Legal Aid and Access to Justice in England and Wales
Introduction
Legal aid is the system by which the state funds legal representation and advice for individuals who cannot afford to pay for it. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) introduced the most significant reforms to legal aid since its establishment following the Legal Aid and Advice Act 1949. The Act removed whole areas of law from the scope of legal aid, reduced the eligibility criteria, and introduced a more restrictive financial means test. The reforms have been widely criticised for reducing access to justice, and the government has introduced incremental changes in response to legal challenges and pressure from the legal profession.
The LASPO 2012 Framework
LASPO 2012 replaced the Legal Services Commission with the Legal Aid Agency (LAA) , an executive agency of the Ministry of Justice. The Act sets out the circumstances in which legal aid is available, distinguishing between civil legal services and criminal legal aid.
Civil legal aid is available only for those categories of law specified in Schedule 1 to LASPO 2012. The specified categories include: family law (in certain cases, including domestic violence and child protection); housing (possession proceedings and homelessness); debt (in limited circumstances); immigration and asylum (certain cases); community care; and judicial review.
Legal aid is not available for most private family law cases (including divorce, financial remedies, and contact), employment law (except in limited circumstances), personal injury, clinical negligence, and most housing disrepair cases.
The Exceptional Funding Scheme
Section 10 of LASPO 2012 provides for exceptional funding where legal aid is not otherwise available but where failure to provide it would be a breach of the individual’s rights under the European Convention on Human Rights, or where it is necessary to prevent a breach of enforceable EU rights.
The exceptional funding scheme has been the subject of significant litigation. In R (Gudanaviciene) v Director of Legal Aid Casework (2014), the Court of Appeal held that the Legal Aid Agency had taken too restrictive an approach to exceptional funding and that funding should be granted where the individual would be at real risk of effective denial of access to justice without it.
Criminal Legal Aid
Criminal legal aid is available to individuals who are arrested, charged, or appear before a criminal court and who meet the means and merits tests. The Legal Aid Agency administers criminal legal aid through two schemes: the Duty Solicitor Scheme (providing advice and representation at police stations and magistrates’ courts) and Representation Orders (funding representation in the magistrates’ court and Crown Court).
Criminal legal aid is subject to a means test (assessing the individual’s income and capital) and a interests of justice test (considering whether it is in the interests of justice for representation to be provided, having regard to the seriousness of the offence, the complexity of the case, and the individual’s capacity to present their own case).
Financial Eligibility
Legal aid is subject to strict financial eligibility criteria. For civil legal aid, the applicant’s disposable income must not exceed a specified threshold, and their disposable capital must not exceed £8,000. For criminal legal aid, contributions may be required from those with higher incomes.
The financial eligibility criteria have been criticised for being set too low, excluding many individuals on modest incomes from accessing legal aid. The income thresholds have not been regularly uprated, resulting in a significant reduction in the number of people eligible for legal aid since LASPO 2012.
Legal Aid Deserts
The reduction in legal aid funding has led to the closure of many legal aid firms and the concentration of legal aid provision in certain areas, creating legal aid deserts — areas where there is no provision of legal aid for particular categories of law. The Law Society has highlighted the significant reduction in the number of legal aid providers since 2012 and the impact on access to justice, particularly in rural and coastal areas.
McKenzie Friends and Litigants in Person
The reduction in legal aid has led to a significant increase in the number of litigants in person (LIPs) — individuals who represent themselves in court proceedings. The courts have developed procedures to assist LIPs, including the provision of McKenzie friends (support persons who may assist LIPs in court by taking notes and providing advice).
The Public Legal Education Network and the courts service provide guidance and support for LIPs, but the increase in self-representation has placed significant pressure on the courts and has raised concerns about the fairness of proceedings.
Alternative Sources of Advice
Alternatives to legal aid include: pro bono representation (free legal services provided by lawyers and law firms); law centres (independent advice agencies providing free legal advice); and citizens advice bureaux (providing advice on a range of legal and non-legal issues). The Bar Pro Bono Unit and LawWorks coordinate pro bono services across the legal profession.
Conclusion
Legal aid in England and Wales has been significantly reduced by the LASPO 2012 reforms, removing whole areas of law from the scope of funded legal services and tightening financial eligibility. The exceptional funding scheme provides a safety net for Convention rights, but access to justice remains a significant concern, with increasing numbers of litigants in person and the emergence of legal aid deserts. The government has announced incremental reforms, but fundamental questions about the funding of legal services and access to justice remain unresolved.