The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 has been highly controversial since its new schemes and amendments have come to light. The governmental justifications for the legal aid reductions explain the need for reforms in the UK. An overview of the post-funding changes and criteria of entitlements to legal aid highlights the issues of the right of access to court, gender inequality and the challenges facing the legal profession, from a justice perspective. Currently, the courts have found that the cuts were not always lawful. Certain landmark cases illustrated the incompatibility of the cuts with the European Convention on Human Rights and the Equality Act 2010 in respect of the principles of equality of arms and discrimination. These violations place the most vulnerable people at a disadvantage and at a risk of further poverty; yet a vast majority has been left in the invisible light spectrum, widening social divergence and conflicting with the government’s objectives of targeting legal aid to those in desperate need.
2. Legal Aid, Sentencing and Punishment of Offenders Act 2012, Schedule 1. The changes meant several types of case were no longer within the scope of public funding and excluded areas including housing and debt cases; employment cases; most welfare benefits; immigration cases and large area of private law family cases except in very limited circumstances. See also: Equality and Human Rights Commission, ‘Mid-term universal periodic review report’ (2014) <https://www.equalityhumanrights.com/sites/default/files/upr_midterm_report_ehrcfinal210814_web.pdf> accessed 28 November 2016.
3. The four objectives are making significant savings in the cost of the scheme; delivering better overall value for money the taxpayer; targeting legal aid to those who need it most; and discouraging unnecessary and adversarial litigation at public expense. See: HM Government, ‘Proposals for the reform of legal aid in England and wales’ (2010) paras 1.3–1.4, 2.12–2.24 <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228970/7967.pdf> accessed 28 November 2016.
4. Clinical negligence cases (except certain cases involving neurological injury to infants); Employment cases (except those under the Equality Act 2010 or in relation to victims of human trafficking); Private family law cases, such as divorce and child contact (except cases involving domestic violence, child abuse or abduction); Housing disputes (except where there is serious disrepair, homelessness or anti-social behaviour); Debt (except where there is a risk of homelessness); Immigration (except cases involving detention and refugee claims); Education (except special needs cases) and Welfare benefits claims (except appeals to the Upper Tribunal or higher courts).
5. Ministry of Justice, ‘Government response to justice committee’s eighth report of session 2014–15: Impact of changes to civil legal aid under part 1 of the legal aid, sentencing and punishment of offenders act 2012’ (2015) p.13 <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/444939/response-to-justice-committee.pdf> accessed 28 November 2016.
6. The Supreme Court (UKSC), ‘Lord Neuberger at justice – Tom Sargant memorial lecture 2013’ (2013) <https://www.supremecourt.uk/docs/speech-131015.pdf> accessed 28 November 2016.
7. Around 420,000 fewer legal assisted cases were received and 45,500 fewer legal aid were granted for representation in court; see: Ministry of Justice, ‘Legal aid statistics in England and wales 2013 to 2014’ (2014).
8. Committee on the Elimination of Discrimination against Women, ‘Committee on the elimination of discrimination against women’ (2015) <http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_Global/CEDAW_C_GC_33_7767_E.pdf> accessed 28 November 2016.
9. Ruth Lupton and others, ‘Social Policy In A Cold Climate’ (2015) <http://www.nuffieldfoundation.org/sites/default/files/files/RR04_SUMMARY.pdf> accessed 31 March 2017.
10. Lupton.
11. The UK Parliament, ‘Lords Hansard Text For 25 Feb 2014 (Pt 0002)’ (Publications.parliament.uk, 2014). <https://www.publications.parliament.uk/pa/ld201314/ldhansrd/text/140225-0002.htm> accessed 31 March 2017.
12. Lupton.
13. Ibid
14. Terry McGuinness, ‘Changes To Criminal Legal Aid’ (Researchbriefings.parliament.uk, 2017). <http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06628> accessed 31 March 2017.
