20 YEARS OF THE LAWYER: LEGAL AID
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7 March 2014
The number of people eligible for legal aid has almost halved since 1987. We chart Whitehall’s steady erosion of the principles of free access to justiceThe past 20 years has seen the slow death of legal aid. More than 80 per cent of the British population was eligible for free access to justice in 1987 – the equivalent of more than 44m people. This meant that the average middle-class, 2.4 children family, where the parents were seen to have professional jobs, such as doctors, teachers and nurses, would have qualified for legal aid.
Twenty years on the situation has changed. Government statistics show that now only 41 per cent of society – 24.6m people – will pass means testing to get free legal services.
However, Richard Miller, the Law Society’s legal aid expert, says the current level of eligibility means that only those on income support or just above that level have true access to justice. “Access to justice has and will continue to diminish,” he says, capturing the general mood of the entire legal profession.
The Legal Aid Act 1988
The Legal Aid Act 1988 was one of the most significant changes to free access to justice since a unified legal aid scheme was brought in after the Second World War in 1949. Until 19 years ago, the Law Society had the main responsibility for legal aid, but the 1988 Act transformed this, putting power into the hands of the Government. It took control under the auspices of the Legal Aid Board (LAB), which was essentially given responsibility for all legal work paid for by the state. the ignition to withdraw legal aid from a broad range of the population,” argues Neil Kinsella, chief executive of Russell Jones & Walker. “It became the middle-class trap: you were either too rich to get legal aid or too poor to afford a decent lawyer.”
Access to Justice Act 1999
Legal aid practitioners had four years to get used to contracts before the next big shake-up for access to justice in 1999. They also had to get their heads round the then optional use of Conditional Fee Agreements (CFAs), which were brought in through the Courts and Legal Services Act 1990 and would feature heavily in the 1999 Act.
The act, which was the product of the Government’s white paper Modernising Justice, 1998, replaced the legal aid system in its entirety, abolishing the LAB in favour of the Legal Services Commission (LSC). The legislation gave the LSC the power to radically reshape free access, with civil legal aid being rebranded part of the Community Legal Service (CLS) and criminal work as the Criminal Defence Service (CDS). Now if a lawyer wants to apply for legal aid for a client they would have to be contracted to either the CLS or CDS.
The largest seismic shift was felt throughout the civil side of legal aid, with the Act putting a cap on the amount of money that could be spent on civil access, with the Government deciding the overall budget. This led to provisions being made for personal injury, which for all intents and purposes has been shunted out of the legal aid
The Act raised more than one legal eyebrow at the time, explains Miller. “There were concerns for the independence of the legal profession if the distribution of state funds was going to be centrally controlled. These started to be justified in some people’s minds once contracting for legal aid came about in the mid-90s.”
Contracting for Legal Aid [The Legal Aid in Criminal and Care Proceedings (Costs) (Amendment) (No 2) Regulations 1994]
Lawyers had to enter a contract with the LAB, aka the Government, if they wanted any legal aid funding. The contract meant it would be practically impossible to offer free legal advice without being bound to the Government.
The legal profession attacked the contractual position at the time, with many believing that this would simply mean that the Government would get to decide what kind of legal system it wanted. The lobbying, however, failed to achieve much but small amendments, and the contracts were seen, as they are today, as the beginning of the gradual erosion of access of justice.
“We were beginning to see a situation where there’s no funding to fight decisions that go against the state,” says Andrew Holroyd, the Law Society president and a legal aid practitioner. “Until this point we used to have the best funded legal aid system in the world, but from here on in those stocks have depleted, eroding access to justice.”
Nur v John Wyeth & Brother (1996)
Benzodiazepine was the first ever group litigation order in the English legal profession and was one of the turning points leading to the squeeze in legal aid. More than 13,500 legal aid certificates had been issued to a taxpayer expense of £28.6m. The case was then lost, leading to the need for a serious re-examination of the system.
“The cases just added fire to the Woolf reforms and were remit, to instead be covered by CFAs, more commonly known as the ‘no win no fee’ arena.
CFAs, which also extended to family issues, are put forward to the public and the profession as saving the taxpayer money but at the same time still providing free access to justice at the point of delivery. “The capping of the budget meant it was no longer a question of supply meeting demands but demands being curtailed to what could be supplied,” says Miller.
Beachcroft’s managing partner Andrew Parker is in full agreement, stating simply that: “Funding has become more important than the client. Replacing legal aid with conditional fees is still causing major problems today,” he adds. “The problem with CFA and recoverability is that intellectually it’s quite difficult to justify. Funding continues to be a problem for the claimant and it’s the theme all the way through.”
2005: The Carter Review
In 2005 the Government decided it was time for “A Fairer Deal for Legal Aid”. Lord Carter was drafted in to review how the Government’s vision could be realised. The review has set a ball in motion, which Andrew Hall QC of Doughty Street Chambers dubs “a very serious mistake”.
The most immediate effect of Carter is the introduction of bulk contracts and competitive tendering. Simply interpreted, this means that those with a large enough practice to be cheap and to do high-volume work will have more access to the annual £2bn legal aid budget. These unified contracts have caused so much protest within the legal profession that there have been countless threats of judicial reviews, with at least two having actually been filed.
“Changes such as these will improve value for money and positive outcomes for clients, and ensure that being a legal aid lawyer remains a career with a purpose,” argues the LSC’s chief executive Carolyn Regan.
But many in the profession would not quite agree. A few choice phrases on where lawyers see access to justice in another 20 years time includes: “bleak”; “access for all if you can pay for it”; “say goodbye to the legal aid practitioner”. It’s not a happy story.