2016: Year in Review
2016 was quite a year in politics and current affairs. It was also a year with many significant developments in legal aid and access to justice, and we have rounded up all of the most important stories from our regular legal aid news updates throughout 2016.
The year began with the government abandoning plans to introduce the two tier contracts for criminal legal aid and suspending the second 8.75% fee cut for 12 months. The Court of Appeal heard two cases of significance. The first was Rights of Women's appeal against the judgment of the High Court concerning the evidence criteria for granting legal aid to victims of domestic violence, with judgment reserved. Secondly, the Court of Appeal’s judgment in R (Sisangia) v Director of Legal Aid Casework limited legal aid in non-personal injury civil claims against public authorities to cases where there is a deliberate or dishonest act or omission causing harm.
In other news senior judges criticised dramatic increases in court fees, the Labour party Access to Justice Commission held its first meeting and Justice Alliance staged the 'Voices for Justice' rally in London, in which Jeremy Corbyn described legal aid as a basic human right. Finally, Laurie Penny wrote a brilliant article in the New Statesman calling for everyone who cares about justice to start fighting back against legal aid cuts.
In February, the Court of Appeal ruled that the regulation setting out the evidence criteria for victims of domestic violence applying for legal aid was invalid. Meanwhile in the Supreme Court, permission was granted to the Public Law Project to appeal against the judgment of the Court of Appeal that the proposed residence test for civil legal aid was lawful. The Supreme Court also granted permission to appeal to Unison, the trade union, in its challenge to the lawfulness of the employment tribunal fees regime introduced by the coalition government.
Meanwhile the Labour Access to Justice Commission issued a call for evidence, Jeremy Corbyn paid tribute to “decent and dedicated young legal aid lawyers”, and the Law Society Gazette discussed the challenges and opportunities facing junior lawyers, such as ‘paralegalisation’. In other news it was reported in the Guardian that qualifying as a barrister may now cost new students up to £127,000 and the Solicitors Regulation Authority launched its consultation on a proposed 'Solicitors Qualifying Examination' (or SQE).
YLAL signed this letter to The Guardian calling on the government to review the legal aid cuts at the earliest opportunity. We also submitted this response to the Solicitor’s Regulation Authority’s consultation on its proposed SQE. The Lord Chancellor agreed to conduct a review of the availability of legal aid for trafficking victims, after a judicial review brought by the Anti-Trafficking and Labour Exploitation Unit (ATLEU) was granted permission.
Notable articles from March included 'The politics of pro bono' in Legal Action magazine and this piece for the New Statesman on the real impact of the legal aid cuts. The Secret Barrister and the Independent also took issue with media coverage of reports that the killers of Becky Watts received £400,000 in legal aid for their criminal trial, defending the principles of our publicly-funded legal system from the media outrage. Meanwhile, discussions about the future of criminal legal aid continued following the government’s decision to abandon two tier contracts and suspend the second 8.75% fee cut.
In other news, a senior judge in the Court of Protection challenged the government to provide legal representation for vulnerable people in cases concerning deprivations of liberty and Lord Bach acknowledged that Labour had helped to erode the consensus about the need for legal aid and access to justice.
April featured two cases of great significance. Firstly, the Supreme Court heard the appeal by the Public Law Project in the residence test case and unanimously ruled against the government on the issue of whether the proposed residence test was ultra vires the enabling statute. The judgment was widely reported in the legal and mainstream press, including by the Law Society Gazette, Solicitors Journal, the Guardian, the Independent, the Daily Mail, the Telegraph and Sky News.
Secondly, the verdicts were handed down in the Hillsborough inquests, with the jury ruling that the 96 Liverpool fans who lost their lives following the events of 15 April 1989 were unlawfully killed. YLAL’s Siobhan Taylor-Ward was part of the legal team acting for the families, and wrote this excellent article about the importance of the verdicts to the people of Liverpool. Other coverage included the Guardian and the Justice Gap.
