The effects of the reforms to legal aid
Samuel Fleming
The Human Rights Act 1998 states that ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’ , 1 which is otherwise known as ‘the right to a fair trial’, of which the right to counsel is generally considered to be an integral part. Following the Prisoners Council Act of 1836, considered by CC Griffiths to be ‘arguably the most significant development in criminal trial procedure during the nineteenth century’ , 2 this ‘right to counsel’ was implemented in U.K courts, and entailed that every felony defendant was entitled to legal representation in court. In spite of this legal guarantee, many underprivileged defendants were unable to afford private defence counsel, a transparent issue left unaddressed until the mid-20th century at which time the Legal Aid and Advice Act 1949 was introduced by parliament in order that those who could not meet the expense of private counsel were entitled to free help. 3 Originally accessible to 80% of the British population, 4 recent adjustments to legislation, including means-testing and interests of justice tests due to a 33% cut in legal aid spending from 2010-17, have caused eligibility rates to drop to 20% lower than pre-recession in 2008. 5 Where a great deal fewer people are able to access free legal representation, there is no doubt that a great deal fewer people are able to access justice. In order to fully discuss the extent to which the justice system has been affected, and more accurately, damaged, by reforms to legal aid, one must have a full comprehension of the reforms and changes that have been put in place, particularly during the 21st century. In regard to civil cases – disputes in regard to contracts, property and family law as opposed to crime – prior to the Legal Aid, Sentencing and Punishment of Offenders Act, or LASPO, of 2012, legal aid was available in nearly every case. Since this act, which came into being on April 1st 2013, several areas of law where legal aid funding was once applicable have now been withdrawn. Areas now exempt include debt, education, housing matters, immigration and private family law, according to an Amnesty International report. 7 And the withdrawal from the last two of these in particular have had severe consequences, including some 40% of domestic abuse victims feeling unable to access representation in spite of claims by the government that domestic abuse cases fall under the jurisdiction of Legal Aid eligibility. Whilst it is incredibly difficult to gather objective information regarding the consequences of such reforms, there is nothing ambiguous about a 99% reduction in social welfare law cases where legal aid funding was received by plaintiffs, falling from 88,378 cases in 2012-13 to 145 the following year, 8 which unsurprisingly coincided with the country-wide implementation of the ‘LASPO’ in that same year. On the other hand, the Legal Services Commission 9 has explained that in criminal cases, ‘legal aid can be granted to all defendants’, thus indicating that there are no crimes of which one can be accused which would prevent them from being refused Legal Aid, instead, like the next step in civil cases, a means test is that which decides whether legal aid is applicable. According to ‘The Secret Barrister’ , 10 and as verified by Gov.UK, in criminal proceedings, anyone earning more than £22,325 annually (after tax), is not entitled to legal aid in either the Magistrates ’ or Crown Courts, whilst only those earning under £12,475 annually are guaranteed legal aid in both courts. For civil cases, as also stated by gov.uk, 11 anyone earningmore than £2,657monthly is instantly shut out of free representation. As indicated by aMinistry of Justice report 12 which revealed that the number of Legal Aid certificates granted since 2010 annually has fallen by roughly 20%, from150,000 to 115,000, it has been increasingly difficult to be granted financial support
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