15. House of Commons Justice Committee, ‘Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012’ (2015) HC 311.
16. Amnesty International, ‘Cuts that hurt: the impact of legal aid cuts in England on access to justice’ (2016) <https://www.amnesty.org.uk/files/aiuk_legal_aid_report.pdf> accessed 28 November 2016.
17. Rights of Women, ‘Access to family law legal advice: women’s experiences before and after LASPO’ (2016) <https://rightsofwomen.org.uk/wp-content/uploads/2014/10/Research-report-2016.pdf> accessed 28 November 2016.
18. Bar Council, ‘LASPO 4 years on: LASPO – reform of legal aid’ (2016) <https://www.barcouncil.org.uk/media/508875/laspo_4_years_on_-_bar_council.pdf> accessed 28 November 2016.
19. Transform Justice, ‘Justice Denied? The experience of unrepresented defendants in the criminal courts’ (2016) <http://www.transformjustice.org.uk/wp-content/uploads/2016/04/TJ-April-2016.pdf> accessed 28 November 2016.
20. Joint Committee on Human Rights, ‘The implications for access to justice of the Government’s proposals to reform legal aid’ (2013) HL Paper 100, HC 766.
21. EHRC, ‘England and Wales: Legal aid reforms’ (2013) <https://www.equalityhumanrights.com/en/legal-aid-reforms> accessed 28 November 2016.
22. House of Commons Library, ‘Legal aid: the single fee for guilty pleas’ (2014) SN/HA/6831.
23. The Law Society, ‘Access Denied? LASPO four years on: Law Society Review’ (2017) <https://www.lawsociety.org.uk/topics/research/access-denied-laspo-4-years-on> accessed 31 March 2017.
24. House of Commons Justice Committee (n 15).
25. Public Law Project, ‘The impact of legal aid cuts on access to justice’ (2014) <http://www.publiclawproject.org.uk/resources/199/the-impact-of-legal-aid-cuts-on-access-to-justice> accessed 31 March 2017.
26. Ministry of Justice, ‘Post-Implementation Review of Part 1 of LASPO’ (2019).
27. JUSTICE, ‘Delivering Justice in an Age of Austerity’ (2015) <https://justice.org.uk/delivering-justice-in-an-age-of-austerity/> accessed 31 March 2017.
28. The Low Commission, ‘Tackling the Advice Deficit: A strategy for access to advice and legal support on social welfare law in England and Wales’ (2014).
29. Ibid.
30. Ibid.
31. Bar Council (n 18).
32. Citizens Advice, ‘Access Denied? CAB evidence on the impact of legal aid cuts’ (2015).
33. The Law Society (n 23).
34. Amnesty International (n 16).
35. Transform Justice (n 19).
36. Rights of Women (n 17).
37. JUSTICE (n 27).
38. The Low Commission (n 28).
39. Ministry of Justice (n 26).
40. House of Commons Library (n 22).
41. McGuinness (n 14).
42. House of Commons Justice Committee (n 15).
43. Public Law Project (n 25).
44. Bar Council (n 18).
45. Joint Committee on Human Rights (n 20).
46. EHRC (n 21).
47. House of Commons Library (n 22).
48. Law Society (n 23).
49. House of Commons Justice Committee (n 15).
50. Ministry of Justice (n 26).
51. Rights of Women (n 17).
52. Transform Justice (n 19).
53. Citizens Advice (n 32).
54. JUSTICE (n 27).
55. Bar Council (n 18).
56. Public Law Project (n 25).
57. The Low Commission (n 28).
58. Amnesty International (n 16).
59. House of Commons Library (n 22).
60. EHRC (n 21).
61. Law Society (n 23).
62. Joint Committee on Human Rights (n 20).
63. Ministry of Justice (n 26).
64. House of Commons Justice Committee (n 15).
65. Citizens Advice (n 32).
66. McGuinness (n 14).
67. Owen Bowcott, ‘Legal Aid Cuts: Lawyers To Begin Boycott That Could See Courts Grind To A Halt’ (the Guardian, 2015) <https://www.theguardian.com/law/2015/jun/30/criminal-lawyers-promise-boycott-legal-aid-cases-lower-rate> accessed 31 March 2017.
