Jonathan Wheeler, Solicitor and Managing Partner of London law firm Bolt Burdon Kemp, considers the key issues in today’s British legal aid system
Access to legal help free at the point of use for anyone who needs it should be one of the cornerstones of our welfare state, just as with access to education and healthcare. It should be a given for any civilised society to enable people to enforce their rights and defend themselves from unwarranted interference with their liberty, their reputation and their property. A study commissioned by my law firm Bolt Burdon Kemp has found that the legal aid funding system in Britain is woefully inadequate for this purpose. The following are some of the key issues that are preventing people in the UK from getting proper access to legal services.
Increased government cuts to legal aid funding
Possibly the most salient point when discussing legal aid is that the qualifying criteria has been severely diminished over the years, by the government. When legal aid was first introduced in 1949, 80% of the British population were eligible. By 2007, government cuts to legal aid funding reduced this down to 27%, and in 2013, the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) cut it even further. The eligibility criteria for legal aid in Britain is now limited to a small handful of legal issues and financial situations.
Difficulties meeting the criteria for eligibility
While legal aid is in theory provided in all criminal cases, save for minor offences, the rules are more complicated for civil cases and only then if someone is poor enough to qualify. Legal aid is currently only available for people facing life-changing problems, such as losing their home, dealing with domestic violence, asylum, and some issues involving discrimination, immigration and welfare benefits. “The legal aid funding system in Britain is woefully inadequate.”
The evidence required to show that a person asking for legal aid cannot meet the costs of legal help themselves is also very stringent. The current system asks that applicants have less than £8,000 in capital assets and are earning less than £2,657 per month with less than £733 in disposable income. This includes assets that may be shared with a partner. This can mean that people fleeing abusive partners or seeking custody of children may find they are unable to meet the eligibility requirements simply due to being married or otherwise linked to their partner.
Lack of legal aid providers
For the few who do qualify for legal aid, it can be difficult to secure a lawyer due to an overall lack of legal aid providers. The number of legal aid providers across England and Wales has fallen from 4,257 solicitor firms and not-for-profit organisations providing legal aid work in 2011-12 to 2,900 in 2019- 20. In fact, from 2013 onwards, there has been a rapid drop in the number of providers, and this has led to the creation of ‘legal aid deserts’ where there is little to no legal aid presence in some parts of the country.
“We need to make more consumers, parliamentarians, and opinion formers care about what is happening to our justice system; a system that is being dumbed down, side-lined and, in some cases, dismantled completely.”
Lack of knowledge about the legal aid system
Of course, the existence of any number of legal aid providers will be futile if members of the public are not aware of how to access the help they need. My firm’s research found that 46% of the British public “don’t understand the legal system or how they can get legal support”. Our survey of 2,000 British adults across England, Scotland, Wales and Northern Ireland also found that 51% believe there are too many barriers to legal aid funding.
Civil justice isn’t seen as accessible or affordable
Add to this the fact that the British public does not believe that civil justice is accessible or affordable. The World Justice Project’s Rule of Law Index asked the British public about civil justice in the country. Comparing their answers from 2015 onwards show that the British public have become steadily disillusioned. In 2015, the UK scored 0.58 (with 1 being the highest possible score) for the statement “People can access and afford civil justice”. By 2016, this had fallen to 0.56, and had dropped further to 0.52 by 2020 – placing the UK in a measly 79th place out of 128 for this factor in 2020.
Why is the legal aid system at a crisis point?
People in the UK care passionately about the NHS and rightly so. To my mind, access to justice should be just as important (if not more so) to the citizens of this country. Access to healthcare and access to legal support are both likely to be ‘distress purchases’. Most people have relied on the NHS in the past and accept that they will do so in the future. The NHS during the course of the COVID-19 pandemic has become the Nation’s darling. Proposing cuts to NHS services is electoral suicide at the ballot box.
However, the public bury their heads in the sand about cuts to legal aid. They are not invested in the legal system, and do not believe they will ever have the need to enforce their legal rights or defend themselves from unwarranted intrusion into their private lives. This is why successive governments of every hue have benefited from electors turning a blind eye to raids on the legal aid budget.
We need to make more consumers, parliamentarians, and opinion formers care about what is happening to our justice system; a system that is being dumbed down, side-lined and, in some cases, dismantled completely. A government that cuts legal aid to its bare bones is acting in a way akin to disenfranchising its people. It is an abuse of process, an attack on the rule of law. Just ask yourself who or what benefits when ordinary people are unable to enforce their rights or effectively defend themselves? My answer is that it is the institutions of power that benefit, aided and abetted by the government ministers who, over the years, have taken a knife to our legal aid system.
It is a nightmare to tender for legal aid contracts, very time consuming this is why
almost 40% of the population of England and Wales do not have a housing legal aid provider in their local authority area, a figure that has grown by around 2% since 2019
only 39% of the population have access to more than one provider in their local authority area
this is just for housing
Community care is
67% of the population, or over 40 million people, do not have access to a community care legal aid provider
only around 15% of the population have access to more than a single legal aid provider in their local authority area
Immigration
across England and Wales, 63% of the population do not have access to a immigration and asylum legal aid provider
due to the Home Office’s dispersal policy, there can often be a mismatch between supply and demand, with those in need of support housed in areas without legal aid provision