Legal aid, prior to the cuts, could be accessed reasonably easily. Furthermore, it could be a great help to many people who did not have the funds immediately available for legal representation.
For instance, going through a divorce is never really anticipated. Most people do not save up in case they get divorced in the future. It is not something people have in mind when they marry. Likewise, no one opens a savings account in case they get divorced.
Most recipients have to pay back the costs. If you owned a property, for example, there would be a charge placed on the property. Or you would have to pay back by instalments from your wages. This seemed reasonable for those that could afford to. For those on a very low income or benefits, they could access the service for free. Effectively helping the poorest in society.
So how has Legal Aid changed?
Back in the 1980s, the growing cost to the taxpayer of the legal aid budget became a political issue.
The total of legal payments by 1986 had risen to £419m a year. The net cost after contributions recovered was less at £342m. That year also saw the first cuts to entitlements.
More than half of the funds were by that stage being spent in the criminal courts. During the Thatcher administration responsibility for legal aid expenditure was transferred to the Legal Aid Board. Its successor is now the Legal Aid Agency.
Costs continued to rise. At that time, legal aid spending stood at £1.4bn by 1995-96 and reached around £2.2bn in 2010. Labour went into the 2010 election vowing to cut mainly criminal legal aid. Its manifesto declared: “To help protect frontline services, we will find greater savings in legal aid and the courts system.”
The aim was to provide legal advice for those of slender means and resources.
Whilst free schemes to advise the poor have been run, by volunteer lawyers, since the end of the 19th century, the modern system was created by Clement Attlee’s Labour government, through the 1949 Legal Aid and Advice Act.
The aim was to provide legal advice for those of slender means and resources. So that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right. It also Meant counsel and solicitors would be remunerated for their services”.
Legal support and representation was to be available in all courts. There were merit tests and, above a certain limit, a sliding scale of contributions.
Initially, the scheme was overwhelmingly involved with divorce cases but provision gradually extended to other areas of the law.
Devised at the same time as the welfare state, legal aid was not a nationalised service like the NHS or the benefits system. Instead, its administration was handed over to the Law Society, which represents solicitors. Legal Aid is 70 years old this year.
What happened to legal aid after 2010?
Since 2010, In the aftermath of the banking crisis, the coalition government initiated a cost-saving review that led to the 2012 Legal Aid, Sentencing and Punishment of Offenders Act (Laspo).
The intention was to reduce legal aid spending by £350m. The annual legal aid budget, however, is £1.6bn a year, £950m lower, in real terms, than it was in 2010.
At the time the bill passed, peers claimed the Ministry of Justice’s savings would merely shift costs to other departments. The government retaliated with attacks on “fat cat lawyers” allegedly getting rich on legal aid.
While the government says legal aid costs are higher in the UK than most other European countries, that does not take into account the overall costs of inquisitorial systems of justice, which employ far more judges.
Some say only as few as 20% are now entitled to legal aid.
Originally 80% of the population qualified for legal aid. That proportion declined as means testing became progressively tougher. It was estimated to be about 45% by the early 1990s. Some now suggest as few as 20% of people are entitled.
Financial thresholds for entitlement to legal aid have not been updated for inflation for many years.
Large areas of civil legal aid were no longer covered and removed entirely from any legal aid coverage, Under Laspo,
These included most cases involving housing problems, family law, immigration, employment disputes and challenges to welfare benefit payments.
Recipients complain the quality of advice is often lacking.
Recently a story emerged of one woman going through a divorce that came as a complete shock. And left with three young children, one a baby of 3 months when her husband walked out. They lived in accommodation tied to her husband’s job. Subsequently, having struggled to stay afloat while the issues of housing, maintenance and finalising the divorce go through, she has found her legal aid advice slow moving and sorely lacking. With her ex-husband being able to afford proper representation, this has put her at a serious and unfair disadvantage.
She is not alone.
The family courts, in particular, have been inundated with unrepresented defendants: about 80% of cases involve at least one side being unrepresented. This is particularly difficult for those going through divorce. In many cases where there are younger children in the mix, it is the stay at home parent, predominately women who are the most affected. For many, even if they can access the legal aid system, there is an issue with the amount and quality of the work done on their behalf.
Deep cuts to legal aid fees for solicitors and barristers have also driven many lawyers out of fields that were formerly covered by legal aid. That has left what the Law Society terms “advice deserts” in parts of the country where claimants cannot find experts to consult.
Are there alternatives to legal aid?
The Guardian recently reported:
There have been few coordinated attempts to devise alternatives to legal aid.
Some judges and lawyers have suggested moving to an inquisitorial system rather than an adversarial system. Supporters of the status quo say argument between opposing sides is more effective in extracting the truth.
Unqualified “McKenzie Friends”, are on the increase. They can sit beside a claimant or defendant giving advice and help. More people resorting to using them.. Some charge fees.
Law centres, whose funding by impoverished local authorities is under threat, often step in to provide services of advice and sometimes representation for those who are adrift in the justice system.
A Public Defenders Service (PDS) has been established. With salaried lawyers working on defence cases
State-employed defence lawyers ‘not sufficiently incentivised’ to go the extra mile on a client’s behalf, say opponents. They point to similar under-resourced services in the US.
The PDS revived in 2015 when the MoJ attempted to use it as a strike-breaking force in the face of a legal aid boycott by barristers and solicitors.
Crowd-funding websites advertising cases of public significance are increasingly used to fund judicial reviews and even private prosecutions.
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