updated on 09 December 2014
Sweeping rule changes and government funding cuts have plunged the legal aid sector into a state of tumultuous upheaval in recent years and, even following a High Court ruling that some of the changes are unlawful, the situation shows no signs of abating. We spoke to professionals on the front line to find out more.
Legal aid is a vital sector of the legal profession that provides representation and access to justice to those who cannot afford to pay for it - the same people who, through no coincidence at all, are also the most vulnerable to abuse from people and organisations more powerful than them. Unfortunately, the challenges currently facing legal aid practitioners are considerable, to put it mildly.
Between 2006 and 2009, legal aid was subjected to a new fixed-fee regime by the government. This was followed in 2011 by a 10% cut in fee rates across all legal aid services. On 1 April 2013 the cuts imposed by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 came into effect with the aim of cutting the legal aid budget by £350 million - mainly in the areas of family, immigration, welfare benefits, employment and clinical negligence - despite widespread opposition from many in the legal profession, organisations including the Law Society and the House of Lords. LASPO has ensured that clients being funded through legal aid face an uneven playing field when going up against more wealthy individuals and organisations able to spend more on fees and expert evidence, creating a legitimate concern that many cases in the United Kingdom can now be influenced by the parties' bank balances, as well as the relevant facts. It has also created a punishingly complex system for legal aid lawyers, who are finding it more difficult than ever to open and pursue cases that were previously eligible for legal aid funding.
Following LASPO, the government consulted over a new set of drastic proposals aimed at cutting a further £220 million from the civil and criminal legal aid budget. The new plans initially proposed to introduce price competitive tendering (PCT) whereby legal aid contracts would be sold to the lowest bidders and clients would be denied the right to choose their solicitors, with haulage magnate Eddie Stobart even mooted as a possible provider (no doubt for its expertise and commitment to social justice and not a desire to profit from exploiting the vulnerable with substandard legal services on the cheap). Thankfully, this disastrous plan was abandoned, but the proposals still included reducing the availability of legal aid to immigrants in detention and UK prisoners who may have been subject to abuses of power, as well as the introduction of stringent income and residence tests intended to prevent many people, especially immigrants, from being protected by UK law on the basis of their nationality and economic means. Thankfully for the justice system, the proposed residence test has since been ruled “discriminatory and unlawful” by the High Court; a decision which the Ministry of Justice has announced its intention to appeal (although no date has yet been set for this).
The High Court also threw the government’s proposals to cut a further £220 million from criminal legal aid into confusion, after ruling in September that the consultation to cut contracts for duty solicitor work in police stations and magistrates’ courts from 1,600 to 525 was so “unfair as to result in illegality”. However, despite the High Court telling the justice secretary, Chris Grayling, to abandon the plan and run the consultation again, the government merely said that it would consider the ruling as it continued with its cost-cutting plans, later confirming a tiny concession in its revised to plan to cut two fewer duty solicitor contracts than it originally intended, from 1,600 to 527. The plan to slash contracts for on-call legal aid criminal solicitors by two- thirds, potentially depriving the protection of UK law to many members of the public who are victims of crime, is therefore still very much on course to go live in October 2015.
To find out more about the current state and future prospects of legal aid as both a career path and an effective mechanism for social justice, we spoke to two professionals on the front line: Carol Storer, director of the Legal Aid Practitioners Group (LAPG) and Sasha Barton, an associate at Hodge, Jones & Allen who specialises in civil liberties and mainly acts against public bodies (eg, the police) accused of abusing their powers.
The effects of LASPO
There is no doubt that LASPO has made accessing justice far more difficult for the lawyers and members of the public on the front line, even in areas which have remained in the scope of the legal aid budget such as civil liberties, the practice area of Hodge, Jones & Allen associate Sasha Barton. "The changes since LASPO that I have felt particularly have been the fixed fees around experts, which have massively affected our ability to instruct experts in legal aid claims. For example, if a case requires a psychiatrist, it is now almost impossible to instruct one - and certainly not a very experienced one - to prepare a report for the fixed fee provided. This means that there is certainly not a level playing field between clients in receipt of fixed-fee legal aid and people with access to other forms of funding, or – significantly – between legally aided claimants and defendants, who can still instruct highly experienced experts charging far above the fixed fee. If you're a client with private funding, you could get any expert you want, whereas if you're being funded through legal aid, you will struggle to get anyone at all."
