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This article was first published on LexisPSL Practice Management on 13 March 2014. Click here for a free 24h trial of LexisPSL.

Legal aid cuts--a civil persperctive

13/03/2014 Practice Management analysis: How will the government changes to legal aid impact on civil litigation? Martha Spurrier, a barrister and civil practitioner at Doughty Street Chambers, gives the civil perspective on the recent government changes to legal aid.

Original news
Consultation: Transforming legal aid--Next steps--Government response, LNB News 27/02/2014 114 Lawyers will be paid a more appropriate fee where the prosecution offers no evidence in Crown Court trials, according to the government response to the second Transforming Legal Aid consultation. Lawyers will now be paid the Crown Court cracked trial fee rather than the previous fees which were similar to those paid in the Magistrates' Court--this would apply where the defendant had the choice between courts and opted for a Crown Court trial.

What are the key outcomes of the consultation?

The last 18 months have seen a barrage of consultations on legal aid and the justice system, starting with the proposals to reform judicial review contained in 'Judicial Review--Proposals for Reform' (LNB News 13/12/2012 46) in December 2012, swiftly followed by 'Transforming Legal Aid--Delivering a more credible and efficient justice system' (LNB News 09/04/2013 77) in April 2013, and then 'Transforming Legal Aid--Next Steps' (LNB News 06/09/2013 11) and 'Judicial Review: Proposals for further reform' (LNB News 06/09/2013 147) in September 2013. The government responded to the last of these consultations in February 2014. This is all against the backdrop of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which came into force on 1 April 2013, decimating the availability of legal aid and radically changing the landscape for social welfare law. On the civil side, there are a number of key outcomes from these consultations. They really all have to be spoken about together as many of the proposals overlap and address similar issues. These are some of the key outcomes in my opinion, but this is (unfortunately) not an exhaustive list. The residence test for civil legal aid will be brought in This is a radical and unprecedented step. The residence test means that anyone who is unable to prove that they have been lawfully resident in the UK for a continuous period of twelve months will not be entitled to legal aid in any area of civil law, including actions against the police, judicial review, discrimination, housing, education and community care. This means that no matter how poor someone is or how strong their case is, they will not be able to get legal aid unless they can prove their lawful residence. There are some exceptions to the rule--broadly speaking, it does not apply to refugees, detainees, babies under 12 months old and members of the armed services abroad. The Public Law Project is currently bringing a challenge to the residence test. The full hearing of their judicial review claim is at the end of March 2014. They are arguing that the residence test breaches common law rights of access to justice, is contrary to human rights and is unlawful under human rights and European Union law.

Criminal legal aid for prison law has been slashed On 2 December 2013 regulations were brought in to cut prison law. There is now no legal aid available for prisoners in certain parole board cases, as well as for prisoners seeking to challenge the conditions of their imprisonment or the arrangements made to return them to the community. It includes mother and baby unit cases, resettlement cases for children and cases where prisoners are held in segregation. There are no exceptions to the removal of legal aid, no matter how vulnerable the prisoner or how complex the case. The regulations are currently the subject of a legal challenge by the Prisoners' Advice Service and the Howard League for Penal Reform. Major changes are being made to judicial review Following the April 2013 consultation the government made certain changes to judicial review, including introducing a 'totally without merit' system where cases certified as totally without merit would not be able to have an oral permission hearing. Further and far-reaching reforms have now been set out in the draft Criminal Justice and Courts Bill. In summary, the main clauses in that Bill that affect judicial review are: o a proposal to enable the executive to escape legal consequences for unlawful action if it can persuade the court that it is highly likely that it would have taken the same action had it acted lawfully proposals to introduce new financial obstacles and costs threats in the path of those seeking to hold the executive to account, particularly for NGOs, charities and campaigning organisations a proposal to impose a costs consequence to deter charities and other independent bodies from intervening in litigation to assist the courts in cases that raise issues of wider public interest an attempt by the executive to redefine its relationship with the judiciary, making the Lord Chancellor the sole arbiter of what is in the public interest for the purposes of litigation to which the government may be a party

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There will also be changes to the way in which judicial review is funded. These will be in regulations that have yet to be laid before Parliament. The effect of the regulations will be to impose a costs risk on claimant lawyers bringing judicial review. Legal aid has been removed from 'borderline' cases These are cases where the point of law is novel and so it is impossible to assess whether it will succeed or not. There is real concern that the effect of removing funding for these cases will prevent public interest cases from being brought simply because they enter into new legal territory, like the litigation arising out extraordinary rendition and detention in Guantanamo. Rate cuts There have been rate cuts across the board, for both lawyers and experts. For barristers doing High Court work, the rate cut has been 50%.

