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Are cuts to legal aid impeding the course of justice?

About The Author

Ivonna Beches (Writer)

Ivonna is a third year law student at Durham University, currently undertaking a study year abroad at the University of Groningen in the Netherlands. Ivonna aspires to be a barrister, and has a keen interest in immigration law. Outside her studies, Ivonna is a keen writer, and is currently working on a novel.

Lord Neuberger’s most recent speech, Justice in an Age of Austerity, given on the 15th of October, comes as an important reminder that the issues initially raised when the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was passed have not yet been successfully addressed by the government. In his speech, Lord Neuberger highlighted the potential harmful effect of current and proposed cuts to legal aid.

The cuts involve restrictions across the board affecting both civil and criminal proceedings, as well as judicial review. In addition, they will arguably hit the most vulnerable members of society hardest. Therefore, in light of proposals for further cuts on the back of the original controversial act, it may not be unreasonable to wonder just how out of touch the government is with the basic needs of an effective justice system, and how willing they are to ignore fundamental principles of the rule of law.

On the 1st of April 2013, the legal aid cuts imposed by the LASPO came into force. Primarily, it imposed substantial cuts on civil legal aid. This means that several important branches of legal proceedings are no longer covered by legal aid. Examples include:

  • Clinical negligence cases (except where an infant suffering neurological injury is involved)
  • Employment cases (except where a contravention of the Equality Act 2010 can be proven)
  • Private family law cases – contact or divorce (unless there is ‘trigger evidence’ of abuse)
  • Housing law cases (unless there is serious disrepair or homelessness)
  • Education cases (except where they involve special needs)

In addition, the financial eligibility criteria excludes all but the very poorest from being entitled to aid. However, regardless of the fact that the Ministry of Justice’s Cumulative Equality Impact Assessment recognises that the cuts disproportionately hurt the most vulnerable members of society, the conclusion is that, similarly to the second line of proposals, they are proportionate to the general aim of the cuts, i.e. to alleviate the burden on the taxpayer.

The more recent proposals suggest even further cuts and extend even more broadly across the justice system. Some of the proposals are:

  • Taking legal aid away from prisoners completely, except in cases where Articles 5.4 (the right to have ongoing detention reviewed) and 6 (right to a fair trial) of the European Convention on Human Rights are engaged.
  • Establishing a residence test whereby applicants need to prove that they have had 12 years of continuous lawful residence in the UK. This could easily exclude people who may have lived in the country without leave to remain and have been waiting for the Home office to approve their applications, or asylum seekers whose asylum applications have recently been approved.
  • In judicial review cases, High Court permission for the case to proceed is needed before legal aid will be granted. This can mean that solicitors and barristers run the risk of not being paid for substantial work in such cases.
  • Barristers’ hourly rates will be reduced by about 50% for civil proceedings to match the rates paid to solicitor-advocates.
  • Competitive tendering will be introduced for criminal defence work. This could most likely lead to the cheapest rather than best service being provided to clients.

As previously mentioned, Lord Neuberger’s most recent speech on the matter successfully summarises the main issues that arise as a result of these cuts. He mentions, “Cutting the amount [of aid] available for the courts risks increasing delays and decreasing the quality of justice.” Furthermore, he acknowledges the issue regarding the most vulnerable members of society being essentially denied access to justice through both a reduction in the type of claims that qualify for legal aid and an increase in the stringency of the requirements of eligibility. He suggests that this can lead to one of two outcomes. The first outcome is that some cases may never be pursued at all, leading to “a rank denial of justice and a blot on the rule of law”. The second outcome is that cases that are pursued will be pursued inefficiently, leading to higher costs for the courts and long delays for other litigants. Neither of these options bode well for the future of the legal system in the UK. It does seem that the government is employing some level of caution as, most notably, cases that involve human rights issues are likely to fall outside the remit of the cuts. Nevertheless, it is questionable whether this is really a sufficient effort to uphold the rule of law.

From an employment perspective, Andrew Langdon QC, gives his opinion in an article for The Independent entitled 'The Government's case for legal aid cuts does not stand up to cross examination'. With particular regard to the criminal justice system, he suggests that these government decisions do not only affect current barristers, but future ones as well: “outstanding and talented law students are discouraged from practicing in the criminal law, with the inevitable dip in future quality.” He mentions that the Ministry of Justice seems particularly concerned about the level of income that barristers have, but quickly goes on to dispel any mistaken ideas that the salaries of most barristers are so high as to not be affected by the cuts.

In addition, similarly to Lord Neuberger, he notes that spending on the criminal justice system has fallen significantly in the past few years, and that actually, legal aid in general is a lot less expansive now than it was when it was initially implemented.

Most importantly however, there seems to be no denial from the legal field that the economy is going through a period of austerity and spending cuts are needed, but should this come at the cost of justice? The difference of opinion lies in how the legal system could cut back on its costs without giving up too much of its quality. Lord Neuberger has a few proposals on this point also. One of the most notable ones is that the amount of money to be spent on a case should be roughly proportional to the value of the damages being discussed, for example. As such, he suggests a reduction of disclosure in pre-trial procedures and a reduction of cross-examination in hearings, where appropriate. Broadly speaking, he encourages “judges, practitioners and rule makers” to ensure that “legal advice and litigation are as cheap and speedy as is consistent with justice.” He recognises that financial sacrifices may need to be made at some points but stresses that this does not give the government a free hand to “take unfair or unrealistic advantage of lawyers.”

The best way to engage in this process is perhaps to accept that a rough balance needs to be struck between protecting the interests of individuals who require legal aid in order to have access to justice, and furthering the policies of government for the economic good of the country. It remains to be seen however, how willing the Ministry of Justice is to listen to the grievances and suggestions of the legal system.

Update

The first criminal case to be affected by the legal aid cuts surfaced on Thursday 14th November, just two days ago, reported yesterday by the Guardian. The case, a vastly complicated fraud case, has over 100,000 items of evidence that would usually require 16 counsel, two for each defendant. The solicitor for one defendant reported to the judge that he had rung 17 chambers, none of which would accept the complicated work. The fees provided by the new legal aid scheme simply were not sufficient for the complexity of the case. This left the judge no option but to advise the defendants to prepare to represent themselves.

Is this injustice? Can it really be branded just that these defendants must represent themselves against a full bench of prosecution counsel? Is this a breach of Article 6 of The European Convention on Human Rights? Is the additional time the trial will inevitably take as a result of self-representation going to cost more than what is initially saved by cutting legal aid?

We can only wait to find out. However, cases like this may very well pressure parliament to reconsider their stance on legal aid.

Further Reading

Lord Neuberger, President of The Supreme Court, Justice in an Age of Austerity (Tom Sargant Memorial Lecture, October 2013).

Andrew Langdon QC, The Independent, ‘The Government's case for legal aid cuts does not stand up to cross examination’.

Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Ministry of Justice consultation on legal aid cuts, ‘Transforming Legal Aid: Delivering a more credible and efficient system’.

Owen Bowcott, The Guardian, ‘Complex fraud trial threatened as barristers decline work at reduced rate’.

The Law Society, Legal aid changes: key information and advice.

Youth Legal Aid Lawyers, More legal aid cuts

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Tagged: Justice, Legal Aid

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