Garden Court Chambers responds to call for evidence: Civil Legal Aid Review

Friday 23 February 2024

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This consultation response is submitted by Garden Court Chambers, which is a multi-disciplinary Chambers based in London. It has over 180 barristers (including 30 King’s Counsel) and is one of the largest in the country with over 40 years of experience in cases with a human rights context. We are the largest chambers delivering services funded by legal aid. Details are here.

34 of our members practise in family law, around 80 – 90 practice in civil law, comprising public and administrative law, housing law, inquests, immigration, civil liberties, and community care. A third practise in criminal law. We act predominantly for individuals or not-for- profit organisations. A large part of this work is either legally aided or, in the case of not-for-profit organisations, pro bono, or with the benefit of a protective costs order. Some is conducted on conditional fee arrangements.

Although not always “high value” in monetary terms, this work is often of fundamental importance to the individuals and organisations concerned. It often has wider public interest implications, playing a key role in access to justice often for disadvantaged groups, in ensuring equality before the law and in maintaining the rule of law by holding the executive and other public authorities to account.

Significant cohorts of the clients we represent face barriers in access to justice and effective participation in legal proceedings arising from factors such as physical or mental disability, race and ethnic origin, language, gender, education and social class. Many have a past experience of violence and abuse and are victims or potential victims of serious human rights violations in the UK and/or abroad.

Executive Summary

Throughout this consultation response document, we have highlighted the pressing and urgent issues that are affecting civil and family legal aid legal aid suppliers. We sincerely hope that this review will mark the beginning of a new era in which the importance of legal aid work is recognised, and urgent steps taken to prevent it from dying on its feet.

We consider the urgent issues affecting all civil and family legal aid areas of law are:

1. A failure to maintain means criteria at a level that is in line with inflation and the increased costs of living is resulting in fewer people being financially eligible for legal aid year on year and those who are living with barely sufficient financial resources to live are forced either to find the money to fund expensive private legal fees or to represent themselves. The means test should be urgently reviewed and increased. In any event, we request that a hardship review mechanism is put in place to allow for some discretion to allow funding in cases where the applicant suffers real financial hardship, their case is complex, and it would be difficult for them to represent themselves adequately.

2. The removal of Universal Credit as a passporting benefit for those earning over £500 creates an additional unnecessary and wasteful burden on legal aid providers to assess whether a potential applicant will meet the legal aid means test and a burden upon the applicant to produce additional documentary evidence of their means to fulfil the legal aid means test.

3. There is an urgent need to reinstate early properly remunerated legal help advice across all areas of law to help prevent unmeritorious applications reaching the overburdened court system and to encourage early settlement of cases where that is appropriate.

4. There is a need for increased remuneration for solicitors and barristers in an effort to halt the decline in available providers of legal aid services. Fees have not increased since 1996, an astonishing 27 years. There is difficulty recruiting and retaining solicitors and barristers in publicly funded areas of work due to poor remuneration and therefore causing concerns over the medium to longer term sustainability of legally aided practices.

5. There is difficulty attracting new entrants to the profession due to better remuneration and work life balance in other areas of law. As experienced lawyers leave the profession, there are insufficient junior lawyers ready willing and able to take the place of those departing. Ultimately the failure of the state to ensure adequate legal aid lawyers are available now will result in time with fewer experienced lawyers who are in a position to take up judicial office or silk.

6. Legal aid lawyers have complained for many years that the administration of legal aid difficult and burdensome.

7. It has been evidenced that there are decreasing number of providers resulting in advice deserts in some areas of law and geographic locations and low numbers of providers in some areas such that potential clients have to travel further afield to find representation

8. We consider that there should be an urgent review of scope of legal aid, under LASPO, Schedule 1. In particular, we urge that legal aid, and early legal advice, is reinstated for welfare benefits cases, debt, private family law cases (removing the need to evidence domestic violence or child abuse) all areas of housing law, and non-asylum immigration cases. In the medium term, we suggest that the restrictions on scope in LASPO are repealed and that legal aid is restored to all cases, subject to means and merits, except for libel and personal injury (the pre-LASPO position).

Read the full response here.

Find out more about the review process here.

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