Justice Committee call for evidence: The Future of Legal Aid - Response of Garden Court Chambers

Monday 19 October 2020

Garden Court submission to Parliamentary Justice Committee Inquiry into future of legal aid.

Legal Aid is at a critical point in its history and its future is beyond being described as a “crisis”. It needs urgent significant additional funding if it is to survive. It is our experience that Legal Aid has been under threat, diminished and denuded over a number of years under different governments and it is now at the cliff edge of sustainability.

We are also concerned at the undermining of lawyers and the rule of law in recent statements by the Prime Minister, the Home Secretary and other politicians. Lawyers, and their staff, should be permitted to do their work, which is always underpinned by their duty to the courts and their professional obligations, without fear of political or physical attack. That a climate of hostility is being created in which safety is at risk is deplorable. It is a major threat to our justice system and the rule of law.

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Introduction: Garden Court Chambers and our expertise

1. Garden Court Chambers is a multi-disciplinary chambers based in London. It has 199 barristers, including 27 Queen’s Counsel, and is one of the largest barristers’ chambers in the country. We are the largest legal aid provider at the Bar. Cases funded by legal aid represent approximately 70% of our work covering a wide range of practise areas. The vast majority of our cases are against public authorities and concern the fundamental rights of some of the most disadvantaged and vulnerable clients in our society.

2. Around a third of our barristers practise in criminal defence law and we have substantial teams practising in family law, immigration law, housing law, public law and civil liberties, including specific specialisms in community care, mental health, inquest, employment and discrimination, and Court of Protection law. Challenging racism and securing equal access to justice and equality before the law is an overarching focus of our work. We are described in the professional directory Chambers and Partners in these terms: “Garden Court Chambers is a number one ranked barristers’ chambers committed to fighting injustice, defending human rights and upholding the rule of law. It advises solicitors, members of the public, organisations and businesses across the UK and around the world. Its motto, ‘Do right, fear no one’, embodies its longstanding ethos: it is dedicated to fighting your corner, no matter how powerful the opponent. Garden Court has a proud history of winning ground-breaking cases of constitutional importance. Its legal challenges have overturned great injustices in many landmark decisions. Equally, its barristers fight hard for clients in countless cases that don’t hit the headlines, but are nonetheless vital for defending the rights of those it represents.”

3. In our practises we act predominantly for individuals or not-for-profit organisations.  A large part of this work is either funded by legal aid or, in the case of not-for-profit organisations, pro bono.    Although this work is not always ‘high value’ in monetary terms it is invaluable for the individuals and organisations concerned and can often have wider impact on public policy and decision making, playing a key role in access to justice often for disadvantaged groups and in maintaining the rule of law by holding the executive and other public authorities to account.

4. Our members are also active members of other professional organisations, including Young Legal Aid Lawyers, Legal Aid Practitioners Group, and Legal Action Group.

Executive summary

5. It is our evidence and experience that legally aided practice is in crisis and requires significant additional funding if it is to survive.

6. It is our experience that LASPO has significantly impacted access to justice, causing legal aid deserts in England and Wales, and preventing access to justice for many people. We believe that early, holistic expert legal advice should be funded, through law centres, advice agencies and high street firms that are located within the community so that they are accessible (including in hospitals, care homes and other community buildings). The scope of legal aid should be increased, so as to bring private law family cases, all immigration cases, housing, and welfare benefits back into scope. Funding should be provided for legal representation in the First Tier Tribunal (Asylum Support). Public funding should be available and accessible to all those in custody as convicted prisoners and those who are otherwise detained to enable them challenge the legality of the deprivation of liberty and/or the conditions of detention.  We believe that more people should be eligible for legal aid and the financial thresholds are too low. In addition, people are placed in conflict when they are obliged to make contributions to funding their case when their own means are already low.

7. From the experience of our client groups, it is clear that the deficits and inadequacies in the provision of legal aid disproportionately and adversely affect people with protected characteristics under the Equality Act 2010. It is therefore incumbent upon this review to conduct a full and detailed equality impact assessment which complies with the important duty under s 149 of the Equality Act 2010. Addressing structural discrimination so as to achieve equal access to justice and equality before the law in practice must be treated as a primary objective of legal aid provision and a key standard by which it is judged. In our experience, the legal aid system is currently failing to meet that important objective, resulting in serious implications for the rule of law and a loss of public confidence in the justice system. 

8. The specific limitation of “no permission, no fee” contained at Reg 5A Civil Legal Aid (Merits) Regulations should be abolished. The merits criteria which must be met before legal aid is granted for a judicial review constitute a sufficient filter and the provision in Reg 5A, even as amended following two judicial review challenges, continues to have a chilling effect on practitioners’ willingness to bring judicial review claims. This has the consequence that public authorities are not held accountable through the Courts for any unlawful acts, and that judicial review claims are more likely to be brought through private funding or litigants in person, where there is no merits criteria filter for funding.

9. We believe that the cuts to legal aid have led to various false economies, including the cost to the public purse when an individual is unable to obtain early legal advice (and thus resolve a problem and/or prevent expensive litigation) and the increase in litigants in person bringing or defending claims. Immigration and asylum cases in particular suffer from lack of access to early expert legal advice and representation. Many meritorious cases are wrongly refused, requiring fresh claims to be made, often at the point of removal and when detained, with costs consequently multiplying as the case goes through the system.            

10. The criminal legal aid review has experienced extraordinary delays, which would be concerning enough without the intervention of Covid-19. It is also a missed opportunity to safeguard the quality of representation for children in the criminal justice system. With the added pressures of Covid-19, the criminal justice system is now in an emergency requiring immediate measures and assistance.    

