Consequences Necessity Cuts

Introduction

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) was enacted for making provisions for legal aid, funding of legal services, costs and other amounts awarded in civil and criminal proceedings. The purpose of making these changes was to make reforms to the legal aid and as such, these reforms were made to introduce important changes to the scope, eligibility and the rates with the objective of making significant cuts to legal aid spend. This essay will discuss the reasons for the cuts and its consequences and the extent to which the cuts were necessary.

The reasons for the cuts and what the consequences have been

The areas that are specifically removed from the scope of legal aid include, private family law, many areas of clinical negligence cases, much of employment law, non-asylum immigration law, debt and housing, and welfare benefit issues. While, this was a reason for criticism against the LASPO 2012, it was argued that these changes are necessary for government argued that this was necessary given the state of the economy and public expenditure. The government’s argument is that under the reforms introduced by the LASPO 2012, legal aid would be given to the litigants who need it is most.

The LAPSO 2012 also established the Legal Aid Agency (LAA) in place of the Legal Services Commission. LASPO 2012, Section 8 provides civil legal services and Section 13 provides for criminal legal services. For civil legal services, the criteria is set in Section11 read with Section 21, the satisfaction of which is the basis for qualification for legal aid under Section 8. One of the criterion in this context is the financial criterion. Similarly, for the purpose of qualifying for legal aid under Section 13, the criteria is laid down on Section 12 read with Section 21, which includes the financial criterion. Criminal legal aid under Section 13 is applicable to individuals in custody for commission or under suspicion of commission of offences, for whom a determination is made that they are eligible to receive legal aid as per the criteria laid down.

The passage of the LASPO 2012 led to the cut in legal aid by £350 million a year. This has meant a significant reduction in government funding for free legal advice and legal representation to low income citizens of the UK. The questions that arise are whether these cuts have led to certain consequences for indigent persons. Hazel Genn argues that the principal thrust of the civil justice reform is not about greater access to justice, but about keeping disputants away from courts. The reason for keeping disputants away from courts is the increasing battle for resources in both the civil and criminal justice systems. As there is greater stress on both civil and criminal justice system, there is also a conflict between these systems for the fight over the resources. In the meantime, there is overcrowding in the prisons, leading to demands of ease of access to justice for those who are in contact with the criminal justice system. This has meant a demand for greater allocation of resources for criminal justice system and a greater burden on civil legal aid to compromise so that the criminal legal aid can receive more funds.

LASPO 2012, which saw cuts in government funding for legal aid, has impacted legal aid in context of civil justice system, as many areas were cut out for legal aid under the LASPO 2012. Among the affected areas, private family law related legal aid is affected, with the consequence of a large decrease in family legal help workload. Additionally, mental health tribunal and immigration related legal aid was also cut out from under the LASPO 2012. The consequence of these cuts was a reduction in the volume of legally aided immigration cases, which were reduced by 50 percent between April 2012 and 2013. Nationality and visit visas work were removed from scope under the LASPO 2012. Another area of civil legal aid which was reduced from under the LAPSO 2012, is that of housing, with the consequence that the volume of legally-aided housing cases have reduced significantly. The Bar Council of the UK is one of the critics of LAPSO 2012 legal aid cuts due to an increasing number of Litigants in Person, particularly in the family and civil courts, which has put pressure on courts and voluntary services.

Criticism of LASPO 2012 has focused on the consequences of reduced cases for arguing that application of LASPO 2012 has led to the diminishing of legal aid access in the UK. However, it may be noted that indigent litigants may still get legal aid under the exceptional case funding (ECF) provision of the LASPO 2012. In one quarter of 2015 alone, there were 300 applications for ECF with the turnaround time for 245 of the applications at 10 working days, which counters the argument against the application of LASPO 2012. However, the Bar Council has argued that acceptance of ECF applications shows a very poor track record. It cannot be denied that there are many litigants who are now not eligible for legal aid due to the application of LASPO 2012.

