97

Austerity justice
Steve Hynes

Delivered by Ingenta to: University of Lancaster

IP : 148.88.244.177 On: Thu, 18 Dec 2014 21:19:29
Copyright The Policy Press

With the continuing economic downturn and major legislative changes, such as the introduction
of Universal Credit, demand for advice services is likely to continue to increase, but civil legal
aid services will be subject to devastating cuts from April 2013. In this article, drawing on recent
research,1 Steve Hynes, the Director of Legal Action Group (LAG), discusses why civil legal aid
has reached this low point and the impact of the loss this source of support for advice on welfare
benefits and other common civil legal problems.

Just over two years ago a bombshell hit the world of civil legal aid. Proposals for the
reform of Legal aid in England and Wales2 was published on Monday, 15 November
2010. Out of a total of 350 million in cuts to legal aid outlined in the paper, 279
million were planned to fall on civil legal aid. Legal aid for common legal problems,
everything from divorce to benefits would go under the coalition governments
plans. Despite some hard won concessions, much of what was put forward in this
consultation paper made it to the statute book when the Legal Aid Sentencing and
Punishment of Offenders (LASPO) Act received royal assent on 1 May 2012.

policy and practice

The Policy Press 2013 ISSN 1759-8273

Civil legal aid targeted

For LAG and other groups concerned with access to justice policy the governments
plans represented the worse case scenario for civil legal aid. The Comprehensive
Spending Review (CSR), which had been announced in October 2010, set a
target for Ministry of Justice (MoJ) to reduce spending by 23 per cent, cutting the
departments budget from 9.3 billion to 7.3 billion. With a total spend of 2.1
billion legal aid is the second largest item (after prisons) in the MoJs budget. The
cuts fall disproportionately on civil legal aid as the government decided that it had to
prioritise spending on legal aid in cases which directly engages human rights such as
article 6, the right to a fair trial, and so concluded that the scope of criminal legal aid
had to be left untouched. Political priorities also played a large part in the decision
to weald the axe on civil legal aid.
At the eleventh hour before the Bill to introduce the legal aid cuts was due to be
published, the government decided to perform a U-turn on their policy to reduce
prison places by reforming sentencing policy, which it had also planned to include in
the Bill. According to Tom Brake MP, a Liberal Democrat MP and the Chair of the
influential Liberal Democrat Home Affairs, Justice and Equalities Committee, any
room for manoeuvre in the planned cuts to civil legal aid were hit for six with the
loss of remission allowed for guilty pleas as higher proportion of the cuts would have
to fall on the legal aid budget.

Journal of Poverty and Social Justice vol 21 no 1 2013 97-100 http://dx.doi.org/10.1332/175982713X664489

JPSJ_21_1_feb_13_text_3.3.indd 97

01/03/2013 15:28:53

Austerity justice

Delivered by Ingenta to: University of Lancaster

IP : 148.88.244.177 On: Thu, 18 Dec 2014 21:19:29
Copyright The Policy Press

98

Civil legal aid and more specifically, housing, benefits, debt, employment and
immigration law, or social welfare law (SWL) as these areas of law are known as,
did not figure high in the priorities of Kenneth Clarke, the then Secretary of State
for Justice. Clarke had been surprised to get the justice portfolio and throughout
his time at the MoJ, demonstrated little knowledge of the details of the proposals or
empathy with the people who would be denied access to justice. A memoirby the
former Chief Secretary to the Treasury, David Laws, reveals that the Justice Secretary
when discussing the 350m in cuts he was agreeing to with Laws said, What are
you asking for again? Three-something isnt it? Yes, absolutely, Ill look at it but
Im sure it wont be a problem. 3 His understanding of domestic violence was also
described as being stuck 30 years ago and his view of much of social welfare law was
that it was something lawyers should not be paid to do. When, for example, cutting
housing disrepair cases from legal aid was discussed with him he said Why dont
people just move if they dont like the home they are renting?4
The main proposals outlined in the original consultation paper were:
1. divorce and custody disputes over children between couples (known as private
law family) to be cut from scope saving 178m
2. cuts in scope to non-family civil legal aid, including immigration, housing, welfare
benefits, debt and employment totalling 64m
3. a 10 per cent cut in all civil legal aid fees and in experts fees
4. a telephone advice line to access the remaining civil legal aid services
5. changes in the structure of criminal fees and the introduction of price competitive
tendering by 201112
6. confirmation of the governments intention to abolish the Legal Service
Commission and administer legal aid directly.
Apart from the commitment to introduce competitive tendering for criminal work,
which has been delayed, all the other measures were introduced. LAG, working with
providers and other campaign groups, did manage to win some concessions from the
government. For example, for family cases in which the person claiming legal aid has
been a victim of domestic violence, the government agreed to adopt the Association
of Chief Police Officers definition of domestic violence which is wider than the
definition originally proposed (though we still have concerns over the criteria to
qualify for legal aid in such cases).
The cuts in the scope of civil legal aid include an 83 per cent reduction in the
number of family cases, a 36 per cent reduction in housing cases and a cut of 100
per cent for welfare benefits, clinical negligence and employment.5 According to
the governments impact assessment a total of 623,000 people will no longer receive
advice and representation in civil legal aid cases. The reductions in cases can be
broken down as shown in Table 1.

