Written evidence from Legal Action Group

About Legal Action Group (LAG)

Legal Action Group is a charity. LAG supports and empowers those providing legal services and using the law to achieve justice for those who are disadvantaged, unable to speak for themselves or who struggle to be heard, by:

Further information about LAG is available on www.lag.org.uk.

LAG welcomes the Justice Committee’s continued work on legal aid and this call for evidence.

 

The Justice Committee call for evidence:

How LASPO has impacted access to justice and for views on the post-implementation review and the criminal legal aid review

In LAG’s view there is no justice without access to justice.  The rule of law will fail if the experience of it depends how deep your pockets are or where you happen to live. Meaningful access to justice has been under increasing threat since the 1990s. 

The proportion of the community entitled to legal aid and the areas of law covered by it have fallen.  Government spending on legal services for those who cannot afford to pay has reduced. The number of legal aid and not-for-profit providers has fallen dramatically. These changes have created advice deserts and limited the ability of many to access justice.

LASPO clearly impacted access to justice by removing hugely important areas of work from the scope of legal aid without there being organisations available to take on that work in areas of law including employment, education, benefits, family and immigration. People who could not afford to pay for legal advice and representation (which is a significant section of people in England and Wales) were left with limited possibilities:

The post-implementation review was started very late and in breach of the timescale laid out in parliament when LASPO was being discussed. The post-implementation review was a thorough piece of work which addressed many of the main issues such as the need for early advice and the woeful means testing process. It was perhaps at its weakest in its analysis of the strength of the sector. Low pay, excessive workloads and demoralising working conditions are however being looked at by a strand of work being carried out into civil sustainability.

The Criminal Legal Aid Review was welcomed as was the accelerated package. However, in the context of the reduced fees for criminal legal aid work over the years along with court closures and widespread underfunding, and the effect of the pandemic, it is clear that the criminal justice system is in crisis. The delays in hearing criminal trials is shocking and completely undermines the justice system.

LAG’s vision is a fair legal system that excludes no one, upholds equality and social justice, and meets the needs of the people it serves. LASPO severely undermined the ability of people to access justice. The subsequent reviews may improve the position slightly but after years of chronic underfunding, there needs to be appropriate funding for the justice system. While the effect of the pandemic is of grave concern, the economic position the country is now in – and will be in for many years - is another significant challenge for the justice system. If those who are in the justice system feel that it is dangerously close to collapse now, then steps must be taken quickly to make it sustainable over the next decade and beyond.

 

The role of the Legal Aid Agency

The Legal Aid Agency is within the Ministry of Justice, with the Ministry of Justice dealing with policy issues and the Legal Aid Agency dealing with operational matters. Our comments are summarised as follows.

-          When the Legal Services Commission existed, it saw its role as championing the importance of legal aid and the clients that were helped. That voice speaking up for the role of legal aid and its place in society is very much missed.

-          The Legal Aid Agency has not managed to simplify the legal aid process for either clients or practitioners. Something which could be straightforward e.g. the means test calculation (in both civil and criminal) has become very complicated. Clients struggle to gather the evidence needed so may not obtain advice or representation even if eligible. Practitioners have been penalised if evidence is allegedly incorrect on the file so then they are reluctant to do work under the legal help scheme where the fees paid (already very low) could be recouped at a future audit. As it is very difficult for self-employed people to provide the correct documentation, they are at particular risk of not jumping over this hurdle.

-          Practitioners may for example submit an application for legal aid backed up with their own extensive experience and may have a barrister’s opinion as well, and the application may be refused in circumstances where the practitioner feels despair that the application has not been carefully considered.

-          Indeed there was a meeting in 2019 to discuss ‘Does the Legal Aid Agency have a culture of refusal’ – practitioners genuinely cannot understand some refusals of legal aid or of amendments except in the context of the LAA having a culture of refusal.

-          There has also been a failure to review fixed fees which were set pre LASPO with reference to average case times. They have become even more inadequate since the caseload changed post LASPO. Practitioners report that they do fewer short cases so the ‘swings and roundabouts’ effect has been lost.

-          As there are low fees, unpaid work to deal with all the unpaid administrative work required by the bureaucratic system means that it becomes even more difficult to make a living out of legal aid work.

-          The LAA could become a lot more transparent. It could also work more closely with representative groups when changes are being brought in. For example (subject to the ongoing litigation) the LAA could share statistics about how it is assessing the civil bills which used to be assessed in courts. It could go further and illustrate, while preserving confidentiality, what routine deductions are being made and major issues they identify as leading to lost income.

-          The LAA should also feed back to the profession at large top tips on e.g. why applications are turned down, why bills are rejected and the results of audits (in all their guises) to help practitioners understand what might lead to punitive action.

Recruitment and retention problems among legal aid professionals

Representative bodies will deal with these issues in detail but it is absolutely clear that it is hard for legal aid practices, whether firms or Not-for-Profits, to recruit and retain people to work in social welfare, family and crime. The reasons are clear.

-          Low wages, not only compared to other professions but compared to other lawyers. This leads to long hours.

-          Frustration of the work – this is particularly true for civil practitioners who report an endless set of frustrations over the years from CCMS problems, to refusals of legal aid for strong cases and generally what seem like arbitrary decision-making for example refusing a grant or an amendment where a senior solicitor or barrister has advised that the merits are strong.

-          Dealing with a court system that cannot respond either at all or certainly cannot respond promptly to many of the emails sent and phone calls made.

