LASPO has failed and legal aid must be overhauled, the legal profession is telling the government
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With a government review into legal aid finally taking place, LCN asked two leading legal aid practitioners whether they think the situation for lawyers and clients will improve and what advice they would give to future lawyers who are passionate about this vital area of the justice system.
Access to legal rights and equality before the law are the bedrock of UK constitutional law. For the poorest and most in need in society, who cannot afford legal representation, these rights are meant to be guaranteed by our legal aid system. But years of funding cuts have driven it into crisis.
“We are at breaking point, with the system being continually stripped back”, says Vidisha Joshi, managing partner of Hodge Jones & Allen. “It is unsustainable, as well as a false economy, because people who are unable to access legal advice are forced to represent themselves as litigants in person. This clogs up the courts and slows cases to a crawl because litigants in person are, understandably, unfamiliar with how the process works and have no legal training.
“In other areas, pro bono centres have been pushed to the brink and there has not been any solid research into how many have gone under. This squeezes the government’s resources in other areas, such as the NHS and the Department for Work and Pensions.
“The changes are counterproductive and are pushing already stretched resources like pro bono centres to the brink. Not having access to specialist legal advice puts pressure on other services and means that some people are not able to get the outcome they might otherwise have got.”
Research carried out in 2017 – since leaked when the government tried to block it from being published – found that people who represented themselves in court were more likely to be found guilty than those with a lawyer. Underfunding has also led to horrifying cases where victims of abuse have been forced to face their abuser directly in court.
Cuts in funding have been accompanied by a cultural change in the decision making process for who should receive help. “There is nothing more frustrating than having a client sat in front of you who desperately needs legal advice, but you cannot help them because of a bureaucratic reason,” says Carol Storer, director of Legal Aid Practitioners Group. “These days it is very difficult for clients to prove their financial eligibility. Many practitioners feel that cases that would have certainly qualified for legal aid in the past are now being denied – there is a sense that the Legal Aid Agency has an ethos of putting up barriers to legal aid and does not believe that people should receive help to resolve their problems.”
The squeeze on fees
Many legal advice centres have had to close their doors, while solicitors’ firms have had to adapt or face going under. For Joshi, pride at her firm’s continued success does not change the fact that the system overall has deteriorated. “We have been fortunate as a provider of legal aid services in that we have other areas of our business which have effectively stepped in to prop up our legal aid work, where our lawyers have to contend with a very challenging funding situation,” she explains.
“The biggest cuts were introduced in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but provision has been stripped away over time for decades. Hourly rates for legal aid haven’t changed in 20 years and that simply can’t be right when the costs of living and running a business have increased dramatically.
“It has meant that we have had to adapt and change how we work, which we have managed to do successfully, but that isn’t to say that the environment is any less difficult for us to operate in.”
According to Storer, “the problems, despite their seriousness, are quite easy to analyse. There is a problem with fees where non-profit and private practice organisations are not generating enough money from legal aid work to stay afloat.”
At the Bar, barristers are leaving legal aid work in great numbers because the work is no longer financially viable, with many junior advocates’ fees barely able to cover their travel costs to attend court. Meanwhile, pupils and aspiring barristers are being put off legal aid work, decreasing the supply of new talent necessary to renew the system.
The latest reform to legal aid fees – the Advocates Graduated Fee Scheme (AGFS) – has finally driven criminal defence barristers to refuse new publicly funded cases, severely disrupting to the courts.
The LASPO review
In a rare example of good news for the sector, the Ministry of Justice’s (MoJ) long-promised review into the impact of The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) is finally taking place. The review will examine the effects of the cuts introduced by LASPO, including on access to justice. It is hoped that this will include focusing on the effect that LASPO has had on the lives of people who have been unable to access legal aid.
