Legal Aid and the Case for Reform

Abstract

Legal aid can be regarded as one of the cornerstones of the justice system in the United Kingdom, offering access to legal assistance from legal professionals to people who may not be able to afford to hire a solicitor. However, a lack of investment into the sector along with a rigid means test has seen the system come under much scrutiny and criticism, with many calling for it to be reformed in its entirety. This article will explore the current state of legal aid in the United Kingdom, highlighting the problems that are seemingly plaguing the system and the suggestions for reform. This article will conclude that the legal aid system that is currently in place needs revitalisation through reforms that target civil legal aid rates, the salaries of criminal legal aid solicitors and the current means test.

Introduction

Legal aid in the United Kingdom is designed to assist people who live in or near poverty, with the costs of legal advice and representation so long as they meet the criteria set out by the government in the form of a means test. This system, in theory, sets out to ensure that all people, irrespective of their financial circumstances, are able to access legal aid, putting more people on even ground when it came to legal representation.

Background

Established in the Legal Aid and Advice Act 1949[1], legal aid was created with a nigh unlimited scope and could be utilised for most criminal and civil matters and was available to any persons of small or moderate means, entitling 80% of the populus to means-tested legal aid, yet many of the more impoverished citizens were not able to acquire the aid they needed due to a shortage of lawyers practicing in the fields that were most relevant to people of that income bracket such as social welfare, as well as the fact that legal practices were rarely based in areas where impoverished citizens resided. Changes were seen in the 1970’s with the inception of the first legal centres, which increased peoples access to legal aid greatly, with 79% of the population eligible for legal aid, a meagre 1% decrease from the 1940%. This would drop down to 63% by 1986, with legal aid becoming unaffordable even for those who were eligible due to a change in the formula for how disposable income was calculated.

These cuts would continue well into the 1990’s and 2000’s, with the government deciding to cut the increasing costs of legal aid. The Access to Justice Act 1999[2] would narrow the scope of legal aid and cap the expenditure of civil legal aid, which would see many private firms choose to stop doing legal aid work altogether, further restricting the system. Currently, legal aid operates under the Legal Aid, Sentencing and Punishment of Offenders Act 2012[3] (LASPO) which would continue to restrict legal aid for years to come.

Challenges Legal Aid Faces Today

The lack of investment that has been seen in both criminal and civil legal aid is a point that has been on the lips of many critics that have been seeking change, and it is obvious to see why. Both criminal and civil legal aid have been deeply affected by the lack of funding provided by the government, with the cuts imposed by the government over the last 30 years serving to be the main reason as to the poor health and unsustainability of both legal aid sectors.

LASPO’s implementation has served to be one of the main factors that has plagued the legal aid sector, with many of the sector’s current problems and its desperate need of a rebuild and restructuring coming down to the changes that were made in 2012.

Funding: Both criminal and civil legal aid have been severely affected by the cuts made in 2012. Civil law, until recently, has not seen much in the way of investment for the last 28 years which has disappointingly seen such a vital public service degrade overtime as it is continually affected by the 10% fee cuts and the cap on fee enhancements, as well as the 20% reduction in remuneration for both criminal and civil legal aid. This has made legal aid an unappealing sector to work within, with the large and unrelenting workload along with the reduced payment rates and lower salary compared to other areas of law serving as a good deterrent for many aspiring practitioners.

Eligibility Criteria: The stringent and restrictive means test has managed to exclude many low-income citizens due to the unrealistic nature of the criteria. Currently, one person must earn £12,475 in gross income to be able to gain legal aid without having to contribute with their own income, whilst everything higher than £12,475 and less than £22,325 must have their disposable income calculated as well to go through a full means test, which calculates ones living costs. If one has more than £3,398 in disposable income, then they will not be able to get legal aid. These restrictions only prove to be an unrealistic barrier to entry for many people who are impoverished yet still fail the full means test.

Narrow Scope: The scope shrank massively once LASPO was implemented, with only seven classes of case within scope currently, as unless expressly provided in the statute, no legal aid is available for any other case. This has whittled down the options for many potential clients, as some are not able to gain legal aid regardless of whether they pass the means test or not simply because of the narrow scope introduced in 2012.

Discussion: The Way Forward

The presence of many of these systematic problems has caused much debate on the ways legal aid could be reformed in order to rebuild such a vital part of the United Kingdom’s legal system. Many have called for a complete overhaul of both criminal and civil legal aid to correct the proposed damage that has been done to the system by LASPO, with the system that was created to allow the less fortunate to be able to access justice becoming one where many people are ‘priced out of justice’[4]

Recently, the government has taken a more proactive approach towards the rebuilding of the legal aid system by providing further funding and investment in a way they have not for years. The government have garnered much criticism for their lack of funding for both civil and criminal legal aid but have recently provided criminal legal aid with £16 million to give criminal legal aid solicitors a needed pay boost[5] as well as providing a further £24 million to civil legal aid, their first increase in 28 years[6]. This is evidence of the government committing to change for the future of legal aid, learning from their past mistakes of a lack of investment that allowed the system to degrade. Much of this funding will help bolster the firms and solicitors that are currently working within legal aid at the moment, who have been wracked with large workloads yet little pay, which could see an increase in the retention of legal professional in legal aid, as well as the recruitment of new legal professionals in the sector, which is important for the future of legal aid. Though this is a step in the right direction, more evidence of a concerted effort to help bolster legal aid will need to be seen in the coming years.

