Access denied: Britain’s broken justice system

Ruth Green, IBA Multimedia JournalistThursday 13 February 2020

The justice system in England and Wales has been seriously under-resourced for far too long and is showing significant signs of strain. Global Insight assesses how the years of neglect might be reversed.

A decade of austerity has drained vital funding from the United Kingdom’s most essential public services – from health and education to social welfare. Equally concerning is the dramatic impact of swingeing cuts on the country’s justice system. The Ministry of Justice has faced the largest budget cuts of any government department in recent years, forcing the closure of 295 court facilities across England and Wales.

Prior to this, since 1949, the UK’s legal system had prided itself on providing state-funded legal representation to those most in need. Today, the spending cuts inflicted by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act, which came into force in April 2013, continue to bite. The UK courts remain a favoured destination for wealthy foreign litigants. But the demise of legal aid threatens to erode access to justice and prevent many ordinary citizens from enforcing their rights.

LASPO was introduced in 2013 in a bid to save the government’s coffers £350m a year. It dramatically reduced legal aid that had previously been made available for a wide range of areas, including most private family, housing, welfare benefits, employment and immigration matters. These changes have taken their toll, drawing criticism from the highest echelons of the UK judiciary. In December, Baroness Hale, shortly before retiring as President of the UK Supreme Court, said the cuts were causing ‘serious difficulty’ for the justice system, particularly in the family courts.

Richard Miller, Head of Legal Aid at The Law Society of England and Wales, says the system has been squeezed beyond recognition. ‘Since LASPO, nothing is covered by legal aid unless it’s specifically listed in the Act,’ he says. ‘The system is now very constrained, the service that’s left is very fragmented and it can’t really work towards a holistic solution for the individual.’

The impact of the recent cuts has been staggering, agrees Professor Dame Hazel Genn, Director of the Centre for Access to Justice, University College London. However, she argues that the decline in legal aid began long before LASPO came into force. ‘The rot set in for legal aid in the late 1990s,’ says Dame Genn. ‘Before the Access to Justice Act 1999 there was a savage campaign against “fat cat lawyers” making a huge amount of money on legal aid. This completely changed the discourse on legal aid so that it was seen as a benefit for lawyers, rather than a protection for the vulnerable and socially excluded.’

For Britain to retain its global standing, the legal system must be there to protect everyone

Rebecca Hilsenrath
Chief Executive, Equality and Human Rights Commission

Under LASPO, Genn says, any ‘safety net’ offered previously by legal aid had been completely eviscerated. ‘If there was a difficulty with access to justice pre-2013, it’s become considerably worse since then. As a result of LASPO, there was no reduction in demand for free legal services, but a reduction in supply. Recent research suggests that in the past decade there’s been a loss of around 50 per cent of not-for-profit legal advice providers. That is a big loss and there have been many reports of law centres closing and other services cutting down or amalgamating.’

The means test required to establish eligibility for legal aid has also been problematic, says Miller. ‘It’s quite complicated and has various thresholds and allowances for different types of expense, but none of the figures in the test have been upgraded in line with inflation since 2009. That means every year fewer and fewer people qualify for legal aid.’ Following an initial review of LASPO in 2019, the Ministry of Justice (MoJ) is undertaking a review of both the civil and criminal legal aid means tests and is due to publish its findings later this year.

McKenzie friend or foe?

In March 2019, the High Court of England and Wales ordered an unqualified legal adviser, a so-called McKenzie friend, to pay more than £260,000 in compensation after he was found to have provided misleading legal advice to a 70-year-old man in a clinical negligence case. Sir Bob Neill MP, Chair of the House of Commons Justice Select Committee, said the judgment reinforced that ‘it is time for parliament to bite the bullet and ban this unscrupulous practice’.

Emma Jones, partner at human rights specialists Leigh Day, who represented the claimant, says such cases highlight the pressing need to regulate the McKenzie friend industry. ‘If you can’t get legal representation then people often don’t feel able to go through the court system on their own,’ says Jones. ‘It’s a daunting process, but what we’ve seen is the emergence of these McKenzie cases, where people hold themselves out to be as good as solicitors, but are unregulated. While there are many good McKenzie friends, there are some that don’t know what they’re doing and if they’re charging money as well it can end up putting the vulnerable person in an even worse position.’

