Unjust Kingdom: why legal aid cuts require action and innovation

In a debate, held on 10 December 2015 (Human Rights Day), Lord Howarth of Newport succinctly summarised the
consequences of the legal aid cuts as a; “denial of access to justice, human suffering, failure to achieve the intended savings, and damage to the legal profession.”

The debate, and accompanying library briefing, was most welcome, and provided both a neat summary of the state of affairs. However, its very nature as a “motion to take note” is illustrative of the fundamental problem; ensuring that justice for all is maintained requires action and innovation, not just acknowledgement. Recent research from Hodge Jones & Allen revealed that only 24% of the UK general public believe the justice system is fair and transparent; more reviews, delays and cuts to legal aid only push those most at risk further into the shadows.

As is well documented, successive governments – but particularly the coalition and Conservative administrations – have sought to bolster the public purse by either cutting services or introducing charges. The introduction of LASPO in 2013 was, undoubtedly, one of the most impactful of these measures and saw the legal aid budget cut from £2.2bn in 2010-11 to £1.6bn in 2014-15. Of course, deficit reduction is worthwhile in itself – but not at the expense of justice.

Without the effective, timely and reliable administration of justice economic activity is curtailed as interlocutors become embroiled in a complex and expensive system – which many must now try and navigate without legal help. Furthermore, when legal disputes are left unresolved there is an increased risk of civil unrest as people lose faith in the system.

As actions become increasingly unaffordable or in many cases unavailable, public bodies (such as the social landlords or the police) are no longer held to account for errors. From a professional perspective, an effective legal aid programme also ensures the sustainability of many legal careers which, in turn, pay back into the economy via tax and spending. We have already begun to see the effect of legal aid reforms on salaries and, while those in the legal profession earn well compared to the average, the potential knock on effects are both concerning and avoidable.

More encouraging noises have emerged from Westminster of late; Not only have we had a worthy (if less than meaningful) debate in the Lords, Michael Gove MP declared earlier in December that criminal court fees were to be scrapped. This is undoubtedly a step in the right direction.

On the other hand, the government-wide strategy of using technology to transform interaction with, and delivery and functionality of, public services runs the risk of alienating many from justice. Technology is, of course, a vital part of the legal system and can go a long way in removing the bureaucracy and inefficiency which has plagued the justice system for too long. That must be caveated, however, by saying that regional courts (many of which this government has, or is planning to close) require investment to ensure they have the requisite digital infrastructure and training. In addition, many of those most affected by legal aid cuts – the elderly, the poor, the homeless, those with limited English language skills – may not be able to utilise the very system which is supposed to democratise justice.

The approach must be two-pronged. Firstly, we must, collectively, strive to establish justice and the law as a central part of the education system. By ensuring that everybody knows their rights and has a basic grasp of the legal landscape for emergencies much of the mistrust and misunderstanding will dissipate. Secondly, the government must reopen the debate on legal aid and explore alternative funding methods which will preserve the fundamental right of access to justice. Pro bono is not a sustainable answer, but a solution – be that a levy on the top firms, increasing central spending power by reforming ISAs, or any number of alternatives – needs to be found. Recent legal aid statistics have shown that after the dramatic fall in cases since LASPO the numbers have largely levelled out. Far from a stabilisation, though, this means that there is now a critical mass of people in the UK who are consistently locked out of justice. This must change.

This article first appeared in the New Law Journal.