In a recent report, the Law Society has noted the drawbacks of the LASPO 2012. The principal findings of the report after 4 years of the passage of LASPO 2012 are: first, legal aid is no longer available to many indigent litigants; second, even for those eligible for legal aid, there are difficulties in access; third, there are unaddressed gaps in provision of legal aid; and fourth, LASPO 2012 has a detrimental impact on the state and society. One of the consequences of LAPSO 2012 is that those who are faced with litigation and are indigent, either find the funds to pay for their own legal advice, or failing that represent themselves, “or be excluded from the justice system altogether.”

The extent to which the passing of the LASPO Act was a necessary action

Legal aid is the provision of public funding for helping indigent people get access to legal aid. The basic concept of legal aid is to ensure access to justice for all people, irrespective of their economic status. Thus, legal aid is an important component of access to justice, the latter being a term that is not easily defined, and which has both descriptive and normative explanations. As a descriptive concept, access to justice refers to the extent to which citizens access legal services and as a normative concept, access the justice refers to the ideal of equal access for all citizens.

LAPSO 2013 has made important changes to the established practices on provision of legal aid, especially in making legal aid cuts in family, immigration and civil litigations. At the same time, it can be argued that this change is necessary for the purpose of providing a balance between ideals if social justice and economic considerations. There is therefore a compromise by providing legal aid where absolutely needed and decreasing burden on the public exchequer by making cuts in some areas of legal aid. The area of criminal legal aid is considered more important and for that purpose, legal aid is allowed in the more important areas in criminal justice system.

The LASPO 2012 reforms have come into question on the basis of the European Convention of Human Rights and the Equality Act 2010, particularly in terms of right to equality and rights against discrimination. However, on the other side of the spectrum is the problem of budget constraints and the need to practice austerity. The Coalition government introduced LASPO 2012 on the ground of having to make savings from the legal aid budget in England and Wales. The government argued that discouraging cases from coming to courts would reduce the burden on the courts, which would also lead to savings through saving of resources. The argument was that discouraging cases from coming to litigation would make sense when such cases could be better resolved through alternate means, such as mediation. This is a legitimate and justified argument by the government. It may be recalled that similar arguments were made by the Woolf reforms for encouraging alternative dispute resolution methods for the civil justice system. Lord Woolf recommended in his report, Access to Justice, that the civil justice system should be reformed to help parties to a dispute reach early settlement and avoid litigation. Therefore, the argument to reduce burden on the civil justice system is not a new argument and it has been recognised that there is a burden on the civil justice system, which can be reduced by encouraging people to resolve their disputes through mediation or other methods of alternative dispute resolution.

Thus, one of the main objectives of LASPO 2012 was that there should be decreased spending on the civil legal aid and this seems to have been achieved to a significant extent. To provide some perspective on this point, it may be pointed out that in the year 2017-18, the total legal aid expenditure was at £1.62 billion, which was 37% less than the legal aid expenditure in the year 2010-11. In 2017-18, major proportion of spending in legal aid was in the area of criminal legal aid, which amounted to 55% of the total legal aid expenditure. Statistics also show a decline in legal aid caseload since LASPO 2012 came into effect. In 2017-there was a 33% decrease in the legal aid cases. The most significant effect is in the area of civil cases qualifying for legal aid, which showed a decrease of 82% in 2017-18.

Therefore, there is a difference in the legal aid expenditure of the government after the passage LASPO 2012. This appears to substantiate the argument of the government from the perspective of cost savings through cuts in legal aid expenditure. However, this argument would be justified if the benefits of the cuts in legal aid expenditure do not outweigh the costs. This is the area where the justifications advanced by the government may fail to be convincing. One of the areas where the new reforms have been found to be negatively impactful is in the area of children, especially children who are under the care of adults; those involved in cross border adoption arrangements; those who are victims of trafficking; those who stateless, but born in the UK. Due to the changes in the legal aid regime with respect to immigration and family court cases, these children are denied the right to legal aid. Another area of negative impact after the passage of LASPO 2012 is on those who are eligible to apply for legal aid, as there is a difficulty in assessing who is eligible and how much are they eligible for. Yet another area that is affected negatively is that of domestic violence and child abuse, as legal aid funding for all private law family cases is removed with the exception of those which have evidence of domestic violence or child abuse, provided the victims can provide evidence of abuse obtained within a two year time limit. This is proving to be difficult for women who are not able to provide such evidence. Therefore, there are a number of people who are excluded from access to justice, which needs to be reconsidered.