Are there any possible drawbacks to the government's responses?

The government's response to the consultations, including the latest one that brings in major changes to judicial review, will have serious implications for access to justice in the UK. The justification for the proposals is that they will save money, cut red tape and increase public confidence in the justice system. Many people believe that the evidence on cost saving is shaky at best. For example, in the prison law context the effect of not having legal representation at hearings will mean that prisoners will not be able to represent themselves persuasively or effectively. The effect of this is that people will end up in prison for longer. This will come at great cost to the taxpayer. There is a real risk that the quality of legal advice and representation will decrease as rates decline and more and more areas of law are taken out of scope for legal aid. The effect of this is threefold:

there will be dearth of expertise and specialism in the legal profession in matters relating to legal aid and social welfare law--given that many of these areas, including prison law, concern vulnerable clients and fundamental rights, this is a serious problem the legal profession will become even less diverse than it already is--people from disadvantaged backgrounds or with caring responsibilities or additional needs will simply not be able to afford to pursue legal aid careers the courts will be clogged up with litigants in person whose cases are poorly prepared and take judges and court staff a very long time to deal with

Even more fundamentally, the government's reforms to judicial review will have the effect of insulating executive action from scrutiny because it will be so much harder and riskier to challenge public bodies and the residence test will create an underclass of citizens who cannot enforce their rights before the courts.

How do you think lawyers will react to the most recent decisions?
It is great that the criminal lawyers have refused to attend court to demonstrate their protest against the cuts to criminal legal aid. Civil practitioners cannot make the same impact for a number of reasons: o o there are a lot less of us if we did not show up to court, the court would probably just go ahead without us which is much harder to do in criminal trials and which would have a very detrimental impact on our clients

There is certainly widespread horror at what Chris Grayling is doing to the civil justice system and many of us have been spending lots of time speaking to MPs and charities about the importance of engaging with these issues, even if they do seem quite technical.

What impact could the changes have on lawyers practicing in this area?
As I have said, it is becoming increasingly difficult to sustain a legal aid practice in civil law. This will mean that fewer lawyers become legal aid lawyers and that the profession will not be as diverse and representative as it should be, because only those from privileged backgrounds will be able to take the financial risk of pursuing a career in legal aid. For civil practitioners, the main thing that has changed when advising clients is telling them that lots of areas of law are now out of scope for legal aid (including immigration, debt, housing and private family law) and that it is now more difficult to persuade the Legal Aid Agency to grant funding in cases that remain in scope. There are also some areas, including discrimination, where a client now has to go to a telephone gateway to have their eligibility for legal aid assessed and they cannot have a face-to-face meeting with a lawyer to discuss their legal problem.

How does this development fit in with other changes to legal aid?
The overall trend in this area is that legal aid is being cut from every angle--where it remains available, it is harder to get and then granted at lower rates than before. More fundamentally, the residence test and the prison legal aid cuts mean there will be whole groups of people who cannot enforce their basic rights on an equal level with the rest of the population. When this is combined with the changes to judicial review a bleak picture emerges--even the people who remain eligible for legal aid will find it harder to challenge executive action. There has been widespread opposition to these reforms from lawyers, civil society, the judiciary and members of the House of Lords. However, Chris Grayling appears to be determined to push them through. Martha Spurrier is a public lawyer with particular expertise in human rights. She specialises in community care, mental health and mental capacity, and actions against the police and other public authorities. In 2012 Martha was judicial assistant to Lord Justice Maurice Kay, Vice-President of the Civil Division of the Court of Appeal. Interviewed by Kate Beaumont. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.