When I began practising in the early 1980s, legal aid was available to all who needed it. It was also easy to obtain (a legal aid application required three sides of A4, whereas when I last made one it required the sacrifice of half a rainforest), and legal aid lawyers were easy to find in every town. As a consequence, our legal system was essentially a level playing field for all in society, irrespective of their means.
Back in those days I don’t remember any particular complaint from the government or the taxpayer over the cost of the legal aid system – it was simply accepted that it was another essential element of the welfare state, protecting the poor and needy, just as the benefits system and the National Health Service did. However, the cost of the system did increase dramatically and that increase, together with the financial crisis of 2008 put legal aid firmly in the firing line for government cuts.
Those cuts (or at least the first of them) came in 2013, with the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (affectionately known as ‘LASPO’). Family law was particularly savagely hit, with virtually all private law family matters taken out of scope for legal aid. At a stroke, it was decided that legal aid was no longer essential, and the level playing field was pulled from under the feet of family litigants who could not afford a lawyer.
Now, I am fully prepared to accept that it was quite right for the government to examine the possibility of reducing legal aid expenditure. However, with such an important matter as access to justice it was obviously essential that any cuts were thoroughly thought through, both in how they would be made and in all of their consequences.
On Monday, just two months after the Court of Appeal declared that the legal aid regulations which require documentary evidence in support of applications for legal aid for domestic violence claims to be no more than 24 months old were invalid, the Supreme Court held that the government’s proposed residence test for legal aid applicants is ultra vires. Sadly, the Supreme Court’s decision proves what we already knew about the government’s legal aid reforms: that they were ill thought-out, and rushed through without proper consideration of their consequences.
But the Supreme Court’s decision, remarkable though it is (it was reached with a swiftness almost unheard of previously), is only the tip of the iceberg of poor thinking behind the cuts. I have spoken here previously about some of the other bad consequences that do not seem to have been properly considered: courts overburdened with litigants in person (LiPs), LiPs being put at the mercy of charlatan legal advisers who are unqualified, unregulated and uninsured, people taking the law into their own hands and many people simply giving up, rather than face the prospect of court proceedings without legal assistance. Put simply, legal aid was taken away and nothing was offered in its place.
But there is more. Also on Monday there was a story in the news that the cuts were creating new advice ‘deserts’ in the legal aid sectors that remain in scope. More and more firms of solicitors are giving up legal aid work, with the result that for some types of work many areas no longer have any cover. So even if legal aid is still available for your matter, you may have great difficulty finding a legal aid lawyer. Housing and debt are the particular types of work mentioned in the story, but what if the same happened with the one main area of family law still in scope: care proceedings? What if a family who faced the prospect of the state removing their children from them could not find a lawyer to represent them in their area? Has such a scenario been considered by the government?
It’s all very well the government wrapping the cuts up with fine words about legal aid. “Legal aid is the hallmark of a fair, open justice system”, said the then Lord Chancellor Chris Grayling as he introduced proposals for further reform of legal aid in 2013, including the residence test. However, those words are betrayed by the reality, which is that the government doesn’t care at all about legal aid, or therefore about access to justice. If it did then any cuts would have been properly thought-out, and their consequences fully considered before they were implemented.