Re-writing history: how the MoJ strayed from the founding principles of legal aid

The latest round of legal aid cuts, reviewed last month, show a flagrant denial of the noble principles upon which the system was founded.

Steve Hynes
5 March 2019, 2.27pm
Once a system of promise, legal aid is now demonised by many sections of the media and government.
Steve Hynes. All rights reserved.

In February, the UK’s Ministry of Justice published their review of the latest round of cuts to legal aid that had been introduced by the coalition government via the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). LASPO marked a new low in the story of legal aid policy. Rather than promising justice for all, legal aid is now reserved for “those who need it most” or the wealthy. It shows just how far the system has strayed from its original purpose.

It was a Tory grandee, Lord Rushcliffe, who was the architect of the system which the post-war Labour government established 70 years ago this year.

Rushcliffe was a former Conservative MP who had practiced as a barrister. In 1944 he was given the task of forming a committee to look at establishing a legal aid scheme. At this time there was a limited system of legal aid in serious criminal cases, but for all other matters paying for a lawyer’s help was out of reach of the vast majority of the population. The only recourse was to rely on services provided by the legal professions for free or as the lawyers call it, pro bono publico (a latin phrase meaning ‘in the public good’).

In his report Rushcliffe recommended that legal aid should not be limited only to those people “normally classed as poor” but should include people of “small or moderate means”. At its outset the legal aid system covered over 80% of the population.

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"Lord Falconer has admitted regret in "creating an atmosphere" in which LASPO was made possible."

The expansion and decline of legal aid

In the 1960’s it became increasingly recognised by policy makers and pressure groups that the legal aid system was failing poorer communities. They were influenced by what was happening in the US. Law offices to serve impoverished communities had been established with charitable funding in the early sixties in America. The idea was taken-up as part of President Johnston’s War on Poverty programme and a network of ‘neighbourhood law offices’ in deprived areas not served by private practice lawyers were funded through a federal grant.

Two influential papers, Justice for All by the Society of Labour lawyers and Rough Justice published by the Conservative Party helped shape the expansion of legal aid services in the 1970’s. The failure of solicitors to respond to the needs of poorer communities particularly with help on housing, benefits and other common legal problems, highlighted in these reports led to the creation in 1973 of what is now called the Legal Help scheme. This allowed solicitors to give initial advice on most matters of civil law and led to a growth in the number of people assisted by legal aid.

1973 to 1986 were years of growth for legal aid services. In parallel to this, the not for profit advice sector grew, mainly funded by grants from local councils. This period also saw the founding of the first Law Centres which followed the model of the American neighbourhood law offices. Though never large in numbers (there have never been more than around 60) their influence on legal advice services for impoverished communities has been significant.

"The government started to view legal aid simply as a budget to be controlled."

Legal aid in this golden period began to realise Rushcliffe’s original vision of a service which met the legal needs of the vast majority of the population. By 1979, after a period of decline, eligibility for legal aid was back to around 80% and there were more than 12,000 firms across the country providing civil legal aid services on most high streets in large towns and cities.

The beginning of the decline of civil legal aid can be easily pinpointed. In a move which stunned the sector the Conservative government led by Margaret Thatcher in 1986 introduced legislation to cut eligibility to civil legal aid.

This marked a sea-change in legal aid policy. Further legislation followed when the Conservatives were re-elected in 1987. The Legal Aid Act took control of the scheme away from the Law Society which had administered it since 1949 and created the Legal Aid Board.

Rather than treating legal aid as the means by which people could enforce their rights and ensure equality before the law, the government started to view it simply as a budget to be controlled.

Successive Conservative administrations restricted what cases the scheme would cover and tightened the eligibility criteria to use the service. By the mid 1990’s the percentage of the population eligible for civil legal aid had dropped to just over 50%.

Kicking a political football

Under Labour from 1997 to 2010 eligibility levels and numbers of cases started to increase. When the coalition government took power the number of civil cases had grown to around one million, twice as many as there were in 1986. While the figures are not directly comparable, as they were inflated by the use of telephone advice services which were not previously provided, they represented a solid achievement in expanding access to justice. Praise for this though has to be tempered by the damaging rhetoric around legal aid which Labour indulged in. This is exemplified by the then Prime Minister, Tony Blair’s conference speech in Sept 2003 in which he referred to the need to “derail the gravy train of legal aid.”

"Some of those still eligible for civil legal aid have to contribute from their benefits to obtain it."

If you search for media stories on legal aid you will find plenty playing on the theme of legal aid being a way for grasping lawyers to enrich themselves and for guilty criminals to avoid justice. Governments have tended to play a game of kicking around the legal aid political football by making comments exemplified by Blair’s and using tactics such as publishing figures of the top earning legal aid lawyers prior to making an announcement about cuts.

This toxic political discourse gave the coalition government the political cover to introduce the devastating cuts in the LASPO Act. The Lord Chancellor under Blair, Lord Falconer, has since admitted regret in “creating an atmosphere” in which LASPO was made possible.

Criminal legal aid was largely protected under LASPO. Attempts to cut criminal fees led to demonstrations and a strike by criminal legal aid barristers, which resulted in a climb-down by the government. Unfortunately, there were no mass street protests in reaction to swaths of civil law, including employment, benefits and most divorce cases being cut by LASPO.

The numbers of people assisted by legal aid has now reduced to less than a third of the million people who were assisted in 2010 and we have the ludicrous situation in which some of the 30% of the population still eligible for civil legal aid have to contribute from their benefits to obtain it. The numbers of firms providing legal aid services has also collapsed (there are now only around 2,000 civil legal aid firms).

The coalition government’s stated aim with LASPO was to focus civil legal aid “on those most in need”. By reducing those eligible for civil legal aid to the poorest they have created a sink service far removed from Rushcliffe’s founding principles.

In last month’s post-legislative review of LASPO, ministers committed to some minor, but important changes, such as extending legal aid to migrant children separated from their families. But there is no promise of the substantial cash needed to ensure people can get help with the sort of everyday legal problems which civil legal aid had previously provided.

There are signs though that policies are changing. Ministers have committed themselves to pilot studies around the impact of early advice and have pledged some cash for digital led innovation. Labour, if they return to government, are promising more radical change, including a substantial expansion of Law Centres and restoring areas of civil law such as benefits to scope.

Politicians must commit to increase eligibility levels back to around 80% and substantially boost the numbers of providers if legal aid is to meet the legal needs of the majority of the population. The legal aid system was intended to ensure that everyone, not just the wealthy, could access justice and enforce their rights. We need to set out a vision that ensures legal aid, once again, lives up to its noble ideals.

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