2.5 The funding of the justice system

Now we're really here to talk about access to justice and pro bono in the United Kingdom. I want to start with a bit of an overview. There have been what I think is fair to say pretty substantial cuts to legal aid here in England and Wales. On the other hand, there's also a very strong commitment to pro bono work among certainly everybody in this theatre and a lot of people beyond. And as we've heard, the government has just come out with a bit of extra cash to support litigants in person.

So what I want to start with is really how good, how bad things are. I mean, Jo, could you start us off? Just very, very simply for the benefit of people from outside this jurisdiction, tell us what's been happening over the last couple of years in terms of legislation and cuts.

OK, so we started with the Legal Aid Sentencing, and Punishment of Offenders Act, which was I think passed in 2012, came to force in April 2013. And what that act did was fundamentally reversed how legal aid had been applied in England and Wales, certainly, to date. Because prior to that, the Access to Justice Act had said, effectively, legal aid was available for everything unless it was excluded, and there was a fairly short and fairly clear list of exclusions.

What the Legal Aid, Sentencing, and Punishment of Offenders Act, which everyone calls LASPO did, is it said, unless you're in-- and there's a fairly detailed schedule of cases that are in-- you're outside of the scope of legal aid. And there's a majority of cases that were taken out, sort of large, identifiable cases-- obviously all sorts of smaller things came out-- were immigration cases, say for asylum-- legal aid's no longer available there; private family cases, things like contact, residence, divorce proceedings; welfare benefits; debts, say where an individual's house is-- whether they're at risk of losing their house; education; and housing. So all of those areas of law plus lots of other sort of smaller, individual types of cases, immediately came out of scope.

There's a safety net provision in Section 10, or there's intended to be a safety net provision-- I hope to get a chance to speak a little bit about that later-- which says that where legal aid is, in a case that's out of scope where legal aid remains necessary to ensure that there's not a breach or a risk of a breach of an individual's fundamental rights, either under the ECHR or under their other EU convention rights, legal aid ought to be made available under that section. But that's a separate thing.

So cuts, but a safety net. Yasmin, just tell us a little bit about the politics of legal aid, because it's going to be an election issue. We'll got a general election here next year.

Absolutely. So when I first started out, pro bono was all about, or it was once described to me as making lawyers feel better about themselves. But actually, that's pretty flippant in an environment where now there are many firms delivering, just like mine, about 100,000 hours of free legal advice.

When I first started, it was really important, and still is, for me and for many firms to think very carefully about where we apply our pro bono resource. And that's where the political rub comes, because just today-- and forgive me if I just praise the firm once, but just yesterday, we won an appeal at the Upper Tribunal for ex-armed forces, soldiers who are claiming a pension, a war pension following the Christmas Island nuclear testing in the 1950s. We've won that case. There's still a long way to go. We've done over 1,000 hours over three years and it's still going on.

And the reason to select that particular area of need was because legal aid was never going to come back to that, and because it was a discrete area of law that we could specialise in. So we, now, given the enormous cuts that are affecting legal aid, we need to think very carefully about where do we apply that service, that pro bono service. We know that the heart is being ripped out of legal aid.

And so we need to think carefully about, are there any red lines beyond which we will not go as pro bono communities? Because effectively, we are replacing the government's fundamental duty to provide a comprehensive legal aid service. And we have always said in the pro bono community, it is in addition to, not a substitute for legal aid.