimination and education matters will be made available from September 2018. We are concerned by the fall in numbers of those using the Mandatory Telephone Gateway, and those who are referred for face-to-face advice. The LASPO review must consider whether the Gateway is effective, and whether it is sufficiently accessible and readily navigable by all.
Damaging impact of LASPO on human rights
Article 8 - the right to a private and family life
Immigration Law
52.Migrants were frequently singled out in written submissions as a group which had had their ability to enforce their human rights restricted by LASPO.54 Non-asylum immigration cases were taken out of scope of legal aid, subject to narrow exceptions for some applications by victims of domestic violence, and of trafficking and modern slavery. Applications for leave to enter or remain based on an individual’s right to private and family life under Article 8 of the ECHR were amongst those areas taken out of scope, even though these too are human rights issues.
53.We received striking examples of how migrant children are affected. Kamena Dorling from Coram Children’s Legal Centre told us that without access to legal aid to regularise their status when they have a right to stay in the UK, these children and their families are at risk of breaches of their human rights in other areas of their lives:
“In the current legal framework, which we have in part because of the hostile environment, if you do not have papers, in short, you can find yourself destitute, homeless, unable to access healthcare and not allowed to work. A whole range of other human rights implications stem from the immigration side of things.”55
54.Evidence from the Public Law Project (PLP) highlights statistics which show that in the majority (over 70%) of cases where ECF applications are made for immigration matters, the application is granted. These will mainly be cases based on private and family life rights. PLP believes that these figures:
“[ … ] reveal a strong case for reinstating legal aid for Article 8 immigration cases to ensure effective participation in proceedings which determine individuals’ rights to live with their family or remain in their communities. This case for reinstating legal aid is even stronger for unaccompanied and separated children making immigration applications.”56
55.We recommend that the Government consider whether immigration cases engaging the Article 8 right to private and family life be brought within the scope of civil legal aid, where they would be available on the means and merits test basis.
Family Law
56.LASPO largely removed private family law from the scope of legal aid provision, although it was retained in some limited circumstances, for example for children in family proceedings, for cases involving allegations of child abuse and for victims of domestic violence who could meet the evidence threshold set in regulations.
57.The removal of private family law from the scope of legal aid has had a very significant impact on children and their families. Article 12 of the UN Convention on the Rights of the Child (UNCRC) provides that children should have ‘the opportunity to be heard in any judicial and administrative proceedings affecting [them], either directly or through a representative’. The UNCRC also states that the best interests of children should be the primary consideration in all decisions affecting them (Article 3 (1)). Without access to legal advice and assistance these rights cannot be enforced effectively. Kamena Dorling from Coram Children’s Legal Centre told us that a lack of legal advice was limiting the ability to protect children’s rights:
“In private family law, in an acrimonious divorce case for example, [ … ] [t]he issues can be where [a child is] going to live, what support they are going to get and what contact they are going to have with other members of their family. At the moment, there is very limited legal advice and support for families going through that process in order to ensure that the best interests of the child are considered all the way through so that the case does not end up in court where what a judge can do is very limited; they cannot create evidence if it has not been put in front of them. That is a clear example in the family law space [ … ] where children’s rights are not being sufficiently considered.”57
58.Whilst domestic violence remains in scope following LASPO, there has nevertheless been a reduction in applications for legal aid in this area. Between 2011–12 and 2015–16, applications relating to domestic violence decreased by 16%, and applications granted fell by 17%.58
59.One probable reason for this drop is the evidential requirements introduced under LASPO to establish domestic violence in order to access legal aid. Following a legal challenge,59 the Government made various amendments to these evidential requirements for access to legal aid funding, expanding the list of acceptable evidence of domestic violence and removing time limits on such evidence.60 However, in its submission to this inquiry, Rights of Women raised concerns about the effectiveness of these changes. They drew attention to the situation of migrant women survivors of domestic violence and feared that some categories of women could face reduced access to justice under the amended regulations.61
60.The LASPO review must consider whether further amendments are necessary to evidential requirements for access to legal aid funding to ensure that women who have experienced domestic violence are able to access legal aid.
