Legal Aid was brought into effect through the Legal Advice & Assistance Act 1949 and the main aim of the act was to provide legal assistance to the poor and those with limited means who might be able to contribute to the cost of the legal advice and assistance provided to them.
In 1950 legal aid was available to approximately 80% of the population and the access to legal aid reduced year on year to approximately 36% in 2009. It is assumed that the current figure is similar though we don’t have extensive records for this as yet.
One of the most recent changes of late was contained in the Legal Aid Sentencing and Punishment of Offenders Act which was brought into force on 1 April 2013. It set out a five year plan to reduce funding to civil legal aid commencing with a reduction of £320 million in the first year and £220 million to criminal legal aid every year until 2018. These targets have not been met and by records we currently have legal aid spending at £2 billion in 2010 and estimates for the current year come in at around £1.5 billion.
The cuts have happened both to legal aid spending and the types of cases that legal aid is available to the public. The Legal Aid Authority and the Government describe the eligibility of legal aid as such- if you cannot afford to pay for it and the issue is ‘serious’. The second strand appearing to be the one with which the most emphasis has been applied in the recent round of cuts. In the context of criminal cases the serious threshold is generally met if the charge could result in prison. The Government has been reducing the reach of the word ‘serious’ especially in relation to civil cases. This has led to a significant reduction in the number of cases legal aid has been available.
The types of cases that have seen civil legal aid removed have been plentiful; in family law legal aid is no longer available unless there is clear evidence of domestic violence; in immigration only those cases that involve asylum and detention are capable of receiving legal aid; clinical negligence cases have all but been wiped out of the legal aid regime; for housing and debt cases the only cases that are considered are those which involve an immediate risk of loss of the home and employment cases have been removed for all cases but those that involve human trafficking or have an equality act element.
Secondary to the reduction in cases is the reduction in the fees of the criminal lawyers in the last few years by 17.5%. There have been strikes at the level of the cuts by both solicitors and barristers and few professions would be able to commercially justify a reduction in fees at this level.
Commentary about legal aid has tended to fall along two different lines each highly critical of the other. The arguments for the current system of reductions falls along the criticisms of the archaic system of the application for legal aid and the abuse of the system by ‘fat cat lawyers’ which has resulted in a duplicity in the legal system which should be reduced. There is also an argument that states that legal aid should only be used in the ‘most important’ of cases.
The other side of the argument is that these cuts, as deep as they are, are restricting access to justice for many and will eventually result in miscarriages of justice being commonplace. We are being told that litigants in person are increasing across the spectrum which could represent a false economy. As they are known to increase the amount of time spent in court and arguably are immediately at a disadvantage against seasoned lawyers. The welfare state argument applied to legal aid also holds great moral weight in the argument against the reduction in availability of legal aid.
The question surrounding the future of legal aid seems quite clear with the continuing of arbitrary cuts to the funding and scope of legal aid eligibility. It strikes me as quite strange that a legal aid system which costed the public purse 2 billion£ the equivalent of running the NHS for two weeks yet the NHS budget is ring-fenced for the foreseeable future. Access to legal advice and representation is a fundamental right which should be afforded protection, change is welcomed in the regime but arbitrary cuts aren’t in my opinion the way to achieve the efficiency of the operation of legal aid. An unintended consequence of the changes to legal aid is essentially a significant reduction in access to justice and stands as a barrier to many embarking on legal recourse.