Legal aid
The LASPO Act five years on
Catherine Baksi reviews the current state of the entire legal aid scheme.
About the author
Catherine Baksi is a freelance legal affairs journalist.
While 2019 will mark 70 years since the Legal Aid and Advice Act 1949 enshrined civil and criminal legal aid in the law of England and Wales, today both branches of the system are in crisis due to penny-pinching cuts made by successive governments. Such cuts risk driving lawyers out of the market and leaving clients to fend for themselves, or denied access to justice, or left in the hands of cowboys.
At the time of writing, criminal barristers are on the verge of strike action in protest against cuts to the advocates graduated fee scheme (AGFS) that were implemented on 1 April; the Law Society is at the start of a legal battle with the government over cuts to the criminal litigators’ graduated fee scheme (LGFS); and the criminal courts are literally crumbling, with reports that the roof fell in at Sheffield Crown Court.
In general, the wider criminal justice system struggles on, with dilapidated buildings, staffing shortages, court closures, and the other side effects of budget cuts. While on the civil side, the profession still awaits the much-delayed report on the impact of the LASPO Act, which cut huge swathes of law out of the scope of public funding.
On 1 April, the Ministry of Justice (MoJ) was scheduled to implement, by the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018 SI No 220, fee changes described by Angela Rafferty QC, chair of the Criminal Bar Association (CBA), as the ‘greatest proposed change in fee structure in 20 years for the publicly funded defence Bar’.¹
The MoJ maintains that the changes to the AGFS are designed to ‘better reward ‘work done’ and to reflect the reality of the modern criminal justice system’.² Amended slightly from the original proposals, the new scheme, which the MoJ claims is cost neutral, ends the old system of payment determined by the number of pages of evidence served by the prosecution and introduces flat fees for different matters.
Crucially, as the CBA pointed out in a letter to Lord Trefgarne, chairman of the Secondary Legislation Scrutiny Committee, there is no separate payment for reviewing the evidence, however much is served.³
The importance of trawling through the ever-increasing amounts of information obtained during investigations, in particular information from social media and mobile phone messages, was highlighted in the recent disclosure failures that have hit the headlines and resulted in prosecutions halted - at the eleventh hour - following the emergence of exculpatory evidence. The CBA highlighted the fact that the volumes of evidence which needed to be looked at were not considered in the original consultation and stressed: ‘This important work will be undertaken with no prospect of payment.’
The letter also stresses that the scheme ‘provides no new money’ and may actually result in a ‘reduction in spend of £2m’, contrary to the government’s claim of cost neutrality, which was based on 2014/15 spending levels. The CBA points out that there is no protection against inflation, although the MoJ has said that the scheme will be reviewed within two years.
However, the CBA states that the change must be set in the context where advocates’ fees have fallen by 40 per cent in real terms over the last 10 years. It warns:
The viability and sustainability of a career at the Criminal Bar is under threat. Many talented young practitioners, particularly women, have been forced to leave the bar for financial reasons.
Barristers must fund their unavoidable administrative overheads, holiday, maternity/paternity, sick pay and pensions from very low, declining and uncertain levels of remuneration. Those from less privileged backgrounds will be deterred from pursuing this line of work; the profession will become less diverse. This will impact on the future pool from which the judiciary are drawn.
A meeting of about 60 heads of chambers reported that the ‘mood of the profession is darkening’ and agreed that the criminal justice system ‘is on its knees’.4 The ‘Chair's Update’ from Angela Rafferty, in the CBA’s weekly e-mail epistle, to members said that the levels of worry among barristers were ‘extremely high’, in particular the concern over the survival of the junior bar.5
She went on to tell members that the lack of funding in the criminal justice system has resulted in its ‘near collapse’: ‘You cannot have a national asset and treat it like this.’6 The CBA asked the MoJ to ‘delay, withdraw, amend or reconsider’ implementing the new fee regime; however, it is understood that the ministry was not minded to do so.7
The CBA balloted heads of chambers to gauge the appetite for some form of direct protest action by its members – similar to the action taken in 2014 and 2015 when barristers voted not to accept new legal aid briefs and adopted a ‘no returns’ policy – where they refused to cover ongoing cases for colleagues if trials overran or diary clashes occurred for other reasons. A spokesperson said that the CBA was ‘quietly confident’ of support for action, which might involve ‘some sort of downing tools for legal aid work’.