61.The number of applications being made for ECF in private family cases62 remains troublingly low despite the very serious human rights issues which are often at stake, such as contact between parents and children or where a child should live, and the obvious impact on families’ human rights. The Ministry of Justice’s review of LASPO must examine the reasons for the low uptake of ECF in private family law cases, the impact of this on families’ abilities to secure effective access to justice, and whether the Courts are able to act consistently in the best interest of children, when individuals are not represented.
Article 2 - the right to life
Inquests
62.During our inquiry, we were privileged to hear at first-hand, moving evidence from bereaved families about the difficulties they faced in enforcing their human rights in the inquest process. One of the chief causes of these difficulties was the lack of equal access to legal advice and assistance.
63.Article 2 of the ECHR (the right to life) contains a ‘procedural obligation’ which requires the State to initiate an effective public investigation by an independent official body into any death the circumstances of which give ground for suspicion that the State may have breached a substantive obligation imposed by Article 2.63 In England and Wales, the coroner’s inquest is how the state discharges its procedural obligation. An Article 2 inquest has certain minimum requirements for the investigation, one of which is that the next-of-kin of the deceased must be involved in the inquiry to the extent necessary to safeguard their legitimate interests.64
64.In limited circumstances, legal help is still available to bereaved family members in the run-up to an inquest but save in “exceptional” cases, the availability of publicly funded legal services does not extend to cover advocacy at the inquest or at pre-inquest review hearings.
65.The witnesses were unanimous in expressing the view that the way inquests are run puts families at a serious disadvantage as compared with interested persons from the commercial sector or other business interests and most notably from state bodies who have legal representation, the last at public expense.
66.The Ministry of Justice’s position was that funding for representation at an inquest is not generally available for families because an inquest is an inquisitorial process, rather than an adversarial one. It was clear from our evidence that bereaved families do not experience them in this way. Our witnesses had been subject to aggressive questioning from barristers representing public bodies (such as the NHS), often facing multiple lawyers from many public bodies on the other side, or left out of significant steps in the process due to their lack of legal representation, where the other side’s lawyers took part in key coronial decisions as to the way the inquest would be run and what it would focus on. Richard Huggins and Sara Ryan, Connor Sparrowhawk’s parents, described their experiences:
Richard Huggins: “Without [support from INQUEST and lawyers acting pro-bono] we would have been totally ill equipped and unprepared. We would have taken at face value the statement that we did not need legal representation. They had seven barristers in the court for two weeks.”65
[ … ]
Sara Ryan: “As for the uneven playing field, we were not even on a field. There was no field for us. They were already on it scoring goals before we got there.”66
67.This powerful evidence suggests that the justification that legal aid-funded representation is not generally required because inquests are an inquisitorial process is invalid. In March 2018, we wrote to the Lord Chancellor putting this to him and in his response, he told us:
“An inquest should be an inquisitorial process but, as you note, this is not always the case. We are therefore also considering how we can make inquests less adversarial and reduce the number of lawyers who attend without compromising fairness alongside other measures to make inquests more sympathetic to the needs of bereaved people [ … ]”67
68.Exceptional Case Funding is available to fund advocacy at an inquest:
a)Where representation is necessary for an effective investigation into the death, as required by Article 2 of the European Convention on Human Rights (ECHR)—although often this is determined too late to give meaningful access to legal advice at the crucial stages of an inquest;68
b)Where the Director of Legal Aid Casework has made a wider public interest determination in relation to the individual applicant and the inquest.69
69.In its written evidence to this inquiry, INQUEST notes that in its experience:
“Exceptional Case Funding [ … ] is onerous, intrusive and can take many months. In most cases it is not only the only individual legal aid applicant who has their financial means assessed, but also all other close family members and often their partners. This can create significant family tensions as well as making the relationship with the lawyer difficult or requiring pro bono work in the interim period before the awarding of any funding which is not backdated.
This can be a very stressful period for the family who are left in limbo not knowing whether they will be granted legal aid or will have to try to raise the funds themselves, or what steps can or cannot be taken on their behalf.”70
70.It is important to note that during this initial period, when bereaved families are struggling to understand the process or access support, crucial decisions can be taken affecting the running of the entire coronial process. Therefore, if families are unrepresented during this period, because ECF funding is still being assessed, this means that the family is excluded from decision-making during that period and therefore there can be no meaningful equality of arms. This significantly questions whether the procedural requirements of Article 2 ECHR are being met in such instances.