A less welcome developent in April was the 'Client and Cost Management System' (CCMS) for civil legal aid applications being made mandatory by the Legal Aid Agency despite widespread opposition from the legal profession. YLAL’s co-chairs considered social mobility and diversity in the legal profession, and the Legal Aid Agency’s latest statistics were analysed by YLAL’s Siobhan Taylor-Ward in the Justice Gap and Jon Robins in Legal Voice. The Guardian reported research by Transform Justice indicating that legal aid cuts have led to a surge in the number of unrepresented defendants in criminal trials, and Sir Edward Garnier QC acknowledged that “the publicly funded bar is impoverished”.
Unfortunately, with May came the Court of Appeal’s judgment that the Exceptional Case Funding (ECF) scheme for legal aid is lawful. By a majority, the court held that while there have plainly been difficulties, “the state of the evidence does not justify an across-the-board conclusion that the scheme is of itself so unfair as to lie outside the range of lawful choices open to the Lord Chancellor and the LAA” in the administration of exceptional funding under section 10 of LASPO. The court unanimously held that the Merits Regulations and the Exceptional Case Funding Guidance were lawful.
On a positive note, former YLAL co-chair Katie Brown won the Rising Star award at the inaugural Solicitors Journal Awards this month, paying tribute to YLAL in her speech. She was also vocal about the importance of social mobility in ensuring that we continue to provide a good publicly-funded legal advice system – by ensuring there’s a next generation of legal aid lawyers able to provide crucial advice and representation in those areas of law traditionally funded by legal aid. The award for Legal Aid Team of the Year went to Bindmans for its work litigating to save legal aid in cases concerning inquest funding, the ‘two tier’ criminal legal aid contracts and the residence test. You can read about all of the winners here.
YLAL submitted its response to the Bach Commission’s review of legal aid policy, setting out the steps we consider could be taken to ensure that access to justice for all is a reality. Also in May, the refusal of legal aid for representation at inquests received media coverage in the cases of Alexia Walenkaki and Zane Gbangbola, and it was reported that the justice system is failing witnesses and victims of crime, according to the Public Accounts Committee.
While the EU referendum result began to sink in, the Justice Select Committee published its report on court and tribunal fees, concluding that major changes are urgently needed to restore an acceptable level of access to the employment tribunals system. Developments were made in the field of Court of Protection work, with the Legal Aid Agency conceding that legal aid funding is available to P (the subject of proceedings in the Court of Protection) to bring a claim for damages under the Human Rights Act for both ongoing and historic breaches.
Also in June, Legal Aid Handbook reported that the Legal Aid Agency will no longer consider applications for funding in cases where the merits are considered to be poor or borderline, and the Solicitors Regulation Authority (SRA) extended the timetable for making a final decision on whether to introduce its proposed Solicitors Qualifying Examination (SQE), announcing there would be a further consultation. Shadow Home Secretary Andy Burnham called on the government to adopt a ‘Hillsborough law’ to bring an end to the uneven playing field for bereaved families at inquests, and the UN Committee on Economic, Social and Cultural Rights reported that the reforms to the legal aid system and the introduction of employment tribunal fees have restricted access to justice, particularly impacting disadvantaged and marginalized individuals and groups.
Notable articles included prison law barrister Flo Krause on how legal aid cuts have forced her out of her career at the bar, Jon Robins on how “legal aid cuts have ripped the heart out of our justice system”, and Miranda Grell on why we should all care about the decimation of legal aid. Martha Spurrier also told the Guardian that “human rights will be the fight of our generation” and YLAL co-chairs Ollie and Rachel wrote for Legal Action about the common ground between legal aid lawyers, teachers and doctors.
Following our meeting on Campaigning for Access to Justice in London, YLAL – together with LAPG and Legal Action Group – sent an open letter to the new Prime Minister, Theresa May, calling on the government to review LASPO as soon as possible. Our letter was published by The Guardian, referred to in The Times daily legal news update The Brief and reported by Legal Cheek.
