Ever synonymous with the foundation of the welfare state, Legal Aid is now over 60 years old. Its purpose remains the funding of legal representation for those who could not otherwise afford it. Initially managed by the Law Society, in 2000 the Legal Services Commission (LSC) was put into action in England and Wales.
Up until 2011, some 29% percent of the population of the UK has been eligible for some form of Legal Aid, usually in relation to criminal and civil defence, divorce proceedings, challenging home repossession orders and unfair dismissal. Famous Legal Aid cases include those related to the Deptford Fire, the Thalidomide drug, and the Clapham Junction Rail Crash. Legal Aid recently helped prevent 34,000 people from losing their homes, with over 75% able to avoid immediate repossession.
Changes in Legal Aid
Legal Aid practitioners have been fighting changes to funding since 2005. A 2006 review by Lord Carter of Coles advocated the 'marketisation' of Legal Aid and cuts in spending of £200m over a period of three years. This included a controversial system of fixed fees in civil areas such as family, housing and debt advice. More recently, additional cuts have emerged as part of the 'Legal Aid, Sentencing and Punishment of Offenders' green paper unveiled in June 2011. Rather than the half billion-pound cut proposed in the consultation paper 'Legal Aid: refocusing on priority cases,' Kenneth Clarke has slashed Legal Aid funding by £350m. Overall, however, the government’s paper stays faithful to proposed cuts, evidence that they have failed to listen to the many voices of criticism.
Arguments for change
Arguments against change
- Commentators have been vocal in their belief that the cuts will hit only the poor and the right wing press' focus on 'fat cat lawyers' shifts blame. George Monbiot in The Guardian: 'The consequence of this phoney war on fat cats is a massive empowerment of the real elites'.
- Other opponents stress how defendant only clauses means that the establishment (be it accountants, surveyors, structural engineers, employers and landlords) are protected against individual litigants.
- Clarke's plans bring 'no win no fee' cases to the fore, but there will be obvious prejudice against cases that are complex or difficult.
- There will be a rise in litigants in person – in divorce proceedings and employment tribunals matters naturally take longer and cost more because of this. Worse though, there will be no provision for the alleged perpetrators of child abuse or domestic violence – meaning that victims could face being cross-examined by their alleged abusers.
- The plan includes new caps on barristers’ rates in criminal cases, slashing their fees by up to 30% and potentially driving the best barristers away from Legal Aid work.
- Critics suggest that the cuts are short sighted and that not investing enough in Legal Aid may cause knock-on job losses and burdens on public services such as those relating to health and social care, benefits and accommodation.
Fixed fees: pros and cons
In 2007, the LSC replaced the old hourly-rate approach to paying practitioners with a system of fixed fees. The rationale was to keep costs from spiralling out of control, but the decision was contentious to say the least. Many practitioners believe that fixed fees are likely to endanger specialist firms and encourage high volumes of low-quality advice, with firms putting in the minimum amount of work for the price and giving work to increasingly inexperienced staff. The longer and more complicated a case, the less the firm will earn: people with complex cases may simply be denied access to justice. Another argument is that the fees rates are too low, especially since there is no differentiation between London and the regions. A survey by the Law Centres Federation in 2008 revealed that as a result of the fixed fee system, almost one in five Law Centres was threatened with closure and almost a half (49%) were in serious debt.
The scope of recent reforms
In their pre-election manifesto, the Conservative Party set out a plan to scrap the 1998 Human Rights Act (HRA) and replace it with something they liked better. The Lib Dems, meanwhile, were determined to keep the HRA and build on it. How to reconcile the two? The coalition government has decided that it will “establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights.” Ken Clarke has said that Britain will remain a signatory of the European Convention on Human Rights (ECHR), which influences a number of areas of law including privacy, immigration and clinical decisions.
The LSC’s Family and Social Welfare Law tender exercise, has led to a third of immigration practices being notified that they will no longer be awarded public funds. Just 252 of the 410 individual offices that bid for immigration and asylum work got contracts; meanwhile, 73% of firms that bid won some work, but the number of cases they can take on is much lower than in previous years, threatening their business viability. Last year, Fisher Meredith managing partner Stephen Hewitt predicted “it will remain a difficult area to practice in.” This year, Fisher Meredith lost its publically funded immigration department to the tune of ten jobs. As it stands, the Home Office refuses approximately 75% of asylum applications, 28% of which go on to succeed at appeal. The Times reported that 41,470 immigration cases (NB: not only asylum cases) were allowed on appeal in 2009. Planned budget cuts are particularly expected to affect those seeking judicial review and other late-stage challenges. Many other firms have stopped taking asylum work because it simply doesn’t pay.