Richard Atkins QC, who chaired the Bar Council of England and Wales in 2019, is concerned about growing reports of McKenzie friends purporting to provide genuine legal advice. ‘It brings the system into disrepute because people are having to turn to those who may not be properly qualified and may not know what they’re doing because the government’s cuts have meant that legal aid isn’t available to deserving people.’

In February 2016, the Judicial Executive Board opened a consultation into the growing reliance on McKenzie friends following the 2013 legal aid reforms. In February 2019, the consultation concluded that practice guidance should be updated and that a ‘plain language guide’ should be produced to help litigants in person.

However, it stopped short of saying there should be a ban on fee recovery or regulating the industry, saying this was ‘a matter for Parliament’.

An MoJ spokesperson told Global Insight it was exploring ‘a range of new forms of legal support’ – including boosting investment to support litigants in person to £6m in the next two years – and it was also ‘considering the role lay assistance should play in supporting people’.

David versus Goliath

Family, welfare benefits and employment law have been the biggest casualties of the cuts. Unable to afford legal representation, many people have been left with no alternative but to represent themselves in court. This continues to place pressure on the judicial system, says Lucy Scott-Moncrieff, President of the Law Society of England and Wales from 2012–2013 and a former member of the IBA Access to Justice and Legal Aid Committee Advisory Board. ‘The courts were designed for people to be represented,’ she says. ‘The rise in litigants in person means that cases often take much longer and it’s less likely that the outcome is going to be fair, however hard everyone tries. Judges, court staff and everyone do their best, but even so our system wasn’t designed to work like this and – surprise, surprise – it doesn’t work like this.’

In 2018 the Equality and Human Rights Commission (EHRC) conducted research into the impact of LASPO on routes to justice. Rebecca Hilsenrath, Chief Executive of the EHRC, says that in many instances the withdrawal of legal aid has created a ‘David v Goliath’ situation that is simply untenable. ‘For people pursuing claims without legal aid, we found that the high costs linked to solicitors, specialist advice, providing necessary evidence and court fees all presented significant barriers and caused many to attempt to pursue their case on their own,’ she says. ‘This resulted in David versus Goliath scenarios in employment cases, and potentially unjust or inappropriate outcomes in family law, when people had to represent themselves and were unable to present their case effectively.’

Without a functioning justice system, you no longer have the rule of law – it’s just the rule of who’s more powerful

Richard Miller
Head of Legal Aid, Law Society of England and Wales

Barbara Connolly QC, a specialist in child and family law at 7BR Chambers and Chair of the IBA Family Law Committee, says this has been a huge drain on the legal system. ‘It takes up valuable court time because judges have to spend more time with these cases than with those where the parties are legally represented,’ she says.

The impact on vulnerable parties involved in these cases is also raising considerable issues. ‘For a parent attending court, with or without legal representation, it can be emotionally very difficult – even more so when they have to represent themselves,’ says Connolly. ‘Often where a parent is not legally represented they can feel so intimidated by the process and the situation so alien to them that they don’t properly pursue their case. It’s even worse if one parent can afford legal representation and the other cannot, as it puts the non-represented parent at a disadvantage. This can have devastating consequences financially for the parents and terrible consequences for the children as well.’

The rise in litigants in person has also resulted in people relying increasingly on so-called ‘McKenzie friends’. Traditionally a layperson who provided free support and practical assistance with managing cases, McKenzie friends are increasingly charging for their services despite not being qualified or insured to provide legal advice or represent individuals in court. There are mounting concerns that this unregulated industry is increasingly placing vulnerable individuals at risk (see box: McKenzie friend or foe?).

There are some existing mechanisms in place to help individuals that may be struggling. Under the Exceptional Case Funding (ECF) scheme, for example, an individual can apply to receive legal aid even if their case does not automatically fall under the scope of LASPO. However, Hilsenrath says the scheme is not working effectively. ‘The number of successful ECF applications has been significantly lower than expected, the application process is onerous and complex, and the process for dealing with urgent cases requires improvement,’ she says.

There needs to be a mindset that justice is necessary, just like healthcare or education are necessary, rather than justice is only for those as a last resort after a long period of injustice

Lucy Scott-Moncrieff
President, Law Society of England and Wales, 2012–2013

The MoJ has announced plans to simplify the ECF application procedure, but Hilsenrath believes more still needs to be done. ‘We are pleased the government is looking into this scheme because it is vital that it works to effectively protect people’s rights,’ she says. ‘We cannot make real progress until the government has ensured that legal aid is available to anyone who genuinely needs it to enforce their rights. For Britain to retain its global standing, the legal system must be there to protect everyone.’