71.A number of high profile reports published in 2017 have all concluded that bereaved families should be given non-means tested funding for legal representation at inquests.71 Louise and Simon Rowland put the case in these words in their written submission to the inquiry:
“Non-means tested legal aid is an absolute necessity to ensure a fair system. All families want is answers when something like this happens and at a very basic level, the state needs there to be proper justice. This simply cannot be done without the family being properly represented. Coronial law is very specialised, there is no way we can expect a family, even a legally trained family member, to represent themselves at an inquest.”72
72.On 13 June 2018, Lucy Frazer QC MP, Parliamentary Under-Secretary of State for Justice, wrote to inform us that the Government had made changes to the Exceptional Funding Guidance for Inquests to ensure a clear starting presumption that legal aid should be awarded for representation of the bereaved at an inquest following the non-natural death or suicide of a person detained.73 We welcome this as a positive step forward.
73.This letter also goes on to note that the Ministry of Justice is currently reviewing the provision of legal aid for inquests as part of the wider review of legal aid reforms and that a report is expected later this year. In a previous letter of 26 March, the Lord Chancellor assured us that the provision of publicly funded representation in cases where the state is represented will be considered as part of this.74
74.While inquests are theoretically inquisitorial, in practice they often have a more adversarial nature. It is extremely difficult for families of the deceased to participate effectively without legal representation, leading to inequality of arms and consequent concerns about fairness, access to justice and compliance with the procedural requirements of Article 2 ECHR. If inquests are to remain inquisitorial, families must be given non-means tested funding for legal representation at inquests where the state has separate representation for one or more interested persons. Consideration should be given as to funding models that might be employed, such as whether there should be a requirement on public bodies to pay a proportion of their own legal costs to fund families’ representation.
Judicial Review
75.Judicial review is the primary means by which individuals may challenge the lawfulness of public decision making. In Liberty’s assessment, it has “time and time again shown itself to be a vital component to [sic] ensuring respect for human rights.”75
76.In its 2013 consultation paper, ‘Transforming legal aid: delivering a more credible and efficient system’ the Government set out figures for 2011–12 which showed that there were 4,074 cases where legal aid was granted for an actual or prospective judicial review. Of these, over 500 cases funded by legal aid did not settle and were not granted permission, so ended without benefit to the client but with public money expended on the case. The consultation paper contended that this demonstrated that there were a “substantial number of cases which benefit from legal aid, but are found by the Court to be “unarguable”.”76
77.Those submitting written evidence to the inquiry voiced concern that the reforms introduced to reduce the number of unmeritorious cases have reduced access to judicial review.77 Judicial review legal aid work has halved from 6,294 grants in the year before the cuts (2012–13) to 3,018 grants in the last full year (2016–17). These cuts therefore have an impact vastly beyond the small number of cases that did not receive permission. So very clearly these changes are cutting into cases where there is a valid human rights concern and where access to justice is required. Liberty told us:
“Further changes mean legal aid has been refused for cases where the chances of success are assessed as borderline. This means that cases that might break new legal ground are less likely to be brought through legal aid. This risks insulating the state from legitimate challenges, including to measures which threaten basic rights and freedoms.”78
78.Given the link between judicial review and human rights arguments, this trend and these changes are all the more concerning from the perspective of enforcing human rights.
