There have been a number of recent developments in the ongoing debate about cuts in legal aid. September saw the High Court rule that the consultation process for plans to cut criminal legal aid was unlawful on the grounds of procedural unfairness. Last Wednesday a retired judge joined the growing number of legal professionals criticising the extent of the cuts and on Thursday the government announced plans to provide “in-court advice centres” for people struggling to cope with civil and family law cases. But the public are paying a disproportionately high price and only now is the Justice Secretary waking up to this.
Of course, that is not to say that the legal aid budget should remain totally immune from spending cuts. It is inevitable that efficiencies could be made and every pound of the budget should be under scrutiny. There is also certainly support for the argument that lawyers’ fees are “vastly inflated,” and it is worth remembering that the UK’s budget is still the largest in Europe. Nevertheless, unlike with other cuts, trimming the legal aid budget may not save quite as much money as expected, as early advice may prevent a build-up of headaches, wrangles and other long-term costs further down the line.
More importantly, everyone should be entitled to accessible justice – even if not to the benefits and other state hand-outs which may form the subject of the litigation.
The Ministry of Justice’s own statistics show that only 1.8 million ‘acts of assistance’ were provided through legal aid in 2013-14 (down 20% from the 2.3 million in 2012-13) and that the overall budget has been sliced by 11% from £1.9 billion to £1.7 billion. This figure is set to fall by a further £200m in 2015. On the ground, the result is that ordinary people are being denied justice, with the eligibility criteria for legal aid also being restricted.
For example, before April 2013, legal aid could be used to help all those on low incomes finance applications for family law disputes, including custody battles. It is now the case that in order for a person to obtain legal aid in a family dispute, he or she must prove that they are a victim of domestic violence, or that a child is at risk of abuse or abduction. This means that an alcoholic parent, who has a history of drug abuse, philandering and a gambling problem (and is otherwise woefully ill-equipped to look after a child) may still win a custody dispute where the other parent – who has shouldered a disproportionate financial and emotional burden in bringing up the child – cannot prove one of the above conditions and cannot personally finance their claim, despite being likely to win on the merits. Not only is this a denial of justice, it puts the wellbeing of the child at risk.
Moreover, cuts to legal aid have resulted in costly delays for an already cumbersome justice system. In particular, the number of claimants who have desperately resorted to representing themselves in court, rather than seek out qualified representatives, has risen dramatically. This has led to a decline in the quality of legal argument, and therefore affected the correctness of the final judgment, and has injected a large dose of amateurism into a system which can ill-afford the resultant costs - which are, of course, passed on to the taxpayer. And the financial costs are matched by the social costs. Indeed, the largest increase in self-representation is in the family court, where the custody, care and security of a child are often at stake.
The real losers are not the lawyers of the City and Chancery Lane, but the everyday men and women who struggle to make ends meet. While the government’s plan to expand the role of volunteers is to be welcomed, little else has been done to allay the fears. The justice system is under increasing strain and must arrest the slide sooner rather than later.