Thanks to the latest wave of sweeping budget cuts access to the law looks set to become an inaccessible luxury for many.
What is legal aid and how do you get it?
A hundred years ago the judge Sir James Mathew quipped that 'in England, justice is open to all – like the Ritz hotel'. These days legal aid funds law centres and high-street firms up and down the country, so that justice is not only dispensed from the swanky hostelries of Chancery Lane. However, thanks to the latest wave of sweeping budget cuts access to the law looks set to become an inaccessible luxury for many.
As the years went by legal aid went the way of free dentistry, with eligibility dropping steadily, down to 29% pre-recession in 2008.
Legal aid was first introduced in 1949, as a principal pillar of the welfare state. Originally, its reach was almost universal with 80% of British people eligible. But as the years went by legal aid went the way of free dentistry, with eligibility dropping steadily, down to 29% pre-recession in 2008. Rounds of cuts in 2004, 2007 and 2010 introduced fixed fees for certain types of cases, and led to many providers pulling out of more complex legally aided areas like immigration and asylum. But the 2013 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) is far more far-reaching. It recommends hefty cuts to the system that will slash the yearly legal aid budget by £320m from 2014, and are expected to cull another £220m each year by 2018.
LASPO is part of the government's plans to cut the national deficit – which also involve substantial cuts to welfare, culture, local government and higher education spending. It's been championed by Justice Secretary Chris Grayling, whose stint as Lord Chancellor has been controversial from the start. He was the first appointee since 1672 who's not a lawyer and his legal aid proposals have received widespread criticism from within the profession for being unworkable and inhumane. In response he's argued that the civil and criminal law systems are wasteful, not commercial enough and too expensive, and that the legal profession is in need of modernisation.
LASPO is part of the government's plans to cut the national deficit – which also involve substantial cuts to welfare, culture, local government and higher education spending.
One often-cited argument for reform is that Britain's £2bn legal aid system is one of the most expensive in the world. However, opponents to cuts argue that this is partly because other EU countries use an inquisitorial system instead of the UK's common law, meaning that their outlay is skewed towards courts and prosecutors, and fewer cases come to trial. The pro-cuts brigade, supported by scare-stories in the press, also points to fat cat barristers on six-figure salaries, but legal aid lawyers are keen to stress that the average salary in the sector is £25,000, compared with a nurses' £29,500, GPs' £56,000 and MPs’£65,000. There's not much hope of campaigners winning these more ideological arguments, but under consultation with the Law Society, and under fire from the overwhelming majority of the legal profession, in July 2013 the government substantially softened its more impractical plans for reform.
What are the proposed changes?
The aim of the changes is to cut the legal aid bill dramatically, by introducing further restrictions on which groups are eligible, what cases it can be claimed for, and how lawyers are remunerated.
Members of households with disposable incomes of over £3,000 a month will no longer be eligible for legal aid, on the grounds that they should be able to fund their own cases. Prisoners unhappy with their treatment will no longer receive legal aid either, as Grayling argues that they should use the prison complaints system. Newly arrived migrants will have to prove that they've had lawful residency in the UK for at least a year to receive legal aid, although after widespread protest asylum seekers and victims of people trafficking are now exempt from the test. The logic is that only people with strong ties to the UK should benefit from its services, but campaigners have pointed out that the changes could place vulnerable recent immigrants and holders of temporary visas in a precarious position. They could also shift more expenses to local authorities, who will be obliged to fund legal help for homeless migrants and migrant children.
Huge areas of civil law have been removed from the scope of legal aid. All family law cases that don't involve domestic violence are no longer covered, although payments may be made to help with mediation. Immigration cases are only covered if they involve claims for asylum, human rights issues or domestic violence. Benefits, debt and housing cases are also ineligible, unless there is a direct threat of homelessness. Criminal cases remain in scope, subject to means testing, and LASPO's original proposal to remove client choice from solicitor allocation has been overturned.
Fees for solicitors working on most civil cases have been cut by 10%, while criminal practitioners have had their fees cut by 8.75%. The cut would have been higher (17.5%) but in January 2016, the new Justice Secretary Michael Gove announced that the second 8.75% cut to fees brought in in 2015 was being reversed. In addition, a planned two-thirds cut to the number of police station duty solicitor contracts and changes to the tendering for those contracts were shelved – a significant victory for opponents of cuts to criminal legal aid who had brought a number of judicial challenges against the planned reforms. In a previous U-turn, in April 2013, proposals to introduce Price Competitive Tendering (PCT) for criminal law contracts were abandoned. The government had planned to save money and increase efficiency by introducing bidding for a capped number of contracts. However, lawyers successfully argued that the plans could lead to a 'bargain basement' system, dominated by poor quality firms and giant service providers like security firm G4S.
How legal aid now works
Since the beginning of April 2013, legal aid has been administered by the Legal Aid Agency (LAA), which forms part of the Ministry of Justice and is under close government control. The LAA replaces the Legal Services Commission (LSC), which had more independence thanks to its status as a non-departmental public body (or quango).
Clients in civil areas including housing and immigration come directly to firms, which then apply for funding on a case-by-case basis.
Legal aid is administered on the basis of a means test, which looks at a client's income and capital, and a merit test, which examines their chances of winning in civil cases, and weighs up the seriousness of the charges in criminal cases. Clients in civil areas including housing and immigration come directly to firms, which then apply for funding on a case-by-case basis. Clients looking for support in Special Educational Needs, debt and discrimination cases must use a new Ministry of Justice telephone gateway, and then find a legal aid solicitor if they get approval. Criminal clients are entitled to free legal advice from duty solicitors while they are being held at police stations, before choosing their own solicitor if they are eligible for further legal aid.
