‘From crisis to full-blown emergency’ as Ministry of Justice faces more cuts

If it was understandable that the announcement of a further £600m cut for the Ministry of Justice did not make the post-Budget headlines, it was no less disheartening for it. The government confirmed last week that justice spending, which covers prisons, probation and legal aid, will have faced a real-terms cut of 40 per cent between 2010/11 and 2019/20.

According to the MoJ, its departmental spending limit is projected to be £5.6bn in 2019/20. By contrast, if its budget had risen in line with inflation since 2010/11, this figure would be £9.3bn. The Lord Chancellor, David Lidington, recently told the Justice Select Committee that he would ‘always welcome being given a crock of gold by the Treasury’, but is conscious of the competing demands of departments such as health, education and defence.

Far from receiving a crock of gold, it appears the MoJ is seen as a magic money tree ripe with low-hanging fruit to be picked in the name of austerity, irrespective of soaring self-harm and violence in prisons and a crisis in access to justice.

The vice-president of the Law Society, Christina Blacklaws, rightly linked the Budget announcement to the impact of cuts to legal aid: ‘While we acknowledge the government’s recent announcement to review the Legal Aid, Sentencing and Punishment of Offenders Act, the significant cuts to the justice budget are still preventing effective justice for all’. The Shadow Lord Chancellor, Richard Burgon, said the cuts threaten to take the justice sector from ‘repeated crisis to a full-blown emergency’.

It was just last month that the MoJ announced that a long-awaited review of cuts to legal aid made by the Coalition government will finally begin. In a memorandum presented to Parliament, Lidington confirmed that the government aims to publish its ‘full, substantive assessment of recent legal aid reforms’ by next summer.

Access to justice campaigners have been pressing the government to carry out this post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) ever since it was first promised when LASPO came into force in April 2013. The detrimental impact of the cuts to legal aid has long been clear to lawyers and the judiciary, and this review provides the government with an opportunity to start to undo the damage done in recent years.

It is therefore concerning that the MoJ will have to reduce its spending even further, as stricter fiscal constraints do not bode well for full, fearless and open-minded evaluation of the state of access to justice in this country. The civil servants conducting the review of legal aid cuts and advising Lidington and his ministers must be free to speak truth to power.

Thankfully, there appears to be a growing recognition even within the Conservative party that the cuts have been harmful and, in some areas, actively counterproductive by creating additional costs to the courts and other parts of the state. Bob Neill, the chair of the Justice Select Committee, recently said LASPO ‘went too far’, having been introduced without any proper impact assessment and with an ‘unwillingness to listen to professionals’.

The government was recently rebuked by the Supreme Court for failing to understand the importance of the rule of law. In its unanimous ruling that the fees introduced for employment tribunals breached the common law right of access to justice, the court said that without unimpeded access to the courts, ‘laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade.’

The point is clear: legal rights are illusory if it is impossible to enforce them in practice. This applies to legal aid just as it does for court and tribunal fees, because if ordinary members of the public do not have the practical means of resolving disputes, respect for the rule of law and our democratic institutions is liable to break down.

For people who do not come into regular contact with the legal system, it may be difficult to appreciate the scale of the crisis in access to justice. This did not begin with the Coalition government, and legal aid lawyers who are longer in the tooth than me do not remember the New Labour years with great fondness.

However, the impact of LASPO has been unprecedented. In partially or wholly removing significant areas of social welfare law – such as housing, debt, welfare benefits and employment – from the scope of civil legal aid, LASPO drastically reduced the availability of advice and representation for many people in desperate situations. Funding for private family disputes, except those involving allegations of domestic violence, was also removed, and criminal defence lawyers continue to be subjected to a slow death by a thousand cuts.

As a consequence of LASPO, the number of civil and family cases funded by legal aid has fallen from 725,000 in 2012/13 to 250,000 in 2016/17. Yet while LASPO has led to annual real terms savings to the MoJ of £950m, research has shown that legal aid cuts are often a false economy, creating greater knock-on costs to the state when early advice is not available to prevent problems from spiralling out of control.

In recent decades, the proportion of people who are financially eligible for civil legal aid has steadily decreased, from 80 per cent in the 1980s to 29 per cent by 2008. That figure is likely to have fallen further, meaning that the majority of people are not eligible for any publicly funded advice or representation in civil matters. This includes people like the parents of Charlie Gard – a postman and a carer – who are unable to obtain legal aid for even the most tragic of cases.

Soon after becoming the leader of the opposition, Jeremy Corbyn instigated a review of legal aid policy led by a Labour peer, Lord Bach, alongside an independent commission of experts. The Bach Commission’s final report, The Right to Justice, was published in September.

The report called for a new individual right to reasonable legal assistance without unaffordable costs, as well as recommending urgent reform of the eligibility and scope rules for legal aid, at an estimated annual cost of £400m. Responding to the report, Justice Minister Dominic Raab accused Labour of producing ‘yet more unfunded proposals’.

The time has now come for the government to carry out its own assessment of the impact of recent cuts to legal aid. It must be prepared do so with an open mind and a willingness to change course if that is where the evidence leads.

This article was published November 28, 2017