I got a tweet in response to The Day Justice Died saying:
“call me a cynic but Govt blocking access to the law at same time as other attacks shows lessons learned from #workfare”.
I wouldn’t call that cynical. If anything, I’d say it doesn’t go far enough. Yes, the current round of cuts is brutal. It fits neatly in with all of the other cuts and makes it considerably more difficult for people who are affected by them or by the state of the economy generally but cuts in Legal Aid are nothing new. The introduction of modern Legal Aid was one of the many post-war measures to create a fairer society (although the roots of the principle of access to justice lie in the Magna Carta). Created by statute in 1949, it sat alongside the NHS and the modern system of social security. But while the NHS is a national treasure, Legal Aid unifies people in a different way: a national punching bag. Might the imminent destruction of all of Legal Aid’s more popular siblings be what it takes to make people see its value? Like the plain, dull sibling in a Jane Austen novel; Legal Aid has been sitting, rejected and forlorn in the corner for so long that I wonder how many people ever think of it at all. The Tories didn’t sneak up out of the mist and slit Legal Aid’s throat on the 1st April. Legal Aid has been slowly starving to death for a generation and arguably stands as a lesson to its more popular siblings.
In 1945 a Parliamentary Committee included the following recommendations in its report (acknowledgement goes to Save Legal Aid, who I’m quoting heavily here):-
– Legal aid should be available in all courts and in such manner as will enable persons in need to have access to the professional help they require.
– This provision should not be limited to those who are normally classed as poor but should include a wider income group.
– Those who cannot afford to pay anything for legal aid should receive this free of cost.
– There should be a scale of contributions for those who can pay something toward costs.
– The cost of the scheme should be borne by the state, but the scheme should not be administered either as a department of state or by local authorities.
– The legal profession should be responsible for the administration of the scheme.
– Barristers and solicitors should receive adequate remuneration for their services.
As a lawyer with lefty-leaning views, that all sounds fair and sensible and when Legal Aid began in 1950 it followed those recommendations. Some people would (I confidently predict because they always do) criticise lawyers over the “adequate remuneration” recommendation. The average annual salary of a Legal Aid solicitor is £25,000 (just below the national average). The difference between the “fat cats” and mere mortals doing Legal Aid work and/or working in the high street is vast but you only ever really hear about “fat cats”. Incidentally, by way of comparison, GPs earn an average of £90,000 per year (I’m not knocking them for it but come on, it’s a massive pay differential). In 2009 Jack Straw told Legal Aid solicitors they shouldn’t expect to be paid as much as doctors and should model themselves on optician chains instead (the one time I used Boots opticians they fucked up my sight test and I had to get an independent optician to redo the test a few weeks later but, hey, this is your justice system, right?). Jobs which routinely pay more than the average salary for a Legal Aid solicitor include teaching, police, fire brigades and (according to the Law Society Gazette a couple of years back) bin men. It’s a wonder anyone offers Legal Aid services at all.
In 1950 80% of the population was entitled to Legal Aid, the amount being based on a means test. Some people had all of their costs paid but many others received a contribution. If that system was still around today, I would be able to afford legal fees. Until the 1970s most cases involving Legal Aid were criminal and family cases. In the 1970s, another period of vast economic upheaval, employment and housing claims rose. Even by 1973 though, the proportion of the population entitled to claim Legal Aid had dropped to 40%. At one time Legal Aid was even widely available for will writing. That might sound odd but anyone who has children (particularly if they’re unmarried) should have a will, even if all their possessions added together aren’t worth £100, because their children need a guardian. By 2008 29% of the population was entitled to Legal Aid. This figure rose to 36% in 2009, not because the means test changed but because of the impact of the financial crisis on claimants’ incomes. While the number of people eligible has changed over time, other efforts have long been underway to reduce the cost of Legal Aid. Labour called the 1st April a “day of shame” for the legal aid system but it made plenty of cuts and reforms of its own during its time in office (never forget this about New Labour: before we even had a chance to celebrate the fact that Michael Howard was no longer Home Secretary in 1997, Jack Straw said to my Criminology lecturer at a party, “the trouble with you lefties is”). In particular, the rates paid for Legal Aid work and the method of winning contracts to do Legal Aid work both led to reductions in the number of lawyers doing it. Legal Aid was only limping along by May 2010 and Labour would have cut it too if it had been reelected.
As of the 1st April, even people on income based benefits such as JSA are subject to stricter tests. The categories of work for which Legal Aid is now available have been slashed but are complicated by the exceptions and concessions gained through the course of a brutally long fight against the LASPO (all credit to the House of Lords who did what they could to make Lord McNally’s life a misery each time the Bill came back to them and kept fighting on the implementing regulations). All told, it’s estimated that about 600,000 will lose entitlement to Legal Aid (to put that in context, it’s estimated that the Bedroom Tax will affect 660,000 claimants). The Bar Council’s guidance on the new regime runs to 69 pages so I’m not giving you anything but a snapshot. There are other cuts and other exceptions. Matters civil Legal Aid is no longer available for include:
Family cases which don’t involve proven abuse, forced marriage or the protection of children and aren’t public law care/adoption proceedings;
Employment cases unless they’re under the Equalities Act or involve human trafficking;
Medical negligence except for babies who suffer serious neurological harm in limited cases (personal injury claims other than medical negligence were dropped years ago);
Social Security cases unless and until they’re appealed to the Upper Tribunal and above on a point of law (and only on a point of law);
Education unless the child has special needs;
Housing cases except where there is serious disrepair, the threat of eviction, the claimant is homeless or to defend Council anti-social behaviour action;
Debt except where bankruptcy or repossession proceedings are threatened;
Consumer law and contract law;
Criminal injuries compensation;
Immigration cases which aren’t actual asylum applications or where the person is detained or a victim of domestic violence or human trafficking. Applications for asylum support aren’t covered unless the person has also made claims for housing and financial support.
