The government’s changes to legal aid will have a profound impact on our criminal legal aid members who now face uncertainty and very difficult challenges in changing their business to meet the government’s new requirements.
The Ministry of Justice (MoJ) published its response to Transforming Legal Aid: Next Steps on 27 February 2014, setting out its final decision on reforms to criminal legal aid.The government’s changes to legal aid will have a profound impact on our criminal legal aid members who now face uncertainty and very difficult challenges in changing their business to meet the government’s new requirements.
The Law Society remains opposed to the fee cuts announced by the government. Our Council has, after extensive discussion with our specialist committees, Boards, Local Law Societies and practitioner groups, taken the decision to continue to engage with the Ministry of Justice – subject to appropriate monitoring and review, with the aim of securing more change and a comprehensive pack of transitional measures.
The Law Society will continue to consult its practitioner groups, committees and Council members to reach out to as many members as possible. The Law Society urges solicitors who are interested to contact their Council members. The JLD Council members are Kat Gibson, Beth Forrester and Catherine Melis. We will be issuing detailed support proposals in the coming weeks. More information about this work can be found on the Law Society’s legal aid pages .Read the Law Society’s legal aid FAQs.
‘Lawyers’ are not the first word you associate with social justice. John Keats summed up the general stereotype, ‘I think we may class the lawyer in the natural history of monsters.’ While most of us would argue that we are not monsters and in fact fulfill an important role in society, there are also those lawyers who provide a service that ensures equal access to the law and recognises the right of poorest and most vulnerable members of society to justice.
Many junior lawyers will have taken part in pro bono work or at legal aid advice centres while at law school and will recognise the importance of providing advice, assistance and representation to those with limited means. Legal aid is already limited and many who work in low paid jobs cannot afford legal advice, however, if the cuts to legal aid proposed by the government are implemented this will hit the poor hardest. As Lord Bach said, ‘What’s the point of a legal aid system if it doesn’t look after the poor?’
It is on behalf of those who would be excluded from legal aid if the cuts are imposed in their current form that we need to save legal aid. As the LASPO (Legal Aid, Sentencing and Punishment of Offenders) Act has been passed, the campaign to save legal aid needs your support.
The campaign is against a bill that will remove legal services advising the poorest on employment rights, debt problems, welfare benefit law issues, immigration problems, clinical negligence, tenancy issues, or family and relationship breakdown/divorce. The Bill will have the impact of:
‘Dismantling the integrity of a system that protects people from the time that they have a worry or concern when walking into their Citizens Advice Bureau to the time when, if necessary, they have a lawyer, whom they would not otherwise be able to afford, representing them in courts, and even in the appellate courts.’ Andy Slaughter MP.
The government argues that it needs to cut £350 million from the £2 billion legal aid budget. However, their plans have been labeled a false economy with valid arguments from those with professional understanding of legal aid that cuts will not save money and in fact have knock-on costs both socially and economically. In addition alternative ideas to make savings have been given short shrift by the government.
There are an increasing number of people speaking out against the reforms but more pressure is needed if the House of Lords are to make any changes. To listen or read about those who have already spoken out, check out the charities who are part of the Save Legal Aid campaign.
Before the Bill was even implemented legal aid was under pressure. The number of legal aid firms has fallen from 5,000 to 3,000 in the past ten years. The last few months have seen Refugee Migrant Justice shut down leaving 10,000 asylum cases in limbo, Immigration Advisory Service go into administration leaving another 8,140 asylum and immigration cases in the air and Law For All, one of the largest providers of civil legal aid, has also go into administration. They blamed the burden of bureaucracy and cuts to legal aid for their difficulties. The Ministry of Justice has introduced plans to change the funding regime, including a 10 per cent across-the-board cut to civil, criminal and family legal aid fees, which will lead to closures of firms and advice centres who are already struggling to survive.
‘Legal aid has always received support from across the political spectrum, but now it is as if a solar eclipse has been cast across the debate about what is required for fair and decent standards of access to justice. With little sign of even small concessions, let alone a significant rethink on the measures in the legal aid bill, these are dark days for legal aid and for those who rely on it.’
The ability to obtain legal aid will not only be undermined by removing whole areas from scope (i.e. you cannot get legal aid for these areas) being employment rights, debt problems, welfare benefit law issues, immigration problems, clinical negligence, tenancy issues or family and relationship breakdown/divorce. Further, the eligibility criteria is to be tightened so less people qualify for legal aid. A telephone gateway is also to be introduced which will impact on those without use of a telephone and prevent organisations and NGO’s referring cases to advisers with whom they have a long standing and trusted relationship.
