Liz was 16 when she realised she wasn’t coping. Her daughter, Emily, was just over a year old. Her mother – who she lived with – was an alcoholic. Taking charge of her situation, Liz contacted Emily’s father to ask if he could look after the baby, at the same time voluntarily putting herself into foster care. It didn’t work out. Emily’s paternal grandmother accused Liz of domestic abuse, and filed a legal claim for custody of Emily. Liz, by this time in foster care, did not contest the claim. But she was frightened and – like most people – couldn’t understand the wording of the legal documents or the charges against her.
When a court hearing was scheduled, she sought advice from a lawyer, but was told she was not eligible for legal aid because the case was a private matter. Liz, a vulnerable young person in care, could not afford lawyer’s fees. Her foster carer asked social services to help fund legal help for the hearing. Liz’s social worker said that social care could not supplement the short fallings of legal aid, although they would help her to understand the process, and highlight to the courts that she was at a disadvantage. JustRights, a youth charity, also gave Liz advice, but were not able to accompany her to the hearing.
Ultimately, she had to represent herself against a qualified barrister. Despite many parties being willing to help this distressed young person, doors were repeatedly closed because of drastic cuts to the legal aid budget. She was left highly traumatised by the experience.
Legal aid in England and Wales was established in 1949. It provides assistance to people who would otherwise not be able to afford legal representation or access to the court system. It is an integral part of the British justice system: by ensuring the right to counsel, it safeguards equality before the law and the right to a fair trial. Yet, as cases like Liz’s show, the system is under threat.
The coalition has already taken £320m out of the annual legal aid budget, and plans to remove a further £220m each year until 2018. The scope of these cuts is dizzying, and will affect many areas of criminal law (when a crime has been committed) and civil law (where disputes are settled). The government’s argument is that, with an annual budget of £2bn per year, England and Wales’ legal aid system is the most expensive in the world and it needs reform.
In April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) came into force, with the aim of cutting the civil legal aid budget by a quarter (£320m) within a year. The bill was defeated 14 times in the House of Lords, eventually passing by a very narrow margin. For the first time, it removed legal aid for the majority of cases – with some specific exceptions – involving divorce, welfare benefits, clinical negligence and child contact. It was these changes that meant Liz was not entitled to assistance. It also removed legal aid from all immigration cases apart from asylum, and from a range of housing and benefit cases.
Like Liz, many of those who lose out are vulnerable people. “Family law is one of the areas worst affected,” says Camilla Graham Wood, a solicitor on the executive committee of Young Legal Aid Lawyers and an activist with the Justice Alliance, a campaigning group. “Now, for example, you can only get help in private law family cases – like contact or divorce – if you can prove domestic violence. Many people are being turned down because they don’t have a letter from the GP or anything from the police to prove abuse. This shows a complete lack of understanding of the complexity of the issue.”
Legal reforms – even when they have potentially devastating consequences – are not headline news, perhaps because of the complexity and wide scope of the issue. This month one aspect of the cuts – reductions in fees for criminal legal aid – came under the spotlight. On Monday 6 January, barristers and solicitors working in criminal courts staged an unprecedented walk out to protest against further reductions. Designed to save £220m per year, the proposed cut would see lawyers’ fees cut by 30 per cent. Criminal cases have already had their budgets reduced by 40 per cent since 1997.
In response to the walk out, the Ministry of Justice released figures showing that the median income of a criminal barrister is £56,000. The aim was clearly to paint a picture of fat cats getting rich on the state. But, as most criminal barristers attest, this is far from the truth. The figure does not take into account travel, VAT deductions, and chamber costs, and does not reflect the difficulties for young barristers, who may initially earn as little as £10,000 per year (after accruing significant debt to train). Marie-Claire Amuah, a junior criminal barrister in London, tells me that in the early stages of their careers, barristers routinely attend magistrates’ courts where they earn between £50 and £80 a day before tax.