11. We are concerned at the low quality of decision-making within the Legal Aid Agency when considering the prospects of success on an application for civil legal aid. Often the decision maker merely defers to the case of the opponent and takes no account of expert advice provided to the Legal Aid Agency on behalf of the applicant. We draw attention to the Legal Aid Agency’s repeated decisions that Ms Samuels had poor prospects of success in her appeal against Birmingham City Council. She was subsequently successful in the Supreme Court. We also draw your attention to the campaign addressing the “Culture of Refusal” and the work and data gathered by the LAPG on refusal, delay and poor quality decision making by the Legal Aid Agency.

12. We also believe that the very low rates of remuneration for legal aid lawyers has led to a crisis of recruitment and retention throughout the legal aid sector, in both criminal and civil work. We understand that lawyers calling for an increase in rates of pay is unattractive but we believe that an increase is both necessary and urgent if both junior and experienced lawyers are to remain in the legal aid sector. It is of note that basic rates of remuneration for civil legal aid work have largely remained static since 1998 and that for many there have been considerable cuts in basic rates. These low rates risk reversing the gains that have been made by the Legal Aid sector in increasing diversity within the legal profession particularly for women and those who are black or from an ethnic minority.       

13. We are concerned at the use of technology to conduct remote hearings, dramatically increased as a result of the covid-19 emergency. We consider that remote hearings are almost always less satisfactory that in person hearings, causing difficulties for clients to effectively participate in proceedings and to give instructions.  

14. It is our experience that the overall Court reform programme has, so far, been an abject failure. Court buildings have been sold off or merely left empty and unused, and are now being rapidly replaced by Nightingale Courts. Those remaining courts lack basic hygiene and appropriate facilities and with the Criminal Courts have been underused prior to the pandemic due the Government not being willing to fund trials and the sitting of judges. Prison transport to court is poor to the point of being a national embarrassment, causing thousands of delayed or adjourned hearings each year.

15. Covid-19 has resulted in the system of jury trials grinding to a halt between March and June. When the effect of this is added to the existing backlog, the delays, resulting in trials currently being listed for hearing in 2022, confirm that justice delayed is justice denied for both victims of crime and defendants.

16. Covid-19 has also had enormous ramifications for the financial viability of individual barristers, barristers’ chambers and solicitors together with their firms. Primarily those specialising in criminal work have been affected, but the impact falls across all areas of practice funded by legal aid system. Many surveys show that a career at the publicly funded Bar is becoming unviable for all but those with independent means.

17. Covid-19 has affected our ability to maintain communications with our clients, since technology cannot adequately replace face-to-face communication. Obtaining in-person legal visits to clients detained in prison is particularly problematic.

18. All aspects of the justice system benefit from legal aid and would likely not function without such provision. We have practitioners who specialise in mediation and Alternative Dispute Resolution and draw attention to the relative success rates of mediation when a party has received legal advice, as against those without legal advice where mediation is more likely to fail.

19. Finally, we deplore recent statements from Ministers and other politicians which undermine lawyers and the rule of law. Lawyers, and those who work in law firms should be permitted to do their work, which is always underpinned by their duty to the courts and their professional obligations, without fear of political attack, threat or indeed actual violence.

Terms of reference

How LASPO has impacted access to justice and views on the post-implementation review and the criminal legal aid review

Legal aid deserts

20. There are now huge swathes of England and Wales where there are no specialist public law, housing or immigration lawyers providing legal aid services. We refer to the Law Society’s interactive maps showing community care and housing legal aid solicitors.[1] We note that more than 37 million people in England and Wales live in a local authority area without any single community care legal aid provider, including over 7.5 million people aged 65 and over and 78% of local authorities in England and Wales do not have any single community care legal aid provider and that 37% of the population live in a local authority area with no housing legal aid providers.

21. In Al Ahmed v Tower Hamlets LBC [2], Sir Stephen Richards giving the judgment of the Court said, referring to evidence from Shelter: “many housing cases were taken out of the scope of legal aid, and the resulting shrinkage in the number of providers means that there are now areas of the country where it is almost impossible to get face to face legal advice in housing law—there are housing advice deserts throughout the country. Even those who are still entitled to legal aid will often not be able to find someone to provide the service they need. Those housing advice providers that are still left are facing increased demand and often do not have the capacity to assist everyone who approaches them for help.” [21]. He concluded by describing this as describing the evidence as presenting a “bleak picture” [34].

22. Even where a person is able to identify legal advice funded by legal aid, he or she may have to travel long distances or instruct his or her lawyer solely through virtual means. Virtual means is not a sufficient substitute for the ability to meet and provide instructions in person, and should only be a useful addition, allowing clients and lawyers to meet where possible, but not at the expense of face-to-face meetings.

23. The case of Al Ahmed considered one aspect of the paucity of legal aid providers: whether applicants can comply with Court deadlines. We are also aware of individuals being prevented from pursuing meritorious claims because they could not obtain advice within the relevant deadline or where unable to formulate the appropriate representations. Lack of advice can therefore shut out potentially meritorious claimants from access to justice and from upholding their rights.

24. The additional impact is that, for those of us remaining in the legal aid sector, the workload can be enormous. This is particularly so for solicitors, caseworkers and advisers, who are the first port of call for clients. Our clients are frequently vulnerable and require time for complex problems. Many of them do not have English as a first language. We know that experienced and specialist colleagues have undergone burn-out and left the profession, or left the legal aid sector. We address these concerns below under Recruitment and Retention.

