The next chunk of posts on a Welsh justice system and independence look at the judiciary, court system, legal profession and access to justice.
With hindsight, this should have been split up into shorter pieces as it ended up covering more topics than I originally planned. As a result, it’s one of the longest posts I’ve ever done – so apologies in advance to those of you who stick with it.
As mentioned earlier, the single biggest barrier to accessing justice is a lack of funds.
While there are “no win, no fee” and fixed prices agreements available, more often than not legal action in England and Wales (particularly civil action) is very expensive. For those who are eligible and have to go to court, the only option they have is legal aid.
As covered in Part II, funding for legal aid has been slashed since 2010.
According to the Thomas Commission1, between 2011-12 and 2018-19 spending on legal aid in Wales fell from £114million a year to £80.1million in cash terms – a cut of 29.5% and much higher than the equivalent 19.1% cut in England (the figures are before inflation/not real terms).
Under current rules, to be eligible for legal aid:
Civil case (i.e. housing, family, debt) – A person has to prove they can’t afford legal fees by providing financial information for means-testing. Legal aid in civil cases covers advice, representation and mediation. Legal aid often has to be repaid in civil cases if property or money is won.
The rules concerning who is eligible for legal aid in civil cases have been tightened over the last few years. The focus is now on people at risk of homelessness, people appealing government decisions (including asylum cases), cases where a child is at risk of being placed into care, mental health tribunals and to protect from abuse or poor care.
Criminal case – Free legal advice is available for anyone detained at a police station who needs it. Usually, to be eligible for criminal legal aid a case has to be “in the interests of justice” (i.e. threat of a prison sentence, serious reputational damage, possible loss of earnings or livelihood).
Like civil cases, eligibility for legal aid in criminal cases is means-tested, though people claiming certain benefits may receive legal aid automatically. Legal aid for crown court cases still has to be repaid to some degree depending on the person’s income and household circumstances.
Legal Aid: Options for Wales
These options are based on different practices around the world.
The status quo – Legal aid continues largely as is with means-testing, part-subsidy and a repayments system. The budget could increase (if money is available) to mitigate the effect of austerity, while tweaks could be made to increase the number of civil and family cases funded via legal aid. By and large, the system would operate in the same way.
An agency-based model – This was one of the prefered options of the Thomas Commission in which all legal advice funding would be brought together and managed by a single independent agency2. This was mainly with civil, welfare and family cases in mind – all areas that have been particularly hard hit by cuts. Criminal legal aid could be administered similarly too.
A public defender scheme – We already have duty solicitors (at police stations) and public defenders to an extent in Wales, but the Thomas Commission reported that the number of solicitors undertaking legal aid work has dropped3. As an alternative to an agency-based model, a body of salaried public solicitors and barriers could be formed instead – whether state-funded or in the private sector (as in some of the Nordic jurisdictions4).
This means that while there would still need to be qualifying criteria for legal aid assistance, a person won’t have to go through means-testing. They would only have their circumstances checked to see if they’re eligible to be helped by a public defender.
Scrap legal aid and introduce mandatory legal protection insurance – The most common form already used in the UK is car insurance (which is already mandatory). It’s already sometimes included as an optional extra with home insurance to cover certain civil claims but that could be extended to cover family and criminal legal costs. Wales could make it compulsory for every adult to hold some form of personal legal protection insurance (whether through an employer-based scheme or shop around for an individual scheme), with a state-backed programme for those on fixed incomes. Anyone without legal insurance wouldn’t be eligible for any help or advice beyond the bare minimum required by law and the constitution.
My personal preference would be a move towards a public defender scheme administered through the courts. Hopefully, it would mean people seeking legal advice wouldn’t have to jump through as many hoops to get it (particularly means-testing). That wouldn’t mean that if someone loses a case or is convicted they shouldn’t have to repay at least some of the costs.
1: Commission on Justice in Wales, (October 2019). Justice in Wales for the People of Wales, p94-95. Available at: https://gov.wales/sites/default/files/publications/2019-10/Justice%20Commission%20ENG%20DIGITAL_2.pdf
2: Commission on Justice in Wales, (October 2019). Justice in Wales for the People of Wales, p120-123.
3: Commission on Justice in Wales, (October 2019). Justice in Wales for the People of Wales, p104.
4: Legal Action Group, (July 2020) “Legal aid: radical ideas – Institute a public defender scheme”. Available at: https://www.lag.org.uk/article/208412/legal-aid–radical-ideas—-4–institute-a-public-defender-scheme
