New MoJ figures reveal assault on access to justice, as spending cuts caused huge drop in legal aid work
The implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) has resulted in “large reductions in legal help workload and expenditure”, reveal new Ministry of Justice (MoJ) statistics. The statistics reveal that government reforms and spending cuts have led directly to a large reduction in civil legal aid workload (in both legal help and representation), while expenditure and workload has also fallen significantly within many areas of criminal legal aid. Such a large reduction in ‘workload’ leads us to the inescapable conclusion that the government has undermined access to justice, by reducing equality before the law, as well as the right to counsel and to a fair trial.
The MoJ figures show that the value of expenditure on all legal aid cases completed between April 2014 and March 2015 was just over £1.9 billion, which was a 10 per cent reduction on the previous year. The statistics bulletin provides detailed information on both criminal and civil legal aid expenditure and workload between January and March 2015. The bulletin illustrates the highly worrying yet all-too-familiar story of a continuing assault on access to justice, driven by the government’s particularly pernicious brand of austerity.
All figures below refer to the period January to March 2015, when compared with January to March 2014, unless stated otherwise.
Criminal Legal Aid
The MoJ figures split spending between ‘Crime Lower’ and ‘Crime Higher’, the former including the pre-charge and police station stages, the early court system (including magistrate courts) and prison assistance, while crime higher includes work in Crown Courts and Higher Courts. In general, crime lower includes higher volume and lower cost work, while crime higher includes lower volume and higher cost areas of work.
The stats show that expenditure on crime lower and crime higher fell more than did workloads, down 14 per cent and 5 per cent respectively. The bulletin notes that this is a reflection of the 8.75 per cent cut to legal aid fees received by law firms. We have blogged previously about the government’s plans to introduce a further cut to legal aid fees and reduce the number of contracts. In October 2014, the London Criminal Courts Solicitors’ Association (LCCSA) feared that as many as two-thirds of criminal solicitors could lose their jobs as a result of the cuts, which much of the legal profession believe will lead to reduced access to, and miscarriages of justice.
The further cut to legal aid fees of 8.75 per cent – active from 1 July 2015, on top of the previous cut and a reduction in the number of legal aid contracts, has led solicitors and barristers to take direct action, boycotting new legal aid work paid at the new lower rates. This action follows action taken last year, marking the first time in history that barristers withdrew their labour, as well as the first time that both arms of the legal profession have done so in a national, coordinated way.
The MoJ figures show that representation orders at magistrates courts fell by 10 per cent while representation at Crown Courts fell by 13 per cent. Workload in regard to ‘pre-charge’ suspects (60 per cent of the crime lower workload) fell by 4 per cent, while the prison law workload, affected by restrictions to the scope of legal aid made in December 2013, fell by a shocking 36 per cent this quarter, when compared with the same quarter last year.
Civil Legal Aid
The MoJ bulletin splits civil legal aid into ‘legal help’ and ‘civil representation’. Legal help refers to advice and assistance about a legal problem, usually via legal aid centres, while civil representation refers to representation by lawyers for civil cases which could go to court. As noted, the new statistics reveal that the implementation of LASPO in April 2013 resulted in “large reductions” in legal help workload and expenditure, which now stands at two thirds of pre-LASPO levels. Civil representation workload now stands at two thirds of pre-LASPO levels, with the number of civil representation certificates down 7 per cent this year.
The following graph from the MoJ stats shows the dramatic impact of LASPO on legal help in particular, as well as civil representation:
Public family law comprises around a quarter of all legal aid expenditure across both criminal and civil legal aid. The MoJ stats show that in legal help, there was a large decrease in family workload following LASPO, which removed many areas of legal aid from scope, as well as decrease in civil representation. Shockingly, civil representation workload for domestic violence cases has fallen by 19 per cent this year. This tallies with evidence from the National Audit Office (NAO) and the Justice Select Committee, among others, which reveal a significant rise in people representing themselves in courts, so-called ‘litigants in person’ (LIPs), since the introduction of LASPO. The Justice Committee found that LIPs “are increasingly people with no choice other than to represent themselves”. For more information, please see our previous blog on the evidence and implications of the rise in LIPs.
Although, in contrast to other areas of civil legal aid, domestic violence and public family law in theory still remain within the scope of legal aid provision, clients now have to fulfil the merits of much narrower financial and eligibility criteria than existed previously. The House of Commons briefing on the rise of LIPs in civil and family cases notes that as a result of LASPO, most private and family law cases were removed from scope of legal aid, remaining only where there is “certain types of documentary evidence that the client has suffered domestic abuse.” Napo and PCS report that in family courts, in 42 per cent of cases neither party had legal representation by the end of 2013, compared to 18 per cent before the legal aid cuts.
The following graph shows the impact of LASPO on family workload, in regard to both legal help and civil representation:
The LASPO act removed nationality and visit visa work entirely from the scope of legal aid, with new matter starts for this type of work having fallen from more than 5,000 cases cases in each quarter to just a few cases. Within immigration law, only asylum-related work remains within the scope of legal aid. The Court of Appeal recently ruled that exceptional legal aid funding should be made available to people fighting deportation, and continued to note that the MoJ guidance “is not compatible with article 6(1) [of the European convention on human rights which guarantees a fair trial] and article 47 [of the EU charter of fundamental rights]…The guidance is not compatible with article 8 of the convention [right to family life] in immigration cases.”
The new statistics from the MoJ show that there were 323 applications for Exceptional case funding (ECF) between January and March 2013, which was a 12 per cent reduction compared with the same period in 2014. ECF is where clients can get legal aid under ‘some’ circumstances even though their case is not in the scope of legal aid.
The following graph from the MoJ bulletin shows what has happened to immigration workload via legal aid:
Housing advice and representation is another crucial area of legal aid that has been hugely affected by LASPO, in which some areas of housing remained in scope, including cases relating to serious disrepair or homelessness or possession proceedings. The stats reveal that the volume of legally aided housing cases halved between April to June 2012 and April to June 2013, while in the last quarter there was a 12 per cent decrease compared to the same quarter last year. This decrease was mainly in legal help, but legal help accounts for more than 80 per cent of housing legal aid work.
This graph from the bulletin shows the dramatic impact of LASPO on housing advice cases through legal aid.
Finally, it’s worth noting that the bulletin also contains information on legal aid providers. Legal aid services in England and Wales are delivered through solicitor firms, not-for-profit organisations, telephone operators and barristers, contracted by the Legal Aid Agency (LAA). The figures show a gradual fall in the number of provider offices for crime and civil work, but a much greater fall for civil legal aid work. This graph shows the impact of LASPO on the legal profession in clear terms:
The government’s own statistics reveal that legal aid workload has dropped hugely as expenditure has fallen significantly. But the information leaves us wondering what has happened to the representation and legal support that might have been provided – the cases that may have appeared, had expenditure not fallen so dramatically? What has happened to the people in need of legal aid – be it advice or representation on a whole range of issues ranging from family and private law, housing, immigration or other areas?
LASPO was introduced by the former Justice Secretary Chris Grayling’s predecessor Ken Clarke, who made his rationale starkly clear during an interview with the International Bar Association in 2011: “What we mustn’t do is just leave untouched a system that has grown astonishingly, making the poor extremely litigious.”
It certainly seems that LASPO has led to less people accessing the legal system, and what is the cost of that? While both the Justice Select Committee and the Low Commission on the Future of Advice and Legal Support found that any cost savings achieved by the legal aid cuts have increased costs to other public services, what we can see is a rapid undermining of the principle of equality before the law, as access to justice has been severely undermined.