“The removal of legal aid will start to undermine the rule of law. People will feel like the government isn’t giving them access to justice and that will either lead to frustration and lack of confidence in the system, or it will lead to people taking the law into their own hands.”
Such was the opinion of Lord Neuberger, the President of the Supreme Court, prior to the 2013 enactment of the much maligned and criticised “Jackson Reforms,” enshrined mostly in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).
In the post- LASPO world, civil litigation has become increasingly of concern for the legal sector, and civil rights campaigners. A key part of LASPO was to reduce legal aid funding. Consequently, a great majority of people are now, quite simply, unable to take their cases to court. The cost of going to court, of obtaining legal representation, in most cases now has to be met by the parties concerned. With no recourse to legal aid, more and more are simply unable to obtain justice.
The secondary impact of that has been to radically reform the legal sector in other ways. Small law firms have had great struggles in a post LASPO world, as fewer civil litigants are coming to them. Many law firms have either gone under, merged, or diversified. For both litigants and lawyers alike, the post LASPO legal landscape has been greatly damaging. Indeed, a 2014 Ministry of Justice select committee investigation was damning in the scale of the damage done to the provisions of civil justice.
However, LASPO has not been a total disaster across the board; some sectors have remained relatively unscathed, or have suffered little, due to the Jackson Reforms. Immigration is one such area. Although only specific immigration cases can now be handled under a legal aid certificate, many immigration matters (predominantly asylum) are still eligible for public funding. Another such area of civil law is personal injury, and certain areas of employment law.
However, personal injury (PI) has for a long time funded itself in many cases outside the provisions of legal aid. Since 1998, until 2013, the majority of PI cases were funded under a Conditional Fee Agreement (CFA). With a CFA, the lawyers and court costs are only paid after the case is settled, and on the understanding that the litigant will win their case. If the litigant does not win, then they themselves do not pay their legal costs. The same year that LASPO was enacted saw the CFA structure alter, but although changed, the essential details remained the same. Consequently, PI is one area of civil law that is still very much accessible for the average person regardless of financial means, due to CFA’s.
Personal injuries can often arise as the result of accidents at work. Despite the best safety procedures, and strict health and safety guidelines, and regular inspections, it is only too easy to have an accident at work- often with a long lasting medical impact. Employment law itself has had varied fortunes following LASPO. Discrimination cases are still eligible for public funding- with many discrimination cases often starting in the workplace. Many workplace issues and disputes now end up in arbitration or workplace mediation, or dealt with by the relevant Trade Unions, prior to an Employment Tribunal or civil court, and it is before such mediation that most settlements are actually arrived at. As such, the need to go to court regarding an employment dispute has in many instances fallen. Accidents at work, and matters of employer liability in that area, still remain one of the greatest sources of workplace related litigation. Accidents at work, though, are often still handled under CFA’s, being as they are PI cases.
As such, in some areas of civil law (such as employment law, immigration, and PI), litigants are still able to get access to justice, if only via mediation or alternative funding means. However, in a great many civil cases (notably family), the Jackson reforms have ushered in an era of limited access to justice.
That limited access to justice, criticised roundly by many in all areas of the legal sector, is set to stay for the time being. Law firms and lawyers will suffer as fewer seek legal representation due to the cots involved. However, it is the would be litigant who will suffer the most, as they are driven away from seeking their absolute right of a legal remedy to a civil dispute, in most cases.