Delayed and Denied

‘In England’, wrote a nineteenth-century jurist, ‘justice is open to all – like the Ritz Hotel’. Some two hundred years later, these words still sting. While lawyers, academics and politicians applaud British law for its objectivity, flexibility and effectiveness, the pandemic has revealed that there is something rotten in the state of Denmark. The British justice system is on its knees. There is a record backlog of 58,000 Crown Court cases, some of which will not be heard until 2024. These are shocking numbers, but their true impact comes when you consider the human cost. Cases heard in the Crown Court often concern the most heinous crimes and carry long-term custodial sentences. 58,000 unheard Crown Court cases mean tens of thousands of victims left without redress. It means tens of thousands of defendants yet to be proven guilty waiting – often in custody – for their fundamental right to a trial. Far from being simply another victim of the virus, this backlog is the result of chronic underfunding of the judiciary over the last decade. Successive governments have taken an axe to its budget, and the impact is all too clear. In 2010 there were 110,000 Crown Court sitting days; by 2020, there were only 86,000, and only 45 per cent of available courtrooms were in use. One area, however, bears the scars of ten years of eager cuts to the justice system more than any other: legal aid.

Established in 1949, legal aid has been described as the forgotten pillar of the welfare state. The principle behind legal aid is simple: the state ensures equality of access to justice by providing financial assistance to those who cannot afford legal representation. It is right that, in a modern state governed by the rule of law, a person’s income should have no bearing upon their access to legal remedy. The legal process is, inevitably, expensive. If you assert that you have a right in law nothing – certainly not something as trifling as how much money you have in your bank account – should get in the way of you being able to defend your claim. However, within fifty years, this pillar had turned into a strain on the national wallet, costing some two billion pounds annually. The ballooning cost, fuelled by a media that was less than sympathetic to its supposed ‘unjustified handouts’ to criminals, led the Coalition Government to introduce the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). LASPO removed financial support for most cases involving housing, welfare, medical negligence, employment, debt, immigration and private family law cases not involving allegations of domestic abuse. Overnight, the number of cases in which legal aid were granted fell by 46 per cent. LASPO led to the closure of over half of all legal centres and contributed to the reduction in the medial income of criminal legal aid barristers to just £27,000 a year. The bill has been reduced from £2.1 billion to £897 million per annum in eight years. Legal aid may be the forgotten pillar of the welfare state; it is also the forgotten pillar of austerity.

Individuals who would have previously been eligible for legal aid are now faced with three terrifying alternatives: either foot the bill, represent yourself, or give up attempting to resolve the issue. Litigants who choose the first option land with legal bills of up to thousands of pounds; litigants who choose the second option stand before the maze of law and procedure that lawyers spend years learning; litigants who choose the third option lose. Either way, financially or intellectually, the right to legal resolution is cut off for hundreds of thousands of citizens. Access to justice is fundamental to the rule of law which, in turn, is part of the life blood of a democracy. An irony of the legal system is that, despite being so often demonstrative of the best of British institutions, it is only ever used when something has gone wrong. The people who turn to the justice system are, often, in some of the direst situations imaginable in the developed world; they may lose their liberty, family, property or livelihoods. Add to that the risks of debt and tackling the labyrinthine justice system and the necessity of proper legal aid funding is clear. It has been nearly two years since the then-Chancellor, Sajid Javid, declared austerity to be over. And yet, the justice system is still desperately underfunded. If the government truly wants to ‘level up’ the nation, it should set in its sights the institution that provides redress when people are wronged.