The rigid means test has been one of the main causes for concern and uproar when it comes to legal aid, with many recognising that the restrictive test currently keeps many impoverished people from being able to access legal aid. The government has seemingly attempted to implement changes to the means test and has been continuously reviewing it, yet the long implementation period as well as the fact that the tangible changes to the means test have currently been delayed until 2026 have caused much uproar. There have been efforts to make the income test more realistic by raising the income thresholds and removing the single person housing cap, yet there is no sign of commitment from the government to these proposals with the 2026 delay, further reducing public trust. There are also many aspects of the means test that have not been addressed, such as the fact that the values of people’s homes are being taken into account in the means test, which keeps people who are at or below the poverty line from still being able to access legal aid, as well as the fact that the income threshold of £22,325 for gross income and £3,398 for disposable income are considerably too low and should be increased accordingly. It is clear that the government are aware of the concerns of both citizens and solicitors alike and their problems with the means teats at the current moment, but it does not seem like the government are entirely committed to changing this.

Another suggestion for reform has been to expand the criteria of cases that are eligible in legal aid. Under LASPO, no case that is expressly stated in the act are available under legal aid, which is a disappointing development that has wounded the system and only served to decrease eligibility for people who are below the poverty line, yet whose issues are not covered under legal aid, thus cannot pay for representation or assistance. Cases such as employment, social welfare law and medical negligence are all outside of the scope of legal aid, which are all cases that affect many of the people who are stricken with poor financial circumstances. Efforts to broaden the scop of legal aid to add more cases that primarily affect the main targets of legal aid should be intensified and seen as one of the priorities of any reform taking place.

Conclusion

 Legal aid is indeed one of the cornerstones of the justice system in the United Kingdom, but in its current form, it fails to offer its citizens with the assistance and representation that it aims to provide through years of cuts that have seen the number of the populus that are available for legal aid drop lower and lower.

Due to the Legal Aid, Sentencing and Punishment of Offenders Act 2012[7] legal aid has encountered many systematic problems that have continued to hinder its effectiveness in the legal landscape. The distinct lack of funding and investment from the government have driven away firms and legal professionals from the sector due to the stress of the job and its lack of profitability in terms of salary. The narrow scope that was introduced in LASPO has only served to alienate many impoverished people whose cases are not expressly stated in the statute itself, thus making it unavailable and creating another barrier to legal aid for the target of legal aid itself. The restrictive eligibility criteria in legal aid continues to keep many impoverished people from being able to utilise legal aid, making it unavailable to them due to the low-income thresholds set by the government.

There have been calls for change and reform in both criminal and civil legal aid, which have been recognised by the government with some implementation occurring as recently as this year, with both sectors gaining more investment. Though this is seen as an encouraging sign for things to come, other issues such as the changes to the means tests being delayed until 2026 and the lack of movement for broadening the scope of legal aid has been disappointing, and more needs to be done in order to restore public confidence in such an integral system of our legal system.

If these changes are made to rectify the issues that plague legal aid currently, then justice can truly be available for all impoverished citizens without needless restrictions that keep them from receiving the legal aid that the rightfully deserve as citizens of the United Kingdom.

References

Lubna Shuja, ‘A decade of cuts to legal aid – a valiant sector struggling for survival’ (2023)

A decade of cuts to legal aid – a valiant sector struggling for survival | Opinion | Law Gazette

Monidipa Fouzder, ‘Criminal legal aid solicitors to get £16m ‘pay boost’ for police station work’ (Law Gazette, 29 January 2024) Criminal legal aid solicitors to get £16m ‘pay boost’ for police station work | Law Gazette

Monidipa Fouzder, ‘Justice secretary finds extra cash for criminal legal aid’ (Law Gazette, 14 November 2024) Justice secretary Shabana Mahmood announces £24m for criminal legal aid | Law Gazette

[1] Legal Aid and Advice Act 1949

[2] Access to Justice Act 1999

[3] Legal Aid, Sentencing and Punishment of Offenders Act 2012

[4] Lubna Shuja, ‘A decade of cuts to legal aid – a valiant sector struggling for survival’ (2023)

[5] Monidipa Fouzder, ‘Criminal legal aid solicitors to get £16m ‘pay boost’ for police station work’ (Law Gazette, 29 January 2024)

[6] Monidipa Fouzder, ‘Justice secretary finds extra cash for criminal legal aid’ (Law Gazette, 14 November 2024)

[7] ibid (n3)