25. The Parliamentary Joint Committee on Human Rights identified in two recent reports the adverse effects of lack of access to legal advice in the immigration context which the Justice Committee should consider in full [3]. In the latter the JCHR emphasised the exceptional complexity of immigration law and procedure and the adverse impact of LAPSO in non-asylum cases being effectively taken out of scope save for some limited exceptions. It cited the following evidence at paragraph 46 as to the consequences in terms of  the misuse of the powers  of detention and the consequent costs to the public, which we endorse :

“Witnesses told us that the lack of early legal help and assistance for individuals making immigration applications has fundamental consequences:

“There is a very close correlation between the legality of the detention, the decision-making on detention and the substantive immigration decision. If you cannot challenge the substantive decision, it is difficult to challenge your detention decision because it is all linked to removal. That lack of legal representation at an earlier point in the process has a fundamental knock-on effect… It is very costly to detain a person: £34,000 per year—£125 million. It is used where individuals should not be there because they would have very good claims if they had proper representation. Many of them will only get it at the point where they are detained.”[4]            

26. It is particularly important to emphasise, given the current focus by the Home Secretary on late challenges to removal, that the lack of access to expert legal advice and assistance means that many applicants with meritorious cases are wrongly refused, so they go through the system without any or any proper representation until they get detained. At that point, it is necessary to make a new claims to prevent unlawful removals.  A typical example is the case of VC v Secretary of State for the Home Department [5]. Had VC had legal representation at the outset, it would have been plain that he had EU law rights of residence and should never have faced removal.  Instead he was unlawfully detained for nine months during which his mental health deteriorated to the point that he lacked capacity and was subject to discrimination in breach of s 20 and 29 of the Equality Act 2010.

27. A simple application should have resolved VC’s immigration status. Instead, his case necessitated two First Tier Tribunal appeals, an appeal to the Upper Tribunal, a judicial review challenging the lawfulness of the detention resolved in his favour in the Court of Appeal and a separate judicial review to obtain a litigation friend[6]. 

28. The costs of this otherwise unnecessary litigation are inevitably substantial. The cost of the human suffering are immeasurable.  

The scope of legal aid

29. LASPO restricted the scope of civil legal aid, confining it to those areas of law specified in Schedule 1, LASPO. Crucially, private law family cases where there are no allegations of domestic violence were excluded, as is advice on welfare benefits, debt, areas of housing and most areas of non- asylum immigration law. These restrictions deter people from bringing meritorious claims, defences and appeals, and are, in our view and experience, unjustified and counterproductive.

30. In addition, the impact has been an increase in the numbers of litigants in person, most notably in the family courts, where unrepresented litigants may face the loss of contact or residence with their children, and where people who have been subject to domestic abuse (and so themselves are eligible for legal aid and can be represented) may be cross examined by their unrepresented abuser. A case where one of the parties is not represented takes longer and is less likely to settle, so requiring judicial resources and waiting periods for hearings. Judges are trained to assist litigants in person, but the assistance that they can provide is not equivalent to specialist legal representation.

31. The restrictions in scope have also meant that holistic legal advice is not available at an early stage, leading to a false economy. In 2010, Citizens Advice established that each £1 spent on early advice saved between £2.34 - £8.80, depending on the type of legal issue.[7] Legal advice provided at an early stage of a dispute can result in a payment of housing benefit or other welfare benefit, thus preventing a potential possession claim and the loss of a home. This is cheaper than having to fund legal representation in a subsequent possession claim. Early legal advice can result in representations being made to the DWP, a local authority, or the Home Office. Those representations should achieve a positive decision for the client, so that there is no need to initiate litigation. Conversely, as the Law Centres Network has argued, late legal advice forces people and their families to endure adversity which affects health, work, accommodation and social relations.[8] It is our opinion based on available facts and evidence that early legal advice should be restored for welfare benefit, debt and housing cases.

32. Exclusion of immigration cases, including those based on Article 8 rights to family life and private life in the UK, also played an important part in the shameful debacle of the Windrush scandal in which British citizens were wrongly denied rights of residence, were detained and unlawfully deported. Early access to expert advice and representation is key to minimising the risks of repeated similar unlawful actions and preventing further such national disgrace.       

33. Our opinion is that the scope of legal aid should be increased to encompass all private law family cases, immigration cases, welfare, debt and housing cases.

34. Legal aid should be made available for advocacy and representation at the First Tier Tribunal (Asylum Support). These cases concern entitlement to support for those who are destitute (in that they do not have access to adequate accommodation or they do not have the means to meet their essential needs). As such, the subject-matter of the cases is plainly of the highest importance. The cases are also frequently legally and factually complex, often containing hundreds of pages of materials and analysis of difficulty points of law concerning asylum support, immigration, public administrative law and homelessness law. In addition significant work goes into evidence gathering. These cases are very similar to statutory homelessness appeals under s 204 Housing Act 1996 (which are funded by legal aid) and thus FTT Asylum Support appeals should be eligible for legal aid on the similar basis. The fact that the cases are heard in the Tribunal rather than in the County Court does not affect this. Successful cases generally require a significant degree of preparation, including evidence gathering and legal analysis, which is beyond the resources of the vast majority of destitute asylum seekers and failed asylum-seekers. Having a Tribunal Judge adopt a more inquisitorial approach than a County Court Judge is permitted to do does not make up for a lack of representation.

