CIVIL LEGAL AID: JUSTICE FOR ALL?

At Hibiscus, we support Black and minoritised migrant women in the country, including those who are survivors of human trafficking and modern slavery. Many are in need of legal advice on matters of critical importance to them, such as immigration, housing, and community care issues. The vast majority need this to be funded by legal aid. From our attempts to support them in accessing legal advice, we have found that the current legal aid regime is not fit for purpose. It creates barriers to those attempting to access advice by, in effect, limiting the number of legal aid providers and their individual capacity, and making legal aid practice financially unsustainable for many practitioners. 

Under Article 6 of the European Convention on Human Rights, everyone has the right to a fair trial. This necessitates access to legally aided advice and representation for all in need of it. However, the practical limitations imposed by the current legal aid regime create a ‘two-tiered’ justice system which often means that only those who can afford to pay for legal advice can assert their rights. This is enforced both by the now limited scope of work eligible for legal aid funding, and by practical difficulties that many women face when attempting to access legal aid.  

The Ministry of Justice is now carrying out a review of civil legal aid.¹ Their objectives are to identify options to “improve the sustainability of civil legal aid provision” by considering “the efficiency and effectiveness of the system” and gathering “evidence to understand problems that [it] faces”.² In their call for evidence, they state “our justice system is there to protect people’s rights”, acknowledging that “people rely on our civil, family and tribunals justice system to protect and enforce their rights”.³

The Current Legal Aid Regime 

The Legal Aid and Advice Act 1949 introduced civil legal aid to those of “small or moderate means”.⁴ The scope of legal aid covered almost all areas of civil law and around 80% of the population of England and Wales met the means criteria to access it.⁵

The 1949 Act was superseded by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), a piece of legislation that, sought to reduce expenditure on legal aid by discouraging “unnecessary and adversarial litigation” at public expense, and targeting legal aid to “those who need it the most”.⁶ It did this by greatly reducing the scope of legal aid: removing most cases involving housing, welfare, medical negligence, employment, debt and immigration, and for most private family law cases, other than those involving domestic abuse allegations. 

Prior to it passing, concerns were raised about the effect that LASPO would have on access to justice: unfortunately, these have been realised. As of July 2019, half of England and Wales’s 94 law centres and not-for-profit legal advice services had closed since LASPO came into force.⁷ Research by the Law Society found that there were 3,896 civil legal aid providers in 2011, falling to 2,101 by 2022.⁸ According to data published by the government, this had plummeted to 1,334 by December 2023:⁹ a total decrease of two thirds of the number of civil legal aid providers.  

According to a report by Amnesty International, LASPO resulted in an immediate 46% decrease in the number of cases for which legal aid was granted, from 925,000 in 2012 to 497,000 in 2013,¹⁰ with particularly strong impacts felt in welfare and benefits, housing and family cases. 

Barriers and Obstacles to accessing Civil Legal Aid 

As we have reported in our submission to the MoJ’s Call for Evidence, the impact of these cuts is very apparent in our work with Black and marginalised migrant women. Our front-line staff have all reported difficulties in referring service users for legal aid advice. One Project Worker explained “the biggest barrier is that so many firms have limited or no capacity for legal aid immigration work, [which means that] there are service users who go long periods without accessing advice.” Another mentioned that she had “multiple service users with whom it has taken many months before finding a legal aid solicitor. This takes an incredible toll on the service users’ mental health as there is really no way to progress their circumstances without representation.” 

Our service users often have complex legal matters concerning issues such as their right to remain in the country, their right to access housing and support, criminal appeals, and family matters. These are of critical and fundamental importance to them and their future livelihoods. Not having access to legal aid can, for example, mean that a service user is unable to challenge the refusal of an asylum application, which may in turn lead to their detention and unjust deportation to a country in which they are not safe, when, on the contrary, should have been protected and supported. Our service users have described feeling “anxious”, “scared, “upset” and “hopeless” when they are unable to access legal advice.  