68. Halsbury’s Law Exchange, ‘A State Of The Nation Report On Legal Aid: Can We Safeguard Access To Justice?’ (2016) <http://www.halsburyslawexchange.co.uk/wp-content/uploads/sites/25/2016/09/SA-0916-016-HLE-Event-Access-to-Justice-Paper-Final-1.pdf> accessed 31 March 2017.
69. Owen Bowcott, ‘Legal Aid Cuts ‘Will Create Advice Deserts’ (the Guardian, 2013) <https://www.theguardian.com/law/2013/apr/01/legal-aid-cuts> accessed 31 March 2017.
70. Access To Justice For Litigants In Person (Or Self-Represented Litigants)’ (Civil Justice Council 2011) <https://www.judiciary.gov.uk/wp-content/uploads/2014/05/report-on-access-to-justice-for-litigants-in-person-nov2011.pdf> accessed 31 March 2017.
71. Ibid.
72. Flynn.
73. Shackle.
74. Bowcott and Moss.
75. Shackle.
76. Richard Goldberg, ‘Reforming the costs of civil litigation in England and wales: implications of the Jackson report for the costs of clinical negligence and the ministry of justice reform of legal aid’ (2012) 87(1) (156–161) Chicago-Kent Law Review 159.
77. Flynn.
78. ‘Legal Aid: What Is It And Why All The Fuss About It?’ (Bbc.co.uk, 2015) <http://www.bbc.co.uk/newsbeat/article/33712373/legal-aid-what-is-it-and-why-all-the-fuss-about-it> accessed 31 March 2017.
79. LSE Commission on Gender, Inequality and Power, ‘Confronting Gender Inequality: Findings From The LSE Commission On Gender, Inequality and Power’ (The London School of Economics and Political Science 2015) p.5 <http://www.lse.ac.uk/genderInstitute/pdf/Confronting-Inequality.pdf> accessed 28 November 2016.
80. Middlesex University London, ‘Report reveals mental health cost of legal aid cuts’ (2015) <http://www.mdx.ac.uk/news/2015/10/report-reveals-mental-health-cost-of-legal-aid-cuts> accessed 28 November 2016.
81. Equality and Human Rights Commission, ‘Legal aid reforms and women’s access to justice: Shadow Report to the United Nations Committee on the Elimination of Discrimination against Women: Follow-up procedure’ (2016) <https://www.equalityhumanrights.com/en/file/14126/download?token=At0KL7uh>
82. The UK Government’s Equality Impact Assessment notes that housing clients are more likely to be women than the adult population as 61 per cent compared with 51 per cent of the population. See: Ministry of Justice, ‘Reform of legal aid in England and wales: Equality impact assessment (EIA)’ (Ministry of Justice 2011) accessed 28 November 2016 paras 2.81–2.82.
83. ONS statistics indicate that women are the petitioners in 65 per cent of divorce proceedings. See: Office of National Statistics (2014), Divorces in England and Wales 2012. Available at: <http://www.ons.gov.uk/ons/taxonomy/index.html?nscl=Divorces> [Accessed 1 May 2016].
84. The Public Sector Equality Duty requires a public authority to have due regard to the need to: eliminate discrimination, harassment and victimisation; advance equality of opportunity of, and foster good relations between, persons who share a protected characteristic and persons who do not share it. See: Equality Act 2010, s 149(1).
85. A new provision requiring applicants for legal aid in family violence proceedings to provide specific evidence that they have suffered domestic violence within the past two years under Regulation 33 was amended by The Civil Legal Aid (Procedure) (Amendment) Regulations 2014.
