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New government must tackle ‘dying’ legal aid system

Campaigners rue cuts which have left thousands without access to justice, writes Matthew Rogers

14 July 2016

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The new government must save the failing legal aid system to ensure access to justice for all, campaigners stressed at this week's All-Party Parliamentary Group (APPG) on Legal Aid meeting.

Last month, the Ministry of Justice (MoJ) published statistics revealing a gradual decline in the number of legal aid provider offices for civil and criminal work since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was introduced.

However, campaigners argued that the decline in legal aid had predated LASPO with thousands of people unable to access legal aid.

Speaking at the meeting, Steve Hynes, director of Legal Action Group, said: 'It's been going for about five or six years. Legal aid as a service, even within the constraints of LASPO, is dying on its feet because practitioners just aren't taking the cases because they simply don't pay.'

Nimrod Ben Cnaan, head of policy and profile at Law Centres Network, said the continual shrinking of legal aid provisions had impacted beyond the initial planned cuts. He also suggested that market failure had contributed to the decreasing numbers.

'What the legal aid stats do not tell us, however, is where the need is and to what extent legal aid provision is meeting it because there is no legal needs study,' he said. 'Legal aid is provided with no clear statement of purpose so it's hard to address its efficacy.' Cnaan also expressed his concern over the attrition rates following the cuts and questioned where the public could gain access to justice if legal aid was not available.

Carol Storer, director of Legal Aid Practitioners Group (LAPG), told Solicitors Journal: 'It is worrying in a democracy that people with a limited income cannot obtain legal advice, far less litigate if that is the only way to enforce their legal rights.'

The MoJ's spending was cut from £2.4bn to £1.6bn during the last parliament. However, the government revealed it had failed to target help where it was most needed.

The effects of the failing legal aid system have led to an increase in the number of litigants in person in civil matters. Meanwhile, the rise in court and tribunal fees in employment cases and proposals for a 500 per cent increase in asylum and immigration tribunal costs, have raised questions about what price should be placed on justice.

Earlier this week, prominent immigration lawyers urged the government to reconsider the proposed increase in fees. In a letter to the Guardian, lawyers from leading firms and chambers, such as Bindmans, Leigh Day, and Garden Court Chambers, called for a 'cast iron legally binding commitment' that the status of EU nationals living in the UK will be guaranteed their right of residence irrespective of any consequences of Brexit.

Alison Harvey, legal officer at the Immigration Law Practitioners' Association (ILPA), said the government's rationale for cutting legal aid had never considered immigration and urged it to do so in light of Brexit, which will 'inevitably exacerbate' the situation.

'There are British spouses of EEA nationals who have not been here exercising treaty rights but being here as family members who will have the most desperate need for advice on their status and on benefits,' said Harvey.

Responding to a call for evidence for Lord Willy Bach's review into legal aid, the Young Legal Aid Lawyers suggested that an independent and comprehensive review of the impact of court and tribunal fees was necessary, among other changes. 'At present we have a justice system in which equality before the law is a mirage,' said Oliver Carter, co-chair of the group.

The new prime minister, Theresa May, has vowed to lead a government not for the interests of the 'privileged few'. Speaking at the APPG, Hynes said: 'We've got to get the language of rights back. If the government are not going to protect the privileged few then we would suggest putting back people's rights and ensuring that those rights are defendable through a legal aid system. It should be a priority and there are opportunities with good will by the right secretary of state [for justice].'

On Tuesday, Hynes said that the 'best result' would have been for Michael Gove to keep his position as Lord Chancellor. However, the justice secretary lost his job and has been replaced by Liz Truss. Nevertheless, Hynes remained optimistic following Gove's departure.

'Gove had started big policy initiatives on prisons and court reforms. It will be interesting to see if these continue. I know he also wanted to look at legal aid policy afresh - something LAG would like the new secretary of state to do,' he told Solicitors Journal.

'Truss sat on the LASPO Bill committee, so knows about the subject and, hopefully, she will be willing to undo some of the damage it has reaped on access to justice.'

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Legal Aid