Another change introduced by LASPO was the replacement of the Legal Services Commission with a new body called the Legal Aid Agency, which was created to give the government more direct control over the legal aid budget. “The Legal Aid Agency has been much stricter in the way that it assesses applications for legal aid," says Sasha. "It asks far more questions and the process has become more gruelling. The tests for giving legal aid in certain areas have also changed, which means that we get more refusals of applications than we used to. The process has therefore become more onerous to get legal aid for people who really should benefit from it. Hopefully the recent High Court decision in the case of R (on the application of Sunita Sisangia) v The Ministry of Justice, a case pursued by our firm, will mean that the Legal Aid Agency applies the test under LASPO correctly from now on; before that decision we had been seeing worrying refusals of legal aid on the misconceived basis that unlawful police conduct had to be both deliberate and dishonest to benefit from funding (a higher bar than that intended by parliament).”
The Legal Aid Agency has also contributed greatly to the confusion across the sector in the last 18 months, according to LAPG director Carol Storer. "The Legal Aid Agency has contributed to the problematic complexity of opening a matter through legal aid because it requires a vast amount of information for each case," she explains. "Plus, if it decides to query anything, the case is held up pending yet more paperwork. The system is extraordinarily complex, which is one reason why so many applications get sent back. This also creates billing issues and cashflow problems for firms."
The reforms’ effect on firms’ ability to function is concerning to say the least and cannot be emphasised enough. “I think it’s more and more difficult for private practices and not-for-profit organisations to function viably because of the combination of low rates and fixed fees, and the large amounts of non-chargeable time that they are required to spend on each case thanks to the very bureaucratic system in place,” explains Carol. “There are a number of measures that practices can take, such as cutting their overheads, hiring more junior staff, moving to even cheaper premises or investing in, for example, IT in the hope that this will increase the workforce’s efficiency.”
In turn, the system is proving to be a barrier to the very vulnerable members of the public for whom it aims to safeguard legal aid funding. “There is pressure on the Legal Aid Agency so it is always trying to make sure that public money is spent efficiently, but most practitioners I speak to say that this has reached a level which is stopping vulnerable clients from getting help,” Carol explains. “None of us think that this is what parliament intended – legal aid is theoretically available, but practically for many vulnerable people it is just not available any more.”
There is also evidence that the changes are forcing those who cannot afford legal representation to represent themselves in court. Not only is it clearly unfair for untrained litigants in person to attempt to fight their cases against well funded, professional lawyers, it also clogs up the courts and increases costs and inefficiency in the long term. “It’s quite clear that it’s been the policy to cut first and review decisions later,” says Carol. “Surely you would have some consideration of the effect of the cuts on other departments and within the Ministry of Justice. How litigants in person affect court hearings, for example, is a huge issue for the Ministry of Justice.”
Implications of the cuts to criminal legal aid due to be implemented in 2015
Despite the High Court instructing the government to scrap its plans for criminal legal aid duty solicitor contracts, the government is pressing ahead with plans that remain mostly unchanged after a token second consultation. It is clear that the government has ignored the widespread opposition to the cuts in the legal profession as well as the formal protests of the Law Society. “Grayling launched the response to the crime consultation and the crime tender at the same time, so firms now have until the end of January to submit a bid for duty solicitor work,” explains Carol. “Everyone who wanted a client contract has bid for one and this is the second stage to bid for duty work for those who were successful, which gives lawyers cases at an early stage either in the police station or the magistrates’ court. This means that the duty scheme may not be viable for many of the firms awarded a duty contract, as there still might not be enough work for them.”
As the cuts currently look to be going ahead regardless of the concerns raised by those in the profession and without thorough consideration of all their implications, we do not know what the landscape for criminal legal aid will look like after October 2015. However, it is hard not to be very concerned. “Despite the recent setback for the Ministry of Justice, when the justice minister was successfully challenged on proposed changes to judicial review which would have radically reduced the ability of claimants to hold state bodies to account, the judicial landscape looks bleak,” says Sasha. The recent changes to funding for judicial review seriously limit claimants’ ability to recover costs where there is no positive permission decision. And despite the setback in the High Court and fierce parliamentary debate over more recent proposals to limit the circumstances in which permission will be granted to pursue judicial reviews, the Justice Minister seems steps away from successfully implementing further radical changes. The Criminal Justice and Courts Bill, once enacted, will prevent a huge number of claimants from getting permission to pursue judicial reviews and effectively neuter the power of judicial review to ensure that correct procedures are followed, focusing on outcomes. With the cost risks of cases where permission is not granted, this will make it near impossible for claimants – and in particular legally aided claimants – to challenge state bodies.”