35. Our experience is that the “no permission, no fee” rule contained in Reg 5A Civil Legal Aid (Remuneration) Regulations, which requires that practitioners will not be paid if a claim for judicial review is not granted permission, continues to have a chilling effect on access to justice. This is despite the amendments as a result of two successful judicial review claims against the Regulation as originally enacted. Any statutory provision which makes it more difficult to hold the state to account for unlawful acts is to be deplored and is contrary to the public interest embodied in promoting the rule of law. Our evidence and experience is that the provision was, and remains, unnecessary. The merits test in the Civil Legal Aid (Merits Criteria) Regulations should be a sufficient mechanism to ensure that funding is not provided for unmeritorious cases, so there is no need for a further filter[9] for public funding. In our experience, claims in judicial review that are lacking in merit are most commonly either privately funded or brought by litigants in person (so that there is no filter of the legal aid merits criteria). Indeed, Reg 5A, in so far as it deters practitioners from issuing claims in judicial review, potentially has the effect of increasing claims issued by litigants in person.

Criminal Legal Aid Review

36. The Criminal Legal Aid Review (“CLAR”) was announced in November 2018 and was due to report in summer 2020.  The delay in this process has been extraordinary with the full review yet to begin.  Most recently in September 2020 it was announced that the CLAR would now undertake a different format with a Chair-led inquiry supported by a challenge panel. At the present time the Chair and panel have not been appointed and neither have the terms of reference been set. Whilst it is appreciated that the pandemic has diverted resources, the reality is that the CLAR was never in a position to report by summer 2020, regardless of the issues created by Covid-19, owing to the lack of progress made.

37. This is all the more concerning given the fragility of the supplier base, both at the Bar and with solicitors’ firms.  The criminal justice system was in a state of crisis prior to the pandemic.  The situation has now become more acute with the impact of Covid-19 decimating access to justice in the criminal justice sphere, with few jury trials taking place and owing to the nature of the fee schemes, driving many professionals to potential bankruptcy.  Chambers and solicitors’ firms have collapsed.  Staff have made redundant. This is the tip of the iceberg with imminent collapse of yet more anticipated in the forthcoming months.

38. Assistance has been sought repeatedly from the Treasury, with bespoke proposals put forward.  All have been rejected. This is despite the huge savings being made to the LAA, CPS and HMCTS budgets.

39. Further, the Criminal Legal Aid Review to date has been a missed opportunity in order to safeguard the quality of criminal representation for children. A number of proposals to address the quality of advocacy and the disproportionate over representation of BAME children in the criminal justice system, including automatic provision of free legal advice at the police station, payment for pre court casework, increased remuneration in the youth court and an uplift for accredited youth justice specialists, have not yet been fully considered. The Criminal Legal Aid Review has also failed to address the pressing need to ensure children are represented by lawyers who specialise in representing these most vulnerable defendants in the criminal justice system.

40. We cannot emphasise enough the emergency facing the criminal bar, solicitors and moreover the criminal justice system.  Immediate measures and assistance are required.

The role of the Legal Aid Agency

41. We welcome the relationship that we have with our legal aid contract manager at the Legal Aid Agency. We also welcome the recent decision by the Ministry of Justice to provide for barristers to claim payments on account of the work that they have undertaken at three monthly intervals (rather than the previous 12 months). This resulted from positive and productive engagement with practitioners and practitioner organisations by the Legal Aid Agency which, we suggest, should be the model for the future given the wealth expertise and experience of practitioners, thus benefitting the Legal Aid Agency and the Ministry of Justice in the effective delivery of legal services.   

42. We question, however, the quality of Legal Aid Agency’s decision-making in relation to the merits test for civil legal aid. The Legal Aid Agency’s decision-making was dramatically highlighted in the Supreme Court case of Samuels v Birmingham City Council [10]. In that case, the Appellant, Ms Samuels, was successful and the council’s decision that she had become homeless intentionally was quashed. Since she was a homeless person, she could not litigate without legal aid. After she had lost an appeal to the Court of Appeal, the Legal Aid Agency refused her application for legal aid to permit her to appeal to the Supreme Court on (by our count) five different occasions. Her legal representatives decided to proceed with the application for permission to appeal without being funded, which required them to undertake the work free and for her solicitors to pay the £1,000 Court fee personally. After the Supreme Court had granted permission, the Legal Aid Agency refused her application for legal aid one more time before accepting that she had appropriate prospects of success before the Supreme Court. As already noted, she was eventually successful.[11]

43. It is our experience that this is not a one off case. Similar problems were experienced by members of our chambers in the case of Yildez v London Borough of Hackney [12] which was litigated after Samuels and similarly successful despite initial refusals to fund the case. We also direct you to the work of the campaign on the “Culture of Refusal”[13] and the evidence gathered by the Legal Aid Practitioner Group which identifies a culture of poor quality decision making.

44. Barristers at Garden Court Chambers report frequent decisions by the Legal Aid Agency that civil claims or higher court appeals  have  poor prospects of success, so that legal aid is not granted, and they are required to engage in time-consuming (and unpaid) appeals against those decisions. Those appeals are frequently successful, but should not be necessary, and inevitably delay redress for the client.

Recruitment and retention problems amongst legal aid professionals

45. We note the devastating figures obtained by the Bar Council: 29% of all publicly funded barristers are uncertain whether they will renew their practising certificate next year, rising to 36% of immigration practitioners and 38% of criminal practitioners. 20% of publicly funded barristers now actively want to leave the profession. Women, BAME and state-educated barristers are more likely to work in publicly funded areas of law, so an exodus from the publicly funded Bar will have a disproportionate impact on diversity and sustainability of the legal aid sector.[14] Our view is this is also likely to have a direct impact on the future diversity of the judiciary given the impact on the diversity of the Bar.

