Although access to the courts has long been recognised as a constitutional right, there was – until relatively recently – no firm constitutional right to provision of legal assistance at public expense if one could not afford a lawyer.

In 1949, the post-war Labour government enacted the Legal Aid & Advice Act. Legal aid was to be available in all courts and tribunals where lawyers normally appeared for private clients, but even from the earliest days of this far-reaching legislation, entitlement to free legal aid was to be subject to a means and merits test. This was to apply to both civil and criminal legal aid.

Reining in the cost of legal aid

Ever since its inception, legal aid has been under scrutiny; there has been a tendency by governments of all persuasions to attempt to rein in the cost of legal aid provision. During the 1980s, the then Conservative government began to prioritise restraining the legal aid budget in the face of unprecedented rises in cost.

By 2010, the legal aid budget was running at £2.1bn. There was a long-running dispute between the government and the legal profession over the former’s desire to introduce arrangements for price competitive tendering for legal aid contracts.

Whole tracts of the country are without legal aid provision

Matters came to a head when the government imposed a 13% cut in legal aid rates. The legal profession reacted in two ways – they threatened to strike or leave legal aid work altogether. This had nothing to do with 'fat cat ' lawyers being stubborn or unwilling to change; the plain fact was that on the rates of pay proposed by government, working as a legal aid lawyer was just not tenable.

Matters only partially cooled when 7% of that cut was restored. The cuts were followed by legislation and in 2012 the government passed the Legal Aid Sentencing and Punishment of Offenders legislation (LASPO). This took whole tracts of law, especially civil law, outside of legal aid provision. The effects of this legislation are still reverberating today.

In the criminal field, accredited duty solicitors cover provision at courts and police stations. On arrest everyone is entitled to free legal advice at the police station, irrespective of status and income. If the matter under police investigation results in a charge, and the defendant has to appear at court, free legal advice is only available from the court duty solicitor.

Otherwise, the choices are to represent oneself or pay for a solicitor to represent you. Defendants can apply for legal aid but this is based on twin 'means' and 'interests of justice' tests. Youths and people on benefits are normally passed but otherwise, even those on modest incomes are barred from accessing free legal aid, a contribution towards legal aid costs has to be made by the defendant.

Advice deserts

There are advice centres where people can access legal advice, but these are financed on a charitable basis and are few and far between. The cumulative effect of the reductions in scope of legal aid, and the amount that can be earned in remuneration for legal aid advice, has meant a reduction in the number of legally qualified people able to offer such help and advice. Whole tracts of the country are without legal aid provision. I have heard of a case where in the counties of Devon and Cornwall, there was not a single legal aid lawyer, one had to be found in Bristol.

However, all is not lost. Parliament, in its wisdom, is currently holding an enquiry into legal aid provision. The All-Party Parliamentary Group on Legal Aid has been taking evidence from all sections of the legal profession (including CILEX). All agree that legal aid is in a parlous state. Current pay rates for barristers and solicitors are deemed abysmal, areas of law previously removed need to be brought back into provision.

Whether the group’s recommendations will be accepted by government and the Treasury, given the current expenditure on the Covid-19 pandemic, remains to be seen, but at least they have been marked.

So, what price legal aid? Why do we go on, trying to make the creaking system work? As a Fellow, it has been my experience that those who need the law most, are those who can afford it the least.

Call it altruism. We do it because we help people who cannot help themselves. We do it to make a fairer, more just society. Surely, is that not the whole ethos of the CILEX?