In other news
Refugee and Migrant Justice centre
On 16 June 2010, the Refugee and Migrant Justice centre (RMJ) went into administration due to cash-flow problems. It represented about 10,000 asylum seekers a year, including victims of trafficking, torture survivors, children and rape victims. In 2008/09, the RMJ won 36% of the initial asylum applications it made (one-third higher than the national average) and more than 50% of appeals (double the national average). The RMJ’s closure is especially hard on its former clients, given their often-fragile state of mind. On 25 July 2010, 27-year-old Osman Rasul took his own life after hearing that he no longer had access to Legal Aid, and according to the Institute of Race Relations, in the last three years at least 17 other asylum seekers, five of whom were Iraqi, committed suicide for similar reasons.
As one trainee working in the Legal Aid sector put it: “Publicly funded work is an ideal area to cut – it’s unpopular and the public is not interested.” The public’s understanding of Legal Aid is not helped by Daily Mail headlines such as ‘£1bn-a-year Cost of Asylum Claims – £17 for every Briton'. The UK does not, in fact, attract a higher-than-average number of asylum seekers. According to the United Nations High Commissioner for Refugees (UNHCR), France and Italy receive more asylum applications per head than the UK, and Britain ranks 13th in the EU. Out of 827,323 asylum applications received worldwide in 2009, the UK received only 14,400. Developing countries tend to host to four-fifths of the world’s refugees.
Other immigration measures
Immigration minister Damian Green is planning to bar asylum seekers from more than 28.5 million jobs, restricting them to industries where there are official shortages, such as chemical engineering, teaching maths or ballet dancing. Green said: 'I believe it is important to maintain a distinction between economic migration and asylum – giving failed asylum seekers access to the labour market undermines this principle'.
Families with children facing removal are to be given a two-week ultimatum to leave the country voluntarily. If they fail to go they will be told they will be deported at some point in the next two weeks, sometimes without being given a specific date or time to get ready. However, in July 2010 the High Court ruled fast-track deportations for asylum seekers to be unlawful and potentially a breach of human rights. The system targeted vulnerable groups such as unaccompanied children and people at risk of suicide, and deportations often happened late at night, not giving asylum seekers the chance to speak to a lawyer. They will now have to receive 72 hours’ notice.
Civil/family Legal Aid
The LSC's 2010 social welfare tender process looked as if it would decimate the existing family Legal Aid sector across England and Wales. The tender results revealed a 46% fall in the number of authorised providers, decreasing from 2,400 to 1,300 nationwide. Opponents of the exercise believe that this is likely to leave tens of thousands of people without access to a solicitor, especially in relation to issues such as forced marriages and so-called ‘honour’-based violence. In some places, especially in the regions, there may only be one Legal Aid provider in town: conflicts of interest could prevent them from acting for more than one person, and there may be no local representation available for the other party in a dispute. At the end of July 2010, LSC chair Bill Callaghan told The Law Gazette: 'We are confident that we now have a quality provider base and quality-assured provision across England and Wales'. Only a few days later, LSC chief executive Carolyn Downs said the tender’s result was unintended: Downs says the LSC had tried to incorporate quality into the bidding process, but the criteria were not 'targeted', which meant 'lots of excellent providers didn’t get contracts'.
The bad news doesn’t end here. The MoJ has axed a £2.6m-a-year training contract grant scheme, which has thus far helped fund the training of 750 Legal Aid lawyers across England and Wales. The decision is expected to hit small firms particularly hard. Laura Janes, chair of Young Legal Aid Lawyers, told The Guardian: 'This government hasn’t made any commitments on social mobility, equality and diversity in the legal profession. If the government takes away this tiny but important lifeline, the kind of people who want to use the law to help ordinary people will no longer be able to afford it'. Trainees at firms previously defined as Legal Aid focused will also be forced to adapt their outlook. Said one Fisher Meredith trainee: “When you start with the dream of something it's a massive shame. But it looks to all of us as if the firm is making the right changes – when the whole industry is changing, it's very difficult to separate the two.”
The future of Legal Aid
In the words of FM managing partner Stephen Hewitt, “The legal aid sector is going to shrink: less jobs, less clients, and you'll be paid less for what you do. It's the age of austerity, and there isn’t going to be another golden age of public money going into legal aid spend. I don't think things are going to get better at all.” Said a more hopeful FM trainee: “To look beyond two to three years is almost impossible. You have to look at it at the time. Make an assessment based on that.” You need to think carefully about whether this area of legal practice is really what you want to do. Keep in mind that, compared to other areas of law, the money is unexceptional and the job prospects unsure. Nevertheless, there will always be people in need of legal help – if anything, now more than ever.
This feature was originally published in autumn 2012.