The residence test: on hold for now
The Ministry of Justice has announced its intention to appeal the High Court’s ruling, which has so far prevented it from introducing a residence test which would seek to prevent people from accessing legal aid based on their length of stay in the United Kingdom or their inability to provide adequate documentation to prove their length of residence. No date for the appeal has yet been set, while the strength of the High Court’s unequivocal judgement means that "it would be remarkable if the government manages to get an appeal through the courts before the next general election,” according to Carol.
However, as we understand it, the introduction of a residence test has far from been abandoned, so it remains a cause of grave concern for those who care about equality before the law and the protection of vulnerable people in the United Kingdom, and might prove a barrier too far. “If a residence test came in, it would make life for clients even more difficult,” says Carol. “Even the basic starting point of providing documentation that proves you have lived here for a year is extremely difficult for a lot of clients – many just cannot provide that because of the situations they are in. Clients already have to clear hurdle after hurdle, such as producing evidence of their means, to access any form of help. Producing bank statements and finding time to go through them to explain what each item means is very difficult in a time of real crisis – many clients may find themselves homeless as a result of domestic violence, for example. In domestic violence cases there is also a big hurdle in which a client must prove that domestic violence has happened in the last two years, as well as provide information about their children and house in order to get legal aid, so it’s a double barrier. While families are struggling to negotiate these requirements, the children could be stuck in an unacceptable or even dangerous living situation.”
For Sasha, a residence test is a bleak prospect. "It would have had an absolutely catastrophic effect on access to justice for huge numbers of people, including many of my existing clients," she says. "Some of the most important claims would not be eligible due to the residence requirement and many of the people who suffer extreme abuses of power in this country while under the supposed protection of the UK authorities - such as people who are in immigration detention or who have only lawfully been in the United Kingdom for a limited period - would be unable to bring claims.”
Advice for aspiring legal aid lawyers
Despite the severity of current difficulties, legal aid is a crucial sector for society and its practitioners continue to do valuable work on behalf of their often-vulnerable clients. However, you need special qualities to be an effective legal aid practitioner, and to be the kind of person who is motivated in their career by things other than a big salary. "Anyone going into legal aid has to be a really patient, diligent lawyer," advises Carol. "You need to tick every box, cross every ‘t' and dot every ‘i'. It's a very procedural area and it is important to get to grips with the legal aid rules as much as the law itself. When I go to law fairs I’m not trying to put people off, but I think students considering careers in legal aid have to understand that particularly in civil legal aid, there is so much work that you have to do that you will not be paid for. Only go into legal aid if you are the kind of person who can be on top of all the thousands of pages of contract and guidance to run cases efficiently. That kind of efficiency is very difficult for lawyers who want to look after their clients though – there is just so much non-chargeable work to do just to get a client to the stage where they can get legal help at the cheapest level.”
Sasha's advice is to get some experience and build up your knowledge before pursuing a career in this area. "Those people who have gained experience have proven a commitment which is based on far more realistic perceptions of what a career in legal aid will be like," she says. "Enthusiasm is essential, but it has to be backed up with experience. Volunteering for an organisation that gives face-to-face advice like a law centre or advice clinic is really useful, as is getting experience of providing written advice, such as writing letters for Liberty or getting involved in some kind of pro bono initiative. Anything that involves client contact - meeting people, hearing their problems and working with them toward solutions - is good experience and will also help you to work out whether this area of work is for you. The reality may not fit with your expectations of the life of a high-flying human rights lawyer!"
The need for extensive experience, while completely understandable, is nonetheless problematic in the current climate, according to Carol: "Legal aid is particularly competitive because candidates are competing against people who have had CAB training or long-term work experience - it is a difficult area to enter. I think this has also created a social mobility issue, because it is easy to work unpaid for six months if your family are able to support you, but this is not possible for many people. Young Legal Aid Lawyers is a very good organisation that is free to join and is doing work on social mobility, so that is one good source of information and help to anyone who wants to work in legal aid."
More crucial still is the need not to give up on this part of the profession, particularly in light of findings that only 4% of young lawyers are now interested in legal aid. "Everyone within the profession is fighting as best they can to preserve legal aid and it will always remain a very important and rewarding sector to work in," says Sasha. "Unfortunately, I think nothing short of a change of government will stop it being hacked away at more and more. In the next couple of years, the full impact of the changes will really be felt in terms of our ability to run cases, so I would say watch and wait, but don't give up on this area of law because it is really important that committed people continue to enter it. There is definitely a fight on our hands to preserve it. It's difficult, but I still feel incredibly positive about working in this area of law and I would encourage other people to pursue careers in it."