In advance of the position taken by the CBA, some leading chambers have already taken matters into their own hands. Garden Court Chambers, in London became the first set to announce that it would not accept new criminal legal aid cases from 1 April and will operate a ‘no returns’ policy.8
Calling on colleagues to support the Chambers, a statement on its website said that the new fee regime threatens 'the continued existence of our Chambers and many others. In our view, the future of the publicly funded criminal bar is at stake'.9 The move followed a letter sent by four senior members of the set to David Gauke, the Lord Chancellor and Justice Secretary, voicing concern over the impact of successive funding cuts.10
Meanwhile, in an open letter to barristers, the leader of the South Eastern Circuit, Kerim Fuad QC, said:
We need to act now for if we do not, there will no longer be an independent criminal Bar. We are required to unite to protect our justice system, protect the public and to protect the provision of legal aid. Action is required. We just need to be clear about what that action is.
Jonathan Black, a former president of the London Criminal Courts Solicitors’ Association (LCCSA), said that the Bar would have the support of criminal solicitors if barristers decided to take action: ‘The cuts are not in solicitors’ interests either, and I don't think criminal solicitors will act as black legs’.
Solicitors have also suffered from the MoJ’s scythe. On 1 December 2017, despite opposition from 97% of consultation respondents, the MoJ brought into force the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2017 SI No 1019.¹¹ The regulations reduced - from 10,000 to 6,000 - the cap on the number of pages of prosecution evidence for which fees could be claimed. An MoJ impact assessment estimated that the change would mean that legal aid providers will receive around £26m to £36m less for LGFS payments.¹²
Warning of the dire consequences of the further cut, the Law Society launched a legal challenge to the decision to go ahead with the new pay regime, filing an application for a judicial review in January. The Lord Chancellor has acknowledged service of the claim, but so far, the MoJ has filed no grounds for opposing it, which means that permission for the judicial review cannot be opposed without the court’s permission.
Jonathan Black said that the solicitors’ half of the profession is ‘totally fed up’. He told CILEx Journal: ‘You only have to look at how the Secret Barrister’s book, Stories of the law and how it’s broken, (published in March) has been received to realise that. What was written resonated with the whole profession, and we are all delighted that someone has given voice to the problems in the wider media.’
At the end of March, LCCSA, together with the Criminal Law Solicitors’ Association and the CBA, launched the Charter for Justice, putting together a set of principles encapsulating what Jonathan Black said are: ‘the key principles that we can all unite behind and campaign for’.¹³
The LASPO Act review
On the civil side, the profession is still reeling from the impact of the LASPO Act, which took legal aid away from vast areas of law. In September last year, the Bach Commission, chaired by Labour peer and former justice minister Lord Bach, and set up by Labour leader Jeremy Corbyn, published The right to justice, its final report on the future provision of legal aid.14
Among its 25 recommendations, the final report proposed a Right to Justice Act, monitored and enforced by a Justice Commission. Lord Bach told CILEx Journal that he is ‘more than hopeful’ that some of the recommendations will be implemented. ‘I never expected anything to happen overnight, but I’d be disappointed if I thought it would never happen,’ he says.
During the Conservative party autumn conference in Manchester last year, the solicitor general, Robert Buckland QC, gave his backing to limited legal aid reform. Speaking at a fringe event organised by LawWorks, he accepted that gaps in provision had created ‘unfairness’, and said that ‘there is a strong case for a significant increase in funding for early advice’. At another party conference event, this time organised by the Society of Conservative Lawyers, with the Bar Council and the Law Society, the then Lord Chancellor and justice secretary David Lidington said that the post-legislative review of the LASPO Act would provide an ‘opportunity to take stock and to see whether there are good arguments for specific changes to be made’ ; however, he stressed: ‘I’m not going to pretend that I have a crock of gold that the chancellor has suddenly presented me with.’