46. In our experience, the failure to increase civil legal aid rates over 20 years, the cuts to legal aid rates contained in the Civil Legal Aid (Remuneration) Regulations 2013 and the rates of remuneration for criminal legal aid have led to profound consequences for the civil and criminal justice systems. Recruitment and retention is a major problem throughout the legal aid sector. We are aware of major and very well respected solicitors’ firms that have been forced to close and of senior colleagues who leave the sector, depriving the sector of their experience and expertise. Even more worryingly, the low rates of remuneration mean that junior lawyers are increasingly unlikely to undertake legal aid work. Colleagues say that they “do it because [they] love it” and not to achieve a wealthy standard of living.  However, remuneration rates are now so low that junior lawyers who are motivated to enter the legal aid sector cannot afford to do so, or cannot afford to remain undertaking legal aid work. That leads to fewer and fewer lawyers being available to undertake legal aid work. It also means that legal aid provision is dependent upon junior lawyers being able to fund themselves, by private means, in the first years of entry into the profession and by undertaking excessive workloads. This has adverse consequences for the diversity of the profession and for social mobility and is now a severe crisis. We urge that in all areas of legal aid, the rates paid to practitioners are urgently reviewed and substantially increased.

The impact of the court reform programme and the increasing use of technology on legal aid services and clients

Remote hearings

47. Attempts by HMCTS to increase the use of technology in the court estate have so far brought mixed results. Garden Court Chambers responded to the Rapid Consultation on the impact of Covid-19 on the civil justice system and submitted that remote hearings are almost always less satisfactory than in person hearings, and that, save for very limited case management and procedural hearings, remote hearings should not become the norm post the pandemic.[15]

48. Our clients are predominantly individuals, rather than organisations. In our experience, it has been very difficult for clients attending remote hearings to be able to provide instructions during the hearing to their representative. Where remote hearings continue to be used, there should be an opportunity for a separate remote arrangement for a lawyer to communicate directly with his or her client.

49. Internet bandwidth is not always reliable, and this is especially so for our lay clients. In our experience in remote hearings, at least one participant will be disconnected during the proceedings and have to try and reconnect. One colleague recounts a Judge suggesting that evidence be typed into the “chat” function of the video platform as the professional witness could not be heard. Clearly that is not consistent with the proper administration of justice and the right to a fair hearing. For clients who may not have reliable internet, their participation in the hearing is sub-optimal as they cannot always hear what is said about them, or they cannot be clearly heard when giving evidence.

50. In Court of Protection cases, the issue is a person’s liberty or living circumstances. The patient or party (“P”) should be able to participate fully. The support of P’s relatives or friends can often be important in a Court of Protection case, and they may also be participants. Deficiencies in technology can make the participation of both P and his/her friends or relatives much more difficult.

51. Remotely heard Mental Health Tribunals are very challenging given the particular complexity of the evidence, the need for examination of witnesses and proper and effective participation of the patient in the proceedings where it is difficult to maintain client confidentiality and effective representation.

52. Cases where the client’s first language is not English and/or where an interpreter is required are especially problematic.

Technology and criminal justice

53. Covid has accelerated the use of video link technology. This has many positives – not requiring barristers to travel many miles for very simple administrative hearings, for example, is a welcome development. The ability to see clients in prison via video-link from practitioner’s own laptops is also very welcome where it works and slots are made available. However, as stated above, the roll out of this has been inconsistent and woeful in many instances. It is important to remember that video link proceedings are no substitute for face to face contact in complex cases, where clients are vulnerable or in any trial setting. Thus it is essential that face to face visits and hearings resume where requested as soon as possible. The issues with increased use of live link technology are discussed at length in Stephen Simblet QC’s article: https://www.counselmagazine.co.uk/articles/justice-by-av-lost-in-transmission.

54. For criminal cases, the creation of the Digital Case System in 2016 has generally been a very positive development. Having a single place in which all parties and the court can view the evidence in a case has proved an essential development. It does, however, require further modernising. Unused material should be served and indexed on the digital system (it is not presently) and a clear means of the Judge recording all outcomes of each hearing should be created.

Court reform programme

55. Overall, we support wholeheartedly the proposals in relation to crime and court facilities set out in the Bar Council Spending Review Submission of September 2020. The approximate £2.4bn of investment needed to bring spending on legal aid and the justice system up to 2010 levels is an absolute minimum requirement for achieving a viable, efficient and humane justice system. Technology provision must be ramped up in a coherent and joined up way to maximise its benefit, whilst the policy of selling off court buildings and neglecting those we do have must stop immediately and aggressive steps taken to reverse the decline.

56. The overall court reform programme has so far been an abject failure. Court buildings have been sold off at an extraordinary rate: since 2010 8 Crown Courts and 164 Magistrates Courts have been sold off.[16] Instead of using funds generated to reinvest in remaining court estate, buildings have been left to simply fall apart to the point that many are either not fit for purpose or prone to frequent failures that impact on the administration of justice. Between 2010-2019, spending by HMCTS declined by 25%[17]. Even that figure is slightly misleading because it includes the lump sum allocated specifically for technology rollout, which includes the development of software/digitisation for court use, but none of which applies to the physical court estate. Thus the figure in real terms is 32%.[18]

57. Aside from courts lacking basic hygiene and facilities to host witnesses, members of the public, defendants and practitioners, the neglect affects the running of the system. This is particularly so when taken in combination with the 22% reduction in spending on the prison and probation service over the same period.[19] Prison transport (outsourced to companies such as Serco and G4S) is poor to the point of being a national embarrassment. On a daily basis defendants are not brought to court due to the errors or inefficiencies of prison transport. This means thousands of delayed or adjourned hearings each year. This extends to failures of prison staff to even bring defendants to video link booths within the prison for conferences, meaning matters are further delayed or abandoned. Probation staff are significantly overworked and demand ever longer adjournments to prepare reports (during Covid this has extended to 10 weeks in all custody cases). This means further delay and defendants languishing in prison when they may well be eligible for a community-based punishment.

