The Demise of Justice?
How massive cuts to legal aid in the last seventy years have become a barrier to people defending their rights
In 2020, Ruth Green of the International Bar Association made a damning pronouncement. ‘The demise of legal aid,’ she wrote, ‘threatens to erode access to justice and prevent ordinary citizens from enforcing their rights’.
This short essay will examine whether a reduced provision of legal aid throughout England and Wales is threatening to hinder the access which ordinary citizens have to the justice system, whether this could have a deleterious effect on their ability to enforce their rights and what might be done to improve this situation.
I’ll start by outlining the importance of legal representation in court in terms of civil law. I will then briefly explain what legal aid is and why it was introduced, followed by an examination of the fluctuating history of the availability of, or eligibility for, legal aid and how this impacts on the ability of ordinary citizens to enforce their rights. Finally, I will explore some measures which can help to make justice more accessible to everyone.
Contents
- The importance of legal representation in court
- A brief history of legal aid in England and Wales
- The effects of legal aid cuts on justice
- Efforts to improve access to justice
- Conclusion
The importance of legal representation in court
The importance of the civil courts in England and Wales can hardly be over-stated. In theory, they enforce the rights of individual citizens, helping the economy to thrive and society to run smoothly. There used to be a strongly held assumption that access to the courts is available for everyone, regardless of means. This right of access is an essential factor in ensuring that justice is upheld. Indeed, access to the courts is a fundamental human right protected by The European Convention on Human Rights 1950 (made effective in English and Welsh law by The Human Rights Act 1998) which 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
As might be expected, the majority of ordinary people, not being legally trained, would struggle to put forth their own cases at trial. It is for this reason that there is a presumed right to be represented in court by a trained lawyer.
Every claimant and defendant should, theoretically, enjoy the right to have a solicitor and/or, where appropriate, a barrister put forth their case with reference to relevant legislation, case law and procedure with a level of competence that they wouldn’t reasonably be expected to have themselves.
Very often, the mere knowledge that someone could litigate is enough to encourage defendants to resolve disputes by other means rather than the case going to court.
However, the costs of professional legal representation are beyond the means of large portions of the population. Litigants and defendants may also face other expenses, including court or tribunal fees. It is for this reason that legal aid was introduced. The concept of legal aid is to provide a source of funding, by the state, for those who would not otherwise have the means to pay for their own legal defence.
A brief history of legal aid in England and Wales
In the 1950s, shortly after the introduction of the Legal Aid and Advice Act (1949), around 80% of the population was eligible for legal aid. By the early 1970s, this had dropped to only 30–40%. There was an increase in eligibility to 70% of the population, following the Legal Aid Act (1979) and a subsequent increased budget, but after rules were tightened in the 1990s, less than half the population were covered. Furthermore, it’s been estimated that by 2021, only 1 in 5 of the population were eligible for legal aid, a massive drop over just seventy years or so.
The effects of legal aid cuts on justice
Clearly, although eligibility has varied dramatically over the decades, only a small proportion of those seeking to defend their rights are now receiving help with legal costs through this channel compared to 70 years ago. This represents a very real barrier to those seeking justice. In denying legal aid to such a large proportion of the population, the state is effectively denying them realistic access to the civil courts and to legal representation. As a result, increased numbers of people may face unfair dismissal from their workplace, for example, or even loss of access to their own children without any realistic means of redress.
Over the years, the legal aid system has received flak from critics, who argue that it imposes an extra burden of expense on the state, can delay the process of justice and even encourages people to litigate. To address these issues, the Government introduced the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). One of the immediate effects of the LASPO was that, in an attempt to reduce expenses, the legal aid budget was cut and over the following year the number of people awarded legal aid was roughly halved. Many different types of claims which had previously been eligible to receive legal aid were no longer supported in this way.
Such drastic cuts can leave many more people in a position where they are either unable to stand up for their own rights, and therefore risk losing their jobs or children, for example, or else forced to represent themselves in court, with a lack of legal knowledge and the attendant dangers of ill health brought on by mental and emotional stress.
Ironically, the financial savings made by cutting legal aid in this way have been at least partially offset by the burgeoning costs of the increased homelessness, unemployment, illness and extra support required from the courts, which all result directly from these cuts.
Efforts to improve access to justice
Fortunately, there are other avenues for those without the means to pay for legal costs. Although these might not necessarily provide adequate solutions in every case, they do go some way to offsetting the cuts to legal aid. Various charities and non-profit organizations, such as Citizens Advice, Shelter, Law for Life, Support Through Court, the Law Centres Network, Free Representation Unit, LawWorks and the various university law clinics, provide a range of free or low-cost options for legal advice, support or signposting. Many lawyers work on a ‘no win, no fee’ basis or may even be prepared to include pro bono work, although this usually tends to be offered by trainee or more junior solicitors and barristers as a way of building their portfolio. In addition, insurance policies will sometimes cover legal costs.
There are also a number of ways that the courts themselves can help ensure people in financial hardship have access to justice. Court fees can be waived at the courts’ discretion (subject to the Civil Procedure Rules). They can also order one party to cover the opposing party’s costs, although this, again, is discretionary.
Conclusion
In conclusion, although universal access to legal representation is an essential factor in upholding justice, there has been an overall reduction in legal aid since its introduction and, in particular, over the past decade. Despite the efforts of the court and numerous other bodies to mitigate the harm caused by these cuts, the free or low-cost help and support provided tends, very often, to be of a lower standard than that which an experienced senior solicitor or barrister can provide in court. As a result, these massive cuts to legal aid in the past 70 years do indeed represent a threat which, as Ruth Green said, ‘threatens to erode access to justice and prevent ordinary citizens from enforcing their rights’.
[1] The European Convention on Human Rights [1950] Schedule 1, Article 6(1)
