Access to justice in the age of austerity

Civil legal aid and the not-for-profit (NfP) advice sector, which developed in parallel, were not originally conceived to be the important additional arm to the welfare state that they have become. Sixty years on however, the Legal Aid Sentencing and Punishment of Offenders (LASPO) Act, approved by parliament in May, will effectively turn the clock back as regards access to justice for many members of the public.

When the cuts to scope are implemented in April next year, according to the government’s own estimate, 623,000 people will miss out on advice on civil legal problems.

Based on the recent history of legal aid policy the Legal Action Group (LAG) is making a number of predications about the immediate future.

Firstly, the government will try to continue their squeeze on fees in civil and criminal legal aid. In doing this they will risk losing the talented and experienced professionals from the sector, resulting in more miscarriages of justice and failures to protect human rights.

Fertile ground for public law specialists will be provided by the ‘exceptional cases’ rules introduced by the LASPO Act as a catch-all human rights safety net, and it will be some time before the boundaries of what is in or out of scope are established. This will leading to uncertainty over the legal aid budget and for clients and potential clients over what is covered by the legal aid scheme.

It should not be underestimated the sheer potential for unexpected pitfalls in the byzantine tendering processes that the LSC (Legal Services Commission) and its successor body the Legal Aid Agency run. The Law Society’s judicial review success in challenging the civil tendering arrangements two years ago demonstrated the potential for this.

Finally for the NfP sector there will be closures and consolidations as agencies struggle with the twin challenges of increasing demand and dwindling resources.

By taking over direct control of the administration of legal aid ministers have no hiding place from the problems outlined above. The LSC politically acted as a buffer between legal aid lawyers and the government, as well as a convenient scapegoat for when things went wrong. The problems of administering a complicated system, with a difficult to control budget and the added layers of complexity which being part of the justice system brings will all now be directly those of ministers. So for example if a judicial review is lost due to a flaw in procurement procedure this might lead to calls for the Secretary of State for Justice’s resignation, as might budget overspends.

Political opposition

So far, so pessimistic, but at its lowest ebb the seeds of recovery for the legal aid system and access to justice in general might have been sown. In the research for LAG’s latest book, Austerity Justice, published to mark the organisation’s 40th birthday, it has become apparent that many Liberal Democrats are unhappy about what they see as a fundamentally un-liberal policy of cutting off the means of redress for many people when faced with legal problems caused by the state and other large institutions. Lib Dem MP Tom Brake, in an interview for the book, openly admitted that the policy goes against that of his own party and that the Lib Dem manifesto would be likely to reverse the worst of the cuts. Individual Conservative MPs are known to be unhappy about the impact on family and other cases. Helen Grant, the Conservative MP for Maidstone and The Weald is one. Now a minister in the Ministry of Justice, the former legal aid family lawyer was very critical about the government’s proposals when they were being debated in parliament over the last year.

Grant was especially concerned that the plans for legal aid would “badly impact on women”. The government’s impact assessments show that women and disadvantaged groups such as disabled people will suffer disproportionately from the changes to legal aid. In February 2011 Helen Grant wrote an article for the Guardian, in which she nailed her colours to the mast regarding her views on the ?LASPO Bill.

“Over the last three decades the distance between the haves and have-nots has increased, and our society has weakened due to the demise of the family unit and the rise of the benefits culture. These are ailments that will take some time to cure; but to stem the flow of legal aid while we are in such a critical condition, amid a stifling recession, could prove devastating,” she said.

While Labour will make no spending commitments to put back areas into scope, they continue to be vocal about the loss of social welfare law especially. Former legal aid minister Lord Bach admits that if Labour had remained in power cuts to legal aid for family law would have been likely, but he argues: “the coalition government made fundamentally the wrong choice in cutting social welfare law and offering insufficient protection for the victims of domestic violence.” He believes if Labour had remained in power they would have found savings by introducing competitive tendering for criminal cases and reducing fees in very high cost criminal cases such as fraud trials.

LAG is launching a commission on social welfare law at its annual lecture on 4 December, with the express intention of trying to influence the political party’s election manifestos for the 2015 election. This and other initiatives need to continue to highlight the impact of the loss of legal aid and other services which provide access to justice so that the politicians are forced to respond to the problems the current government’s policies have created.

New policies

Sketching out the ideal policy for access to justice is a work in progress. LAG’s commission will play a part in this, as will other policy initiatives and research. ?LAG makes five suggested priorities for policy makers:

1. Independence in decision making?The new rules to prevent interference in decisions on entitlement to legal aid in individual cases are not robust enough to prevent real or perceived political interference. There are concerns about former ministers’ alleged interference in individual cases and LAG suggests an independent tribunal system needs to be established to adjudicate in such decisions.
 

2. A review of the impact of the cuts?A review of the impact of the cuts ?needs to be held before the general election in 2015 and scope restored (under section 8 LASPO Act) for those areas of law in which the withdrawal of legal aid has caused substantial hardship to people and significant knock-on costs to the justice system and other arms of the state.
 

3. End the post code lottery in civil ?legal advice services?A theme which runs through much of the research and policy thinking on legal services is the uneven spread of services. This is set to increase with changes introduced by the LASPO Act and the other cut backs in legal advice services. At the very least there should be co-ordinated mapping of legal need.
 

4. Re-thinking funding legal aid services?Ideas such as ‘polluter pays’ and compensating the legal aid fund for external cost drivers such as the knock-on costs in the criminal justice system have been doing the rounds for some time, along with alternative sources of funding such as the levy on client account interest. The problem has been the lack of political will to implement them. A future government will need to revisit these if it is to be serious about ensuring access to justice in the civil justice system.
 

5. A Minister for Access to Justice?In discussing the LASPO Act debate one of the most disheartening themes is the government’s (and most specifically the Ministry of Justice) seeming indifference to access to civil justice. The very basic right of a citizen to be able to get advice on and if necessary pursue their rights in civil law, has been sacrificed for budget cuts of dubious merit in terms of overall cash saved. The priority of making sure people obtain meaningful redress with legal problems needs to be reasserted at the heart of the government and justice system

Public opinion

Legal aid firms and NfP advice services will adapt to the changed funding environment. There will be painful cuts, firms and advice centres will close or be forced to merge, and many experienced and able lawyers and advisors will be obliged to move on to other work, which is a shameful waste of expertise. It will be the poorest and most vulnerable groups in society though which will suffer most from the austerity justice system which will be the legacy of the coalition government.

Economic prosperity ebbs and flows, but an essential cornerstone of a democratic state should be a justice system that provides effective redress and equality before the law for all its citizens regardless of means. Making this argument in the court of public opinion in the coming years is what will ultimately determine whether the low point which the LASPO Act represents is permanent or not.