Social equality and justice: lawyers explain why legal aid cuts matter

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In what may have been the most dramatically dressed picket I’ve ever seen in my life, Barristers in Birmingham (pictured above) today joined others around the UK in a mass walk out in protest over legal aid cuts.

Basically, the government are stating that cuts are necessary due to spiraling costs, that Barristers are overpaid and bloated by the current legal aid payment system, that Judicial Reviews are generally unsuccessful and waste public money, that our system is much higher in expense than most comparable countries, that cuts will impact mainly on criminals and terrorists, and that gaps caused by cuts will be filled by other services. The government arguments on the need to cut legal aid have been extensively unpacked and challenged by Young Legal Aid Lawyers here.

The Law Society (the professional body for Solicitors) remain in cooperative engagement with the government but recently lost a vote of no confidence in their council (executive) as a result of the decision to do so. I spoke to a Solicitor who works in criminal law. He summarised that the current position of cuts takes place in the context of legal aid being under attack since the mid 90s: firstly, in terms of rates of pay which have been driven down year by year in relation to inflation, and secondly in terms of areas covered. As well as areas being specifically removed from coverage, lack of remuneration and requirement for specialism has meant many firms have ceased practicing in certain areas meaning getting advice in these areas is very difficult (for example, all areas in rural locations, housing, and immigration).

So what does this mean for the public? He identified the following areas of impact:

  • Debt advice is no longer covered unless it relates to mortgage repossession – whilst CAB and other NFP advisors are picking some of this up, there is a lack of court based skills available
  • Housing: legal aid is still available but has become more difficult to obtain due to practicalities relating to proofs of qualification
  • Welfare benefit advice: this is not generally practicable outside of big cities. This is due to the nature of payment  and the requirement of an appeal to the court of appeal in later stages, meaning only the largest firms have been able to provide this for the last 5 years, and it is his belief that the vast majority of legal help is impossible in this area nowadays.
  • Family law: this is the biggest area of civil legal aid and is complicated. Due to a combination of removal of many types of law from legal aid AND the pressures on the solicitors (who have responded by doing more of the advocacy themselves) there are very few family barristers left. Secondly, coalition changes to family legal aid have removed a lot of matters from any legal aid beyond a referral to mediation. The areas of law left are:
  1. Public law (that is local authority interventions – care proceedings – this is the only form of legal aid for which no means test applies for parents).
  2. Domestic violence cases. (i.e. non-molestation injunctions, contact cases etc) (this includes the non-victim)
  3. Divorce, non domestic violent contact cases: finances are not legally aided any more.

The consequences of this are as follows:- The same financial proofs are still required for domestic violence cases. To prove domestic violence they must provide written proof of the following: a. Proof of criminal conviction; b. proof of a caution (can be very difficult to get from the police) c. proof of 4 days residency in a refuge (this is of course in the context of refuge places being slashed) d. a letter from GP or RN certifying domestic violence (very problematic to obtain). The impact of all this on domestic violence survivors is that they are often unable to prove their entitlement to aid. It can also mean that the other party will often proceed unrepresented. This can mean that cases which would have been settled with a peaceful if not amicable contact order dragging through the courts and impacting upon the criminal court

Sarah Steinhardt is a housing and discrimination barrister. I asked her the following:

1) What are the main implications of cuts to legal aid for people who work in law?

In crime it will mean that very many solicitors firms will go out of business. On the government’s own figures they expect the vast majority of criminal firms to go out of business. Similarly firms that practise in housing and family legal aid will not survive. Junior criminal barristers are already on poverty pay in many cases. It is not unusual to earn £10,000 – £12,000pa or less in your first years of practice for a working week of 60/70 hours not to mention huge responsibility, and this level of pay is now extending to more experienced barristers too. People do not realise the extraordinarily low pay that many barristers are on. The current round of cuts comes on top of numerous severe cuts over recent years. For example reforms on ‘cracked trial’ fees (this is where your client changes their plea to guilty on the day of trial) now mean that a barrister might walk away with £20 for half a day’s work. When I did crime we were paid I think £60 for a full day’s trial in the Magistrates Court, for which you will have prepared half the night. It is important to remember that when the government talks about our fees they know damn well that those fees do not remotely equate to out income. For example, of the money I receive I pay 21.5% of my fee income to my Chambers, 20% is VAT, and about £4,000 a year goes on insurance, memberships, books etc. So the affect on those working in criminal law it will mean poverty in many cases, and it will mean that those who do not have independent means will not be able to afford to enter the profession, and it will mean that many committed and highly trained barristers will leave. For those of us working on the civil side the result it not so stark, but the cuts will certainly massively cut our income. The result will be fewer barristers prepared to do legal aid work.

2) You mentioned that the civil side is not really getting coverage – what are the key issues here?