The qualified one-way costs shifting (QOCS) regime introduced under LASPO is another contentious area. QOCS was designed to help protect the majority of claimants in personal injury cases from being left in a worse financial position if they were unsuccessful in pursuing their claim. Although there have been concerns that the regime has resulted in some unmeritorious claims, there are growing calls to extend QOCS’ remit to cover discrimination claims and human rights cases.

Emma Jones, a partner at Leigh Day, believes this would dramatically improve access to justice. ‘Often in these cases where someone vulnerable is suffering an injustice, the level of damages is so low the insurance cover would wipe out any damages, or insurance companies aren’t willing to insure these cases at all,’ she says. ‘If the claimant loses, they’re liable for the defendant’s costs and we can’t get insurance for it. If QOCS was extended to cover all of these cases, we’d be in a situation where, if the claimant lost, the defendant wouldn’t be able to recover the costs and the amount of insurance required would be minimal.’

Legal aid deserts

Along with swingeing cuts to legal aid, the rates paid to lawyers doing legal aid work have flatlined. This is having a direct impact on the average age of lawyers prepared to take on either civil or criminal aid work. ‘For young lawyers with enormous student debt and no notion that the government thinks that it’s a worthwhile thing for people to do, why would they go into legal aid now?’ says Scott-Moncrieff, who was awarded a CBE for services to legal aid in 2014. ‘Some people do and I completely take my hat off to them, but a lot of people just can’t afford it.’

It’s a similar story for barristers, says Connolly. ‘When I started out at the Bar, publicly funded family law work was reasonably well paid. In reality, the rates for the same work have never gone up and I’ve been at the Bar for over 30 years. By and large, repeated governments have relied upon the profession to carry on doing the work – often at reduced rates – because they care about the work they are doing. The real difficulty is in attracting and retaining able lawyers in this field. I don’t think that’s restricted to lawyers, it’s also social workers and others working within the system.’

Many firms that still offer either civil or criminal legal aid services have been forced to curtail their operations significantly or subsidise their services through other work, resulting in ‘legal aid deserts’ up and down the country.

Miller says the failure by successive governments to increase legal aid rates has put increasing strain on the profession. ‘There are still many dedicated solicitors and law centres doing everything they can to make the system work,’ he says. ‘Many lawyers in big City firms do pro bono work – the problem is it’s a drop in the ocean compared with the need. There’s only so much work that you can do either for free or for desperately low levels of remuneration. Morale within the profession is very low. More and more solicitors believe there isn’t a viable future in legal aid work and therefore are looking for other career paths. It also means that, for those left in the system that are trying to make it work, the pressure becomes ever greater.’

The MoJ plans to publish the findings of its Criminal Legal Aid Review later this year. An MoJ spokesperson told Global Insight that it continued to ‘engage with legal professionals at all levels as part of [its] reviews into criminal legal aid to ensure criminal defence remains a sustainable and attractive career’.

As well as harming morale, Richard Atkins QC, who chaired the Bar Council of England and Wales in 2019, is seriously concerned that the stagnation in legal aid rates risks rolling back social mobility at the Bar. ‘Turn the clock back 50 years or more, it was very much a profession that people came into if they had money,’ he says. ‘We’ve changed that and done a huge amount to make sure the Bar is accessible to all, regardless of race, colour, creed and wherever they come from. If legal aid rates are so low then you’re going to find that people can’t afford to do that sort of work, which means that actually the only people who can do it are people who have money behind them.’

Courts of the future

Since 2010, 295 court facilities in England and Wales have been forced to close, including 50 per cent of magistrates’ courts and more than a third of county courts. Over this period, the MoJ says the sale of what it describes as ‘surplus’ buildings has raised approximately £129m and that ‘every penny’ has been reinvested back into the justice system.

This investment appears to have little impact on the ground, however. ‘Court buildings are in a dire state for lack of funding,’ says Connolly. ‘We don’t have enough conference facilities. The number of judges and court staff are woefully down. At times, due to the lack of judges, courtrooms are sitting empty.’

This was all too clear on the first working day of 2020, when in London alone only 20 out of 104 courts were sitting. As the backlog of cases continues to rise, the MoJ says it is keeping the number of sitting days ‘under constant review’. In November, the department allocated an extra 700 crown court sitting days for the remainder of the 2019–2020 financial year to cope with demand. The number of sitting days for civil and family courts also increased by more than ten per cent in 2019 compared with the previous year. An MoJ spokesperson says the number of outstanding crown court cases had decreased by almost 40 per cent since 2014, with waiting times for these cases at their ‘lowest ever’.

