Legal aid cuts: six lawyers on why they will damage our justice system

01 April 2014

Legal aid , the provision of advice and representation in court to those who cannot afford to hire a lawyer, was established by Clement Attlee's Labour government in 1949. Supporters revere it as one of the principal pillars of the post-war welfare state. However, over the years, costs have escalated as the UK became an increasingly litigious society.

The Ministry of Justice estimates that legal aid in England and Wales now costs the taxpayer around £2bn a year and describes it as the most expensive system of its kind in the world. Lawyers dispute the figures, maintaining that costs are falling as crime rates decline and that many other countries' criminal-justice systems, which rely on investigating magistrates, are more costly.

The coalition government is not the first to attempt to limit the bill. The last Labour government began reducing fees in 1998. Criminal barristers say they had already suffered a 40% cut in income before the justice secretary, Chris Grayling, began imposing the latest round of savings.

Under the Legal Aid, Sentencing and Punishment of Offenders Act, which came into force last year, around £320m was sliced out of the annual budget for civil cases such as family, housing, debt and welfare law. Family courts have been inundated by separating couples forced to represent themselves in often traumatic cases.

The latest cuts of £215m to criminal legal aid – which have reduced lawyers' fees by up to 30% – have provoked successive mass walkouts by criminal barristers and solicitors since January. Solicitors and probation officers – who oppose Grayling's plans to privatise offender rehabilitation services – staged a 48-hour protest on Monday and Tuesday, culminating in a march on the Ministry of Justice (MoJ) bearing an effigy of the secretary of state. Criminal barristers, however, reached agreement with the MoJ last week after the government agreed to postpone, until after the election next summer, some cuts for advocacy in crown courts.

Last week, Imran Khan, who represented the family of Stephen Lawrence, said the cuts would make it impossible to take on a similar case today. What do other lawyers make of the changes? Owen Bowcott

Lord Macdonald QC
Former director of public prosecutions

Lord McDonald

The broad principle we have always had is that on legal aid you get high-quality representation. In many countries if you rely on the state for a lawyer in criminal cases, you receive very sub-standard representation. You see that particularly in the US where people facing charges on capital crimes get terrible representation from $10-an-hour lawyers because that's all the state is prepared to pay for.

Access to justice has to be as equal as possible. We don't want one quality of justice for the rich and one for the poor. If we are moving in that direction, it's a risky business. It can mean that the quality of justice differs according to the size of your bank balance.

I'm not a civil lawyer but it looks as though we are moving [in civil law] from a system that provided coverage across all areas to one that is now limited to certain areas. The legal aid cuts are directed at those most in need of legal assistance, such as housing or social welfare law. There's virtually no legal aid available in these areas now.

In housing law, unless you are in imminent danger of losing your home, you can't get legal aid. Housing disrepair has been badly impacted by these changes. The result is that people will be living in worse conditions – and sometimes in intolerable conditions – with no recourse to law.

People who haven't got money can't afford to go to law. It will lead to a decreasing lack of respect for the law if it's seen as being for people with money rather than people without money.

As far as judicial review is concerned [where the MoJ is also planning to restrict financial support], it's a major area of concern. My sense is that the approach of the justice secretary is, as with legal aid, not so much driven by financial considerations but ideology. He doesn't think that the courts ought to be able to challenge government actions because it's an undermining of democracy. He's wrong about that. Interview by Owen Bowcott

Raymond Shaw
Partner, Shaw Graham Kersh, London

In the old days, we solicitors used to be paid an hourly rate for most of the work we did under legal aid. The rates may have been lower than privately paid work, but we were at least paid for what we did. That meant the most complex and demanding cases would often prove to be the most profitable. Some years ago, the payment system was replaced by a computer program that in most cases provides a fixed fee for a particular case. That fee has been driven down and down, and is now at the point where people are finding it difficult to do the necessary work.

