Espousing the benefits of legal aid has always been a passion of mine, but a recent spate of reporting in the Guardian has inspired me to write a post dedicated to the topic. The article on the history of legal aid is well worth a read. Legal aid is a topic rarely portrayed in a positive light in the press, but as the Secret Barrister so aptly (as ever) put it “without it, the rule of law collapses”.
The threshold for obtaining legal aid is currently shockingly low. In magistrates court cases, anyone in a household with a gross annual income of more than £12,475 will have a means assessment and only if they have an annual disposable income of less than £3,398 will they be entitled to legal aid. If their gross household income is above £22,325, legal aid is not available to them, with £37,500 the cut-off in the crown court. The figures have been frozen since 2010 and have not been updated in line with inflation.
This has led to a vast increase in the number of litigants in person within the courts. These are often vulnerable people experiencing a particularly difficult and emotional time in their lives, particularly in criminal, family, housing or education matters. Although, of course, there are those who choose to represent themselves, many would rather do anything but take part in court proceedings, particularly in a case they are personally invested in.
There has been a particular increase in the number of unrepresented defendants in the family courts; around 80% of cases now involve at least one side being unrepresented. As someone who deals with family cases, unfortunately, this statistic does not shock me. Legal aid has been virtually wiped out in private family law cases (those that don’t involve intervention from the local authority). This often leads, in my experience at least, to the unrepresented party being unwilling to make any concessions – lest they are seen as being weak – not realising that these hearings are designed for the parties to reach agreement between themselves.
People defending themselves in criminal proceedings has also become all too common. With so much on the line in a criminal trial, the intricacies of trial procedure and the nuances of offence and defence arguments can so easily escape a litigant in person, who often rely on the faith that they won’t be convicted of something they didn’t do. Those who do pay for representation and are then acquitted also face the ‘innocence tax’, as any defence costs expended are only paid back at legal aid rates (which will be much less than the amount that they would have paid for private representation). It was this issue that caused the conservative MP Nigel Evans to make a u-turn on his opinions about legal aid, following charges being dropped against him for rape and sexual assault. While he has been derided for only seeing the significance of the issue only when he was personally affected, it should be seen as positive that he has admitted his previous stance was wrong. Those in the public domain who support greater legal aid funding should be celebrated, no matter how they arrived at the viewpoint.
The problems with legal aid funding also affects those who carry out the legal work. As a young woman starting out as a lawyer, it is immensely concerning for me to read the statistics about the rate of drop off in those progressing within the profession. The nature of criminal work – it is unpredictable and requires working for long periods and at unsociable hours – make it difficult to combine it with a regular family life. There have been figures released recently, which highlighted the increasing average age of criminal practitioners, raising worries that providing criminal representation is becoming a dying profession. The lack of funding in many areas has meant that it is uneconomical to carry on doing certain types of work, leaving ‘advice deserts’ where the public have no access to legal advice at all.
The white paper preceding the Legal Aid and Advice Act 1949, which first introduced legal aid, said that its aim 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”. It seems simple enough. 70 years on, we need to ask ourselves whether we are still achieving these aims.