The impact of covid-19 on legal aid services and clients

Criminal justice

58. The criminal justice system has felt the impact of Covid most acutely of all the areas of legal aid primarily because of the devastating impact it has had on the normal operation of both courts and prisons. The nature of the jury system has meant that trials in the Crown Court are the most difficult of all legal proceedings to carry out in line with public health guidance, owing to the required number of people who must be present in any given case. As a result, the system of jury trials ground to a halt entirely in this country in late March and did not resume for three months. Since that resumption there has a been a very gradual rise in the number of trials taking place but not anywhere near enough to make any impact on the ever-growing backlog. The Government points to the fact that 90% of courts are now hearing jury trials but the issue is how many trials each court centre can manage at any given time. Presently that is a small number relative to capacity.

59. When taken in conjunction with years of underinvestment in the criminal justice system that has taken place since LASPO was introduced in 2012, criminal legal aid provision faces an existential crisis. As the Criminal Bar Association said in its response to the Government’s Criminal Legal Aid Review (part 1) in May of this year, “The financial pressures caused by Covid, together with the cumulative effect of deleterious policies is without exaggeration, the greatest threat the Criminal Bar has ever faced”.[20]

Delay in criminal justice system

60. The backlog of Crown Court trials: as of the week ending 23rd August there were 46,467 outstanding cases in the Crown Court. An increase of 16% since lockdown began and a year on year increase of 29%.[21] Importantly, however, this increase comes on top of an already chronically slow and underperforming system. As the CBA has pointed out in 2010 152, 791 cases took an average of 391 days from start to completion. In 2019 (i.e. before the pandemic) 107,913 cases took an average of 511 days to completion. Thus despite falling demands on the Crown Court, the backlog has increased and the length of time that defendants, possible victims and witnesses have to wait has increased dramatically. The Government decision to cut allocated sitting days in 2019 meant hundreds of courts lay empty whilst the backlog of cases grew. This short-sighted cost cutting exercise, on top of years of underfunding is the reason that Covid has caused delays to spiral out of control.

61. The current situation has destroyed any adherence to the principle that ‘justice delayed is justice denied’. It is the routine experience of practitioners in these chambers that short, legally straightforward cases were being given trial dates as much as a year after the first hearing in the Crown Court, which is already a totally unacceptable length of time. Since the pandemic hit, this has become even more extreme. Cases are now regularly being listed for well into 2022 for those on bail, some in which the first arrests took place a year before even that date was set. For those in custody the wait will have been as much as 18 months – 2 years in many cases by the time they come to trial (and possibly longer in cases with a large number of defendants). That places extraordinary mental and emotional burdens on defendants, victims and witnesses. Self-evidently, it follows that some innocent defendants have to spend enormous amounts of time in prison for no reason.

62. Delay also has enormous ramifications for the financial viability of barristers and solicitors. The primary source of income for criminal legal aid practitioners on both sides of the professions are trials. Aside from very rare cases that are subject to individual contracts with the LAA, barristers and solicitors are paid in fixed fees for criminal cases. Until those cases are completed, either through a guilty plea (or the case is dropped) or through a trial, neither counsel nor their instructing solicitor can be paid. The recent suspension of jury trials followed by the slow increase after resumption has meant that many barristers have seen 50-80% reductions in their earnings this year. After years of fee reductions, with only modest, piecemeal increases or redistribution, that is a simply unsustainable drop in income. As the Bar Council notes in its own response to the legal aid spending review, “Our data shows that, even before the Covid-19 pandemic, a career at the criminal Bar was becoming unviable for all but those with independent means. Publicly funded criminal barristers in the first two years of practice were, in 2019/20, typically earning less than £13,000 pre-tax profit after they had paid essential expenses and memberships." [22] Added to that, a 2018 report by Young Legal Aid Lawyers found that 53% of the junior lawyers who responded earned less than £25,000 per year, while 72% had debt of £15,000 or more as a result of their legal education.[23]

Prison Conditions

63. The effect of Covid restrictions on our clients in custody has been dramatic. Inmates have been subjected to being locked up at least 23 hours a day (or more) for the vast majority of the pandemic. At one stage some prisoners in HMP Wandsworth were getting no more than 20 minutes exercise per week. At the same time rehabilitation and education courses have largely been stopped with some recent, gradual resumption. Family visits have been stopped entirely with limited attempts (inconsistent across the estate) to utilise technology to keep prisoners connected with their loved ones. The effect on prisoner mental health, wellbeing and ultimately rehabilitation cannot be underestimated. Time will tell the true impact of these ongoing restrictions but in our experience the system is facing a crisis of vulnerable and deteriorating individuals, whose chances of rehabilitation (and the positive effect on recidivism that will have) are being destroyed.

Maintaining communications with our clients

64. We have already referred to the difficulty in taking instructions remotely, and the difficulties that our clients have in following Court proceedings conducted remotely, and in giving instructions to their legal representative during the hearing.

