Legal aid news - January 2018

Welcome to our update of the latest legal aid and access to justice news from January 2018.

David Gauke’s appointment as the Lord Chancellor: On 8 January 2018, following Theresa May’s cabinet reshuffle, it was announced that former solicitor, David Gauke MP, would be the new Lord Chancellor. He became the sixth Lord Chancellor in six years, and the first solicitor to be appointed to the post.

Gauke was formally sworn in on 18 January at the Royal Courts of Justice. His swearing-in speech can be read here. He said, “I will be ambitious for our country’s legal services. I will be steadfast in my commitment to defend the independence of the judiciary and respect for the rule of law, and I will be determined in our work to create a justice system that is open to all, a justice system that everyone in the country can have confidence in, and one that lives up to the deep-rooted sense of justice and fairness the UK is known for around the world.” We hope he stays true to his word.

Commenting on his appointment, the Chair of the Bar, Andrew Walker QC, said: "Following significant cutbacks in the provision of legal aid over several years it is vital that the Ministry of Justice completes the thorough review of the Legal Aid, Sentencing and Punishment of Offenders Act to which it is already committed, to ensure that the public interest in the provision of high quality and efficient legal services is addressed.”

Sir Henry Brooke, RIP: Former Court of Appeal judge and champion of human rights, access to justice and the rule of law, Sir Henry Brooke, sadly passed away on 30 January 2018.

After stepping down from the bench, Sir Henry served as vice-chair of the Bach Commission on Access to Justice, drafting a number of sections of the report that called for a legally enforceable right to justice. He also blogged and tweeted regularly about recent judgments and legal issues. 

Steve Hynes, director of Legal Action Group, said “The legal world has lost an indefatigable campaigner for access to justice.”

Andrew Walker QC, chair of the bar, said “Sir Henry’s was a lifelong commitment to the rule of law and access to justice in our society. The way in which he managed to follow a long and distinguished career at the bar and on the bench with a tireless and selfless devotion to those causes throughout his retirement was truly inspirational. He cared; and it showed.”

YLAL was fortunate enough to have Sir Henry speak at our London meeting in November. He started by saying “my name’s Henry and I was a legal aid lawyer once.” He will be greatly missed by many in the legal community.

Criminal legal aid cuts: On 25 January 2018, the Law Society announced that it had issued judicial review proceedings against the Ministry of Justice to challenge its decision to implement further cuts to criminal legal aid. In the Law Society’s press release, President Joe Egan said, “These arbitrary cuts could have a very detrimental impact on justice. We believe this is unlawful, and that’s why we’re taking the government to the High Court … as we have said before, justice is under threat and it is with great regret we are having to take this step. However, we are resolute.”

YLAL co-chair, Oliver Carter, and committee member, Katie McFadden, wrote a piece for The Justice Gap which can be found here. They express concern about the impact of the “catastrophic” cuts, saying “This reduction in the PPE (pages of prosecution evidence) cap is simply the latest example of the ‘death by a thousand cuts’ austerity campaign against criminal legal aid, with each action of the government making the system progressively less sustainable and justice progressively more difficult to obtain.”

On the same day, in an interview with The Times, the new Chair of the Bar Council Andrew Walker QC, stressed the importance of fighting for the funding of justice. In relation to the breakdown of a number of recent rape trials due to non-disclosure of evidence, Walker said “it is a classic case of money not being put into the system, and that absence of money is leading potentially to trials not being fair and to miscarriages of justice.”

Walker also expressed his concerns about social mobility at the Bar. Whilst he acknowledged that his path to law was “straightforward”, he worries that a large number of aspiring lawyers will be put off by the “crippling cost” of pursuing a career at the Bar. He told The Times, “There’s nothing we can do about how people are educated, but once at the point where they’re interested in the Bar we must ensure we have the best pool of people we can and make the process one that does not exclude people. We are swimming against a financial tide that makes it harder.”

Rise in unrepresented Defendants in criminal cases: A Freedom of Information request by Buzzfeed revealed that the proportion of cases refused criminal legal aid following the application of the LAA’s "interests of justice" test has increased from 47% in 2013-2014 to 67% in 2016-2017. The test is designed to judge the seriousness of a case and whether appearing without a lawyer could result in a miscarriage of justice.

Shadow justice minister, Richard Burgon MP, told Buzzfeed News “No one should be left unrepresented in a court when their liberty is at stake. To do so creates the real risk of miscarriages of justice. This evidence that refusals under the interests of justice test have been received by people charged with serious offences is concerning, especially given that in such cases any flawed decisions could have life changing consequences. The recent increase in refusals casts real doubt on whether the Legal Aid Agency is correctly applying the interests of justice test and brings into question whether these decisions are being affected by pressures to keep costs down.”

He added: “The government has promised a review of the disastrous legal aid cuts that have seen too many being left without a lawyer in the civil cases and it’s clear the Legal Aid Agency application of the interests of justice test needs reviewing just as urgently.”

YLAL London meeting: On 10 January 2018, we hosted an event with Penelope Gibbs, director of Transform Justice and Claire Dissington, head of the youth department at Edward Fail Bradshaw and Waterson, to discuss the topic “Is Austerity Causing Miscarriages of Justice?” The issue of unrepresented Defendants was discussed by the panel at length. YLAL committee member Katie McFadden wrote a piece for the Justice Gap about the event, which can be read here.

Social mobility in the legal profession: On 26 January 2018, Legal Cheek reported that privately educated barristers continue to dominate the Bar. Statistics obtained by the Bar Standards Board (BSB) revealed that whilst 63.3% of barristers provided no information, 12.3% of those who answered attended private schools. Legal Cheek reports that this is almost double the percentage of privately educated people in the UK as a whole.

Minimum salary for trainee solicitors: The results of a survey carried out by legal recruiter Douglas Scott revealed that 38% of trainee solicitors are being paid below recommended levels, an increase of 22.5% since 2016 (31%) and 8.5% more than 12 months ago (35%). As of November 2016 the Law Society recommended minimum salary for trainees was £20,913 in London and £18,547 outside London.

Adele Edwin-Lamerton, chair of the Law Society’s Junior Lawyers Division (JLD), told the Law Society Gazette: "Sadly these figures show that the JLD was right to be concerned about the abolition of the SRA minimum salary. Overall, trainee pay has reduced year on year. This will prevent aspiring trainees from entering the profession and have a damaging effect on social mobility."

The wider impact of legal aid cuts: A report commissioned by the World Justice Project found that 31% of respondents with a legal problem over the past two years said they had developed a stress-related or physical illness as a result of their experience. Professor Pascoe Pleasence, of University College London, told the Guardian “It is troubling that LASPO has removed support for a wide range of legal problem types that we know can significantly impact on the wellbeing of those who face them. [These issues] link to public health and fuel social inequality through their interaction with other life events.”

Legal aid for housing: In a speech in the House of Commons on 23 January 2018, Ellie Reeves MP called on the government to take urgent action in respect of legal aid for housing matters and advice deserts. She said “I receive a huge amount of housing casework from constituents. However, the Government ended early legal advice in housing matters and in some parts of the country there is no legal aid providers at all for housing matters. Today I called on the government to take urgent action.”

Legal aid for prisoners: On 2 January 2018, Frances Crook, chief executive of the Howard League for Penal Reform confirmed that an amending statutory instrument has been laid before parliament, extending criminal legal aid to the three areas. In April 2017, the Court of Appeal found that the cuts to legal aid for prisoners facing a pre-tariff review, a Category A review or a decision regarding placement in a close supervision centre were unlawful because they were inherently unfair. From 21 February 2018, legal aid will be available in these areas.