On 13 July, the Supreme Court handed down its judgment in the residence test case brought by Public Law Project. The court had declared on 18 April 2016 that the government’s proposed residence test for civil legal aid was ultra vires the enabling statute and therefore unlawful. The residence test would – subject to limited exceptions – have limited legal aid to people who were lawfully resident in the UK and had been so lawfully resident for a period of 12 months. The judgment was reported by the Law Society Gazette, Legal Aid Handbook and the UK Human Rights Blog.
Meanwhile, the Law Society called on the government to urgently fill legal aid “advice deserts” for housing issues, publishing an interactive map showing the scale of the problem. Responding to this, Shelter said the map “provides a stark illustration of how little free legal advice is now available to people facing serious issues with their housing”. The Chief Coroner, Peter Thornton QC, used an interview with The Guardian to call for legal aid to be provided to bereaved families at inquests where public bodies are involved, while Louise Brookes, whose brother died at Hillsborough, urged the government to guarantee legal aid for the families of the Birmingham bomb victims.
The new Lord Chancellor and Secretary of State for Justice, Liz Truss, appeared before the House of Commons Justice Committee on 7 September and was asked about swingeing cuts to legal aid by Labour MP Rupa Huq. Truss said that we have “a generous system in this country”, before sidestepping a question about the promised review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Huq also questioned Truss on diversity in the legal profession, referring to research by YLAL about the salaries of junior legal aid lawyers and asking if the Lord Chancellor would consider reinstating the training contract grant scheme which was abolished by the Coalition government in 2010. Again, Truss did not directly answer the question. The transcript of the Justice Committee session is available here and you can watch it here. Meanwhile, YLAL committee member Philip Armitage used our column in Solicitors Journal – written prior to Truss appearing before the Justice Committee – to welcome the Lord Chancellor to her post.
At the Labour conference in Liverpool, Lord Bach announced that the review of legal aid which he is leading for the party will not publish its recommendations until summer 2017. The Shadow Justice Secretary, Richard Burgon, wrote for PoliticsHome about Labour's plans “to oppose what this government is doing and to set out to the country how we will undo the damage and restore access to justice”.
On 14 September, at a Politeia event featuring former Minister for Legal Aid Shailesh Vara, the Liberal Democrat former Justice Minister Lord McNally intervened from the audience to say that “bandying about the term 'access to justice' is really quite fraudulent” and criticised legal aid lawyers for “looking like 1970s trade unionists” when protesting outside the Ministry of Justice. YLAL member Henry Gaster-Evans provided this report, and our co-chair Ollie wrote about the event for The Justice Gap here.
Finally, Mary-Rachel McCabe, a pupil barrister at Doughty Street Chambers, journalist and YLAL member was the first contributor to a new column for Legal Voice about the life of young legal aid lawyers – you can read Mary-Rachel's account of a day in her life here.
October saw the release of reports by Amnesty and the Trades Union Congress (TUC) on the impact of legal aid cuts. In its report, Cuts That Hurt, Amnesty called on the government to immediately review the impact of reforms introduced by LASPO on access to justice and the protection of human rights, particularly for vulnerable and disadvantaged groups. The following week, the TUC released Justice Denied, its report on the impact of government reforms to legal aid and court services on access to justice. The TUC recommended that the government should ensure that access to legal aid is based on need and should carry out immediate and in-depth assessments of the impacts of budget cuts, LASPO and reforms to court services on access to justice. Our summaries of the reports, by YLAL member Emma Fitzsimons, are available on our website: Cuts That Hurt (Amnesty) and Justice Denied (TUC).
The idea of crowdfunding for access to justice also gathered momentum in October, with the Howard League for Penal Reform and Prisoners Advice Service crowdfunding for their challenge to the legal aid cuts for prison law and the Joint Council for the Welfare of Immigrants also using CrowdJustice to raise funds to challenge the government's decision to increase asylum and immigration tribunal fees by up to 500%. Some families of the victims of the 1974 Birmingham pub bombings were granted legal aid for the re-opened inquests, as reported by the BBC, and former Court of Appeal judge Henry Brooke argued in the Justice Gap, that the 'Birmingham 21' families deserve nothing less than full Hillsborough-style representation.