65. In prisons, in person legal visits have been stopped entirely since April. This has had a serious effect on case preparation, adding yet another barrier to trials coming before the courts. The position is extremely uneven across the various establishments. Some prisons, such as HMP Wandsworth have fairly good procedures for video-link (PVL) legal visits and minimal waiting times. Others, however, such as Wormwood Scrubs have an appalling backlog. It is often taking as long as four months to get a one-hour visit with a client. This makes trial preparation simply impossible and further robs those in custody of any meaningful contact with the outside world. It is important to remember that here we are talking about remand prisoners i.e. those who have not actually been convicted.

66. The closure of care homes, residential placements and psychiatric hospitals have hugely reduced the access that residents have to the regular advocacy services which assist with challenges to deprivation of liberty or detention.

67. For all practitioners, the fewer opportunities for face-to-face contact with our clients is detrimental. Complex situations are not so easily explained or understood through virtual communication. Virtual communication, particularly telephone communication, can be very stressful for both our clients and ourselves and therefore affect the standard of services provided.

The challenges for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere

68. Legal Aid is at a critical point in its history and its future is beyond being described as a “crisis”. It needs urgent significant additional funding if it is to survive. It is our experience that Legal Aid has been under threat, diminished and denuded over a number of years under different governments and it is now at the cliff edge of sustainability.

69. Lawyers and advisers should be funded, through the public purse, to provide early, holistic expert advice, so as to resolve problems at an early stage (thus saving public resources and achieving a quick outcome).  Legal aid should fund advice services located so that potential clients can easily obtain advice, such as in hospitals, care homes and on the High Street Speedy access to high quality advice for those in a situation of imprisonment or detention is a vital safeguard and necessary to comply with the common law and Article 5(4) ECHR.

70. Immediate action should be taken to remedy the breaches of s 20 and 29 of the Equality Act 2010, found by the Court of Appeal in VC v Secretary of State for the Home Department [24] in 2018, for those who are detained under Immigration Act powers who lack mental capacity and who need assistance to access expert lawyers to challenge the legality of their detention or the conditions of detention. 

71. The scope of legal aid should be increased to include all immigration, family, housing, prison and welfare benefits work, representation in asylum support tribunals, as well as the provision of early advice. Reg 5A Civil Legal Aid (Remuneration) Regulations should be abolished, so that the only filter on legal aid for judicial review claims is the merits criteria test. It is also our view that the financial thresholds for eligibility for access to legal aid are set at too low a level.

72. We are frankly extremely concerned that good quality professionals will not be recruited into, or retained in, the legal aid sector. The numbers of legal aid practitioners, solicitors firms, barristers’ chambers and advice agencies will continue to decline, thus increasing legal aid deserts. As a result, those who cannot afford to pay lawyers privately (the majority of the population) will be deprived of access to justice, will be subject to punitive actions such as evictions which could have been avoided with legal advice and legal representation, and wrong decision-making by public authorities will not be challenged. Depriving those with legal problems of access to advice and representation has economic consequences as well as social costs. This is especially true given the social and economic impact of the Covid 19 pandemic.

73. The most significant challenge facing criminal legal aid over the next decade will be retaining and recruiting a sufficient number and quality of practitioners. Spending on the Legal Aid Agency has declined 37% since 2010.[25] Despite the changes (accelerated asks) arising from the Criminal Legal aid Spending Review (Part 1), there has only been the most modest increase in fees for the criminal Bar coming on the back of 20 years of cuts. The early phase of any legal aid barrister’s career is now so financially precarious that it is hard to see how those without independent means are supposed to survive practice at the criminal bar. Criminal law has been the area that has made the greatest strides in terms of diversity of recruitment in recent years, but given the perilous financial state of most juniors in their first three years of practice, retention in crime is very difficult. The brightest and the best undoubtedly want to do this job but the grim financial realities mean fewer and fewer profess a desire to practice in crime, and those that do are often forced out of the profession due to financial pressure. The Criminal Bar in the UK has an internationally highly respected reputation and is symbolic of the fairness of the justice system in the UK and commitment to the rule of law.

74. Some of the most poorly paid areas of criminal work are youth court cases involving child defendants. The failure to properly remunerate this area of work, improve its status and ensure lawyers representing children have specialist knowledge and expertise means that children are not always adequately represented[26] and the profession is not retaining skilled, specialist lawyers. There is no mandatory requirement for children to be represented by lawyers who have specialist knowledge and expertise. 

75. Many years of cuts have also meant that the quality of representation by solicitors firms has decreased significantly. Legal aid work has become so unprofitable that many experienced and committed practitioners have left and those that remain are far less likely to be replaced than would have been the case 20 years ago. Ultimately, this damages the quality of justice. At the same time that digital material has increased the volume of work required in the majority of cases, the resources to handle it have been gradually whittled away.

76. It is our evidence that the only solution is to restore funding in the criminal justice system to 2010 levels immediately whilst implementing a programme of capital investment to restore facilities to a level that does not require the sorts of emergency funding we have seen recently simply to keep buildings from collapsing. Defendants, victims and the public deserve a system that functions efficiently and fairly and is staffed by people who represent the full cross section of society. None of which we currently have.

77. It is our experience, and indeed self–evident, that those who require the assistance of a publicly funded lawyer  disproportionately fall within protected groups (under the Equality Act 2010) who experience disadvantage in society arising from structural discrimination in particular based on sex, race, and/or disability. These protected groups are also more likely to need the assistance of lawyers to defend them against state action, to access vital public services and/or to vindicate their fundamental rights. Lack of any or adequate provision of publicly funded legal services in our experience inevitably compounds structural discrimination within the legal system and society at large. This has serious implications for equal access to justice and for the opportunities to challenge institutional discrimination particularly relating to women, to those who are black or have another racial or ethnic origin or people who have a disability.  It is therefore vital that this review is accompanied by a comprehensive equality impact assessment in compliance with the duty under s 149 of the Equality Act 2010.             

