It is almost time for legal aid’s 71st anniversary. On the 30th of July 1949, the Legal Aid and Advice Act was passed. The Act aimed to ‘provide legal advice for those of slender means and resources, so that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right.’ The law has since moved on. The modern legal aid system is enshrined in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’). Its aim was expressed in starkly different terms: to refocus legal aid ‘on those who most need it’ while ‘delivering significant savings for the taxpayer.’
The impact of LASPO was two-fold. Firstly, it drastically reduced the scope of legal aid. Subject to limited exceptions, assistance is no longer available for vast areas of immigration law, private family law, housing law, welfare law, and employment law. Secondly, LASPO imposed strict restrictions on eligibility – individuals living below the poverty line, including those receiving state benefits, are often not entitled to legal aid.
Access to justice denied: the effect of LASPO
Since LASPO, there has been a fall from 574,000 civil legal aid cases in 2012 to just 140,000 cases in 2017/18. This has led to a rise in litigants-in-person (‘LIPs’): individuals who represent themselves in the absence of a lawyer.
The problem is that LIPs are unable to meaningfully engage with the legal system, through no fault of their own. As Sir James Munby, the former President of the High Court (Family Division), put it: legal rules of ‘Byzantine complexity’ do not allow ‘even educated, highly articulate, intelligent LIPs’ to understand the system. How, then, can we expect LIPs to comply with civil procedure, provide all relevant information, and then accurately and convincingly apply the law to their case? These obstacles are even more insurmountable for the most vulnerable LIPs. A district judge, speaking of their experiences in the family court, explained that ‘so very many’ have mental health, drug, language, and learning difficulties. In such cases, the potential for injustice is heightened. Indeed, Judge Hallam said as much after presiding over a child custody case presented by a mother who was not only illiterate, but also had speech, hearing, and learning disabilities.
In light of this, it is hardly surprising that courts are increasingly presented with incomplete and mistaken legal arguments. In Linder v Rawlins [2015] EWCA Civ 61, the Court of Appeal tried to mitigate the risk of reaching an incorrect outcome by researching and applying the law themselves – a task usually performed by parties’ legal representatives. In doing so, Lady Black said she and her fellow judges had taken time which ‘cannot be spared in what already is a very busy court.’ Other senior legal professionals echo this concern; Dame Elizabeth Gloster goes so far as to say that the delays caused by LIPs threaten to ‘clog up’ the system.
It is for reasons like these that the LASPO cuts have been labelled a ‘false economy’ by both MPs and legal professionals. In addition to the strain placed on the courts, the LASPO cuts have prevented legal problems from being resolved at an earlier stage. In welfare law, barrister Mary-Rachel McCabe has explained that this inability to ‘nip [claims] in the bud’ can lead to evictions and homelessness, at considerable cost to the state. Similarly, in a 2018 study, the Equality and Human Rights Commission found that the absence of free employment advice increased the likelihood of individuals losing their jobs, thereby increasing the number of people claiming benefits. Even the NHS has not emerged unscathed, as unresolved legal problems may trigger a deterioration in physical and mental health. Therefore, while the government’s boasts about saving millions are technically accurate, it should be remembered that some costs have simply shifted to other areas.
In any case, the Chair of the Justice Select Committee has rightly said that the ‘savings in cost have in some areas been an unacceptable price in terms of access to justice.’ One such price is risking an incorrect outcome by depriving the court of a barrister’s assistance (Aikens LJ, Linder v Rawlins). Another is deterring people from bringing claims in the first place. For example, the Equality and Human Rights Commission found that several participants had delayed action or considered not acting because of the stress involved. One individual, seeking to claim welfare benefits, explained that they ‘just gave up because my mum was like I am not putting you through that stress again…it’s making me have more seizures.’
Finally, in the absence of legal aid, victims of domestic violence can end up facing their abuser in court without support. In family law, legal assistance is exceptionally available for individuals who can ‘prove’ abuse. This is not easy. In a 2014 study, Rights of Women found 37% of respondents could not provide the necessary evidence. One respondent said: ‘even though I have very low income, no house, no land, no savings…there is no legal aid for me. The Government does not understand that women do not always report.’ Another explained that this makes it ‘impossible for women fleeing domestic violence… [without legal aid] I can’t finalise my divorce and put an end to the abuse.’
Legal aid cuts and the constitution
Unlike every other European country, the UK does not have a written constitution. However, we do have overarching constitutional principles and rights, which are defended by the judiciary when threatened. In Unison [2017] UKSC 51, the Supreme Court stressed that access to justice is one such right. As Lord Reed explained, access to justice is inherent in the rule of law. For society to be governed by law, courts must ensure the laws made by democratically elected representatives are ‘applied and enforced.’ If individuals are unable to access the courts, ‘the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade.’
The Unison case concerned the introduction of a fee regime for users of employment tribunals. The court was presented with evidence highlighting a 66%-70% fall in the number of claims since the introduction of the fee regime. Considering this, alongside other damning statistics, the court held that there was a ‘real risk’ that the fees had obstructed access to justice. The fee regime was declared void ab initio: not only did the fees cease to be payable, but anyone who had paid was entitled to reimbursement.
What stops us from applying a similar argument to legal aid cuts? Is there not a ‘real risk’ that access to justice is obstructed? The statistics are equally damning, if not worse. Within a year of LASPO, there was a 99% reduction in the number of welfare-benefits cases granted legal aid funding. There was also a 60% reduction in such private family law cases, while, in housing law, only 50% of cases received legal aid. As we have seen, in the absence of legal assistance, people may not choose to pursue their claims, surrendering their ability to enforce their rights. The alternative is self-representation: rolling the dice on matters of immense personal significance in a system designed for emotionally detached and trained professionals.
