The Indefinite Wait for a Fairer and More Generous Legal Aid System
“The Government should introduce a significantly simpler and more generous scheme for legal aid.”
Among the observations and recommendations in the Bach Commission’s ‘The right to justice’ report published last autumn, the call for a more generous legal aid scheme was rightly highlighted as one of the most pressing concerns. Unfortunately, for those waiting to see whether the Government will similarly acknowledge this call in its review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), the wait will likely be extended. This is because of recent reports of doubts over the feasibility of the Ministry of Justice’s summer deadline as published in their post-legislative memorandum last October.
While the Ministry is right not to rush its evidence-based review, it is difficult to accept the news of a potential delay given that it has taken a legal aid system ‘creaking at the seams’ to motivate government action. Meanwhile, against this backdrop of delay, we have entered another year with the same inadequate legal aid system that will inevitably let down yet more vulnerable and desperate individuals and impede their access to justice.
We frequently encounter difficulties obtaining legal aid for vulnerable individuals needing legal advice due to failures by state bodies. Thus in cases where we represent people whose loved one has died while, for example, detained due to ill health under the Mental Health Act 1983, and where the family seeks to hold the state to account for their failures by pursuing a civil claim, that family is frequently faced with insurmountable cost barriers.
Even a modest monthly and part ownership of a property for someone supporting a family of four with young children can render an individual ineligible for legal aid. The lack of available insurance policies and the absence of clarity surrounding the costs protection under QOCS places these individuals, simply seeking justice for state failures, in a vulnerable position; without cost protection and should the claim fail, they could be faced with hefty legal bills from state bodies. The situation is made worse by the extraordinarily high court fees where the process for applying for a reduction to those fees being complicated and unsatisfactory with seemingly arbitrary outcomes to the fee reduction or exemption.
Denying legal aid or alternative cost protection to people with little financial support means legal aid is utterly unjust. But when the context is one where the only reason a claim is brought is to address failures of the state and where the relevant state authorities will, in contrast, have unimpeded access to legal representation, the injustice is particularly cutting. It is no wonder that government spending on legal aid is astonishingly low despite the acknowledgement that “our legal aid system is a fundamental pillar of access to justice”.
Ultimately, if the Government is to credibly make such statements, it must act swiftly to address the problem of its own creation and take steps to implement a fair, generous and sustainable legal aid system. It is unacceptable that people should be expected to wait indefinitely for action that is already long overdue.