When our service users’ legal issues relate to their accommodation and support, being unable to address them can mean that they remain in precarious circumstances in which they find it difficult to engage with us and other forms of support. A service user who was street homeless (due to a challengeable decision) and unable to access legal advice experienced a significant deterioration in her mental health due to her experiences whilst living on the streets. Not accessing legal aid made it far harder for her to access the mental health support that she needed. What would otherwise have been a manageable legal issue became insurmountable and life consuming for her. 

Legal Aid Rates and Fixed Fees 

One key issue is the availability of solicitors accepting legal aid service users. For our service users, this is particularly acute in the immigration sector, including cases involving human trafficking and modern slavery. It is evident that the total capacity needs to be increased significantly. It appears that a key reason for the discrepancy between the need for, and availability of, legal aid solicitors is that work funded by legal aid is not reasonably compensated. Legal aid rates were set in 1996 and have not been increased since then; worse than that, they were, in fact, reduced by 10% in 2011.¹¹ This equates to a real terms cut of approximately 50%: solicitors undertaking legal aid work are, in effect, being paid half as much as they were nearly 30 years ago. This makes the work unsustainable and disincentivises solicitors from undertaking it, decreasing the total capacity available. 

In our experience, solicitors appear to be particularly reluctant to take on complex immigration and asylum cases as they are unlikely to be fairly compensated for the work needed. Under the fixed fee regime, a set amount is paid for work on certain types of cases unless the actual costs go so far over it that the claim for legal aid ‘escapes’ the threshold, and the total amount can be claimed. This, again, disincentivises them from taking on the work. 

Choice of Solicitors 

When choosing a solicitor, potential service users should be able to consider their expertise, track record, and service user care. In practice, however, we have witnessed that it is rare that service users reliant on legal aid have any choice of solicitors: if they find a firm with the capacity to take their case, it is likely to be their only option. There is no guarantee that a service user will be able to access legal aid advice for civil matters. This means they can be in the position of having to choose between instructing solicitors that they do not have confidence in or not having legal representation at all. 

Similarly, service users who have solicitors representing them under legal aid who do not progress their case may be left with a choice between inadequate representation, or no representation at all. One Project Worker described a service user’s solicitor having “made many mistakes and some distasteful comments”, leaving her service user to choose between proceeding with them or, possibly, being left without representation. 

What can be done? 

It is clear that true commitment to radically change the legal aid regime is needed to ensure that the women we support can access justice. We believe that there needs to be a significant increase in the total capacity of legal aid solicitors. Good solicitors must be incentivised to carry out legal aid work. The hourly rates, therefore, need to be significantly increased, enhancing the compensation received by solicitors and others employed by law firms undertaking legal aid work. This is crucial to ensure that legally aided work remains sustainable. Further to this, fixed fees for legal aid work need to be replaced with chargeable time. The total legal aid budget needs to be increased above and beyond the much-needed cost-of-living adjustment, and future increases should be adequate to meet demand. Only this will allow solicitors to claim fair compensation for all of the work done on all cases.  

These measures would significantly increase the total capacity and availability of legal aid solicitors, making legally aided advice and representation easier and more accessible to migrant women. This, in turn, would alleviate the hugely detrimental impact that being unable to access legal advice has on so many of the women we work with. Furthermore, it would allow those who are dissatisfied with their legal aid solicitor to seek tailored and suitable advice from alternative providers. 

In addition to this, we recommend that a more rigorous duty be imposed on the Legal Aid Agency to ensure that all legal aid providers consistently carry out their legal aid work to a high standard. Whilst there is already a requirement that legal aid providers have a form of quality assurance, it is evident that, in practice, some do not provide a good standard of service to legal aid service users. Black and minoritised migrant women accessing legal aid should be guaranteed the same quality and standards of care as those with the financial power to pay for legal advice and representation. 

Legal rights are empty promises without the possibility of challenging breaches and enforcing remedies. For many of the women we support, access to justice is contingent on access to legal aid. Without it, they have no means of accessing the justice to which they should be entitled. 

It is relevant that the impact of the problems with the current legal aid regime is felt so strongly by women such as our service users who are already marginalised due to their immigration status, as well as factors such as race, ethnicity, financial means, mental health, and experiences of barbarity such as human trafficking and modern slavery. They are arguably some of the most in need of good legal advice and representation. However, under the current legal aid regime, they are most often unable to access it.