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Funding cuts and court backlogs push UK legal aid sector to breaking point

The long-tail of funding cuts to legal aid introduced by the U.K. government back in 2012 have led to widespread barrister shortages, and highly limited availability of publicly funded legal representation.

(CN) — Pressure is growing on the United Kingdom government to release a long-delayed review into the state of legal aid provision in England and Wales, as the industry struggles to deal with the impact of funding cuts and Covid-related backlogs in courts.

The Criminal Legal Aid Review (CLAR), intended to respond to the crisis in the sector, was originally commissioned back in 2018 and due for publication in summer 2020. However, publication has since been pushed back to an unspecified date in 2021 and barristers continue to await news.

Members of the U.K.'s Criminal Bar Association (CBA) are growing increasingly restless over the delays. In an email to members last month, the Chair of the CBA Jo Sidhu highlighted poor pay, unreasonable conditions and low morale in the industry, as well as impatience with the government’s slow response to the situation.

He drew attention to a mass exodus of barristers from the profession, adding that "hundreds more are teetering on the edge of decisions to leave criminal practice if the CLAR falls short of recommending the drastic action necessary to reverse the decline in real incomes by significant uplifts to fees."

Sidhu argued that industrial action may be necessary if the report's publication is delayed further, or its contents deemed unsatisfactory. The CBA had balloted to take such action in 2019, with an overwhelming 94% of members supporting the move, however it was decided that any action should be delayed pending publication of the CLAR.

Last month's government spending review further frustrated barristers, with Sidhu dismissing an extra 477 million pounds ($636 million) over three years as little more than "window dressing" which would be unable to tackle the root causes of the problems.

The situation is worsened by a huge backlog of court cases as a result of legal proceedings being suspended during the coronavirus pandemic. As a result, potentially innocent defendants who are unable to afford their own representation have been left stuck in custody, facing a declining availability of publicly funded barristers.

A bipartisan report from The All-Party Parliamentary Group on Legal Aid was released last month, which further highlighted the perilous state the industry finds itself in.

The report stated that "All of our witnesses described a palpable crisis in relation to the health and vitality of the legal aid workforce: perceptions of an ageing demographic, difficulty with succession planning, fewer juniors coming through, declining numbers of positions and an inability of firms to justify the costs associated with training the next generation given the current fee structure.”

The situation is a far cry from just over a decade ago. In 2009, the government spent over 2 billion pounds ($2.7 billion) on legal aid, making the U.K. the highest per capita spender on public defense in the world. A large proportion of the U.K. population - almost 30% — were eligible for legal aid coverage at this time.

However, the relatively high per capita public spending on legal aid made it a target of the U.K. government's austerity program in the early 2010s, ostensibly designed to restore public finances following the global financial crisis.

The Legal Aid, Sentencing and Punishment of Offenders Act (LAPSO) became law in 2012 amid some controversy. Among other measures, the legislation gave the government direct control over legal aid finances, and all but eliminated funding for legal aid in civil cases. Subsequent cuts to the budget of the Ministry of Justice were the largest of any single government department between 2010 and 2020.

The government argued that the cuts were necessary to "discourage unnecessary and adversarial litigation at public expense" and "deliver better overall value for money for the taxpayer." Justice Secretary at the time, Ken Clarke, argued that the cuts were "common sense" and the legislation would only take money away "from legal aid lawyers."

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Since the passing of the LAPSO Act, hundreds of legal aid law firms have collapsed, reducing the availability of publicly funded barristers dramatically.

In a high profile court case in 2014, a Crown Court judge halted a serious fraud trial after the then-Prime Minister’s brother, Alexander Cameron QC, argued that his clients could not receive a fair trial due to reductions in legal aid, which had led to an unavailability of sufficiently qualified lawyers.

The shortage of barristers has also led to a sharp rise in the number of appellants representing themselves in court, without sufficient legal knowledge. During a ruling in 2015, Lord Justice Aikens described how "the court was without any legal assistance and had to spend time researching the law for itself" leading to prolonged judicial proceedings and "serious risk of the court reaching incorrect, and therefore unjust, decisions.”

While the focus of the CLAR is on criminal legal aid provision, the consequences of the LAPSO Act on civil legal aid have fallen more under the radar. The legislation restricts the availability of publicly-funded defense to only very limited cases concerning matters of health, employment, family law, housing, immigration, education and welfare. This has led to the emergence of what The Law Society describes as 'legal aid deserts' in which large parts of England and Wales are left without any affordable legal advice or representation available to citizens for civil cases.

The parliamentary report on legal aid highlights how: "Those needing assistance are often the poorest and most marginalized members of our communities, without the means or the support to travel to obtain advice. They are often vulnerable (and often rendered more vulnerable as a result of their legal issue) and many will struggle to access online services, if appropriate online services even exist to address their legal needs."

Amnesty International criticized the funding reductions to civil law representation back in 2016, arguing that they create "a two-tier justice system: open to those who can afford it, but, increasingly closed to the poorest.”

While a ban on evictions during the coronavirus pandemic temporarily eased some pressure on the system, landlord repossessions are reported to have increased by 207% since the ban was lifted in June of this year. As a result, availability for legal advice and representation on matters of housing has plummeted further.

For those unable to obtain representation for civil cases the CLAR, focused solely on criminal legal aid, is unlikely to provide any relief. Writing in response to MPs, current Justice Secretary Dominic Raab said "Whilst we have not launched a formal review of civil legal aid, we have been considering the system carefully" promising that the government would begin gathering evidence next year on alternative approaches to civil legal aid.

When legal aid was first introduced to the U.K. in the 1940s, as part of the new post-war welfare state, it was available to roughly 80% of the population. Opponents of extensive legal aid provision argue that such a system is ultimately unaffordable and encourages excessive litigation. However the present situation, with shortages of barristers and heavily restricted funding for legal support, is quite the opposite.

The chair of Parliament's Justice Select Committee, Conservative MP Sir Bob Neill, voted in favor of the LAPSO Act back in 2011. However, he has recently said that the cuts were "performed in a very crude fashion" and have gone too far.

Speaking in his role as committee chair earlier this year, Neill said "efforts to reduce the cost of the legal aid bill have hollowed out key parts of the justice system. Fixed fees are failing to cover the cost of complex cases, the number of people receiving legal aid is falling and legal aid firms are struggling to keep going."

“The legal aid system is there to ensure that everyone has access to justice. If the most vulnerable in society are being left to navigate the justice system on their own then fairness is lost and the system has failed.”

It remains to be seen whether the government will come to the same conclusion.

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