Reforming Legal Aid

The UK’s legal system is acclaimed globally for its expertise and impartial judiciary, but at home the legal aid system is failing. For that, many blame the cuts in funding since 2010. But as Politeia’s next publication, Reforming Legal Aid, explains, funding is not the whole story.
 
The authors, Dr Sheila Lawlor and Gavin Rice, who explain that the structure of the system under the 2012 LASPO Act brings its own costs and problems, are joined by four members of the legal profession, Jonathan Fisher QC, Max Hardy, Edite Ligere and James Taghdissian, who consider the impact of policy.
 
They conclude: –

• The 2012 legal aid system run by the Legal Aid Agency is not the most effective basis for deciding who and which cases merit legal aid.
• There is no adequate system of scrutiny or accountability.
• The general system seems too costly to operate.
• The category of cases covered is too narrow.
• For those cases that fall within its purview, the merit test is applied too strictly.
• The rules and guidelines leave the system open to potential unfairness and anomalies.
• Early access to justice has suffered under the new system.
• A more ambitious debate is needed about value for money across the whole system.

The authors make a number of recommendations for the long- and short-term: –

• Funding and decision making should be devolved. Government should decide on the basis for and amount of public funding. Decision making should be devolved to those with specialist knowledge and experience working in the field, as has happened with successful school reform.
• Further changes of approach – The future. A Royal Commission should consider the options for a sustainable future.
• Improving access to justice. Greater private sector involvement should be explored. Root and branch reform and a change in government policy may be needed.
• Making the system fair. Legal aid should be available: *In private law cases involving the contact and living arrangements of a child where welfare and risk should be considered and until the court decides risk is not a relevant factor. *To all defendants in criminal cases where one or more charge carries a custodial sentence. Means testing in the initial stages should be avoided so the system runs more smoothly with legal representation.
• Covering the cost – A 100 per cent contribution. In criminal and private law family cases legal aid costs for each party should be identified by the Court at the conclusion. The presumption should be that a 100 percent contribution should be ordered, with the burden of rebutting the presumption on the litigant.
• Swifter resolution. A range of solutions other than legal aid should be explored, e.g. providing legal support in other ways. Earlier access to legal representation should be available in the interests of swift resolution, rather than delay incurred by diverting cases to ADR. The court should at the end of a case consider the merits and conduct of each party’s case.
• Better value for money across the criminal justice system. *There is scope for video trials as well as the use of technology in other contexts.*A debate should be opened on which ‘either way’ offences justify a right to trial by jury and what justifies the absolute right to jury trial.

Dr Sheila Lawlor, the editor and a co-author of Reforming Legal Aid, writes:

This country’s legal system is a precious asset, which underwrites the historic freedoms enjoyed by its people. …  It has many threads. One of these is the historic right, written into Magna Carta, of access to justice and the law. The failings now in the system of legal aid … threaten this historic right.

Nor is the problem, as many critics suggest, only one of money. Rather, as happens so often with centrally-run state schemes, one fundamental weakness lies in how the money is spent and a system that has increasingly moved away from using the professional judgement of specialists in the field towards reliance on bureaucratic criteria.

The crisis in legal aid needs to be tackled, not just as a matter of justice and to preserve the age-old rights of British citizens, but also in the interests of tax-payers and from concern for the wider prestige and economic prosperity of the country.

ENDS

Notes to Editors
1. Established in 1995, Politeia is an independent, non-partisan think-tank providing a forum to discuss economic, constitutional and social policy with a particular focus on the role of the state in people’s lives
2. Reforming Legal Aid by Sheila Lawlor, Gavin Rice, Johnathan Fisher QC, Max Hardy, Edite Ligere, James Taghdissian will be published by Politeia on Tuesday, 8^th March 2022.

• Dr Sheila Lawlor is Politeia’s Research Director and founder and by background a political and constitutional historian. She directs Politeia’s legal and constitutional programme for which she has recently co-authored The Lawyers advise: UK-EU Trade and Cooperation Agreement. Her academic publications include Churchill and the Politics of War.
• Gavin Rice holds a Diploma in Law having graduated from Cambridge with a Theology & Philosophy degree. After teaching at Eton College he worked in public relations and became special adviser at DExEU after which he wrote Politeia’s legal aid Report before being appointed to a post at the Centre for Social Justice.
• Jonathan Fisher QC is a barrister at Bright Line Law and Red Lion Chambers specialising in cases on financial crime, fraud, both civil and criminal, and tax. He is Visiting Professor in Practice in the Law Department of the LSE. He was a Commissioner on the Bill of Rights Commission (2011-2012). His publications include Rescuing Human Rights (2012) and for Politeia, The British Bill of Rights: Protecting Freedom Under the Law (2015).
• Max Hardy is a barrister at 9 Bedford Row who specialises in criminal and regulatory law. He is a regular contributor to BBC radio and talkRADIO, has been a legal consultant to Channel 4’s ‘The Trial – a Murder in the Family’ and contributes to The Counsel magazine.
• Edite Ligere is a barrister at 1 Crown Office Row Chambers and an advisor at Galileo Global, New York, U.S.A. Her practice focuses on global financial regulation, banking, insurance, human rights, consumer protection, charity law, data protection, machine learning and cyber security. She was appointed to the Bar Council of England and Wales in 2020 and is Director of Politeia.
• James Taghdissian is a barrister at Colleton Chambers, Exeter. He was called to the bar in 2005 and his areas of practice include crime, family and children cases.