86. See: Welsh Women’s Aid, Rights of Women and Women’s Aid, ‘Evidencing domestic violence: Reviewing the amended regulations’ (Rights of Women 2014) <http://rightsofwomen.org.uk/wp-content/uploads/2014/12/Evidencing-domestic-violence-IV.pdf> accessed 28 November 2016.
87. Ibid. See: The Law Society, ‘Law society response to the ministerial statement on civil legal aid – the Law Society’ (22 April 2016) <http://www.lawsociety.org.uk/news/press-releases/law-society-press-release-in-response-to-the-ministerial-statement-on-civil-legal-aid/> accessed 28 November 2016.
88. Committee on the Elimination of Discrimination against Women, ‘Convention on the Elimination of All Forms of Discrimination against Women’ (CEDAW/C/GC/33, 2015) <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/GC/33&Lang=en> accessed 28 November 2016.
89. Ibid. Article 2(c) of CEDAW requires states to ‘establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination’. See also: Rights of Women, ‘High court to decide whether victims of domestic violence should have access to legal aid – 12 December 2014’ (The Law Society, 2014) <http://rightsofwomen.org.uk/media/high-court-decide-whether-victims-domestic-violence-access-legal-aid-12-december-2014/> accessed 28 November 2016.
90. The test would have the effect of excluding from the scope of legal aid people who have not been in the UK for a ‘continuous period of 12 months’ by showing their passports and utility bills.
91. R (Rights of Women) v Secretary of State for Justice [2016] EWCA Civ 91.
92. See: LASPO s 27 and is governed by Part 2 of the civil legal aid (procedure) regulations 2012, regulations 16–20.
93. [Reference missing or placeholder]
94. Legal Aid Agency p.16; Ben Hickman and David Oldfield, ‘Keys to the Gateway: An Independent Review of the Mandatory Civil Legal Advice Gateway’ (Public Law Project, 2015) <http://www.publiclawproject.org.uk/data/resources/199/Keys-to-the-Gateway-An-Independent-Review-of-the-Mandatory-CLA-Gateway.pdf> accessed 28 November 2016.
95. Catherine Baksi, ‘Calls to rethink telephone gateway for civil legal aid’ (The Law Society, 2011) <http://www.lawgazette.co.uk/news/calls-to-rethink-telephone-gateway-for-civil-legal-aid/58693.fullarticle> accessed 28 November 2016.
96. Equality and Human Rights Commission (EHRC), ‘Human Rights Review’ (EHRC 2012) <https://www.equalityhumanrights.com/sites/default/files/ehrc_hrr_full_v1.pdf> accessed 28 November 2016.
97. Direct discrimination is defined in section 13(1) of the EA 2010. See: Ministry of Justice, ‘Proposals for the Reform of Legal Aid in England and Wales: Provision of telephone advice’ (2011) <http://webarchive.nationalarchives.gov.uk/20111121205348/http:/www.justice.gov.uk/downloads/consultations/eia-telephone-advice.pdf> accessed 28 November 2016.
98. Justice Committee – Additional (Unprinted) Written Evidence: Written Evidence from Community Links. <http://www.publications.parliament.uk/pa/cm201011/cmselect/cmjust/681/681vw18.htm> accessed 1 May 2016.
99. See also: Nigel J. Balmer and others, ‘Just a phone call away: Is telephone advice enough?’ (2012) 34(1) Journal of Social Welfare and Family Law 63–85.
100. Section 9 LASPO allows for civil legal aid to be provided (subject to a means and merits test) only in cases which are listed in Part 1 Schedule 1, and is not available if it is not listed in Part 1.
101. The Means test takes account of the accused person’s income and capital that must be within specified limits.
102. The Civil Legal Aid (Merits Criteria) Regulations 2013.
103. IS v Director of Legal Aid Casework and another [2015] EWHC 1965 (Admin).
104. Administrative Justice and Tribunals Council, ‘Administrative justice and tribunals council (AJTC) response to the ministry of justice consultation document proposals for the reform of legal aid in England and wales, CP 12/10’ (CP 12/10 2011) <http://ajtc.justice.gov.uk/docs/Legal_Aid_Response.pdf> accessed 28 November 2016.