In December we had a cut in our rates by nearly 60% for advocacy in the county courts. That has a very significant impact on us as practitioners but more importantly it means that in many cases people will not be able to get representation. This is particularly true outside of London where there are already few legal aid practitioners. In the proposals I think the most insidious and pernicious proposal is that funding would not be granted in judicial review cases unless and until permission has been granted. This is based on the out and out lie that most JRs are frivolous and tie up the resources of public bodies. This could not be further from my experience as a barrister who brings a lot of JRs. I would do as far as to say that local authorities deliberately and flagrantly fail or refuse to carry out their duties in the knowledge that only a few will get proper advice and enforce their rights. It is only the threat of JR – or in fact the issue of proceedings that makes the LA back down. The vast majority of JRs settle pre-permission, almost always on the basis that the public body makes some concession or another. The problem with the proposal is that effectively it asks lawyers to act for free unless and until permission is granted. This is a risk that many will not take, again meaning less access to enforcement of your rights. There is a constitutional dimension to this – JR is a crucial constitutional safeguard for the citizen against the state and the government admits that its aim in restricting access to JR is not to save money but is ideological. Very dangerous. Another proposal in the civil arena is the residence test. This proposed that legal aid is only available to those “lawfully present” in the UK for one year. Not taking account of the masses of satellite litigation one can envisage on ‘lawful residence’ (itself not a straightforward concept) the effect of this proposal is to create a sub-class for whom access to justice is not available. What do we say to the illiterate South American (alleged) drugs mule who is arrested at the airport? Who represents the victim of trafficking? Unaccompanied minors? Also in civil there is to be a further 20% cut in fees for experts. It is already next to impossible to get an expert at legal aid rates in many areas, now I envisage it will not be possible at all. For example, in housing I know of only a few surveyors who will do disrepair reports for legal aid rates – reports that are crucial in possession counterclaims for disrepair. It is obviously particularly critical in family cases where the reports of psychologists and independent social workers might be necessary in order to challenge expert evidence against you.

Also, equality of arms – our opponents are often very highly paid – also by the government but not on legal aid. The QC for the government got paid I think it was £2m last year by the government. James Eadie QC – got paid £2.2m last year.

3) There seem to be a number of areas where legal aid is vital in terms of wider equality struggles. Domestic violence is one area I’ve seen discussed – are there any others you could highlight?

Legal aid is vital in every area of equality struggles – although I would say that this is rarely about strict gender issues and more likely on intersectional or class based issues. For example, the removal of legal aid in benefits advice obviously has a huge impact on women and ethnic minorities. Similarly, the removal of legal aid in prison law has a disproportionate effect on certain racial groups. There is often a knock on effect – e.g. domestic violence is one of the biggest causes of homelessness and so a lack of availability of housing law advice will impact on the ability of women to flee violence. The residence test obviously has the potential to exclude anyone possibly ‘foreign’ from accessing their rights. Overwhelmingly though the impact is on those who are least able to manage without needing support and intervention. My clients are often uneducated, disabled, suffering from mental ill health and perhaps substance abuse problems. It is the difficulties that the poor and marginalised and the less socially-attractive will have that I am most concerned about.

4) Are the cuts likely to impact on the demographic of lawyers e.g. Class etc?

Yes – particularly among barristers in crime. Historically being a barrister was an honourable and learned hobby of sorts, like being an MP. The danger is that it will become that again where few people can afford to enter the profession. Obviously there is also an impact for women- there is a significant drop off in women leaving the profession as obviously we don’t have maternity pay or anything like that. We have to earn enough to compensate for the fact that we don’t get those benefits of employment.

5) Anything else I’ve not asked which you think is important to raise?

Something that I have seen very often in the comments that people make on legal aid cuts is a deep loathing among the public of lawyers. I find it difficult to comprehend where this comes from as my clients are generally extremely grateful for what we do. We come in to people’s lives at a point where something has gone horribly wrong. For most people the experience of going to court will be intimidating and highly stressful. When a person’s home is at risk, when their children may be taken away, or their liberty is on the line, or they cannot get their elderly parents cared for – whatever it is – we are there to get the best outcome we can for that person, by advising them and representing them. Nobody thinks they need a lawyer until they really need a lawyer, and when they do, like going to the doctors, they need someone well trained and with expertise. One of the misunderstandings that I see repeated in comments is the belief that we are somehow vultures for capitalising on people’s misfortune. In crime, there is the belief among the public that we invent defences for people or tell people what to say to ‘get them off’. This never happens. We take instructions as to what a defendant says happened. If those instructions are consistent with what the law says is ‘not guilty’ that’s the defence we run. If the instructions are consistent with ‘guilty’ we advise a guilty plea and we cannot represent them if they want to instead deny the offence. In civil there is the idea that we bring spurious cases. We do not. The Legal Aid Agency only funds cases where there is at least a 50% chance of success and in addition there are a whole raft of other criteria. While spurious cases are brought they are brought by people who are paying privately!

6) If you could give one message to Grayling, what would it be?

I don’t think I can really sum it up. What I have been most shocked by is the peddling of misinformation half-truths and lies as well as the lazy reliance on unreal stereotypes of fat cat lawyers. Either Chris Grayling has really very little knowledge or understanding of the profession, or he has a wilful disregard for conveying the truth. But what I feel most sad about is the utter disregard for what we do. It truly is an honourable profession. We are ethical, well trained and highly committed. We work weekends and nights and early mornings to do the very best we can. I am often on the phone to a judge at 10pm trying to get an order so that a homeless person has a roof over his or her head. When we do a trial, the only reason we know how to cross-examine the witness is because we have read all the masses of papers and we know them inside out. We do not fluke things or simply talk nicely – we work extremely hard. And the profession is full of dedicated, passionate people doing a fantastic job. We are proud to be part of such a profession. And yet it seems that what we do as legal aid lawyers, representing the vulnerable and the problematic is not respected. This saddens me greatly.

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