The conclusion that the legal aid cuts satisfy the Unison test is, therefore, unavoidable. Yet, notwithstanding the (very) ‘real risk’ that access to justice is obstructed, there has been no similar policy U-turn on legal aid. In my view, there are two misconceptions that underpin this state of affairs.
Misconception #1: civil legal aid is dispensable
Speaking extrajudicially, Lord Sumption distinguished between ‘discretionary’ and ‘fundamental’ heads of government expenditure. He placed criminal legal aid in the latter category, arguing: ‘a functioning system of justice…is fundamental to the existence of the state and to our existence as a civilised society.’ In contrast, he claimed that most civil legal aid was discretionary. Therefore, it must ‘compete with all other calls on public funds: health, education, defence, social security, and so on.’
As Mark Elliott has highlighted, Lord Sumption’s view is difficult to reconcile with Unison – a case that, at its core, concerned the ability to enforce civil rights. In fact, the Supreme Court was deeply critical of the government’s assumption that ‘the administration of justice is merely a public service like any other.’ This criticism applies with equal force to Lord Sumption. Elliott rightly favours Lord Neuberger’s contrasting view: ‘legal aid is a necessary part of access to justice, which in turn is a fundamental part of the rule of law.’ The government has two historical and fundamental functions: defending the realm and maintaining the rule of law. Issues like education and social security ‘may attract more attention and more money, [but] they would be of little value if the government failed to defend the realm or to maintain the rule of law.’
Misconception #2: parliamentary sovereignty is an insurmountable obstacle
The core difference between Unison and LASPO is that the fee regime was introduced by delegated legislation, whereas the legal aid cuts are enshrined in an Act of Parliament. It is infinitely easier to defend the rule of law when doing so does not represent an affront to parliamentary sovereignty.
The classic definition of parliamentary sovereignty is provided by Dicey: Parliament has the ‘right to make or unmake any law whatever,’ and ‘no person or body is recognised by the Law of England as having a right to override or set aside the legislation of Parliament’ – no matter how unjust. However, this position of absolute legislative supremacy has been qualified. In addition to the influence of EU law, the judiciary has developed what Elliott has called a ‘soft-form of strike down’ power. This is when the courts interpret a provision of primary legislation in a manner that is compatible with fundamental rights, even when this is clearly not what Parliament intended.
Thus far, this has been the extent of judicial activism. However, the courts have threatened to go further. In Moohan v Lord Advocate [2014] UKSC 67, Lord Hodge said that legislation restricting the vote might be declared unlawful – a proposition starkly at odds with the ‘right to make or unmake any law whatever.’ Elsewhere, the judiciary have suggested that sovereignty is conditional on compliance with the rule of law. In line with this, Lord Steyn in Jackson [2005] UKHL 56 stated that, one day, the Supreme Court might be required to assess whether there are ‘constitutional fundamental[s] which even a sovereign Parliament…cannot abolish.’ This day has not yet arrived.
As discussed above, access to justice is a constitutional fundamental. Further, provisions that limit access to the courts have been subject to the judiciary’s soft strike down power. The most famous example of this is Anisminic [1969] 2 AC 147. In short, Anisminic concerned s. 4(4) of the Foreign Compensation Act 1950, which purported to exclude judicial review. The court interpreted s. 4(4) in a manner which reinstated the court’s jurisdiction, thereby protecting access to justice. However, as Lord Phillips put it, the interpretation ascribed was one s. 4(4) ‘could not bear,’ amounting to an implicit judicial rejection of the statutory provision. Similarly strong stances have been adopted by the Supreme Court in Evans [2015] UKSC 21 and Privacy International [2019] UKSC 22 – both of which concerned the right of access to the court.
This is all to say that the judiciary’s commitment to the rule of law is at its most fierce when access to justice is threatened. The legal aid regime represents one of the greatest threats to access to justice in recent memory. A soft strike down is not an option: the cuts are not contained in an isolated provision that is vulnerable to manipulation. Instead, entire sections of LASPO are dedicated to the regime. Therefore, the only remaining option is to declare LASPO itself unlawful. The merits of such a move are a separate discussion – there are very real concerns surrounding the democratic credentials of an unelected judiciary, for example. My point, however, is this: if the judiciary are ever to act on their bold pronouncements in cases like Jackson, there will hardly be a more suitable opportunity than a challenge to LASPO. Parliamentary sovereignty does not automatically preclude such a move.
Conclusion
71 years on, there is little to celebrate. Society’s most vulnerable are left to battle with legal rules they have no hope of understanding. Victims of domestic violence face their abusers in court. Incorrect outcomes are reached in the cases that are brought, while many are deterred from claiming at all. The system itself is on the brink – judges are having to perform the tasks of legal representatives, while ‘savings’ have pushed costs onto the other pillars of the welfare state.
Including the new legal aid regime in an Act of Parliament has been labelled a ‘deliberate ploy to avoid challenges through the courts.’ At first glance, the principle of parliamentary sovereignty would seem to preclude such challenges. However, the UK’s highest court has recently reaffirmed its commitment to the right of access to justice. Since the turn of the century, fundamental rights have slowly been asserting their dominance over provisions of primary legislation. If this is all to cumulate in a constitutional crisis, there will not be a more worthy cause.
