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On 15 March 2022, Justice Secretary Dominic Raab announced long-awaited plans to reform the legal aid system. These plans come in response to the Government report on criminal legal aid curated by Sir Christopher Bellamy, published in 2021.
While the Government unveiled the proposals with fanfare and bold promises, the key issue is whether these plans go far enough to salvage a system that was already on its knees before the pandemic.
The legal profession doesn’t seem to think so, with barristers across the UK implementing a ‘no-returns’ policy on their work from 11 April 2022. This is often interpreted as barristers going on strike, but this is not the case – a ‘no-returns’ policy simply means that barristers will now refuse to take on caseloads from other barristers who are now unable to complete it due to current trials overrunning.
This may sound less radical than headlines of striking barristers, but this move should not be underestimated, as its knock-on effect on a system full of backlogs will accumulate exponentially. So, while this move is not solely in response to legal aid issues, it forms a major part of the dispute.
Legal aid – a thorny issue?
Perhaps it’s first important to contextualise the current state of the legal aid system with a discussion of its history. While systems of volunteers providing legal advice date back from the end of the 19th century, the first codified form of a legal aid system in the UK came about under the Atlee government through the Legal Aid and Advice Act (1949). Support was subject to a merits test and a sliding scale of contributions as a means test was applied, but it was available in all courts.
Overall, the aim of applying the system was “to provide legal advice for those of slender means and resources, so that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right; and to allow counsel and solicitors to be remunerated for their services” (as defined in a Government White Paper prior to the enactment of the 1949 Act).
It’s perhaps safe to say that the achievement of this aim has been tested over the intervening years. Ballooning costs of implementing and funding the system clashed with the struggles of the financial crash of 2008/9. This made the Legal Aid System a prime target of the austerity measures in the 2010s. The Legal Aid reforms stemming from the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 signified the start of many rounds of progressive cuts to legal aid. The legal aid budget in 2018/9 stood at £1.6 billion a year. In real terms, this is £950 million less than in 2010.
These are not just numbers – the effects of the cuts have long been felt by the people experiencing and working in the legal sphere. Legal aid is practically impossible to get in any court outside of the criminal justice system. Inside the criminal justice system, the story does not get much better, with the strictness of means tests rendering many people needing legal aid unable to access it.
Impact of legal aid cuts
This represents a huge threat to the integrity of the justice system and perpetuates cycles of crime as defendants are forced to turn to more illicit forms of funding and generally become further disillusioned with the justice system.
The impact of the cuts to legal aid is felt on the people requiring it as well as on a macro-level by the legal sector. Cuts in funding have driven many firms to abandon areas of practice previously funded by clients supported by legal aid. While the original desire to limit legal aid, funding was fuelled by images of greedy lawyers gaining at the expense of the taxpayer, this argument can scarcely be made in the current climate. The hours worked by barristers on legal aid funded cases often mean that the pay received per hour equals less than the minimum wage.
Combined with the long unfavourable hours, overburdened caseload and offensive subject matter of several cases, many legal professionals have either chosen to specialise in other areas of the law, have moved to practice overseas or have changed career entirely.
How do the 2022 reforms combat these issues?
The central proposal is an additional £350 million of funding for the criminal legal aid system each year, in line with the central recommendation of the Bellamy Report. This sounds like a lot of money and when compared to the £841 million total expenditure on criminal legal aid in 2019/20 this cash injection appears proportionate.
However, it must be remembered that this total expenditure is 43% lower in real terms compared to the £1.2 billion expenditure figure of 2004/5. It’s also more radically put into perspective when compared to the additional £1.1 billion yearly funding for the police announced in December 2021, which will only further increase the pressure on both the legal aid system and the justice system as a whole.
While the Government are happy to have headlines stating that the £135 million recommendation has been met by their reforms, they fail to also mention that the Bellamy Report emphasised that this figure is “the minimum necessary as the first step in nursing the system of criminal legal aid back to health after years of neglect”. While the impact of the newly announced cash injection will be unseen for months, if not years, the very Report the £135 million figure stems from seems to suggest this isn’t sufficient in the long term to stabilise the ailing system.
Outside of criminal legal aid, access to civil legal aid will also be widened through reforms to the means tests applicable in such cases. The income and capital thresholds applied in the means tests for legal aid will be raised, granting access to civil legal aid to an estimated two million more people. A similar mechanism is being applied to criminal legal aid, with the financial cap on eligibility for defendants in Crown Court cases to be removed.
However, details of this element of the civil legal aid reforms remain scarce at this stage. The current announcement touts’ specific examples, such as the removal of disputed jointly held assets in the assessment of wealth for the purposes of the means test in domestic abuse house ownership disputes. Yet between these specific examples and a simple adjustment of the means test thresholds, it’s hard to understand how these reforms are the “most ambitious reform” of the legal aid system in the UK in decades.
While the reforms to specific types of cases requiring legal funding – which also include legal aid funded representation for all under-18s and families disputing the withdrawal of their child’s life support – are welcome, they do little to tackle the systemic issues faced by the legal aid system and indeed the justice system.
The final major components of the reforms are designed to safeguard the future of the legal aid system, by encouraging more legal professionals into legal funded areas of practice, namely criminal, and through the creation of a new advisory board to report on the state of the criminal legal aid landscape moving forward. Again, details of these elements are few and far between, making it hard to critique at this stage.
This brings me to my final point – however good, bad or somewhere in-between you deem these reforms to be, you can go back to forgetting about them for a while yet. The recent announcement, despite the bold language, is little more than a series of proposals at this stage. They are more official than the proposals published in the Bellamy Report because they are now being issued by Government itself.
However, now begins a 12-week consultation period, which might explain why details of the proposals remain scarce. If these proposals are deemed to be the “most ambitious” in decades by the Government now, it’s unlikely that these consultations will result in the proposals becoming more so.
When it’s already possible to see flaws in the proposals, such as the fact that the £135 million cash injection is the “minimum” recommended by the Bellamy Report, this makes for a dangerous period of consultations in which proposals are only likely to be watered down, not strengthened.