Society chief executive Desmond Hudson said the case for proceeding with the gateway plan was all but destroyed when the claimed savings from the move were reduced from £60m in the MoJ November 2010 impact assessment, to £2 million in the June 2011 document. He said: ’Spending money defending this case to save £2m seems disproportionate. Analysis of the impact assessment suggests that even now, the MoJ is probably significantly underestimating both the cost of implementing the service and the barriers it will place in the way of vulnerable clients.
The availability of legal advisers will be reduced and ‘advice deserts’ will grow. The south already has vast gaps in provision and this is increasingly felt in the north too. There may no longer be specialist, quality advisers and providers will find it even harder to stay afloat once the reforms come in with cuts in fees and impact of loss of work from cuts to scope.
Legal Action Group believes that the landscape of legal aid will be decimated.
‘On the civil side, our estimate is that we would probably go down to something like between 500 and 900 firms undertaking legal aid; in family it will mean that pretty much in every parliamentary constituency you will have problems if there are conflicts of interest. I think you have already heard evidence about the not-for-profit sector. Government impact assessment is that around £60 million would be lost in social welfare law and specialist end of Citizens Advice, 18 law centres, quite a few of the independents. Effects of child poverty zones - where there is a high instance of child poverty. Difficult to exaggerate how bad the effect will be.’
As providers reduce, the not-for-profit sector cannot be expected to fill the gap. Vulnerable people need quality advice and the burden should not be thrown on a struggling not-for-profit sector, already subject to severe cuts in funding.
As claimants are left without lawyers, there will be an increase in litigants in person. This will impact on the courts and on vulnerable people who ‘will be forced into a position where they have to act on their own behalf in alien surroundings under conditions of great stress and we [Bar Council] think it will cost more.’
The attorney general Dominic Grieve stated on 28 September that he is to tell Ken Clarke that the Lord Chancellor’s proposals would clog up the courts with unrepresented litigants.
The side effects of the cuts could be greater reliance on the services provided by the state. Citizens Advice have endeavored to quantify the ‘knock-on’ costs of removing legal aid, estimating that for ever £1 spent on housing advice, debt advice, employment advice and benefits advice the state saves between £2.34 and £8.80. The cuts will prove a false economy if they simply result in further costs later on. Peter Lodder of the Bar Council pointed out that despite the government’s belief that our legal aid system is the most expensive in the world, the Council of Europe and Legal Action Group have stated that our legal aid costs are average in Europe.
The legal aid cuts will have a disproportionate impact on the elderly, disabled, ethnic minorities, children, mentally ill and women. In June this year Baroness Hale spoke about the disproportionate impact of the planned legal aid cuts, “these plans will of course have a disproportionate effect on the poorest and most vulnerable in society…the big society will be the big loser if everyone does not believe that the law is there for them”.
Emma Scott from Rights of Women stated that the cuts will have a ‘disproportionate effect on women….women make up a significantly greater proportion of those who receive civil legal aid, particularly around family and immigration law…women come to us not just with one particular issue resulting from a relationship breakdown; they come to us wanting advice about child contact proceedings, financial relief proceedings, welfare benefits, debt and immigration law.’
The JLD has long been committed to seeing improvements in social mobility in the legal sector. There are positive moves in the corporate and commercial sectors but legal aid is being left behind and cuts are only going to worsen the situation.
Those who choose to work in legal aid do not do so for financial reward; it is a vocation. However, burdened by the inevitable debt from university and law school, pursuing a career in legal aid is going to be much harder as a result of the cuts in scope and reduction in fees by 10 per cent. This in turn will impact on the quality and diversity of the profession.
With firms closing or reluctant to take on junior lawyers in uncertain times, there will be fewer training contracts and thus increased competition for those remaining. If there is no longer a realistic chance to achieve a training contract or pupilage and a decent living wage on their completion, many will undoubtedly choose a different career . This will all have a negative impact on social mobility in the profession, as it becomes even harder for people from poorer backgrounds to afford a legal career based on huge training debts incurred along the way.
For those already working in legal aid, the cuts are likely to see junior members of the profession facing pay cuts to help ease their organisation’s finances. It is likely there will be a rise in ‘paralegalisation’, whereby firms, in an effort to cut overheads, rely increasingly on large numbers of inadequately supervised, very junior lawyers who take on a large amount of responsibility for relatively little remuneration (anecdotally £16k - £18k pa is typical), with little in the way of career progression (see for instance, survey responses in the Otterburn report, commissioned by the Law Society of England and Wales, which is quoted in the Government’s final response to the legal aid green paper (PDF) pages 30, 32). Further, those at the junior end may have to accept increased responsibility for more complex work. It is also likely that junior members will have to take on a higher number of cases to meet their targets so their organisation can stay afloat.
Camilla Graham Wood, Executive Committee for the JLD and YLAL, 2011-2012
Updated March 2014