Legal aid at 70: built to last or on its last legs?

The Law Society has produced a number of heat maps which illustrate this development.› For example, there are now no firms able to provide housing advice under legal aid in East Anglia, Yorkshire, Suffolk, Devon or Herefordshire.

The result is many people are denied justice running contrary to the government’s stated aims in 1949. The MoJ remains in denial about this, with Fiona Rutherford blithely talking about a pilot of ‘holistic support hubs’, a ‘spectrum’ of legal support, with the yardstick of access to justice being whether or not it is ‘sustainable’.› Richard Miller, head of justice at the Law Society, believes that, economically, it is neither viable nor sustainable to do work at the legal aid rates set by the LAA.

Criminal cases

The legal aid criminal budget is now around £900m a year. The Rushcliffe committee recommended that: ‘Legal aid shall be granted in all cases heard in criminal courts where it appears desirable in the interests of justice, and that any doubt as to whether or not a certificate shall be granted, shall be resolved in favour of the applicant’ (para 140).

In general, criminal legal aid is provided through solicitors’ firms and barristers in private practice; however, a limited number of public defenders are directly employed by the Legal Aid Agency in the Public Defender Service (PDS). The PDS was established in 2001 and was the first salaried criminal defence service in England and Wales. There are now four PDS ofices in Cheltenham, Darlington, Pontypridd and Swansea.

Richard Miller says that the USA experience is that in states where there is a PDS as well as private practice lawyers, the PDS can perform satisfactorily. However, in states where the only option is the PDS, the service is overstretched. He adds that it has not been proven that the PDS is any cheaper than using private practice law firms.

Family cases

Legal aid is now generally only available in family cases where there is a violent partner. Lady Hale has publicly criticised the fact that the HMCTS website does not, among other things, describe to a visitor what the remedies are in a family case.¹› She said that the government may have been thought, in 2012, that removing access to lawyers in family matters while retaining public funding for family mediation would discourage the use of courts; however, instead ‘there has been a nearcollapse in the use of family mediation’. Lady Hale commented that the explosion of family cases and family litigants in person is ‘no surprise’.

Richard Miller says that there should be early advice in all family cases, which could direct people to mediation, and so there would be limited need for legal aid.

Civil cases

The Legal Aid, Sentencing, and Punishment of Offenders (LASPO) Act 2012 and the Civil Legal Aid (Procedure) Regulations 2012 SI No 3098 came into force on 1 April 2013. This legislation established the Civil Legal Advice telephone advice line for debt, discrimination, and special educational needs and is the only route by which eligible individuals can access assistance in these categories of law.

However, few people know that this support exists as the Civil Legal Advice telephone advice line is signposted poorly. These call centres appear to be run professionally and have information to make a good diagnosis. However, on some audit visits, concern has been expressed about advice which was wrong, factually and legally. Richard Miller questions whether telephone advice is effective because, even if such assistance is accurate, it is still left to callers to discover how to act on the information.

Green Form Scheme

The Green Form scheme was introduced in April 1973. The scheme allowed up to two hours’ advice and assistance for which solicitors could claim £45 an hour. When Green Form existed, over 5,000 solicitors’ firms participated in the scheme, which was replaced by the legal help scheme under the Access to Justice Act 1999. The precursor to the Green Form scheme was recommended by the Rushcliffe committee’s report: ‘all applicants for legal advice shall be given legal advice on the payment of a fee of 2s 6d’ (para 178).

Coroner’s courts and employment tribunals

As to inquests in coroner’s courts, the Rushcliffe committee proposed that ‘legal aid shall be granted to persons within the scope’ of its recommendations when they concerned ‘matters coming before coroner’s courts’ (para 170). Similarly, as to ‘special tribunals’, the committee urged that ‘legal aid shall be granted’ in matters coming before ‘any tribunal where audience is normally granted to barristers and solicitors’ (para 170).

However, legal aid for inquests is only available under the exceptional case funding (ECF) scheme (see below) and is unattainable for representation at an employment tribunal.

Richard Miller says it is telling that usually public bodies, such as the police, prisons or hospitals, are represented by QCs at inquests. In 2017, Bishop James Jones’ review of the Hillsborough families’ experiences was published by the Home Ofice. The report said that there was a ‘pressing need’ for ‘proper participation’ of bereaved families at inquests with, among other

things, publicly funded legal representation where public bodies are legally represented.¹¹

In addition, the report recommended that there be a change to the way in which public bodies approach inquests, so that they treat them not as a reputational threat but rather as ‘an opportunity to learn and as part of their obligations to those who have died and to their family’ (page 8).

Legal aid budget, rates of pay and disguised cuts

In 2017-18, the LAA’s net legal aid expenditure was £1.7bn. This was £33.5m higher than in the previous year, but 33% lower than in 2010-11, before the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, when it was £2.55bn.¹²

The MoJ wants everyone to believe that spending on legal aid has been maintained; however, this ignores a number of uncomfortable truths. First, the rate of VAT was increased from 17.5% to 20% in January 2011. Nearly all invoices and fee notes submitted by solicitors and barristers include VAT; however, there was no corresponding increase in any of the years from 2011 to compensate for this. Richard Miller says that this represented a disguised cut of 2.5% a year in the legal aid budget.

Second, when the LASPO Act came into force, the availability of legal aid was decimated. As the legal aid budget has been frozen, inflation has continued to rise. Firms reliant on public funding still have to pay office rent, business rates and utility bills, which have all gone up. The MoJ’s failure to offer even modest increases in pays rates to compensate for this, means that firms have had to take a pay cut in their already modest and squeezed earnings. Against all this, Fiona Rutherford commented that there is a desire to ‘energise’ the sector with ‘good legal aid’ offering a ‘new vision, a new future’.