78. We note the increased availability of Alternative Dispute Resolutions. Garden Court Chambers contains a number of barristers who are trained mediators. Mediation has been promoted as a method of litigants resolving their disputes early, thus relieving pressure on the courts. The impact of mediation as a standalone solution is blunt in the absence of sound legal advice. In order for litigants to see the value of engaging in mediation and arriving at a sustainable settlement, they need skilled advice. Where litigants engage in mediation without independent legal advice, we find that they have unrealistic expectations of both mediation and litigation which are difficult to check at the mediation stage and, as a result, the mediation is more likely to fail. Litigants who are represented in mediation achieve significantly higher settlement rates than those who are not. We recommend that legal aid continues to be available for litigants to be represented in mediation, and that the scope of legal aid should be expanded.

79. We are also concerned at the undermining of lawyers and the rule of law in recent statements by the Prime Minister, the Home Secretary and other politicians. Lawyers, and their staff, should be permitted to do their work, which is always underpinned by their duty to the courts and their professional obligations, without fear of political or physical attack. That a climate of hostility is being created in which safety is at risk is deplorable. It is a major threat to our justice system and the rule of law.

Judy Khan QC
Stephanie Harrison QC

Liz Davies
(For and on behalf of Garden Court Chambers)
19 October 2020

[1] https://www.lawsociety.org.uk/en/campaigns/legal-aid-deserts

[2] [2020] EWCA Civ 51, [2020] 1 W.L.R. 1546, CA

[3] Parliamentary Joint Committee on Human Rights: Enforcing Human Rights, Tenth report of session 2017–19, Cm 9703, September 2018; and Immigration Detention, Sixteenth report of Session 2017-19, February 2019; see also Immigration Detention, Government Response, Second Special Report of Session 2019-2020 October 2019.

[4] Immigration Detention, Sixteenth report of Session 2017-19, February 2019, para 46.

[5] [2018] EWCA Civ 57

[6] R (C) v FTT and Others [2016] EWHC 707 (Admin)

[7] Citizens’ Advice (July 2010) Towards a business case for legal aid: Paper to the Legal Services Research Centre’s eighth international research conference.

[8] Law Centres Network, September 2018, LASPO Act 2012 Post-Implementation Review.

[9] The merits test is at Regs 39 and 53 of the Civil Legal Aid (Merits Criteria) Regulations 2013 and requires that legal aid will only be granted in cases of judicial review where the following are satisfied: the individual does not have access to other sources of legal funding, the case is not suitable for a conditional fee agreement, there is no person other than the individual who can reasonably be expected to bring the proceedings, the individual has exhausted all reasonable alternatives to the bringing of proceedings including any complaints scheme, Ombudsman scheme or alternative dispute resolution, there is a need for representation in the light of all the circumstances of the case, the act or omission appears to be susceptible to challenge and there are no alternative proceedings available to challenge the act or omission.

[10] [2019] UKSC 28 | [2019] 4 All E.R. 773, SC

[11] See her solicitors’ account at http://www.communitylawpartnership.co.uk/news/terryann-samuels-the-long-road-to-the-supreme-court-struggles-with-the-legal-aid-agency

[12] [2019] EWCA Civ 1331

[13] Legal aid deserts and a culture of refusal, The Justice Gap https://www.thejusticegap.com/legal-aid-deserts-and-a-culture-of-refusal/ and Homelessness lawyers complain of legal aid ‘culture of refusal’, The Guardian https://www.theguardian.com/law/2019/jun/26/homelessness-lawyers-complain-of-legal-aid-culture-of-refusal LAPG Survey https://www.lag.org.uk/article/207718/a-survey-from-the-legal-aid-practitioners-group-puts-legal-aid-agency-decision-making-in-the-spotlight

[14] Bar Council Spending Review Submission September 2020: https://www.barcouncil.org.uk/resource/bar-council-spending-review-submission-september-2020-pdf.html

[15] Rapid Consultation: the impact of Covid 19 on the civil justice system, Garden Court Chambers, 15 May 2020: https://www.gardencourtchambers.co.uk/coronavirus-legal-news-views/rapid-consultation-the-impact-of-covid-19-measures-on-the-civil-justice-system

[16] https://www.barcouncil.org.uk/resource/bar-council-spending-review-submission-september-2020-pdf.html, p.4

[17] https://www.barcouncil.org.uk/resource/small-change-for-justice-report-2020-pdf.html

[18] https://www.barcouncil.org.uk/resource/bar-council-spending-review-submission-september-2020-pdf.html, p.4

[19] https://www.barcouncil.org.uk/resource/small-change-for-justice-report-2020-pdf.html, p.3

[20] https://www.criminalbar.com/wp-content/uploads/2020/05/CBA-consultation-Response-CLAR-29.05.20.pdf

[21] https://www.lawgazette.co.uk/news/new-figures-show-criminal-court-backlog-has-surged-past-500000/5105614.article

[22] https://www.barcouncil.org.uk/resource/bar-council-spending-review-submission-september-2020-pdf.html

[23] http://www.younglegalaidlawyers.org/sites/default/files/Soc%20Mob%20Report%20-%20edited.pdf

[24] [2018] EWCA Civ 57

[25] https://www.barcouncil.org.uk/resource/small-change-for-justice-report-2020-pdf.html, p.3

[26] Youth Proceedings Advocacy Review, Bar Standards Board (BSB) and the Chartered Institute of Legal Executives (CILEx), 2015

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