‘Legal aid deserts’ and the threat to the future of legal aid provision
79.Since LASPO came into force, there has been a very significant reduction in legal aid providers.79
Graph 2: Number of Solicitor firm provider offices by category of civil legal aid work, Apr-Jun 2013 to Jan-Mar 2017.80
Source: Legal Aid Agency - Ministry of Justice
Graph 3: Number of Not-for-Profit provider offices by category of civil legal aid work, Apr-Jun 2013 to Jan-Mar 2017.81
Source: Legal Aid Agency - Ministry of Justice
80.The fall in legal aid supply over the past three decades has led to the phenomenon of so-called ‘legal aid deserts’- geographical areas where legal aid advice is now unavailable in certain areas of law. In her oral evidence, Rachel Logan from Amnesty International UK gave these examples:
“[ … ] Take Devon and Cornwall. There is one small legal aid provider in Plymouth, as far as I understand it, for immigration law. It therefore deals with anyone in the entire region who has problems arising within that sphere, and it is an area of dispersal; it is an area where people are sent specifically who are trying to regularise their status or who have immigration questions. Similarly, in Oxford, as far as I understand it, there is only one firm, providing private family law.”82
81.The direct effects of the LASPO reforms have been compounded by the fact that they coincided with a significant reduction in civil legal aid fees. The National Audit Office calculated in 2014 that this has amounted to a 34% real-terms reduction over a 13-year period between 1998–99 and 2011.83 There are many examples of solicitors’ firms ceasing (generally with reluctance) to undertake legal aid work in order to keep the firm in business. The Law Centres Network told us that legal aid work is barely viable for non-commercial providers (who cannot subsidise it).84 And for many small or medium sized firms the level of subsidy now required is unaffordable.
82.In addition to the financial pressures, Steve Hynes from the Legal Action Group highlighted excessive bureaucracy as a further reason for providers withdrawing from legal aid work:
“CCMS—the client and cost management system—is an absolute disaster from the lawyer’s point of view; [ … ] This is the system that is used to administer legal aid. It is designed from the Legal Aid Agency’s point of view. In no way is it an effective system, and unfortunately a lot of lawyers are just walking away from legal aid because they do not want to be bothered with the bureaucracy; they will go off and do private work.”85
83.We share the concerns of many of our witnesses that the pressures caused by the reforms to legal aid are having a severe impact on legal aid professionals, damaging morale and undermining the legal profession’s ability to undertake legal aid work, leading to consequent grave concerns for access to justice, the rule of law and enforcement of human rights in the UK.
18 Legal aid is a devolved matter in Scotland and Northern Ireland and hence we have not focused on it in this chapter.
19 Ministry of Justice, Reform of Legal Aid in England and Wales: the Government Response, CM8072, June 2011
20 For example: Criminal defence solicitors may be extinct in five years, says Law Society, The Guardian, 17 April 2018
22 Oral evidence taken before the Justice Select Committee evidence session on 1 May 2018, HC (2017–19) 859
23 Civil legal aid can be broadly categorised into legal help and civil representation. The first point of contact for a client of civil legal aid is usually legal help, which covers help via telephone, face-to-face with a solicitor or at Not-for-Profit centres. Many of these matters will then extend into civil representation with full investigations undertaken or in-court representation given.
25 Final Report of the Bach Commission, The Fabian Society (September 2017); The Law Society Access Denied? LASPO four years on: a Law Society review (June 2017); LAG – Justice in Free Fall : A report on the decline in civil legal aid in England and Wales (December 2016); Amnesty International UK: Cuts that hurt: The impact of legal aid cuts in England on access to justice (October 2016); TUC Justice denied - impacts of the government’s reforms to legal aid and court services on access to justice (October 2016); Equality and Human Rights Commission published, Equality, human rights and access to civil law justice: a literature review. (October 2015); Justice Select Committee Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 Eighth Report of Session 2014–15 (March 2015); National Audit Office, Implementing reforms to civil legal aid (November 2014) and The Bar Council The Legal Aid, Sentencing and Punishment of Offenders Act (2012): One Year On (September 2014)
29 Judiciary of England and Wales, The Lord Chief Justice’s Report 2015, 2016, p 5
34 This is based on outputs from DWP, informed by the Family Resources Survey (FRS) and DWP’s Policy Simulation Model (PSM), which attempts to take into account the impact of various earnings / tax / welfare policy decisions. The modelling involves a number of assumptions, which bring uncertainty to the estimate.
