Access to justice and the right to a fair trial are important constitutional rights held by all citizens. However, obtaining legal advice and representation can be very expensive and is frequently beyond the means of those needing such assistance. All developed states have a form of legal aid. In England, this is provided by the government and administered by the Legal Services Commission (LSC). Each year, the LSC helps more than two million people who would not ordinarily have access to legal help get advice or representation. In recent years, the budget for the LSC has been over £2m a year.
Recently, the LSC tendered for new family law contracts. Firms had to bid for a family law contract that would permit them to offer legal advice and representation to children and families. The result of the tender was a reduction in the number of firms who were offered contracts. Instead of the previous 2,300 firms spread across the country who were able to offer legal aid in family law cases, the number was reduced to 1,345. This reduction has caused considerable concern in the legal profession and those working with families. In particular, there is a concern that vulnerable groups such as women at risk of domestic violence and children, will not be able to access appropriate legal advice and representation.
In response to the cuts to legal aid in family law cases, the Law Society, the independent professional body representing solicitors in England and Wales, asked the courts to judicially review the process and decision making of the LSC, when awarding family law contracts.
The Law Society was concerned that the criteria used by the commission when deciding which firms ought to be awarded contracts, were unfair. The LSC had decided in February, when it issued the contract, that only firms who had solicitors on the child law panel or the family law panel, could be granted a contract. However, the Law Society argued that the firms were not given adequate time in which to join the panels before the tendering process began.
The Law Society was deeply concerned that the attrition of legal aid would result in a reduction in experienced family law practitioners specialising in children's cases, including care proceedings, child abduction, forced marriage, in addition to other specialities. Additionally, the society warned against the creation of 'advice deserts' - areas of England and Wales where the provision for legal aid would be significantly reduced, making it difficult to get access to a legal aid lawyer. Areas such as Wales, Cornwall, Dorset, Lincolnshire and Humberside are likely to be the most affected by the reduction in civil legal aid, with children and families having to travel considerable distances to find a solicitor's firm that holds a contract.
Decision of the High Court
After a three-day hearing, the High Court handed down their oral judgment on 30 September. The High Court declared that the tender process was unlawful and that the LSC had acted arbitrarily and irrationally. The president of the Law Society stated that the win was a victory for the thousands of families who would have not had access to legal assistance in circumstances where it would be most needed.
However, the judgment does not mark the end of the process. The LSC will now need to decide whether it should appeal and, if not, what action it will take to address the unlawfulness of the tender. In a statement, the LSC said: "The LSC is obviously disappointed by the result and remains committed to ensuring that vulnerable people across England and Wales have access to justice."
While the decision of the court has tempered concerns that vulnerable families will not have adequate opportunities to gain access to justice, there is now uncertainty as to the impact that this decision will have on legal aid providers. These are uncertain times, not only for the legal aid providers that have been unsuccessful in obtaining contracts in the tendering process, but also for those that have been awarded contracts by the LSC and are due to start work under their contract as of 14 November.
Effects on system unexpected
This uncertainty will only deepen if the LSC chooses to appeal the decision of the court. It will be necessary for interim measures to be put in place to ensure that there is sufficient provision for legal aid in family cases, while the implications of the court's decision are being decided upon. The LSC has stated that it is "aware of the uncertainty facing providers and will publish further information in due course".
Throughout this process, the LSC has maintained that it did not expect the outcome of the tendering process to be a significant reduction in the number of legal aid providers. The Law Society, on the other hand, has stated that: "The failure of the LSC to anticipate, let alone manage, the outcome of the process was the latest and perhaps most alarming of the LSC's apparently haphazard attempts to reshape legal aid."
The changed tendering process for civil law contracts is not the only modification that has been made to legal aid. This year has also seen a new tendering process implemented for criminal legal aid contracts. The Ministry of Justice has emphasised that the changes aim to deliver significant savings to taxpayers and to make better use of the legal aid budget.
The Law Society has warned that in a time of austerity it may be tempting to see legal aid as an area in which cuts could be made, but that it is during this time of financial difficulty that legal aid services are most needed. The legal aid review undertaken by the Ministry of Justice will be published in the near future and is also likely to contribute to the rapidly changing face of legal aid for families and children.