105. Command of Her Majesty and the Lord Chancellor and Secretary of State for Justice, ‘Government response to justice committee’s eighth report of session 2014–15: Impact of changes to civil legal aid under part 1 of the legal aid, sentencing and punishment of offenders act 2012’ (Ministry of Justice 2015) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/444939/response-to-justice-committee.pdf> accessed 28 November 2016.
106. Client Earth, ‘Making court costs reasonable in the UK in environmental cases ClientEarth consultation response – proposals for reform of civil litigation funding and costs in England and wales: Implementation of lord justice Jackson’s recommendations’ (2011) <https://www.unece.org/fileadmin/DAM/env/pp/compliance/C2008-33/correspondence/7%20Jan%202011%20follow%20up/frClientEarth15.03.2011/ClientEarthJacksonConsultationResponseFinal.pdf> accessed 29 November 2016.
107. LASPO 2012, s 10.
108. Ravi Mehta, Michael Fordham, and Ben Jaffeya, ‘Response to Transforming Legal Aid proposals’ (2013) 18(3) Judicial Review Journal 80. See also: Re H [2014] EWFC 127; R (Gudanaviciene) v The Lord Chancellor [2014] EWCA (Civ).
109. Since the inception of the scheme, there have been very few applications, and a poor success rate Government estimates of 5,000 and 7,000 applications for exceptional funding in the first year have not been borne out. In 2013/14, 1,520 applications were made for exceptional funding; 69 of these were granted, of which 53 were inquest cases: Legal aid statistics 2013–2014 Legal aid statistics in England and Wales; Legal Aid Agency, 2013–2014.
110. Commons Select Committee. See: Joint Committee on Human Rights (2013), The implications for access to justice of the Government’s proposals to reform legal aid, Seventh Report of Session 2013-2014, para 140. Available at: http://www.publications.parliament.uk/pa/jt201314/jtselect/jtrights/100/10002.htm [Accessed 2 May 2016].
111. Gudanaviciene v Director of Legal Aid Casework and Others [2014] All ER (D) 123. Also see: R (Letts) v Lord Chancellor [2015] EWHC 402 (Admin). Green J held that the guidance was unlawful, where there was an ‘arguable breach of ECHR article 2.’
112. Joint Select Committees, ‘Human Rights Joint Committee – Seventh Report The implications for access to justice of the Government’s proposals to reform legal aid’ (UK Parliament, 11 December 2013) <http://www.publications.parliament.uk/pa/jt201314/jtselect/jtrights/100/10002.htm> accessed 28 November 2016. See also: Re H [2014] EWFC 127; R (Gudanaviciene) v The Lord Chancellor [2014] EWCA (Civ).
113. JG (a child) v Legal Services Commission & KG, SG, the Law Society and the Secretary of State for Justice [2014] EWCA Civ 656, para 45; also see M v Director of Legal Aid Casework [2014] EWHC 1354 (Admin) para 71.
114. IS – v- (1) Director of Legal Aid Casework (2) Lord Chancellor [2015] EWHC 1965 (Admin).
115. The test would have the effect of excluding from the scope of people who have not been in the UK for a ‘continuous period of 12 months’.
116. Public Law Project v The Lord Chancellor [2015] EWCA Civ 1193.
117. Whilst there are some exceptions to the residence test, many at risk groups may still be unable to satisfy the test, such as unaccompanied migrant children who are disabled and asylum seekers. See: David Smith, ‘Immigration Bill: Written evidence’ (Authority of the House of Commons London – the Stationery Office Limited 2015) <http://www.publications.parliament.uk/pa/cm201516/cmpublic/immigration/memo/immigrationconsolidated.pdf> accessed 28 November 2016.