“The cuts proposed put you in a position where it’s simply uneconomic to go to work,” says Paul Prior, a criminal barrister based in Leicester. “Many barristers will not take on cases like burglaries, thefts, minor assault offences, because they cannot cover their costs. That could put small, local firms out of business, and create what Chris Grayling once referred to as ‘advice deserts’.”
If criminal law becomes unsustainable as a profession, it is a problem for everyone, not just for lawyers. “There’s the double impact of people not being entitled to legal aid but also law centres being unable to survive and closing,” says Graham Wood. “The cumulative impact of all those things is severely restricting access to justice.”
Lawyers have warned that the tightened restrictions on legal aid in criminal cases (those who do not face a prison sentence are highly unlikely to qualify; nor are those who do not pass a means test) as well as in civil cases (like Liz’s) has led to an increase in people being forced to represent themselves across the board. “As a prosecutor, it is so difficult to see somebody representing themselves when they really don’t know what they’re doing,” one barrister told me. “I’ve seen people defending themselves when they clearly don’t understand the point of the trial.” The consensus is that this is ultimately a false economy, where expensive court time is wasted and unsatisfactory verdicts end up being appealed and unnecessarily moving to higher courts. “The cuts effectively take from one pot of public funds, and leave another to pay for the delay in trials,” says Amuah.
Taken together, the effect on both civil cases (like family law and immigration) and criminal cases (like assault or theft) is devastating. “What we’re seeing is the unemployed, the poor, the marginal, being prevented from accessing justice,” says Ben Bowling, professor of criminology and criminal justice at King’s College London. “The first thing that will happen, to put it crudely, is that people will be put off taking action against state abuses, for example. At the moment we have justice by geography and this will be justice by wealth. Allowing ‘ordinary’ people to seek redress in court is, in a sense, a way of defending the poor – and that is not a vote winner.”
Some of the groups worst affected – young people in care, the homeless, migrants – are also society’s most voiceless. Ellen, 16, was the victim of sexual abuse while in the care of her local authority. She needed to collect highly sensitive evidence about the abuse she suffered for a compensation appeal. Like Liz, she was judged ineligible for legal aid. Like Liz, her only option was to turn to social services – but in Ellen’s case, this was the very same local authority that had failed to protect her from abuse. This was hugely distressing, and her case floundered.
Since the Laspo act was introduced in April, there have been numerous cases like this. The teenage refugee who does not qualify for legal aid to apply for permission for their family to come to the UK, and is left traumatised and isolated. The victim of domestic violence who had not logged incidents with the police so cannot get legal aid for an injunction against the abusive partner. The list goes on.
Those with uncertain immigration status are among the worst affected. “The overwhelming number of migrants who need legal advice no longer qualify for legal aid,” says Isaac Shaffer, immigration solicitor and founding member of the Save Justice campaign. “It is not politically unpopular to cut funds for migrants, but according civil rights to one set of people but not another seems like a retrograde move, away from the principle of human rights.”
As the government’s plan of £220m cuts every year until 2018 demonstrates, this is just the beginning of the road for legal aid reform. In addition to the cuts to the criminal bar that were highlighted this week, proposals for future cuts include a “residency test” that would mean that only those who are lawfully resident in the UK and can prove 12 months of lawful residency will be eligible for legal aid. (This would have hugely far reaching implications, affecting victims of trafficking and anyone with uncertain immigration status, as well as adding a layer of bureaucracy that could delay or restrict help for British citizens).
Tom, 25, was a beneficiary of legal aid last year. A homeless young man, he was denied temporary accommodation by his local authority and was on the brink of suicide. The expert assistance of legal aid lawyers from his local law centre meant that an injunction was swiftly obtained forcing the local authority to give him accommodation. “If I hadn’t had legal aid, I would be dead by now,” he says. Yet under proposed changes to judicial review (another hotly contested area of cuts), he would not be eligible.
Many lawyers working in legal aid – both civil and criminal – say that this is a “tipping point” and that the system could soon become almost entirely unsustainable.
“The government will have to answer politically for the destruction of a system which was once admired throughout the world,” says Amuah. “Once it’s dismantled, it’s dismantled. That’s a wide concern.”