Campaign volunteer Hoejong Jeong summarises the new Westminster Commission review of legal aid, and asks: whilst it is a welcome reminder of the problems we face, does this report tell us anything new?
An independent review of legal aid by the Westminster Commission, ‘Inquiry into the Sustainability and Recovery of the Legal Aid Sector‘, has called for an urgent and independent review for the scope of civil legal aid, and to increase legal aid fees to improve access to justice.
Scope of legal aid
The Commission, which investigated the narrowed scope of civil legal aid implemented as a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).
LASPO removed all welfare benefits and most areas of housing, debt, employment and family law cases from the scope of legal aid, which created barriers to access justice for many in key areas where injustice takes place in people’s lives
In circumstances where litigation is unavoidable, the Westminster Commission recommends legal aid should be brought back in for the public to ensure equality of arms between litigants.
The Commission’s report also reveals a significant reduction in legal aid spending in social welfare matters.
In housing cases, spending between 2012/13 and 2020/21 on legal help fell from £18.5 million to £6.5 million, while expenditure on welfare benefits cases saw a reduction in legal aid expenditure of around £18 million per annum. The removal of most employment cases from scope saw the estimated spend on both legal help and representation in this area reduced from around £5 million to almost zero. This is despite a growing need for advice.
The Commission also expressed its concern over the means test in respect of legal aid, which has created further barriers to justice, with large numbers of people who would have previously been eligible now unable to obtain help. These individuals are unable to afford to pay privately for legal advice but are excluded from publicly funded assistance by the means test threshold.
The Commission said:
“We believe that there is an urgent need for action to halt the decline in eligibility and to ensure that access to justice is within reach of all those who need it.”
Sustainability of legal aid services
The Commission also considered the sustainability of civil legal aid provision.
In addition to the scope and eligibility issues making it harder for law firms reliant on legal aid to access funding, fees paid to providers have not been increased since 1996, which has contributed to growing advice deserts across England and Wales – regions where no legal aid is available for many areas of law.
The number of civil legal aid providers has decreased from 2,129 in 2012/13 to 1,401 in 2021.
”The stark reality is that there are so few legal aid practitioners left…”
– Nicola Mackintosh QC
As a result, people in need of advice are often forced to take time off work and travel by bus to another town or city because there are no local providers, which simply adds another barrier to people’s ability to access justice.
For instance, a client unable to obtain assistance for an immigration matter in Devon would be forced to travel to Somerset, Wiltshire or Hampshire.
Furthermore, the situation is even worse for those unable to travel. They are forced to resolve their issues alone as litigants in person, which is a difficult and stressful prospect that usually results in poorer client outcomes.
In some cases, restrictions on capacity may mean that legal aid providers might not be able to take cases from other regions. For example, Greater Manchester Law Centre can only deal with enquiries from the Greater Manchester region, and even then, have to prioritise by urgency due to the number of enquiries.
In the financial year 2012/13, immediately preceding the introduction of LASPO, a total of 58% of parties were recorded as having legal representation in private law cases that had at least one hearing. In 2017/18, this had reduced to 36% of parties, and it was estimated that that in 2019 more than half a million people were unrepresented in court.
The Westminster Commission recommends that legal aid fees be raised in line with inflation, as this would mitigate some of the damage done by many years of frozen or decreasing fees.
They suggest it would incentivise practitioners to return to legal aid work and reflect that the cost of delivering services has increased over time.
Does this report tell us anything new?
Although the Commission’s report has been widely welcomed by many, similar findings have already been made several times, including recently in the House of Commons Justice Committee’s report, published in July 2021.
Likewise, the Ministry of Justice is soon due to publish the review of the legal aid means test and policy.
How many of these recommendations will sink again without receiving consideration by the government? A change in political will and direction is needed to achieve legal aid reform, and it is urgent.
