Legal aid in 2015—more of the same?

Jon Robins, editor of The Justice Gap, considers what may change for legal aid in 2015.

Will 2015, the year of the general election, likely bring any changes for legal aid?

I do not anticipate that we are going to hear too much about legal aid in the run-up to the May 2015 general election. At the best of times legal aid is a non-issue for the public and there is little political capital to be gained by any of the political parties making it an issue other than perhaps to embarrass Labour. The ferocity with which the shadow justice team have laid into their bête noire, the justice secretary Chris Grayling, has been more than matched by their silence when it comes to any commitments on reversing the harm done by the April 2013 legal aid cuts.

There was a revealing exchange in the House of Commons at the end of last year when the Labour MP for Newport East, Jessica Morden, challenged justice minister Shailesh Vara about the impact of the cuts. Vara pointed her in the direction of her own party’s last election manifesto (Ch 5, p 5). ‘Perhaps she would like to ask the opposition front benchers whether they intend to reverse the cuts that we have made,’ he added.

Shadow justice minister Sadiq Khan then joined in the attack. ‘Has he read the Law Society Gazette of 24 September, following the Labour conference?’ Vara retorted. The headline was ‘Labour will not reverse legal aid cuts’. It quoted Khan’s colleague, the MP and lawyer Andy Slaughter on his government’s plans for legal aid. ‘We’re not going to get in a Tardis and go back to before LASPO [the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012)],’ the MP said.

It will be interesting to monitor the public pronouncements of Lord Willy Bach who, as a result of the fallout from Emily Thornbury’s Twitter faux pas, is the new shadow attorney general. As LASPO 2012 passed through Parliament, Bach lived up to the promise of his Twitter handle (@Fightbach) denouncing the legislation as ‘wicked, mean and unconstitutional’. The peer, a former criminal defence barrister, has been outspoken in his support for social welfare law.

At the start of the year, the Low Commission published its recommendations on the future of social welfare advice. The independent group, set up by the Legal Action Group and led by Sir Colin Low, stopped short of calling for reinstatement of the pre-LASPO 2012 scheme. The Low Commission is making the case for the next government to stump up another £50m a year for social welfare law advice. It proposes that a second £50m is raised to match the government contribution from a wide range of sources including a levy on payday loan companies, contributions from trusts and foundations as well as from individual law firms. The Low Commission estimates that £100m per annum is needed to ensure ‘a basic level of provision of information, advice and legal support on social welfare law’. It has also called for the incoming government to develop a National Strategy for Advice and Legal Support for 2015–20 and roll over the Lottery-funded Advice Services Transition Fund to help the legal not-for-profit sector.

One hopes that over the course of the next 12 months a better picture emerges of the impact of the April 2013 cuts. Catherine Lee, director of access to justice at the Ministry of Justice (MoJ), admitted to the House of Commons’ public accounts committee at the end of 2014 that her department ‘didn’t have the time to do the research at the time given the urgency of the cuts’. ‘We are now embarking upon a very extensive programme of research,’ she added. To which the committee chair Margaret Hodge interjected: ‘It’s a bit late.’ ‘Cut in haste, repent and research in leisure,’ was the view of the Labour MP Austin Mitchell.

That bruising session followed a report by the National Audit Office (NAO) published in November 2014 which concluded that ministers did not ‘think through enough’ the impact of the LASPO 2012 cuts nor did they sufficiently understand whether those still eligible could actually find help. According to the NAO, the £300m cuts to legal aid could not be said to have ‘delivered better overall value for money for the taxpayer’.

The MoJ had estimated that removing family legal aid (except where there was evidence of domestic violence) would keep people out of court and drive up mediation referrals by 9,000 per year. The spending watchdog recorded that there were 17,246 fewer mediation assessments in 2013/14, a 56% decrease from 2012/13. It also reported in the year post-LASPO 2012 there was a 30% rise in family cases in which neither party had a lawyer. The NAO estimated that, if cases involving litigants in person took 50% longer, the impact of increased numbers could be an additional cost of £3m on the court service based upon an increase of 11,144 cases in family courts in which neither party is represented in 2013/14 (the average cost of a family court case was estimated at £547).

It remains to be seen how the market will respond to the challenges of the new world. The NAO reported that the MoJ cut fees ‘without a robust understanding of how this would affect the market’. Some nine law centres closed their doors in the first 12 months of the cuts being imposed, leaving 50 remaining including a number which are in a fairly precarious situation.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

 

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