How is the profession being affected?
The legal aid sector has been described as a cottage industry as it consists of a large numbers of often tiny firms, many of them with turnovers as low as £50,000 a year. With lower fees, and fewer cases eligible for legal aid, their already slender profits are getting even slimmer. One possible outcome is consolidation: firms are likely to narrow their focus by killing off less profitable areas, or to seek safety in mergers, pooling resources and liabilities.
At firms that handle a mixture of legal aid and non-legal aid cases, the balance is likely to shift significantly towards more lucrative private work. For example, erstwhile legal aid specialist Fisher Meredith has opened a new office in Richmond, designed to target affluent locals with an expanded private client offering. For legal services providers restricted to legal aid it's not all doom and gloom. Matthew Davies, a Chambers-ranked immigration partner at high-street firm Wilsons, believes that “if you have staff who are able to work efficiently and are really committed to their area of law, you should be able to survive.”
Still, it's inevitable that some legal aid service providers won't stay profitable, and will have to close. Law Centres have been particularly badly hit so far, as they are less able to diversify. Birmingham Law Centre has already been forced to close its doors as have the Immigration Advisory Service and young peoples' law specialists Streetwise. The Cabinet Office and the Big Lottery have made £67m available to help centres navigate the transition to new ways of working and diversify their sources of funding. For example, Harrow Law Centre has successfully secured funding from Lloyds bank for welfare benefits advice. High-street firms are struggling too, making redundancies or shutting shop entirely, and it's likely that many barristers will leave the profession.
Thanks to PCT being scrapped, a market dominated by alternative business structures (ABS) launched by big corporations looks less likely. Matthew Davies told us: “It's not a very attractive market for them. Historically, people who have tried to make money doing legal aid work in bulk have failed.” Still, there will be lots more people funding legal representation themselves, and whose attention is likely to be caught by newly-launched legal services providers offering eye-catching marketing, innovative structures and lower fees.
In a tough market, the shorter hours traditionally associated with working at legal aid firms and law centres are likely to get more punishing, as redundancies and closures will mean that fewer lawyers end up doing more work. Our sources also found that the new system makes for a lot more paperwork. One source told us: “They've changed the means testing system to make it a lot stricter; it used to be just a two-page form, but now it's 20 pages long, and they're rejecting claims for the silliest reasons!” Matthew Davies feels that the complex new system “is a nightmare. On top of the 10% cuts to fees, firms will lose another 10% being caught out by the hoops they have to jump through.”
Legal aid lawyers are also finding that cuts make it harder to work on the complex interlocking problems that affect their most vulnerable clients. One housing solicitor explained: “It's impossible to separate the cuts to legal aid from the cuts to the benefits system. The bedroom tax and Atos disability reassessments all feed into problems we deal with, such as homelessness. Because we can't do benefits work any more, it's harder for us to nip problems in the bud. We're forced to take action at a much later stage, which will ultimately cost the government a lot more.”
All these changes are likely to have serious consequences for the number of legal aid training contracts up for grabs, especially since government grants funding them were scrapped in 2010. Still, one law centre solicitor explained that trainees will still be in demand as “they're a relatively cheap way of increasing productivity.” It's also likely that firms will become increasingly reliant on low-paid paralegals – one recently qualified solicitor at a high street legal aid firm warned that “a lot of firms are dangling a carrot in front of people, saying 'come in as a paralegal and if we like you we'll give you a training contract'. But firms are not necessarily offering contracts as quickly as people might hope. A paralegal who started at the same time as me has only just got a training contract now.”
“I'm not in the most secure position in the world – I can see myself being left destitute and eaten by cats. It would be naïve to expect to stay in legal aid forever.”
Higher up the food chain, we learnt that it's not just 30-something, shapewear-clad singletons who fear death by domestic pets; one law centre solicitor told us: “I'm not in the most secure position in the world – I can see myself being left destitute and eaten by cats. It would be naïve to expect to stay in legal aid forever – some people do stay for twenty years but it's increasingly difficult to do that.” Another source envisaged that any transition from working in legal aid to commercial law would be “very, very difficult, because there are enough people with commercial experience who can't find jobs already.” However, we would point out that a few years of legal aid experience can offer plenty of transferable skills, not least the interpersonal talents needed to work with tough customers.
The future of legal aid law
Inevitably, the rapidly changing legal landscape has given many legal aid lawyers a bleak outlook – one disillusioned recent qualifier told us: “I wouldn't chose this career if I could do it all over again, just because of the sheer scale of the cutbacks.” At the same time, another source felt that “no one wants to live with the spectre with potential redundancies, but law centre lawyers are an odd breed: they genuinely believe in social justice. There's something good about expending yourself in a noble cause.”
The legal aid cuts are still an ongoing process, and many young lawyers have taken up the cause against them and are campaigning with gusto.
The legal aid cuts are still an ongoing process, and many young lawyers have taken up the cause against them and are campaigning with gusto. Jennine Walker, a Wilsons trainee with links to Save Justice UK, told us: “We plan to campaign against the residence test and the changes to prisoner law, gather information about how the changes are affecting people, and target the Labour party about whether they would reverse the cuts.”
Matthew Davies reassured us that “the government has a duty to provide access to justice for all, so we will always need legal aid lawyers in this country.” Whatever happens, it seems likely that future generations will have to be even more committed to their work to stay afloat.
This feature was first published in our November 2013 newsletter