Following a letter before claim sent by Public Law Project in respect of the 'embarrassment clause' inserted into new criminal legal aid contracts, the Legal Aid Agency agreed to clarify the remit of the clause. The LAA conceded that it must not “seek to rely on the clause to stifle criticism of, or challenges to, the Legal Aid Agency, the Lord Chancellor, or wider government”.
On 25 November, the Bach Commission on Access to Justice, chaired by Labour peer Lord Bach, published its interim report on the crisis in access to justice. The report proposed that a set of minimum standards should be established to ensure that access to justice is a reality for all, but did not recommend that the legal aid cuts introduced by LASPO should be reversed in full. YLAL co-chair Ollie wrote this article for The Justice Gap about the Bach Commission's interim report, and there was also coverage in The Independent, The Guardian and Solicitors Journal. Lord Bach wrote for the Law Society Gazette about the interim report and the need to build a cross-party consensus around access to justice to ensure that the justice system is once again affordable to all. Writing for the New Statesman, the Shadow Lord Chancellor, Richard Burgon, said legal aid cuts have been disastrous for the poor.
In welcome news, the government announced that it will drop increases of up to 500% in tribunal fees for immigration and asylum cases, as reported by The Independent. The Joint Council for the Welfare of Immigrants was pleased that the government decided to back down from its “untenable position” after pre-action correspondence. There were also developments for non-means tested legal aid in Court of Protection cases under s21A of the Mental Capacity Act and in relation to the statutory charge.
YLAL co-chairs Ollie and Rachel used their column in Legal Action magazine to talk about our plans to update our research on the state of access to the profession and YLAL committee member Gemma Blythe wrote for Solicitors Journal about the Legal Aid Agency’s agreement to clarify the remit of the 'embarrassment clause’. During National Pro Bono Week, the Law Society warned that pro bono “must never be viewed as a substitute for a properly funded legal aid system”, as reported by Solicitors Journal. YLAL committee member Heather Thomas wrote for Legal Voice about a day in her life as a legal aid family lawyer.
The Lord Chancellor, Liz Truss, hinted that the government may be preparing to begin the long-called for and promised review of the legal aid cuts implemented by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ('LASPO'). During justice questions in the House of Commons, Truss said: “We have already announced a review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 – we will shortly be announcing the timetable – but we need a system that is both open and affordable, which is exactly what the government are delivering.”
Amnesty International UK's Law & Human Rights Programme Director, Rachel Logan, wrote for openJustice that legal aid cuts are a major human rights issue, concluding that “Legal aid has always been the guarantee of equal access to the law, of rights that are meaningful and effective. It's well past time for the government to fulfil the promise it made to review the impact of these reforms. With every day that passes, the structural damage to access to justice increases, and we risk passing the point of no return.”
Legal Action Group released a new report, Justice in freefall, analysing the latest legal aid statistics from the Ministry of Justice and recommending immediate commencement of the LASPO review, reinvestment of the civil legal aid budget underspend in an innovation fund and a public information campaign about what problems legal aid is available for. The full report is available here, and you can read a summary on Legal Voice here. Together with Shelter, Legal Action Group warned that thousands of people have been made homeless due to a shortage of legal aid lawyers.
Geoffrey Bindman wrote for openJustice about the interim report by the Bach Commission on Access to Justice to argue that “the steady erosion of legal aid, both as to financial eligibility and the scope of the scheme, has severely undermined the principle of universal access to justice”. On 10 December 2016, internationally recognised as Human Rights Day in commemoration of the adoption of the Universal Declaration of Human Rights in 1948, we joined the British Institute for Human Rights and over 160 organisations in calling on the Prime Minister to drop the government's plan to 'scrap' the Human Rights Act. You can read the open letter to the Prime Minister, which was published in The Times, here.