Unfortunately, the review has come very late in the day because the government has placed the justice system low down on its list of priorities for several years now. “The turnover of lord chancellors and ministers responsible for legal aid has been a huge problem in recent years,” Storer explains. “The legal sector needs a respected figure as lord chancellor who is ideally in post for several years to oversee the changes implemented by government and respond to problems, but instead we have had the situation of three lord chancellors leaving the role in the space of a year without being able to get to grips with the issues. The post is now held by David Gauke and we are at last seeing some movement on the promised review.
She continues: “In mid-April four consultative group meetings took place, each of which focused on one of the four areas that the review team will cover – civil non-family, family, crime and the advice and third sectors together. We have been assured that the process will be open and transparent.”
However, there are reservations about whether the process will truly address the problems that lawyers and vulnerable clients are facing, as Joshi explains: “While I would like to have faith, I think there needs to be more transparency to the process. It would be helpful if there was an independent steering group, but primarily there needs to be solid research into the effects on access to justice and the rule of law, because when LASPO was introduced the impact assessments were woefully inadequate, considering the level of funding that was being stripped away from legal aid.
“We must not forget that the right of access to justice is embedded in our constitutional law and the right of access to the courts is inherent to the rule of law. This must be borne in mind when the impact of LASPO is reviewed. The idea was to reduce the cost of legal aid, which has been achieved by simply stripping away funding, but there was no cost-benefit analysis of what the impact would be on society.”
Storer acknowledges that the government’s review is “the only show in town,” but is also worried that those conducting it will feel hamstrung in what solutions they can recommend against a backdrop of continuing political devotion to austerity at all costs. “LASPO had four goals which, according to various reports, have not been met,” she explains. “It is true that money was saved, but LASPO did not discourage unnecessary litigation or target legal aid at those who need it most. Nor did the changes deliver better overall value for money for the taxpayer.
“The analysis of LASPO’s effects will include consultation with various relevant parties such as the courts service and practitioners themselves, so clearly the review has all the resources and information it needs to examine the problems, as well as to look at the future of legal services. However, the question is, if everyone knows from the wealth of evidence available that the current system is broken and needs more money, and the review is not able to recommend that substantially more funding is provided, how can we respond? It is not necessarily possible to deliver the same level of service for the same amount of money. We may be asked how we can do more with even less money, as the MoJ’s budget is due to be decreased further. The answer to that is we can’t.”
There are also concerns that otherwise-sensible modernising reforms to the justice system will leave behind those most in need, which feeds back into the constant struggle against eroding access to justice. “There are efficiencies and improvements that can be implemented with technology, for example, organisations such as Citizens Advice and Shelter, as well as individual solicitors’ firms, are very good at assisting people online,” Storer explains. “But the justice system needs people to be able to access that information and act on it. For example, if a father is too bewildered by the complexity and lack of one-to-one help, and ends up not attending a hearing and never seeing his child again as a result, that is a bad outcome for society as a whole. In contrast, in the past a father in that situation would be able to walk into a firm of solicitors and get some advice, which would probably have been funded through legal aid. If the lawyers can help take the heat out of the situation, possibly with assistance from mediators, that is better for both parties in the dispute, better for any children and better for the courts.”
Recently the Bar Council submitted its own evidence to the government’s review, arguing that LASPO has achieved the exact opposite of what was intended when it was introduced five years ago by impeding the public’s access to justice and making the entire system more inefficient, which creates a false economy by increasing costs for other government departments.
Whether the government will listen to this overwhelming evidence remains unclear, though – the Bar Council has expressed grave misgivings that the MoJ is not gathering the evidence it needs to make its review effective.
The criminal barristers’ strike
For criminal defence barristers pushed to the limit, however, the review offers little comfort. Earlier in 2018, dozens of chambers and individual barristers refused to take on publicly funded cases because the fees are simply not viable, particularly when taking into account that barristers are self-employed and have to meet all their own costs in working on a case.