In December, TheCityUK, which represents the professional services sector, revealed that revenue generated by legal activities rose six per cent to £35.5bn in 2018. However, as other dispute resolution centres worldwide vie to compete for business, Atkins believes it’s vital that the courts continue to be properly funded. ‘If people start to get the impression that the law in England and Wales isn’t quite the gold standard that it used to be because they hear stories about cuts to legal aid or about crown courts that aren’t sitting because the roof has fallen in or is leaking, it will start having a knock-on effect,’ he says. ‘People will start thinking about using other jurisdictions. Once they do that and the revenue starts to fall we’ll be in a worse position. It’s important that we maintain a top quality justice system because it has all sorts of benefits.’

Technology and the advent of online courts have been tipped as one possible way to take the strain off the system. ‘One of the major streams of work is to digitise existing court processes,’ says Miller. ‘This is long overdue and our members are seeing these projects beginning to bear fruit. It’s making things more efficient and accessible for solicitors and members of the public.’

Genn, who runs a legal aid advice clinic in London, says technology could have real benefits provided it is utilised judiciously. ‘Some people think that technology offers massive opportunities to litigants in person or underprivileged people,’ she says. ‘I don’t think it does. The people that come into our free advice clinic often either can’t read at all or can’t read well enough to make use of technology, but technology offers opportunities to service providers to increase the efficiency and the volume of what they can do. We need to harness the power of technology to help us to do more and release time for those people that definitely need face-to-face help.’

Changing mindset

In the September 2019 spending review the MoJ was allocated a 4.9 per cent real terms increase for the 2020–2021 financial year. A MoJ spokesperson says that £55m had been specifically allocated ‘to ensure the justice system can respond to the expected increase in demand from recruiting 20,000 additional police officers’.

For many, such pledges of investment offer little for a justice system that remains so under-resourced. After years of cuts, Scott-Moncrieff says it’s high time the government recognised the value of providing access to justice. ‘In some countries, like America, healthcare is a commodity,’ she says. ‘If you haven’t got any money then you don’t get any. That’s not the case here. Healthcare is not seen as a commodity; it’s seen as something that we’re entitled to. It’s very odd to me that access to justice isn’t treated in the same way. This doesn’t mean to say that everyone should be able to go to lawyers all the time for everything. You have to have reasonableness and proportionality but when push comes to shove, you have to have access to justice – or just justice. There needs to be a mindset that justice is necessary, just like healthcare or education are necessary, rather than justice is only for those as a last resort after a long period of injustice.’

‘People don’t tend to think about the justice system until they get caught up in it,’ agrees Miller. ‘The problem of course is that it’s so fundamental. Without a functioning justice system, you no longer have the rule of law – it’s just the rule of who’s more powerful. That’s how vital it is to every aspect of the life of this country, but unfortunately that’s not recognised by the general public and therefore it doesn’t get the profile and priority from government that it probably needs to have.’

In September 2019, in conjunction with the World Bank, the IBA published A Tool for Justice: The Cost Benefit Analysis of Legal Aid, which examined how legal aid not only benefits individuals and societies, but also saves government expenditure in other areas. Scott-Moncrieff, who led the IBA on the project, says the long-term benefits of funding legal aid are irrefutable: ‘The government has to put more money into legal aid. Quite how they do it, who it goes to or what the rules should be, I don’t know, but there needs to be more money going into legal aid because it saves money. That’s what the World Bank report shows.’

‘The reality is that if you don’t fund things properly in the long term you have huge problems,’ agrees Connolly. ‘It will no doubt be said that many other countries don’t have legal aid at all. That is true. But we have become complaisant; to many overseas lawyers in this field we were once considered the Rolls Royce system, but the reality is we’re not even a Ford Anglia with the wheels hanging off now.’

Genn says there needs to be greater awareness of the long-term consequences of not having legal aid. ‘The legal profession is always in a difficult position when budgets are being slashed for legal aid, as we don’t have the evidence, the data and don’t have the fully formed arguments of what the cost is of not doing it,’ she says. ‘We need better information and we need to be looking much more at the counterfactual – what happens when people don’t have legal aid?’

Ruth Green is Multimedia Journalist at the IBA and can be contacted at ruth.green@int-bar.org