If a defendant comes to me with a complicated defence and multiple witnesses that need to be seen, and possibly with the need for expert evidence – or if they have mental-health problems or language difficulties – these issues add to the time required to prepare the case but generally produce no additional payment. What this means in practice is that the very cases that require the most time and attention are also the least profitable. The danger is obvious.

Fees for police station work are about £200 per case. That's fine for a simple shoplifting case, but if, say, you are called to a case where five people have been arrested for a street fight, that could be two days' work, and you might have to return for a further interview on another day. We've entered a bizarre world where the most complicated cases earn the same as the simplest ones; you get the same fee regardless of whether it's shoplifting a packet of crisps or a murder.

Everyone knows these cuts are not sustainable. Standards have already fallen. You might be lucky and get a lawyer on legal aid who defends you brilliantly, but generally the standard of justice has been reduced. The direction of travel favoured by the government is that many firms will go out of business, and big practices will come to dominate. There will be mass redundancies among lawyers and shotgun weddings between practices.

Lawyers will be less inclined to take on the toughest cases. Think about the famous miscarriage-of-justice cases. There, the image is usually of a committed lawyer with a bee in his or her bonnet, determined to do something for their client. In the brave new world of factory law firms with non-qualified staff monitored for their productivity, where's the room for the lawyer to do this unprofitable and often unpaid work?

We pride ourselves on giving the fullest and best service to people of all backgrounds and whatever their needs, but changes to the legal aid system are making it difficult to protect some clients. We can now identify people who, when they walk through the door, we know are going to lose us money, and some firms are already turning those people away.

Imagine a "bag lady" walks in with bundles of papers. From a sea of paperwork she fishes out a summons for, say, not informing the benefits agency of a change in circumstances. She doesn't recall whether she ever told them, but she wants to fight the case. It would be so easy to send her on her way. Who will now take time to build up her trust, go through her papers, and work out what's really going on in her life? Who has the time and energy to do that in a world where everything is being cut? The government seems to think it's a badge of shame rather than a badge of honour that we have a legal system that is the pride of the world. You get what you pay for. Interview by Stephen Moss

Barristers and solicitors in walk-out protest against legal aid cuts Barristers and solicitors in walk-out protest against legal aid cuts Photograph: Paul Davey/ Paul Davey/Demotix/Corbis

Clive Gomes
Solicitor, London

A lot of people think these cuts are only happening now, but they've been happening since 2008. Fixed fees were introduced in the crown court; committal fees were removed in magistrates' courts; fixed fees were introduced in police stations and were then subsequently reduced again. My firm's income has fallen by about 40%. I've tried to cut my overheads and slimmed the firm down, but now I have no option but to close and move out of the criminal law. It is sad because I've been in practice since 1984 and love what I do, but the changes make it impossible for my firm to continue.

It used to be the case that you could balance work in the magistrates' courts, where you might be paid just £100 or £200, with better-paid work in the crown court, but that's no longer possible. And there's an even more sinister development: the justice ministry is reducing the number of contracts it offers to solicitors in such a way that only large firms will be able to bid for contracts. Small firms like mine will henceforth find it very hard to tender because we can't cover the number of duty slots that will now be specified.

What will happen – and indeed is already happening – is that big firms will get all the work, and because they are being less well paid than was the case in the past the preparation of cases will be done by unqualified staff. I've heard of examples of interns being taken on with nine-month contracts and doing a lot of the work. Clients will lose out and, especially in the smaller cases that make up the majority of solicitors' work, they will get a poorer service. SM

Lucy Scott-Moncrieff
Solicitor specialising in mental health tribunal cases, former president of the Law Society

lucy scott

The cuts are having a devastating effect on people who are unable to get the advice they need to work out whether or not they have a case and are unable to get representation if they do. This is totally counterproductive. Cases are being taken that should not be. People have to get assistance from the judge, and it takes much longer without the help of a lawyer. In family courts, if there's no lawyer, the judge has to satisfy himself or herself that all the relevant issues have been dealt with – and that's time-consuming.

