The House of Commons Justice Committee issued its report earlier this week. The report looks at the Government’s proposed reform of legal aid in the UK and we’ve summarised some key points below – for a good comment piece on this, however, see today’s Guardian.
Expenditure on legal aid
The report notes that spending on civil legal aid has fallen by 6% over the last decade, though it has increased by 6% in relation to criminal legal aid [p. 9]. Immigration spending has remained flat, though the nature of legal issues has changed – there are far fewer asylum cases, and a larger volume of immigration cases [p. 12].
The report notes a number of drivers that are responsible for pushing up the costs of both civil and criminal legal aid. It goes on, however, to lament the lack of evidence and research in this area [p. 16], and notes that this absence of information means that international comparisons on expenditure on legal aid are of limited value [p. 19, p. 68].
The breadth and depth of the cuts
The report highlights the breadth and depth of the proposed cuts to legal aid. Of the £350 million annual savings the Government hopes to realise, the largest tranche of this – some £279 million – is to be achieved through a reduction in the scope of legal aid funding.
In real terms this would result in a reduction of 68%, or half a million of all existing Legal Help cases, and 44% of those cases in which Legal Representation is granted – this equates to 45,000 fewer cases. For immigration, this works out to a reduction of 37, 300 immigration Legal Help cases, accounting for 41% of existing cases, and 6,400 cases under CLR, accounting for 29% of existing cases.
The real impacts of the reform
As one agency quoted in the report notes, ‘the scope of the changes will represent a disaster for thousands of individuals unable to seek redress for issues that affect their fundamental well-being’ [p. 31].
The report notes concerns from the CAB and law centres- these are all organisations engaged primarily with providing legal services to the poor. According to Ministry of Justice estimates, the not-for-profit sector ‘will lose up 97% of their legal aid funding’ [p. 47].
The impact of the reforms is likely to be the creation of advice deserts, given the inability of the not-for-profit sector to meet demands for free advice and assistance outside the legal aid scheme [p. 52].
The report also highlights the Government’s own impact assessment. This shows that the ‘proposals have the potential to disproportionately affect female clients, BAME clients, and ill or disabled people’ [p. 31]. The Committee notes that this is inconsistent with the Government’s commitment to protecting the most vulnerable in society [p. 32].
Overall, whilst the report does not accept that the reforms will lead to the end of legal aid as a national service, it thinks that they could cause ‘significant under-supply of providers’ of advice and assistance [p. 61].
Among the Committee’s conclusions are that:
1. It accepts the need for some changes in the light of budgetary requirements, but believes there should be a ‘more thorough assessment of the likely effect on geographical provision of each category of civil and family law’ [p. 61].
2. It is surprised that the Government is making changes to the scope of legal aid, including immigration, without assessing the changes’ likely impact on public spending in areas other than legal aid, e.g. health, and recommends that it does so [p. 54, p. 56].
3. It is clear that there are issues about poor decision-making by public bodies in a number of different areas. A ‘polluter pays principle’ , whereby public authorities whose decisions impact on courts and tribunals pay a surcharge in relation to the number of cases in which their decision-making is shown to be at fault, merits further consideration [pp. 26-27].
4. The Government should conduct further research on the impacts of litigants-in-person on the court process, as little is known about this. This makes it difficult to assess the impact of the proposals.
5. The Government should consider the Law Society’s recommendations for addressing poor decision-making by public bodies and other legal aid cost-drivers. These include, but are not limited to: the use by courts of ‘wasted costs’ orders to penalise public authorities and others who cause unnecessary costs, the identification in consultation papers that introduce new offences or rights of the associated enforcement costs and how these are to be met, and a cap of £250,000 per year on legal aid profits for individual practitioners [p. 28].
6. In the light of the removal of Legal Help for preparatory work in many tribunal cases across the board, the Government should initiate consultations on making tribunals more user-friendly and less legalistic [pp. 52-53].
7. In principle the Government’s proposed fee reduction is preferable to any further reductions in scope. £72 million will be raised through the proposed 10% fee reduction. The Government should, however, monitor the impact of this reduction [p. 24].
8. Consideration should be given to ‘removing automatic legal aid for asylum and immigration judicial review applications which seek reconsideration of previous dismissed appeals’, including emergency applications within the Administrative Court in asylum cases. The Government should assess the savings that might be made from this change, and consult on whether this should be extended to other areas [p. 26, p. 69].
9. Reductions in bureaucracy and the costs of administering legal aid are welcome [p. 24].
10. The DPP’s proposal that savings can be achieved by greater efficiency in the criminal courts is a sound one, and one that the MOJ should push [p. 25].
11. Whilst accepting concerns about the ability of some vulnerable clients to access services via the telephone helpline, the scale of savings, together with the benefits that might accrue, means that this is ‘an option worth pursuing’. The Government should monitor its effects [p. 3].
Visit our website for JCWI’s own response to the Government’s legal aid consultation.