“People don`t tend to think about the justice system until they`re trapped in it,” Miller agrees. “The problem, of course, is that it`s so fundamental. Without a functioning judicial system, there is no rule of law – it is only the rule that is most powerful. That shows how important it is to all aspects of the life of this country, but unfortunately it is not recognized by the public and that is why the government is not giving it the profile and priority that it probably needs. After 2010, the largest percentage of the cuts were for legal aid and the budget of the CPS, the latter of which falls under my jurisdiction as Attorney General. The CPS, led by Keir Starmer, has responded very well to streamlining its operations and maintaining conviction rates, supported by an unexpected drop in the number of court cases. Family, benefits and labour law have been the main victims of the cuts. Because they cannot afford legal representation, many people have no choice but to represent themselves in court. This continues to put pressure on the justice system, says Lucy Scott-Moncrieff, president of the Law Society of England and Wales from 2012 to 2013 and a former advisory board member of the IBA`s Access to Justice and Legal Aid Committee.
“The courts were designed to represent people,” she says. “The increase in the number of in-person litigants means that cases often take much longer and the outcome is less likely to be fair, no matter how hard everyone tries. Judges, court staff and everyone else are doing their best, but our system still hasn`t been designed to work that way, and – surprise, surprise – it doesn`t work that way. This begs the question: why have we not learned the lessons of the past and why do we see such injustices repeated over and over again? There are mechanisms to help people who are struggling. For example, under Exceptional Case Funding (ECF), a person can apply for legal aid even if their case does not automatically fall within the scope of LASPO. However, Hilsenrath says the system is not working effectively. “The number of applications accepted through the VDR has been significantly lower than anticipated, the application process is cumbersome and complex, and the process for processing urgent cases needs to be improved,” she says. At the time, the honourable Member reported, it was 20 years after Sir William Macpherson`s report, which was drawn up following an inquiry into the mismanagement of the inquiry into the murder of black teenager Stephen Lawrence. The report concluded that “institutional racism” had been found in the city`s police departments and that other institutions, including the criminal justice system, had collectively failed to identify and protect Black, Asian and other vulnerable ethnic groups within the system. According to Miller, the inability of successive governments to increase legal aid rates has increasingly weighed on the profession. “There are still a lot of dedicated lawyers and legal centres doing everything they can to make the system work,” he says.
“A lot of lawyers in big city law firms do pro bono work – the problem is that it`s a drop in the bucket compared to the need. There is a limit to the work you can do, whether for free or for desperately low pay. Morale within the profession is very low. More and more lawyers believe that there is no viable future in legal aid work and are therefore looking for other career paths. It also means that for those who stay in the system and try to make it work, the pressure becomes greater and greater. Race relations between the Black community and our justice system have always been strained. It seems like little has changed in the last 20 years, which is disappointing because we know that racism is learned rather than part of our DNA. The UK has a system that ensures that the ruling party remains within the law and does not violate our fundamental rights. While many people need access to lawyers, the cost of having a lawyer can often be financially heavy – and this is where legal aid is often needed. Unfortunately, access to justice has been severely affected by legal aid budget cuts, which have led to a reduction in the overall budget of about 40% over the last ten years. A decade of austerity has diverted vital funds from the UK`s most important public services – from health and education to welfare.
Equally worrying is the dramatic impact of the drastic cuts on the country`s judicial system. The Department of Justice has faced the biggest budget cuts of any department in recent years, forcing the closure of 295 courthouses in England and Wales. In December, TheCityUK, which represents the professional services sector, reported that revenue from legal activities increased by six per cent to £35.5 billion in 2018. However, as other dispute resolution centres around the world compete with each other, Atkins believes it is important that tribunals continue to be adequately funded. “If people start to feel like the law in England and Wales is not quite the gold standard it used to be because they hear about cuts to legal aid or Crown courts not sitting because the roof has collapsed or leaked, it will have a domino effect,” Says. “People will start thinking about using other jurisdictions. Once they do that and revenues start to go down, we`ll be in a worse situation. It is important that we maintain a high-quality justice system because it has all kinds of advantages.
The impact of recent cuts has been staggering, agrees Professor Dame Hazel Genn, director of the Centre for Access to Justice at University College London. However, he argues that the decline of legal aid began long before LASPO came into force. “In the late 1990s, the rotting legal aid began,” says Dame Genn. “Before the 1999 Access to Justice Act, there was a brutal campaign against `bigwig lawyers` who made a huge amount of money from legal aid. This completely changed the discourse on legal aid, so that it was seen as a benefit for lawyers and not as a protection for vulnerable and socially excluded people. It is sometimes argued that the cost of our common law justice system has become excessive by the standards of Western civil law democracies. However, this is not supported by the evidence: in 2016, the Netherlands spent €689 (£585) per capita on justice and Denmark €338, compared to €150 here. In September 2019, the IBA, in collaboration with the World Bank, published A Tool for Justice: The Cost Benefit Analysis of Legal Aid, which examines how legal aid not only benefits individuals and corporations, but also saves public spending in other areas.
Scott-Moncrieff, who led the IBA on the project, says the long-term benefits of legal aid funding are indisputable: “The government needs to invest more money in legal aid. I do not know how they do it, who it is for or what the rules should be, but we need to invest more money in legal aid because it saves money. This is shown by the World Bank report. In prison, Imran represented himself in his asylum claim, but was unsuccessful – reports describe his personal representation in the case as “disastrous consequences.” Nor has he been able to successfully challenge the lawfulness of his detention. Here, Imran and other immigrant detainees like him faced a double barrier to accessing legal advice: unfair double standards for prisoners and limited legal aid available. Many companies that still provide civil or criminal legal aid services have been forced to significantly reduce their activities or subsidize their services through other work, creating “legal aid deserts” across the country. The rise of litigants has also led people to rely more and more on so-called “McKenzie friends.” Traditionally lay people who provided free assistance and practical help in case management, McKenzie`s friends are increasingly charging for their services, even if they are not qualified or insured to provide legal advice or represent people in court. There is growing concern that this unregulated industry is increasingly putting vulnerable people at risk (see box: Friend or foe of McKenzie?). Liberty works with a broad and diverse coalition of human rights organizations, charities, activists, advocates and community groups to demonstrate why the integrity of our justice system must remain intact and, most importantly, accessible to all. The working group, which has been meeting since October 2019, made 45 recommendations aimed at improving decision-makers` understanding of the child before them.