Conclusion

To conclude, the justification given for LASPO 2012 cuts to legal aid is not completely convincing because even though there is evidence of lower spending on legal aid, there is also evidence of significant number of vulnerable and indigent people not getting access to legal aid. However, this is not to say that there is no need to make cuts because it is also seen that there is a need to balance social justice with budgetary needs. Given that there are a number of needy people who are not receiving access to justice, there is a need to rethink the structure of exclusions to ensure a fairer balance between social justice needs and budgetary considerations.

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Books

• Conford T, ‘The Meaning of Access to Justice’, in Ellie Palmer, Tom Cornford, Yseult Marique, Audrey Guinchard (eds), Access to Justice: Beyond the Policies and Politics of Austerity (Bloomsbury Publishing, 2016).
• Pratt A, Brown J and Sturge G, The Future of Legal Aid Number CDP-2018/0230 (House of Commons Library 2018).
• Slapper G and Kelly D, The English Legal System: 2015-2016 (Routledge 2015).

Journals

• Genn H, ‘What Is Civil Justice For? Reform, ADR, and Access to Justice’ (2012) 24(1) Yale Journal of Law & the Humanities 18.
• Heung G, ‘The Underprivileged See No Light in LASPO Act 2012’ (2017) 5 UK L. Student Rev 23.

Reports

• Lord Woolf MR, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (London: HMSO 1996).
• Ministry of Justice, Proposals for the Reform of Legal Aid in England and Wales Cm 7967 (TSO 2010).

Others

• Anderssen J, ‘Legal Aid Fee Cuts to Evidence Work Have Been Declared Unlawful’ (3rd August 2018) accessed 4th January 2019.
• Law Society, Access Denied? LASPO four years on: A Law Society review (2017)
• Ministry of Justice, ‘Legal Aid Statistics in England and Wales July to September 2015’ accessed 4th January 2019.
• Rights of Women, Evidencing domestic violence: nearly 3 years on (December 2015) accessed 5th January 2019.
• The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012): what was the purpose of this law? Why was it enacted and what were the principle objectives:
• kinds of legal aid: criminal and civil. Section 8 provides civil legal services and Section 13 provides for criminal legal services. For eligibility of either, the financial criterion is to be satisfied. There are also other criteria that are to be satisfied. This makes the access to legal aid a very difficult process.
• legal aid was restricted for family law, clinical negligence cases, employment law, non-asylum immigration law, debt and housing, and welfare benefit issues;
• good intentions behind the law but there is much criticism on the law because there are so many people who are no longer allowed to access legal aid even though they need this legal aid because they are poor or vulnerable. This is the strongest criticism of the Act. One of the biggest critics of the Act is The Law Society Both critics are emphasising on the way the Act impacts the poor and indigent litigants and leaves many people outside the scope of legal aid access.
• Slapper and Kelly’s book, The English Legal System: 2015-2016- how legal aid is now structured and how the Act provides the criteria for the legal aid. Also provided is the ways in which the Act is impacting different kinds of litigants or areas of litigation.
• A really useful piece of work is by the Law Society In this work, there are important points of criticism against the Act as well as empirical evidence as to why the Act is not such a sound development or where the law still needs reconsideration. The report is useful because it provides an insight into the impacts 4 years after the law was enacted. Important finding which should be included in the essay is that legal aid is no longer available to many indigent litigants and it is difficult to access even for those who have access. Important point to be mentioned in the essay: those who are faced with litigation and are indigent, either find the funds to pay for their own legal advice, or failing that represent themselves, “or be excluded from the justice system altogether.” (see page 6 of the report).
• I think the research indicates that although the law was needed from a budgetary point of view, it needs to be reconsidered with respect to those who are impacted by it, such as, children, women with domestic violence victimhood, etc. (See Heung G, ‘The Underprivileged See No Light in LASPO Act 2012).