The proposed cuts in judicial review [now going through parliament] are also going to make things extremely difficult. They are going to deny a lot of people justice. Firms can do a certain number of pro-bono cases and take some risk but, under these cuts, they are not going to be able to take such cases on in future. We will have to work out whether we can afford to do the necessary work before applying for permission.

What I find most shocking is the withdrawal of advice for welfare benefit cases. We have had a radical reform of benefits yet individuals on low incomes can't get advice as to whether they are being accurately calculated.

It seems utterly wrong that people should have no access to advice as to whether they have a case to take to appeal. Even if legal aid doesn't cover the hearing, in the past if a claimant had received advice beforehand then they often found someone to represent the case to court on a pro-bono basis. That won't happen now.

The government says that it's bad that we have the most generous legal aid system in the world. First, that's not true and, second, why does the government think that people being able to enforce their rights is a bad thing? I would have thought that effective enforcement of rights is what any government is about. OB

Richard Atkinson
Solicitor, chairman of the Law Society's criminal law committee

The vast majority of criminal firms will not be able to survive the cuts of 17.5% in fees. Solicitors' firms are simply not that profitable.

[The Ministry of Justice is] gambling that these changes are going to work. It's akin to betting on a rank outsider in the Grand National. They are betting on firms' commercial existence, on partners' houses and on the future of the criminal justice system. This has no basis in the evidence that I can see. There will soon be two types of firms: those who say they don't want anything to do with the new contracts and the ones that give it a go and go bust when it doesn't work.

There will be advice deserts, places where there are no firms to represent defendants. Solicitors will see that they can't make a profit. There are firms already that have gone under.

We have seen what happens to the standard of representation in public defence work, for example, in the US where it is left to law students, those who have retired or who are not at the peak of their profession. OB

Barristers demonstrating against legal aid cuts outside the Old Bailey, London Barristers demonstrating against legal aid cuts outside the Old Bailey, London Photograph: Alan Davidson/The Picture Library Ltd

Neil Kerr
Family law barrister

Legal aid has been removed from most branches of family law. It used to be available for divorce cases, though there were limits and it was means-tested. It was also available for contact and residence cases involving children, and for injunction proceedings for both alleged victims and perpetrators of domestic violence. Much of this has been dismantled.

It is still possible for alleged victims of domestic violence to get legal aid, but only if they supply some form of documentary evidence to support their case – a police report or a letter from their GP. But many of these victims do not want to report violence to doctors or the police, and the most vulnerable – such as people with language difficulties – are the least likely to make a report.

The one area where the government has retained legal aid, almost certainly because of the level of public and media interest, is where there are allegations of child abuse. Parents can still get legal aid if a child has been removed by the local authority, though even in this area there are concerns that the government may seek to tighten the rules.

The main difficulty that we're increasingly seeing as a result of these changes is the number of litigants in person – people forced to represent themselves in court because they can't get legal aid. This clogs up the system and makes it difficult for judges. Previously, where lawyers were representing both parties, it was possible in nine-tenths of cases for the lawyers themselves to frame some sort of accommodation, but now everything is left to the judge who is faced with two warring sides. The issue of an alleged perpetrator of domestic violence cross-examining an alleged victim also poses obvious problems.

During my career at the family bar, I've represented many fathers wanting access to their children, and I know they simply wouldn't have the wherewithal to represent themselves. They'll think: "I can't handle the stress of going to court myself", so that child never sees their dad again.

The family bar has not been as badly affected as the criminal bar, but there is a lot less work now and our incomes have fallen by about 30%. In my chambers, we haven't taken on any new pupils for five years. There's a danger that the bar will revert to what it used to be like – people with other sources of income who were treating the bar as a hobby. I don't think the criminal bar and the family bar will survive in their present form, not that that will worry the government. Justice is at the bottom of their list of priorities, and it's all about saving money. Perhaps Tesco will be doing the work in a few years' time. SM

Legal aid cuts: six lawyers on why they will damage our justice system