Access to Justice

Introduction

Access to justice is a fundamental principle of the English legal system. It means that every person should be able to enforce their legal rights and defend themselves against legal claims, regardless of their financial means. Without access to justice, the law exists only in theory — it cannot protect those who cannot afford to use it. For AQA A-Level Law, you need to understand the history of legal aid, the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), alternative methods of funding litigation, and the ongoing debate about the "justice gap."

Why Access to Justice Matters

Access to justice is linked to several fundamental constitutional principles:

• The rule of law — Dicey's principle of equality before the law is meaningless if some people cannot afford to access the courts.
• Article 6 ECHR — The right to a fair trial includes the right to legal representation in appropriate cases.
• Article 14 ECHR — Prohibition of discrimination — access to justice should not depend on wealth.
• Natural justice — Everyone should have a fair opportunity to present their case (audi alteram partem — hear the other side).

As Lord Bingham stated in his formulation of the rule of law: "Means must be provided for resolving bona fide civil disputes without prohibitive cost or inordinate delay."

The History of Legal Aid

The Legal Aid and Advice Act 1949

The modern legal aid system was established by the Legal Aid and Advice Act 1949, following the Rushcliffe Report. The Act provided state-funded legal aid to those who could not afford legal representation. When it was introduced, approximately 80% of the population was eligible for civil legal aid based on their means.

The Legal Aid Act 1988

This Act created the Legal Aid Board to administer the legal aid scheme. Legal aid remained widely available, covering most areas of civil and criminal law.

The Access to Justice Act 1999

The Access to Justice Act 1999 introduced significant reforms:

• Replaced the Legal Aid Board with the Legal Services Commission (LSC), which administered two funds:
  • Community Legal Service Fund (for civil legal aid).
  • Criminal Defence Service (for criminal legal aid).
• Introduced contracting — only firms that had contracts with the LSC could undertake legal aid work.
• Introduced conditional fee arrangements (no win, no fee) as an alternative to legal aid for many civil cases.
• Removed legal aid from most personal injury cases, money and debt claims, and other areas, on the basis that conditional fee arrangements provided an alternative.

Growing Costs and Political Concerns

By the 2000s, legal aid spending had risen substantially. The UK spent more on legal aid per capita than almost any other country. Politicians from both major parties argued that the system was unsustainable and that costs needed to be controlled.

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    A["Legal Aid History"] --> B["Legal Aid and Advice Act 1949"]
    B --> C["Legal Aid Act 1988"]
    C --> D["Access to Justice Act 1999"]
    D --> E["LASPO 2012"]
    B --> F["80% of population eligible"]
    C --> G["Legal Aid Board created"]
    D --> H["LSC created; CFAs introduced"]
    E --> I["Major scope cuts; LAA created"]
    style A fill:#8e44ad,color:#fff
    style E fill:#c0392b,color:#fff

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)

LASPO is the most significant reform to legal aid in the modern era. It came into force on 1 April 2013 and was introduced by the Coalition Government as part of austerity measures.

Key Changes

1. Scope Cuts

LASPO removed entire areas of law from the scope of civil legal aid. Before LASPO, civil legal aid was available for most areas of law unless specifically excluded. LASPO reversed this approach — legal aid is now only available for areas specifically listed in Schedule 1 of the Act.

Area of Law	Legal Aid Status Post-LASPO
Clinical negligence	Removed (except in limited circumstances)
Employment law	Removed
Housing (non-disrepair)	Removed
Debt	Removed (except in limited circumstances)
Welfare benefits	Removed (except in limited circumstances)
Immigration (non-asylum)	Removed
Education	Removed
Family law (private disputes)	Removed (except where domestic violence evidence is provided)
Family law (public — care proceedings)	Retained
Criminal law	Largely retained (means and merits tested)
Mental health	Retained
Asylum / immigration detention	Retained
Community care	Retained
Judicial review	Retained (with restrictions)
Domestic violence (family law)	Retained (with evidence requirements)

2. Means Testing

Legal aid is subject to strict means testing — applicants must demonstrate that their income and capital are below specified thresholds. The thresholds are set at low levels, meaning that many people on modest incomes are ineligible.

Type	Income Threshold (Approximate)	Capital Threshold (Approximate)
Civil legal aid	Gross monthly income under ~£2,657; disposable monthly income under ~£733	Disposable capital under £8,000
Criminal legal aid (Magistrates' Court)	Means tested — income and expenditure assessed	—
Criminal legal aid (Crown Court)	Generally available (but may require contribution from income/capital)	—

3. Merits Testing

In civil cases, legal aid is also subject to a merits test — the applicant must show that their case has a reasonable chance of success and that it is proportionate to fund the case from public funds.

4. Exceptional Case Funding (ECF)

LASPO introduced exceptional case funding (s.10) — a safety net allowing legal aid to be granted in cases outside the scope of Schedule 1 where failure to provide legal aid would amount to a breach of the individual's ECHR rights or enforceable EU rights.

In practice, the uptake of ECF has been far lower than the government predicted. The government estimated approximately 5,000-7,000 ECF applications per year, but the actual number has been much lower, and the grant rate was initially very low (though it has improved following legal challenges).

5. Administrative Changes

LASPO replaced the Legal Services Commission with the Legal Aid Agency (LAA), an executive agency of the Ministry of Justice.

Impact of LASPO

The impact of LASPO has been profound and widely criticised:

• Significant reduction in legal aid spending — spending fell from approximately £2.2 billion in 2010 to approximately £1.6 billion by 2018.
• Dramatic drop in the number of cases funded — civil legal aid cases fell by approximately 80% following LASPO.
• Rise in litigants in person — the number of people representing themselves in court (without a lawyer) increased sharply, placing strain on the court system and raising concerns about fairness.
• Advice deserts — legal aid providers have withdrawn from many areas, creating "advice deserts" where no legal aid solicitors or advice agencies are available within reasonable distance.
• Impact on vulnerable groups — those most affected by the cuts include people with housing problems, debt issues, welfare benefits disputes, and family law matters.

Conditional Fee Arrangements (CFAs)

Conditional fee arrangements — commonly known as "no win, no fee" agreements — are a major alternative to legal aid for funding civil litigation.

How CFAs Work

Under a CFA:

1. The client enters into an agreement with their solicitor under which the solicitor agrees not to charge their usual fee if the case is lost.
2. If the case is won, the solicitor charges their usual fee plus a success fee — an uplift of up to 100% of the base fee.
3. The client usually takes out after-the-event (ATE) insurance to cover the risk of having to pay the other side's costs if they lose.

Key Legislation

• Courts and Legal Services Act 1990 (s.58) — First permitted CFAs.
• Access to Justice Act 1999 — Extended CFAs and allowed the success fee and ATE insurance premium to be recovered from the losing party.
• LASPO 2012 — Changed the CFA regime significantly. Under LASPO:
  • The success fee can no longer be recovered from the losing party — it comes out of the client's damages instead.
  • ATE insurance premiums can no longer be recovered from the losing party (except in certain clinical negligence, insolvency, and publication/privacy cases).
  • Qualified one-way costs shifting (QOCS) was introduced for personal injury cases — the claimant is generally not required to pay the defendant's costs if they lose (unless they have been fundamentally dishonest).

Advantages of CFAs