118. Public Law Project v The Lord Chancellor [2015] EWCA Civ 1193 [45].
119. R. (Public Law Project) v Lord Chancellor [2016] UKSC 39.
120. For example, the UK residents who were kept out of the country as victims of unlawful detention abroad: R. (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65. See also: House of Lords, ‘Criminal Justice and Courts Bill 2014: Briefing in support of amendments relating to judicial review’ (21 October 2014) <https://webcache.googleusercontent.com/search?q=cache:DZ3GWpw2TVYJ:https://www.equalityhumanrights.com/en/file/14531/download%3Ftoken%3D8VgsSksu+&cd=1&hl=en&ct=clnk&gl=uk> accessed 28 November 2016.
121. Equality and Human Rights Commission, ‘Equality and Human Rights Commission Submission to the United Nations Human Rights Committee Pre-Sessional Working Group on the United Kingdom’s Implementation of the International Covenant on Civil and Political Rights.’ (2013).
122. Mental impairment includes learning disorder/disability, mental health and mobility impairment.
123. Ben Politowski and Gabrielle Garton Grimwood, ‘Access to justice for vulnerable people – commons library briefing – UK parliament’ (UK Parliament, 15 January 2016) <http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CDP-2016-0013> accessed 28 November 2016.
124. Commons Select Committees, ‘Justice – Eighth Report Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012’ (The Stationery Office 2015) <http://www.publications.parliament.uk/pa/cm201415/cmselect/cmjust/311/31106.htm> accessed 29 November 2016. A poor success rate was shown. Government estimated that there would be approximately 5,000–7,000 applications for exceptional funding in the first year. Yet there were only 69 out of 1,520 applications made in 2013/14.
125. Equality and Human Rights Commission, ‘Meeting the Equality Duty in Policy and Decision-Making England (and non-devolved public authorities in Scotland and Wales)’ (2014) <http://www.equalityhumanrights.com/sites/default/files/publication_pdf/Meeting%20the%20duty%20in%20policy%20and%20decision-making.pdf> accessed 28 November 2016.
126. Kalwinder Sandhu and Mary-Ann Stephenson, ‘Layers of inequality—a human rights and equality impact assessment of the public spending cuts on black asian and minority ethnic women in Coventry’ (2015) 109(1) Feminist Review 169–179.
127. UN Human Rights Committee (HRC), ‘Concluding Observations On The Seventh Periodic Report Of The United Kingdom Of Great Britain And Northern Ireland’ (Human Rights Committee 2015) <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fGBR%2fCO%2f7&Lang=en> accessed 31 March 2017.
128. See Q v Q [2014] EWFC 31.
129. Other American States are planning to adopt the same or similar rules in their own jurisdiction. See: Advisory Committee on New York State Pro Bono Bar Admission Requirements, ‘Report to the Chief Judge of the State of New York and the Presiding Justices of the Four Appellate Division Departments’ (2012) <http://www.nycourts.gov/attorneys/probono/probonobaradmissionreport.pdf> accessed 28 November 2016.
130. John Corker, ‘The Role for International Pro Bono Work by Lawyers in Addressing the Social Impact of the Global Financial Crisis’ in Peter D Maynard and Neil Gold (eds), Poverty, Justice and the Rule of Law: the Report of the Second Phase of the IBA Presidential Taskforce on the Global Financial Crisis (International Bar Association 2013).
131. The Low Commission.
132. Legal Aid Practitioners Group, ‘Manifesto for Legal Aid’ (2015) <http://lapg.co.uk/wp-content/uploads/2015/03/40163_Manifesto_Final_WEB.pdf> accessed 28 November 2016.
133. Ministry of Justice p.20.
134. Ibid.
1 LLB, Sussex Law School, University of Sussex.
(2017). The Underprivileged See No light in LASPO Act 2012. Legal issues Journal, 5 (2), https://www.legalissuesjournal.com/article/05-02-13072017/
