The Brexit drama is sucking the oxygen of publicity away from many other newsworthy stories, and one of the more regrettable casualties is the parlous state of our Legal Aid structure which has declined to an alarming degree. The system was established by the Legal Aid Act 1949 as a limited scheme for none but the very poorest, but it grew, until by the 1990s it had become an important part of our Welfare State provision.
It had formerly been said that whilst there was a public interest in the populace being healthy, there was no similar requirement that they should be litigious. Nevertheless, access to the Courts was gradually recognised to be an important aspect of civil society. The notion that “the Courts of Justice and the Ritz Hotel are open to the public” was seen to be problematic in a nation of laws, especially one that has an Established Church. The word ‘Justice’ occurs no fewer than 130 times in the King James Bible: few would deny that a commitment to justice, especially for the poor, is a Bible imperative.
For many years the scheme was funded by a levy on solicitors’ practices which established regional Legal Aid Committees made up of experienced lawyers who made decisions about which of the cases presented to them had sufficient merit, or raised important points of principle, to be worth expending their members’ money upon. That structure came increasingly under stress after the 1967 Divorce Reform Act and related reforms. With a backlog of marital unhappiness to litigate, this sector of work expanded along with the growth of the Legal Action Group, Shelter, and similar social welfare charities promoting the cause of wider provision. Economic and social aspects of life developed their own jurisprudence. They also provided training for specialist lawyers to develop wider expertise. By the 1980s, Child Protection awareness brought another complex set of important cases increasingly before the Courts.
The Government had by then taken over the administration of the scheme from the Law Society. What had begun as a low-key scheme run and financed by lawyers largely concerning financial matters attracting a ‘Legal Aid charge’ on the winnings if a costs order was unenforceable, was now litigating and protecting less tangible rights. The taxpayer picked up the tab.
With the Government running the show, we soon had a burgeoning bureaucracy. In my working life I saw the Southern Area Legal Aid Office develop from a converted terraced house in Gillingham to a splendid office block in Brighton that would not disgrace Goldman Sachs.
When control moves to Government, it uses its leverage accordingly. Initially it was hard to deny they had a point. Under the original scheme, every firm could seek Legal Aid for their clients. Some undertook work beyond their competence, lost major cases, but still claimed on the fund. The following day they could submit an identical application for Legal Aid and the Commission had no right to deny the grant of a Legal Aid certificate with the financial exposure that implied. Plainly it was reasonable to change that.
Three important reforms occurred changing the legal environment. The Government had removed price-fixing in house conveyancing, which had once allowed firms to cross-subsidise work. Personal Injury litigation was put over to the US ‘No win, No fee’ basis, removing that work from the scheme. But what was left was increasingly a cost deficit to the scheme.
A Legal Aid ‘franchise’ scheme was established. The Government was paying the piper and intended to call the tune. Only authorised firms were now permitted to undertake the work. They became increasingly skilful and specialised, but their very competence was also their weakness. If you are a specialist in housing law, or welfare benefits, you become dependent on a single payer, and that payer became increasingly hostile.
Governments of both major parties began raising the bar: they reduced the grant of Legal Aid contracts across the board to fewer larger firms, often favouring those with a ‘pile ’em high, sell ’em cheap’ philosophy. Highly dedicated and skilled lawyers were put out of business.
Paradoxically a driver of the hostile environment towards Legal Aid was the Human Rights Act.
I well remember the surprise and relief when a well-known and respected district registrar of the Principal Registry of the Family Division told the Association of Lawyers for Children Conference that the Legal Aid cuts in the Family Law sector were a direct result of the massive rise in immigration and asylum cases. Those claims related to ‘Absolute’ human rights – the Government was obliged to resource them, whereas family rights were only ‘Qualified’ rights, and protecting them was discretionary. Put bluntly, my learning-disabled clients were being denied residential assessments and losing their children so that Abu Hamza could spend £1m of taxpayers’ money fighting extradition to the USA.
It gets worse. Legal Aid rates have scarcely changed since the 1990s. Imagine the uproar if NHS staff suffered that degree of fiscal neglect. On the BBC Today programme recently the Law Society spokesman Richard Miller (who used to be a partner of mine) set out the problem. He confirmed that a newly-qualified Legal Aid lawyer today can expect to earn only £20K rising perhaps to £40K. This is very different from most people’s idea of lawyer remuneration. He told listeners that the number of people receiving legal advice had reduced by a million. A thousand Legal Aid practices have closed. In some sectors the problem is particularly acute. There is only one firm advising on housing and welfare law in the whole of Cornwall. There are but 41 for London and the South East. Such law is complex, specialist, and often inaccessible. Poor people in crisis cannot easily travel long distances, and some will have learning, language or literacy difficulties making video conferencing very difficult.
With more litigants having to appear in person, more court buildings closing necessitating greater travelling, more cases being delayed because they require interpreters, the Courts are under intense strain, and now it is becoming difficult even to recruit judges. The system is crumbling, and this is not helped by the fact that the Lord Chancellor/Justice Minister no longer needs to be a lawyer and so may lack necessary insights and relevant experience of how policy decisions play out.
Judges understand the growing crisis. Supreme Court Justice Lord Wilson of Culworth has said:
The disadvantaged who needed to be acquainted with their human rights and helped to enforce them were unlikely to be able to do so without free legal advice and representation. Even where it is required to continue to provide free legal aid, for example to defendants to criminal charges and to parents threatened with the removal of their children, the UK is dismantling it indirectly by setting rates of remuneration for the lawyers at levels so uncommercial that, reluctantly, most of them feel unable to do that work. Access to justice is under threat in the UK.
This is a serious deficiency in our social provision.
Our Bishops are often very outspoken on behalf of the marginalised. Their goodwill is not in question, yet the media has not yet caught up with full nature of the crisis. Basic public education has not yet happened, and so one cannot blame them for not having yet been vocal.
Fortunately, General Synod member Carl Fender has put the issue onto the formal Agenda. Carl is a practising barrister who encounters these problems on a daily basis. His Private Members’ Motion is very low-key, and perhaps unsurprisingly it has not yet caught the imagination of other Synod members. It currently has only 45 signatures. It needs 100 to be considered by the Business Committee.
If you know any General Synod members, do urge them to sign in support of Carl’s PMM:
Mr Carl Fender (Lincoln) to move:
That this Synod, mindful that a justice system should be open and free from barriers of any kind, and also provide easy access to enable the most vulnerable and disadvantaged people in our society to seek professional help in bringing their claims before our courts and tribunals:
(a) recognise our legal aid system as an essential public service and fully endorse its preservation for the benefit of the nation;
(b) welcome the reports by Amnesty International and the Bach Commission about the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and note both their findings about its impact on the most vulnerable and disadvantaged groups in our society and their recommendations for reform of the current system; and
(c) call on Her Majesty’s Government to respond positively to these reports and explore ways of alleviating the impact that the 2012 Act has had on these groups.