Saurabh Bhalla and Cynthia Dobroszek
As the ongoing Covid-19 pandemic continues to loom over the United Kingdom, it has become more evident that people need representation to combat the effects of the pandemic, such as rising unemployment, enforcing safe working conditions or family disputes. And yet, even under these conditions, the current government continues to push cuts which now force individuals to choose between legal representation and having a roof over their heads. The Law For All Report, by the Law Centres Network, reveals how people could find themselves unable to access legal assistance to protect their home, job or benefits without also pushing themselves and their families into poverty, because they fall into what is known as the “justice gap”. The term “Justice Gap” relates to a significant part of the population who would not be able to afford to pay for legal assistance privately, but who would also not be able to be assisted by legal aid, because they are not poor enough to qualify for it. The ongoing pandemic has exposed the harsh reality of the cuts to legal aid. Karl Turner, the Shadow Minister for Legal Aid, has warned that ‘the legal aid system is on the brink and with the government changing the threshold on who can qualify for legal aid, we now see people falling into poverty to cover legal costs. The choice between eating, heating and proper legal representation is one no one should ever have to make’.
Unquestionably, at the core of the legal system is access to justice. It is a vital component and takes form in various activities, such as speaking with a legal professional, increasing ways to assist self-represented litigants and removing or minimizing costs associated with the court system. However, notwithstanding its acknowledged importance, the rise in costs associated with hiring a legal professional has increased exponentially and left those who don’t earn a sufficient income in a vulnerable position. Regardless if the matter falls under civil or criminal jurisdiction, individuals who don’t earn a sufficient income rely on legal aid to assist them in their matters. The cuts the UK government has made, overtime, to legal aid have substantially prevented individuals from accessing justice. Lewis F. Powell Jr., former Associate Justice of the Supreme Court of the United States of America, encapsulated the importance of legal aid by stating that
equal justice under law is not merely a caption on the facade of the Supreme Court building; it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists. It is fundamental that justice should be the same, in substance and availability, without regard to economic status.
And more recently, the Bach Commission report opened with the following
We live at a time when the rule of law is under attack. Too many powerful institutions pay lip service to the concept of access to justice without having sufficient regard for what it actually means. It is, after all, fairly simple: unless everybody can get some access to the legal system at the time in their lives when they need it, trust in our institutions and in the rule of law breaks down. When that happens, society breaks down
The cuts to legal aid made by the government of the United Kingdom have been part of a slow and continuous process, which accelerated in 2013 when legal aid was removed from many civil law cases to achieve a saving of £350 million a year while, in effect, shrinking spending on legal aid by more than £1bn over a period of five years. By 2019-20, the Ministry of Justice faced cuts to its overall budget of 40% – amongst the deepest of any government department. These cuts have had a clear impact on the likelihood that a litigant will be able to qualify for legal aid. By the early 1990s, the percentage who were eligible was estimated to be about 45%; some now suggest as few as 20% of people are entitled. The former President of the Supreme Court of the United Kingdom, Lady Hale, expressed her discomfort with cuts to legal aid and said that spending cuts are causing serious difficulty for the justice system, which are particularly apparent in family law – disputes between husband and wife, mother and father – where there may be an imbalance in resources because of the lack of access.
The government’s cuts to legal aid has resulted in litigants turning towards legal clinics, as part of law schools, for assistance. A study undertaken jointly by the charity LawWorks and the Clinical Legal Education Organisation found that ninety percent of law schools anticipated seeing increased client demand for their free legal services, in what the study says is ‘the broader context of unmet need and the ongoing impacts of cuts to legal aid”. It goes on to stress that the “key message here is that student pro bono should not be considered a substitute for properly funded legal aid”. To keep up with public reliance on pro bono clinics, law schools have increased the amount of pro bono work undertaken, from 46%, according to a 2005 study, to 64%, as of a 2020 study.
Now more than ever, people need to be able to have the right to have their rights realized. After all, at its core, access to justice is the ‘right to have rights’. However, in relation to the ongoing pandemic, this has not been apparent. Between the start of the first lockdown, which commenced on March 23, until July, there has been a substantial increase in domestic violence. Refuge, an organization which runs the National Domestic Abuse helpline, reported that calls to the hotline have spiked significantly during the lockdown with an average increase of around 50% in calls and over 400% in visits to its website since the first lockdown measures began.
In addition, there has also been a continuous increase in the unemployment rate due to the Covid-19 pandemic. Businesses such as shops, bars, travel and entertainment companies have had to close because of coronavirus lockdown.
The Office for National Statistics reported that, for the time period of September to November 2020, the unemployment rate for all people increased by 1.2 percentage points on the year, and increased by 0.6 percentage points on the quarter, to 5.0%.
Unsurprisingly, economic insecurity due to the damaging effects of the Covid-19 pandemic has resulted in people facing the risk of homelessness and in some instances, becoming homeless. A report by the Guardian has found that tens of thousands of people have been made homeless since the start of the pandemic despite there being a ban on evictions. These include young people, many of whom worked in hospitality, have lost their jobs and are struggling to support themselves financially. Many have precarious living arrangements meaning they were not protected from the evictions ban. Since April 2020, 90,063 people in the UK have been threatened with homelessness – and more than half of these have already lost their accommodation.
The need for legal aid is critical and the cuts to legal aid have resulted in self-represented litigants finding themselves in stressful situations and unable to maneuver around the complexities of the legal system. While law students are stepping up to the plate and advising self-represented litigants under the necessary supervision of a solicitor, this solution cannot be assumed to bridge the justice gap. Adequately funded legal aid is crucial and the on-going pandemic has revealed its importance. It is our hope that the United Kingdom government recognizes the importance of legal aid, provides for more funding to protect the vulnerable and prevent a power imbalance between self-represented and represented litigants.