“As a firm we have been openly supportive of the action taken by our friends at the Bar”, says Joshi. “The action is needed – it can’t be right that a barrister will prepare a case, travel to attend court in a six-hour round trip, spend time with the client and then spend more time waiting in court, all for less than £100.”
This support is echoed by other legal aid lawyers, who see that the stand barristers are taking as about much more than their pay. “There is a huge support among members of LAPG for what criminal barristers are doing,” says Storer. “Beyond fees, it is about the whole criminal justice system becoming shambolic. It is about court closures and the difficulties defendants face in getting to their own hearings; it is about prisoners not being transported to court at the right time or at all; it is about fee structures that mean criminal barristers, if they are doing the work properly, spend days on end working for free; it is about the problems highlighted by the press over disclosure issues – the list goes on.
“This is a system that has relied on goodwill of defence practitioners who pick up the pieces, and what they are saying is that they cannot keep working for fees that don’t even cover their expenses. Nor can the system have a future because it is so discouraging to new lawyers entering the profession who would otherwise want to work in civil or criminal law. If you can’t encourage younger people into criminal law, it won’t be long before we lose experience and expertise from the system and it becomes second or third class, as judges retire and there are far fewer people on the way up to replace them.”
It seems that even the government thought that the striking barristers had a point. In June it offered £15 million of new investment to fund legal aid cases, which includes a 1% fee increase for all legal aid fees. Barrister chose to accept the offer in a narrow vote, but the issue is far from resolved.
Angela Rafferty QC, chair of the Criminal Bar Association, warned that the battle was not over, telling Parliament's justice select committee that the next step to securing justice must be to introduce a protected budget for legal aid. She said: "This outcome is neither a defeat nor a victory. The criminal Bar has faced degradation and despair and it still does. This is a step forward. We must all ensure we do not take any more steps back…This proposal is the beginning and not the end of our campaign to improve the broken system we all work in every day. We still face exceptional difficulties, as do our solicitor colleagues. This will not fix the terrible conditions, the unhealthy and unreasonably onerous working practices and the general decrepitude. However, if we consider it a start we can build on it.”
Advice for future legal aid lawyers
Although the situation is extremely challenging, aspiring lawyers who are passionate about access to justice and the rule of law are needed now more than ever – and with the right skills, it is still possible to make a career in this area of work. “Anyone thinking about a career in legal aid has to be organised, as you not only have to be a good lawyer who understands the law, you need to be able to interview your clients, understand their case and give them a clear steer about what can be achieved and you also have to understand how to work within the system so that you are funded,” Storer advises. “That means checking up on the detail of legal aid contracts and relevant guidance and regulations, so that you can take on cases that are eligible for funding with confidence. Now picture doing that when you have a desperate client in front of you who is affected by a mental health problem or has a drug or drink addiction, or has English as a second language. It can be so difficult to gather evidence or prove someone’s financial eligibility when their life is chaotic, but this work is so necessary. It is also incredibly rewarding.”
For Joshi, people with the qualities to succeed in publicly funded work should not abandon their ambition, despite the current difficulties: “I think that things will change. There are good firms practising in this area and they will continue to do so. I don’t believe that students should be put off. Yes, they will have to accept that the salary is less than in some other areas of law. However, you will do extremely interesting work and the work that you do will change people’s lives. The cases in this area of law are often ground-breaking.”
Joshi also shares her practical advice on getting started: “It’s important to gain experience through organisations such as Citizens Advice and the law centres network. This will give you first-hand exposure to what you would be facing day-to-day as a legal aid solicitor.
“The other thing to bear in mind is that while legal aid lawyers are passionate about the good work they do, they also need to be aware of the commercial realities of running a business, particularly in relation to how cases are funded through legal aid. It is vital for future lawyers to make themselves aware of the restrictions around legal aid and how to provide high-quality legal services within those parameters.”
Josh Richman is the senior editor of LawCareers.Net.
Keep up to date with the criminal barristers’ strike and the government’s review into LASPO with LCN’s News section.