Austerity is bringing the justice system to its kneesby Selda Krasniqi / August 14, 2018 / Leave a comment
Cuts to public spending have been felt across a range of services, but the effects of austerity on the justice system have been particularly acute. Since 2010/11 spending by the Ministry of Justice has been cut in real terms by 40 per cent. This budget covers “prisons, probation and the legal system.” The reduction in legal aid in areas such as crime mean that the system has reached breaking point and this presents a real risk to access to justice.
Article 6 of the European Convention on Human Rights provides that everyone has the right to a fair hearing in the determination of their civil rights and obligations or of a criminal charge. This principle is otherwise known as equality of arms. In criminal cases everyone has the right to legal assistance and where someone does not have the means to pay they must be “given it free when the interests of justice so require.”
Since the government’s justice cuts begun to come into effect, areas of law including family, immigration and employment have been taken outside the realm of publicly-funded legal representation, leaving some of the most vulnerable “priced out” of justice and unable to access legal assistance.
A recent report by the Justice Select Committee emphasised evidence from the Criminal Bar along with findings from criminal defence solicitors’ firms, which showed that fundamental rights are at risk. It urged a review into the cuts. The Bar Council has recently launched a consultation on legal aid cuts, whilst the Ministry of Justice has restored legal aid for immigration matters for unaccompanied child migrants and also launched a consultation on legal aid for families involved in inquests.
As well as not being able to access legal services financially, access to courts physically has also been hampered, with almost 240 courts having been shut because they were deemed unprofitable to maintain. The idea was that people could instead access the court “digitally.” This is most problematic in rural areas, where people have to travel further to access a physical court. In a written response to the proposals, the Bar Council highlighted the need for “proper prior research, consultation and evaluation” with a clear understanding of the aims, effects and implications of the changes. Further, the outgoing President of the Family Division stressed that “anyone who thinks we currently have a network of courts which enables proper access to justice is deluding themselves,” and that people should be asked if they want to “Skype the judge” or have access to a physical court.
“Since 2010/11 justice spending has been cut in real terms by 40 per cent”
Those working within the criminal justice system will be familiar with the concept that it has in recent years relied on the “goodwill” of practitioners. Cuts to the earnings for criminal barristers has been so severe that in April this year they decided to take strike action against further cuts that would be introduced through the Advocates’ Graduated Fee Scheme (AGFS). This only came to an end in June following a narrow vote in which members of the Criminal Bar decided to accept the government’s offer of an additional £15m in legal aid funding. Arguably this does not go far enough, given that cases are today more “paper heavy” due to the inclusion of social media communications. The system is in a state of crisis and cannot continue to rely on mere goodwill. It must be properly funded.
Solicitors in England and Wales have likewise felt the depth of successive cuts to criminal legal aid, with the Law Society declaring that the profession is so unprofitable that in some regions criminal solicitors are becoming “extinct.” The Society recently initiated judicial review proceedings against cuts imposed through the Litigators’ Graduated Fees Scheme. After the cuts, some solicitors would be paid 37 per cent less for larger cases despite doing the same amount of work as before.
The case R (The Law Society) v The Lord Chancellor  EWHC 2094 is perhaps the best description of the current state of affairs, with the opening line that “this is another claim for judicial review of a decision by the Lord Chancellor to reduce the amount of money made available as legal aid for defending people accused of crimes.” The judges hearing the case found it “difficult to express in language of appropriate moderation” why they considered the arguments on behalf of the government as being “without merit.”
In its damning verdict the High Court ruled that the decision to implement LGFS was unlawful because it “(1) was not disclosed to consultees, rendering the consultation process unfair, and (2) used methods that were statistically flawed, making it irrational to rely on the analysis.” To echo the Law Society’s response to the decision, it offers a “ray of light for justice system,” but there is still more to do.