Five years after the implementation of the LASPO Act, lawyers are still waiting for the outcome of the review, which was delayed by the snap election last May. Only in March this year did the MoJ publish the terms of reference for its 'post-implementation review evidence gathering exercise'.15 Commenting on the delay, Lord Bach said: ‘I’m disappointed that it’s taken so long to get going’, in particular because he said that there is cross-party support for changes. At a recent meeting of the All Party Parliamentary Group on Legal Aid, Dominic Grieve QC, a Conservative MP and former Attorney General, indicated that he is ‘fully supportive’ of efforts to bring early advice back into scope.
At Legal Action Group’s (LAG’s ) annual lecture, in November last year, the late Sir Henry Brooke said that he was not optimistic about the outcome of the government’s legal aid review. He said: ‘It’s a disaster that it’s being done in-house. It is crying out for somebody charismatic to lead it and to behave like Lord Woolf did with the civil justice enquiry.’
Speaking on BBC Radio 4 programme ‘Law in Action’, David Gauke said that: ‘realistically, the review would not be completed by the summer recess’ ; however, he hoped that it would be completed this year. He said that there was a ‘significant amount of work’ to be done, and that the ‘most important thing is to get it right’.
Priced out of justice? Means testing legal aid and making ends meet, a report published by the Law Society, showed that the means test threshold for civil legal aid eligibility is too high.16 The research said that people already living below the poverty line, who cannot reasonably afford to pay for legal services, are being left without effective access to the courts. The author, Donald Hirsch, professor of social policy and director of the Centre for Research in Social Policy at Loughborough University, said: ‘People are having to choose between accessing the justice system and a minimum living standard.’ The society called on the government to restore the means test to its 2010 real-terms level, and to conduct a review to consider further changes.
All round, the future does not look bright. A report entitled Young Legal Aid Lawyers: social mobility in a time of austerity, suggested that debt, combined with low salaries, stress, lack of support and juggling legal aid work with other responsibilities, means many individuals are finding it impossible to continue working in legal aid.17
And as Steve Hynes, LAG’s director, concludes: ‘The government’s policy focus is on prisons and the rest of the justice system. As usual, civil legal ends up as the poor relation.’
1 ‘CBA Monday Message 26.02.18: chair’s update’, available at: https://tinyurl.com/ycckcjrt
2 Reforming the Advocates’ Graduated Fee Scheme: government response, 23 February 2018, available at: https://tinyurl.com/yaqffl93
3 Letter dated 6 March 2018, available at: https://tinyurl.com/yb9739l7
4 'CBA Monday Message 12.03.18', available at: https://tinyurl.com/ydgj3pl2
5 See note 4
6 'CBA Monday Message 19.03.18', available at: https://tinyurl.com/y9nkulsx
7 See note 6
8 ‘Garden Court Chambers supports and welcomes statement from Criminal Bar Association on legal aid cuts and AGFS’, News & Views, 29 March 2018, available at: https://tinyurl.com/y9fh7tmx
9 'Garden Court Chambers announces action in response to legal aid cuts and publishes open letter to MoJ calling for rethink of AGFS', News & Views, 23 March 2018, available at: https://tinyurl.com/y7gwpu8d
10 See note 9 and ‘Open letter from Garden Court Chambers calling on MoJ to rethink swingeing AGFS cuts to legal aid’, 23 March 2018
11 Litigators’ Graduated Fees Scheme and court appointees consultation paper and government response and related documents, available at: https://tinyurl.com/gvfjler
12 See note 11
13 Available at: www.lccsa.org.uk/charter-for-justice-2/
14 Available at: https://tinyurl.com/y9qympa6
15 Available at: https://tinyurl.com/y8m5l5fn
16 Available at: https://tinyurl.com/y8osv5ap
17 Available at: https://tinyurl.com/y742dslo