Modern Law Magazine Issue 69

IN-DEPTH
Access to justice in England and Wales is in tatters. Many of us do not
consider or think of the importance of a well-oiled system and imperative
access to justice for all until we ourselves are faced with dealing with a
justice system that has been deeply underfunded and tooled for the few.
Over the last few years, we have witnessed legal aid being cut to the
bone to the extent that it is now non-existent for all practical purposes
except for a very few narrow areas of law with strict means testing that
excludes many individuals.
This reduction in access to justice has come to the forefront in recent
years with the numerous crises of the 2020s. For example, ongoing wars
and conflicts causing migration influxes are resulting in much needed
urgent immigration representation and the cost-of-living crisis is causing
all manner of legal issues for individuals who need legal assistance – from
denial of benefits claims to housing issues and private disputes. In the
face of increased demand, supply is dwindling.
Erosion of legal aid support
Indeed, in 2023 the Law Society developed maps showing what they
call “legal aid deserts” and found that across England and Wales,
depending on the type of legal support needed between 42% and 90%
of the population do not have access to a local legal aid provider.1 This
is echoed by the Public Law Project whose research showed that in the
immigration space “[c]apacity is already at breaking point across the UK,
even before the Illegal Migration Act. Even in London, which has the
highest number of providers, one refugee charity was able to successfully
refer clients in only 4.1% of 864 attempts.”2
Demand for legal aid decidedly outstrips supply. The Public Law Project
reports that in the immigration space in 2022 there were “at least 25,000
more applicants for legal aid than providers had capacity to take on.
This is at least a 45% deficit, and only includes main applicants (not their
dependants).”3 This existing unmet legal need is sobering. Research from
the Legal Services Board found that 3.6 million adults in England and
Wales have an unmet legal need involving a dispute every year.4
Unfortunately, there is little sign of improvement on the horizon. This is
despite parliamentary enquiries which have raised concerns.5 Whilst
the government is conducting a review of civil legal aid sustainability,
those findings will not be published until later this year at the earliest. Any
changes, if any at all, would not be seen until the following years. As the
Law Society puts it “[t]his is too long as services are collapsing now.”6 The
system, decidedly, needs urgent attention: not palliative care.
Accessing Legal Aid – the client journey
Given that demand for legal aid vastly outstrips supply, it can be incredibly
challenging for clients to find a solicitor who can provide legal aid in their
case. It is useful to consider the client journey for someone seeking legal
aid and to understand the obstacles they need to overcome.
The first step is eligibility. In order to access legal aid, the starting point
for clients is to show that their legal problem is serious and for many
legal aid cases (but not all), that they cannot afford to pay for legal costs.
This usually requires providing evidence of income, benefits, savings
and property both for the individual and their partner if they have one.
Financial situation is not taken into account if the case concerns: (1)
mental health tribunals; (2) children in care; or (3) a child being abducted.
In the former, medical need is a deciding factor.
Further, as already mentioned Legal Aid is restricted to certain types
of cases. In order to be successful in securing legal aid, a client’s case
will have to fall within the shrinking scope of a permitted case. It is also
important to note that Legal Aid may not cover all the costs of the case.
The next challenge for clients is finding a solicitor who can help them
under the legal aid scheme. Many legal aid clients will find a solicitor
through the database provided by the Law Society, or they will have been
signposted to particular firms or lawyers through agencies including the
Citizens Advice Bureau or other charities. This process itself is far from
streamlined and is made even more difficult by demand far outstripping
supply.
Pro bono bridging the gap
It is no secret that as the times become more tumultuous, it is not only
individuals who require expert assistance crisis after crisis. Charities also
require expert assistance, which they can ill afford, in order to navigate the
complexities of, for example, employment laws, privacy regulations and
intellectual property rights. And then there are the cases where important
public interests are at stake including the protection of the environment,
measures dealing with the climate crisis and human rights protection.
It is against this backdrop that pro bono operates and looks to bridge the
gap. Luckily, many law firms have vibrant pro bono practices, offering
legal services at no cost to individuals and organisations who meet
certain criteria. My own firm, Arnold & Porter, is rightfully proud of its longstanding
commitment to pro bono work. In the US our pro bono work has
ranged from acting for the victims of Senator McCarthy’s anti-communist
campaigns in the 1950s, to supporting Black Lives Matter against the
actions of the administration of President Trump in more recent years.
That tradition extends to London where we work actively with a range of
organisations and individuals to pursue cases that are often life-changing
for individuals, or which assist charitable organisations, or promote
important public interests such as human rights and LGBTQ+ rights.
The importance of pro bono networks
But the pro bono space is not without its challenges. The ongoing crises,
for example the cost of living or climate crisis related migration have not
only hugely increased the need for legal advice, but also affected the
operating environment for those providing assistance. This is where pro
bono networks in the UK are invaluable. They connect lawyers to projects
in a range of areas - TrustLaw and The UK Collaborative Plan fall into
this category. Pro Bono Connect is a network which focuses on pairing
up counsel and solicitors to take on pro bono litigation cases. And then
there are NGOs and charities with a particular focus on social change
or protecting human rights, including the International Lesbian, Gay,
Bisexual, Trans and Intersex Association (ILGA), PILnet, and the Center
for Reproductive Rights. Solicitors work with these organisations to assist
individual’s and charities’ access to justice. Together, pro bono is bridging
the gap and aiming to provide access to justice for all.
Yet, pro bono is not, and should not, be a substitute for legal aid. The
system cannot survive on goodwill. There needs to be a serious and
urgent rethinking and retooling of access to justice. However, it is clear
that pro bono’s contribution is necessary now more than ever.
Peter Saban,
Associate, Arnold & Porter
Conversely, all applications for legal aid in criminal cases are means
tested, everyone does, however, have the right to free legal advice if they
are being questioned at a police station.
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