35 It is estimated that this figure increased to 36% in 2009 before decreasing again. HC Deb, 20 February 2008, cols 779-780W [Commons written answer], and Review of Civil Litigation Costs, Review of Civil Litigation Costs: Final Report, 2009, p 68, para 3.1 and footnote 8
36 Rethinking Legal Aid, An Independent Strategic Review, February 2018
38 National Audit Office, Ministry of Justice and Legal Aid Agency, Implementing reforms to civil legal aid, HC 784, November 2014
39 Ministry of Justice, Legal Aid Agency, Legal Aid Statistics in England and Wales, January to March 2017, 29 June 2017
40 In the case of R (Gudanaviciene & ors) v The Director of Legal Aid Casework and The Lord Chancellor [2014] EWCA Civ 1622
48 Ministry of Justice (2017), Family court statistics quarterly, July to September 2017, table 11: legal representation status of applicants and respondents in cases with at least one hearing [accessed: 16 January 2018]. Note that the total number of domestic violence cases in family courts increased significantly over this period, from 8,009 in the first three quarters of 2012 to 12,040 for the same period in 2017.
49 HM Government, Transforming the Response to Domestic Abuse
50 Law Centres Network (AET0035), Legal Aid Practitioners Group (LAPG) (AET0021), Equality and Human Rights Commission (AET0037), Inclusion London (AET0025)
51 HC Deb, 7 November 2017, c 111873W [Commons written answer] [accessed: 2 February 2018]. The total number of cases received by the gateway service fell from 53,479 in 2013/14 to 30,370 in 2016/17; the total number of clients referred for face-to-face advice fell from 182 to 56 over the same period.
52 Gov.UK, Civil news: cancellation of Civil Legal Advice procurement, 5 February 2018
54 Public Law Project (AET0022), Migrants’ Rights Network (AET0026), Coram Children’s Legal Centre (AET0019)
59 R (on the application of Rights of Women) v Lord Chancellor and another [2016] All ER (D) 177 (Feb)
61 Rights of Women (AET0023). The 2017 regulations enable a victim to provide a letter from the Home Office confirming that they have been granted leave to remain in the UK as a victim of domestic violence. However, the leave to remain must have been granted under paragraph 289B of the Immigration Rules a provision that only applied to applications prior to July 2012, so women whose leave was granted after that date would be denied legal aid for family cases simply because their leave to remain fell under a different provision.
62 Private family law cases are those brought by private individuals, generally in connection with divorce or the parents’ separation.
63 McCann v United Kingdom (1995) 21 EHRR 97, para 161
64 See Jordan v United Kingdom (2001) 37 EHRR 52, para 102, R (Amin) v. Home Secretary (2004) 1 AC 653 and Paul and Audrey Edwards v. the United Kingdom 14 March.2002 (Application No. 46477/99)
67 Letter from Rt Hon David Gauke MP, Secretary of State and Lord Chancellor, to Rt Hon Harriet Harman MP, Chair of the Joint Committee on Human Rights, regarding JCHR inquiry into Enforcement Rights, dated 26 March 2018
68 Legal Aid, Sentencing and Punishment of Offenders Act 2012, section 10 (2) and (3)
69 Legal Aid, Sentencing and Punishment of Offenders Act 2012, section 10 (4)
71 Chief Coroner, (2017) Report of the Chief Coroner to the Lord Chancellor. Fourth Annual Report 2016–2017, Angiolini, E. (2017) Report of the independent review of deaths and serious incidents in police custody, Jones, J. (2017) ‘The patronising disposition of unaccountable power’: A report to ensure the pain and suffering of the Hillsborough families is not repeated
73 Letter from Rt Hon Lucy Frazer QC MP, Parliamentary Under Secretary of State for Justice, to Chair, regarding changes to the Lord Chancellor’s exceptional funding guidance for inquests, dated 13 June 2018
74 Letter from Rt Hon David Gauke MP, to Chair, regarding JCHR inquiry into Enforcement Rights, dated 26 March 2018
76 Ministry of Justice, Transforming legal aid: delivering a more credible and efficient system, Consultation Paper CP14/2013
79 Ministry of Justice, Legal Aid Agency, Legal Aid Statistics in England and Wales, January to March 2017, 29 June 2017
80 Ministry of Justice, Legal Aid Agency, Legal Aid Statistics in England and Wales, January to March 2017, 29 June 2017
81 Ministry of Justice, Legal Aid Agency, Legal Aid Statistics in England and Wales, January to March 2017, 29 June 2017
83 National Audit Office, Implementing Reforms to Civil Legal Aid, November 2014, p 33
Published: 19 July 2018