-          There are some areas of law such as immigration and asylum where clients’ accounts of what has happened to them can cause a great deal of added stress. Indeed, vicarious trauma is now being recognised as an issue in the profession.

-          Telling clients that they cannot be helped at all or very much. For lawyers who want to tackle problems and ensure that justice is done, is demoralising as it happens daily.

-          At the same time as all of the above, the law affecting socially excluded people is becoming increasingly complex and fast-moving, requiring those who use the law to be constantly on top of the latest changes in law and practice. 

-          In summary, at the best of times the work is difficult, clients can be very demanding because of the pressures on them, the pay is low, working hours are long and there is little support for the stress that people suffer. These are not the best of times however. Moreover there are further stresses:-

-          Lawyers dedicated to social justice are struggling to maintain sustainable careers, increasing the risk that lawyers and judges will become even more out of touch with disadvantaged communities. If becoming a lawyer is much easier with family wealth, then there will be a very narrow pool of people who become judges. At the Westminster Commission on Legal Aid (29 October 2020), evidence was given by Kerry Hudson now chair of London Criminal Courts Solicitors Association to the effect that she had become a lawyer because of the importance of serving her community. She grew up in a working-class area and felt that it was important for that community to have access to lawyers who were like them. It is a point also made by practitioners like Professor Leslie Thomas QC and Alexandra Wilson regarding ethnic minority communities.

 

The impact of the court reform programme and the increasing use of technology on legal aid services and clients

It cannot be stated often enough that there have been and will be many tremendous technological innovations, but people must not be left behind. People may lack the physical equipment to use IT, they may lack the skills needed to effectively search the internet or attend a remote hearing or they may be able to use technology but it may disadvantage them for reasons that may or may not be apparent e.g. in a hearing.

Many years ago, a meeting of the Housing Law Practitioners Association was devoted to dealing with clients with depression – clients who cannot even open (in those days) a letter because they are too stressed and cannot face knowing its contents. If people cannot face opening letters, there is a serious challenge as to how to ensure their engagement.

We refer to the CJC and TLEF report “The impact of COVID-19 measures on the civil justice system” https://www.judiciary.uk/wp-content/uploads/2020/06/CJC-Rapid-Review-Final-Report-f-1.pdf

We also refer to Lord Justice Briggs’ Civil Courts Structure Review: Final Report as that was excellent about the need for human interaction to guide people. https://www.judiciary.uk/wp-content/uploads/2016/07/civil-courts-structure-review-final-report-jul-16-final-1.pdf

 

The impact of Covid-19 on legal aid services and clients

The pandemic has resulted in an enormous number of legal aid practices and advice agencies moving to online advice and away from face to face advice. Many more people now need advice on issues such as domestic abuse and employment. Citizens Advice are performing a useful function in publicising what people are searching on their website.

Responding to Covid-19, the Legal & Advice Sector Roundtable was formed (a group chaired by Sir Robin Knowles and Carol Storer, LAG’s interim director). A series of round table meetings have been held and the work that has been carried out is summarised in this Legal Action article by James Sandbach of LawWorks: https://www.lag.org.uk/article/209080/collaboration-during-covid-19--legal-and-advice-sector-roundtable

With legal and advice organisations having to rapidly implement major changes to their delivery models, systems and practices, a valuable and collaborative online forum has emerged, bringing together organisations from the voluntary and legal sectors, including funders, with a common purpose to discuss and address the issues, challenges and legal needs raised by the crisis.

Many of the organisations involved have highlighted the drop in their incomes – so many charities have not been able to fundraise effectively for example there was a report at a meeting of a large charity which was overwhelmed with calls to its advice line after lockdown but with a massive reduction in income so could not keep staff on. Moreover the organisations that fund advice agencies may themselves be losing income and not have the resources to do so in future.

With so many people on furlough or losing their jobs there is also an increase in articulate people seeking support and this may have an impact on the resources that are available to vulnerable people.

Many of the most excluded rely on being able to drop into advice agencies and legal aid practices. They are known locally and agencies would in the past be able to assist. There is great concern as to what will happen to these people.

What the challenges are for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere

There are many challenges:-

  1. In the short term the reviews of civil and criminal legal aid need to be expedited and immediate action taken to ensure that changes are brought in to reflect the recommendations. There seems to be an excess of caution in taking any steps quickly despite years of evidence available about the effects of the LASPO cuts.
  2. There is likely to be a long period of austerity following the pandemic. This will be a challenge for all government departments, but the justice cuts have been so deep. There needs to be a realistic assessment of what money is needed to rebuild a functioning justice system.
  3. The move to digital solutions needs thorough monitoring and we refer to Dr Natalie Byrom and her colleagues’ work in this field.
  4. As regards lawtech, we refer to The Law Society consultation on https://www.lawsociety.org.uk/campaigns/lawtech/news/lawtech-ethics-and-the-rule-of-law-discussion-paper which looks at  how lawtech solutions are designed, developed, used and/or procured and the ethical considerations that come into play throughout this process.
  5. The most important point is that the current system is a Heath Robinson like contraption – over engineered, under resourced and a nightmare for everyone in the system. There needs to be a fully resourced and independent review of access to justice issues including civil and criminal legal aid. This is a huge issue for society. LASPO was referred to as the Act which would stop the salami slicing of the legal aid system yet a few days after the Act there was further consultation on bringing in more cuts. The legal aid system is patchy and over-reliant on dedicated professionals doing low paid and unpaid work in a heavily bureaucratic and demoralised stetting. We need to step back and really plan for the future.

2 November 2020