Journal of Poverty and Social Justice vol 21 no 1 2013 97-100 http://dx.doi.org/10.1332/175982713X664489

JPSJ_21_1_feb_13_text_3.3.indd 98

01/03/2013 15:28:53

Steve Hynes

Delivered by Ingenta to: University of Lancaster

IP : 148.88.244.177 On: Thu, 18 Dec 2014 21:19:29
Copyright The Policy Press

Welfare benefits advice

99

Table 1
Cases

232,500
While the LASPO Bill was being debated, Family
parliamentarians frequently made the link between the
Debt
105,050
implementation of the Welfare Reform Act 2012 and
Education
2,870
the need for advice and representation. Baroness GreyEmployment
24,070
Thompson, the high profile former Paralympic athlete
Housing
53,200
and a crossbench peer said that the proposals in the Bill
Welfare Benefits 135,000
acted as a double whammy for disabled people who
Immigration
53,290
would find themselves without welfare benefits and
Other
17,020
unable to challenge decisions.
According to Citizens Advice CEO, Gillian Guy, the
Total
623,000
timing of the legal aid cuts due to be implemented in
April 2013 could not be worse as they will hit just as the
biggest shake-up in the benefits system in more than 60 years gets underway. The
number of CABx and other not for profit (NfP) advice centres, in the legal aid system
expanded under the last government. Currently 265 NfP organisations contract with
the Legal Services Commission6 to provide early advice in social welfare law, mostly
in benefits cases. All but maybe a dozen or so of these will no longer provide legal
aid services from April.
Over the last 40 years welfare rights services provided directly by local government
or funded by councils in the NfP sector grew in parallel with the legal aid system.7
The outlook for these, though, looks equally pessimistic as both councils and NfP
advice centres are seeing other sources of government support drying up. For
example, Manchester City Council had one of the largest advice services in England
and Wales before cut-backs in June 2011 reduced it from a staff of 112 to just 29.
The figures speak for themselves on the need for advice on benefits, 418,000
claims on welfare benefits cases were received by the tribunal service in 201011,8
nearly half of which were for Employment and Support Allowance, a benefit for
people with disabilities, which will be subsumed into the Universal Credit system.
Also, welfare benefits remain the largest source of enquiries for the CABx service,
with over 2m annually.9
Although small in size, the rebellion of ten Lib/Dem MPs over the LASPO Bill
in the Commons last year was the public face of a considerable effort behind the
scenes to wring a concession from the government on complex benefits cases. This
culminated in the governments agreeing, seemingly, to a compromise as the Bill
was in the final stages of its progress through parliament. However, in a written
ministerial statement issued in September 2012 from Jeremy Wright MP,10 a minister
at the MoJ, the government explained that it had not been possible to establish the
system of independent verification, which it had agreed would identify points of law
in cases before the first tier tribunal, in order to qualify for legal aid. It has instead
decided to permit legal aid only in cases in which the tribunal itself identifies an
error in its own decision. There are likely to be few, if any, such cases.11

Journal of Poverty and Social Justice vol 21 no 1 2013 97-100 http://dx.doi.org/10.1332/175982713X664489

JPSJ_21_1_feb_13_text_3.3.indd 99

01/03/2013 15:28:53

Austerity justice

100

If the government does not re-think its stance on welfare benefits and the other
cases cut from the scope of legal aid, whether clients get help or not will boil down
to a postcode lottery. The winners will be the few lucky enough to live in an area
in which a local council or charitable foundation is still willing to support advice
services, but there will be many more losers in the austerity justice system created by
the coalition government.
Notes
1 Hynes, S. (2012) Austerity justice, London: Legal Action Group (LAG), www.lag.org.uk/
Templates/System/Publications.asp?NodeID=94247&Mode=display

Delivered by Ingenta to: University of Lancaster

IP : 148.88.244.177 On: Thu, 18 Dec 2014 21:19:29
Copyright The Policy Press

Ministry of Justice (MoJ), 2010, Proposals for the reform of legal aid in England and Wales,
Consultation Paper CP12/10, www.justice.gov.uk/downloads/consultations/legal-aidreform-consultation.pdf.

Matthew Elliott (2012) Spending cuts at Ministry of Justice, 30 January, Daily Mail.

See Austerity justice, p 84.

Ministry of Justice (MoJ) (2010) Legal aid reform: Scope changes, Impact Assessment (IA)
MoJ 028, p 16, www.justice.gov.uk/downloads/consultations/ia-scope-changes.pdf.

See Legal Services Commission (2012) Annual report and accounts 201112, p 7,
www.justice.gov.uk/downloads/publications/corporate-reports/lsc/lsc-annualreport-2011-12.pdf.
7 Hynes, S. (2010) Social

welfare law and the parallel legal aid service, Poverty and Social

Justice, 18(3): 3058.

8 See

Austerity justice, Appendix 8.

9 www.citizensadvice.org.uk/index/pressoffice/press_statistics.htm.
10

www.parliament.uk/documents/commons-vote-office/September_2012/18-0912/13-Justice-LegalAidReform.pdf.

11 Austerity

justice, p 132.

Steve Hynes
Legal Action Group, London, UK
shynes@lag.org.uk

Journal of Poverty and Social Justice vol 21 no 1 2013 97-100 http://dx.doi.org/10.1332/175982713X664489

JPSJ_21_1_feb_13_text_3.3.indd 100

01/03/2013 15:28:53