The rump left in addition to the exceptions above includes mental health, community care, judicial review, abuse of position or powers by a public authority, breach of Convention rights by a public authority (not all human rights cases are covered though), facilities for disabled people and equality claims. Nb “mental health” means Mental Health Act proceedings. The same rules apply to mentally ill people in areas like Social Security and Housing as apply to people who don’t suffer from mental illness. The stricter means test I mentioned above applies to all of these areas and tests relating to the prospect of success and whether alternatives to Court have been pursued remain.
Turning to the Workfare case, this case muddies the waters if you’re trying to work out what Legal Aid is now available for and why cuts were made. It was an application for judicial review (for which Legal Aid continues to be available, although the signs are that the Government wants to cut Legal Aid for public law claims too) but Cait Reilly and Jamie Wilson won their earlier appeals against the sanctions on them on the basis that there had been breaches (which were admitted by the DWP) of the Regulations anyway. Two different things were going on. They could have accepted their own individual wins at an earlier stage and walked away but they pursued the legal principle. If it had only ever been a simpler appeal against sanctions, without the opportunity to claim judicial review, it would be a different matter and Legal Aid wouldn’t be available below the Upper Tribunal under the new system. The availability of Legal Aid for judicial review (for the time being) gives a glimmer of hope in the whole mess we’re facing and lawyers with public law expertise are fighting but it’s a big picture right. Anyone run over by the juggernaut of “reforms” will find it much harder to get any kind of remedy in the meantime.
For benefit appeals without public law aspects, this is an area where the Lords seemed to have won the hugely important concession of retaining Legal Aid for appeals but what we got in the end was Legal Aid only for appeals on points of law in the Upper Tribunal and above and not for first stage appeals. Firstly, something like an appeal against a Work Capability Assessment is more likely to revolve around medical evidence and therefore wouldn’t be covered in any event. The other crucial thing is that Legal Aid won’t be available right at the start of the process of appealing a welfare decision. When I was on Incapacity Benefit my claim was wrongly reduced on a technical point of law. Fortunately for me I’d studied social security law so it was easy for me to check it out and to literally quote its own Technical Manual back at the DWP. One letter was enough to get it sorted out. It’s a complex system though and the vast majority of people could use some guidance navigating it. Having read the last couple of paragraphs, you probably agree that it takes a certain amount of time and skill just to identify whether an appeal is based on facts, a point of law or public law!
It could be said that it’s not the end of the world not to be able to get a solicitor or barrister to advise claimants directly through a law firm or chambers right at the outset. That’s what the Government wants us to accept and, in the short term, it would be true if other sources of advice such as the CAB are available but that’s a big ‘if’ because they’ve been reliant on Legal Aid too and are heavily reliant on lawyers donating time to them. Charities providing welfare advice are having a very hard time (earlier this week I tweeted a letter from Shelter published in my local paper announcing the closure of an advice centre) and it’ll get tougher as the reforms to social security take hold. It’s safe to assume they’ll be utterly swamped by people needing advice on things like the Bedroom Tax and PIP. Because it’s a highly technical statute based area of law, I’m not convinced it lends itself very well to casual volunteering by lawyers who work in other fields either (assuming we want people to get high quality advice). The Government says it’s set aside £65 million of lottery money over the next two years for legal advice centres, seemingly immune to the irony of using lottery funds to support a justice system which is a postcode lottery.
The immediate availability of early legal advice is a short term problem but the long term problem with removing Legal Aid for all early legal advice is how we gain new lawyers specialising in these areas. It will be harder for junior lawyers to get experience and (see pre-LASPO pay rates above) financially unviable for many young lawyers who need to work and need some assurance of job prospects in the long run, no matter how idealistic they are. Private work in areas like family and employment will feed new lawyers into those areas (although the number of firms offering Legal Aid services in those areas will, as it has been doing for years, continue to shrink) but what about social security law? It’s hard to imagine many will enter such an insecure area. As that happens there will be less competent lawyers available for the stages of upper appeal tribunal through to Supreme Court even though those stages are still covered by Legal Aid and, as I’ve said, people would still need free guidance through the initial appeal stages in order to get to the point where Legal Aid would kick in. The best way of salvaging something of this mess may well be for public lawyers to offer free initial advice (themselves or by donating their time to advice centres) on areas which are relevant to public law, such as social security and housing, whether the individual cases turn out to be public law cases or not, and set it off against the work they can get paid for. It shouldn’t have to be like that though. It’s a massive burden to ask them to take on and every time lawyers meekly accept lower rates of pay and agree to work for free, the Government of the day seems to wonder how much further they can be pushed, while the public via the media just declares “well of course they should work for free. It’s the least these fat cats can do.”
I’ll finish with Liberty’s summary of the wider situation, which hits the nail on the head:
“the true impact of these cuts goes much further than the likely individual injustices which will prevail. The ever-present prospect of legal intervention is the surest way of securing a society where respect for human rights, equality and due process guides the behaviour of our decision-makers. Alongside other assaults on the rule of law such as Secret Courts and worrying judicial review overhaul, legal aid upheaval risks leaving big business, Government and other members of the rich and powerful elite that bit freer to act with impunity”
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