Third, court fees are not automatically remitted for litigants receiving legal aid. They must apply for remission, which may be refused or granted only in part. Where remission is refused, court fees will have to be paid. This too represents a disguised cut. For example, in a clinical negligence valued at over £200k, a court fee of £10k is payable. Richard Miller says that this is a significant deterrent because, until five years ago, court fees were set at a level to recover court operating costs, but now they are set at a level to make a profit for the MoJ.

The Rushcliffe committee recommended that ‘[b]arristers and solicitors should receive adequate remuneration for their services’ (para 127); however, this aim has not been achieved. For example, not since the 1990s has there been adequate renumeration in civil matters, and in family law it is said to be only viable to undertake work in legally aided public law care proceedings.

Exceptional case funding scheme

The LASPO Act set up the exceptional case funding scheme. There were 837 applications for ECF received from January to March 2019. This is a 16% increase from the same quarter last year. Of these, 768 (92%) were new applications.

Of the 837 ECF applications received between January and March 2019, 92% (773) had been determined by the LAA as of 20 June 2019. Of these 69% (534) were granted, 17% (129) were rejected and 13% (103) were refused.¹³

Richard Miller brands ECF as the ‘ultimate Catch 22’, commenting that it takes a lot of time and effort to put in a successful application. He adds that the rules are too tight, the process is too complex, and that people who should benefit from ECF do not. While Fiona Rutherford says that the scheme is merely a ‘safety net’, Audrey Ludwig at Suffolk Law Centre™ disagrees, branding the statistics for the scheme as ‘appalling’, backing this up by disclosing that none of the discrimination cases for which she had sought ECF had been successful.

The court system and McKenzie Friends

The county court has been centralised and, in the process, the counter service that used to be available at most local county courts has been axed. While court staff were unable to give advice, they were able to give litigants the correct court forms. Nevertheless, the impact of the swingeing cuts to the Court Service coupled with the drying up of legal aid following the enactment of the LASPO Act has led to the growth in professional McKenzie Friends, ie, non-lawyers who assist litigants-in-person on a fee-paying basis, to try and plug the gap.¹›

Though noting that McKenzie Friends can be extremely helpful, Lady Hale cautions that they ‘are now turning themselves into an unregulated fee-charging service, which must raise serious questions about whether and how they might be regulated’.¹›

Richard Miller is clear that the growth of McKenzie Friends has been a bad thing. He too has concerns about the risks of lay individuals, who are neither qualified nor insured, providing legal advice and assistance. A lawyer owes obligations to the court over and above those due to a client.

Administration of legal aid

Legal aid was administered by the Law Society of England and Wales by area committees from 1949 to 1988. In 1988, responsibility for the scheme was transferred to the Legal Aid Board under the Legal Aid Act 1988; the 1988 Act was repealed and replaced by the Access to Justice Act 1999 (civil legal aid and criminal legal aid were changed to the Community Legal Service and the Criminal Defence Service, respectively) and, in

2000, the Legal Aid Board was replaced by the Legal Services Commission; and in April 2013 the LAA, which is an executive agency of the MoJ, was formed under the LASPO Act).

The Bach Commission on Access to Justice noted that while ‘the overall budget of the LAA was cut by 25 per cent, the administration budget has stayed relatively steady’, which is astonishing given the savage cuts to legal aid availability post the LASPO Act.¹› In 2017–18, the LAA’s administration running costs were £81.4m.¹›

The Bach Commission recommended that the ‘Legal Aid Agency should be replaced by an independent body that operates the legal aid system at arm’s length from government’, which is supported by Richard Miller.¹› However, the MoJ has simply produced a Legal Support Action Plan to ‘deliver quicker and easier access to legal support services’, which falls well short of this aspiration.¹›

New technology

Is it still necessary for legal advice to be provided face-to-face in a solicitor’s office or barrister’s chambers? What services could be provided to disadvantaged people using mobile telephones, facetime, video-conferencing or web chat? Are these delivery channels appropriate for all legal services?

Fiona Rutherford says that the MoJ is testing a pilot on early resolution in social law, and there could follow a significant possible ramp up for the system. Otherwise, at present, the MoJ is thin on detail referring only to a pilot of ‘holistic support hubs’ and £5m for its ‘legal support action plan’, which is meant to herald ‘new ways of delivering support’.

Richard Miller cautions that for some people new technology may be effective, with the bonus that it would free up resources, singling out initial help on social welfare cases as a good example.

While AI robots may be coming, their initial targets are unlikely to be solicitors’ firms. Although it is tempting to try and offer advice via video-link to plug the gap left by advice deserts, there are at least two big issues to iron out. First, this sort of work is not yet adequately remunerated by the LAA. Second, it is far from clear that people can act effectively on the advice they are given. This aspect still needs more testing, research and analysis before the concept is proved to work. This is something that Audrey Ludwig endorses when noting the lack of resilience in some of the clients her law centre seeks to help and their inability to work out the issues from the mass of material that they often present with.

The future of legal aid

Despite all this, Lady Hale said, at Legal Action Group’s conference, that there are still reasons to be cheerful about legal aid. Fiona Rutherford claims that the MoJ wants to ‘help people best, at the right time’.

Richard Miller remarks that even now there are people passionate about justice, who fight to keep public funding. He believes that although many of the legal profession’s concerns will not be addressed by the post-implementation review of the LASPO Act, we ‘may, finally, be turning a corner’.

•  The author would like to give special thanks to Emma Harris at the Law Society Library, in London, for her helping in locating the historic reports and papers referred to in this piece.