CLEMENT ATTLEE’S Labour government introduced legal aid in 1949 through the Legal Aid and Advice Act in order to provide legal advice and representation for those who could not afford it.

Attlee viewed legal aid as a cornerstone of the new welfare state. The aim was “to provide legal advice for those of slender means and resources, so that no-one would be financially unable to prosecute a just and reasonable claim or defend a legal right; and to allow counsel and solicitors to be remunerated for their services.”

This objective recognised that the aim of justice is to give everyone their due and a fundamental purpose of the law is to prevent the strong from always having their way.  

However, a legal “right” is only a right if it can be enforced. If a person cannot access our courts or defend a claim for want of money, knowledge or capacity then, as Judge Sturgess famously said, justice and the law are open to everyone only in the same way as the Ritz Hotel.

Because this is so, access to the law and equality before it are fundamental principles of European legal systems. Equality of arms requires that each side has a reasonable opportunity to present their case under conditions that do not place them at a substantial disadvantage.

A healthy legal aid system underpins a healthy constitution. This is because adherence to the rule of law relies on individuals being able to restrain the unlawful acts of their government.

David M Walker put it well: “The rule of law implies limitations on legislative power, safeguards against abuse of executive power, adequate and equal opportunities of access to legal advice and assistance and protection, proper protection of the individual and group rights and liberties, and equality before the law.

“It means more than that the government maintains and enforces law and order, but that the government is, itself, subject to rules of law and cannot itself disregard the law or remake it to suit itself.”

A lack of legal aid often results in social exclusion and considerable expense for the NHS, DWP, social services, courts and tribunals.

Many litigants do not understand court rules and procedures, resulting in cases having to be adjourned, avoidably lengthy hearings and often injustice. The approach is that of an accountant, not an economist.

Despite these truths, successive governments have drastically curtailed the availability of legal aid in England and Wales.

The Blair government introduced significant “reforms,” some of which the then lord chancellor, Lord Falconer, has regretted.

However, it was under the Conservatives that legal aid and our courts were shredded. In particular, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Laspo) drastically reduced the availability of legal aid.

By the end of 2018, the number of people receiving legal assistance in civil cases had fallen by more than 80 per cent. In real terms, spending on legal aid fell by £728m (28 per cent) between 2012/13 and 2022/23, from £2.58bn to £1.86bn.

The new Labour government has provided an additional £1.9bn to the Ministry of Justice in 2025-26. However, more than that (£2.3bn) is earmarked for prison expansion. Britain spent approximately £6.85bn on its prison system in 2023/24 and HM Prison and Probation Service now accounts for 45 per cent of departmental expenditure.

Although the government has increased spending on criminal legal aid, and is consulting on civil legal aid fees, the increase is modest in relation to the size of the problem. It is now 28 years since legal aid fees for civil cases were last increased.

It seems clear that the Ministry of Justice cannot expect a significant increase of its non-prison budget after 2026. The Prime Minister and Treasury are committed to “efficiency savings,” fiscal restraint and reducing the tax burden.

The official line, that growing the economy and with it tax receipts will enable further spending in the medium term, is unlikely to be realised.

Britain is in long-term decline because of staggeringly poor central government over many decades. There is no sign that ministers or MPs realise or acknowledge that they are the primary cause of this decline, not the answer.

Without significant constitutional reform the crisis in public finances is likely to be unending.

In practical terms the problem is therefore how necessary legal services can be provided to those unable to afford them without further help from the Treasury? Significant structural and cultural change is necessary but probably unattractive politically.

It was a mistake to transfer responsibility for prisons and prisoners from the Home Office to the Ministry of Justice in 2007. Expenditure on legal services such as courts, tribunals and legal aid is squeezed to enable further departmental spending on prison capacity. This should be reversed.

Related to this, it is necessary to reduce the number of people in prison and to apply the financial saving to strengthening courts, tribunals, probation services and legal aid.

The public may yearn for tough, old-fashioned, pre-war sentencing but 30 per cent of sentences in the 1930s were probation orders.

There has been an unfortunate, marked tendency since the 1990s to criminalise conduct that previously was not categorised as criminal. The Blair government created more than 3,000 new criminal offences, one for almost every day. The more criminal offences you create, the more criminals you create and the greater the strain on courts and legal aid.

Ministers must be seen to do something. Therefore, the temptation is to fill the Treasury void of no more public investment with the pretence that the problem is not one of money and can be solved by passing a new law, more regulation and efficiency savings.

Modern governments are legislation factories.

Such an approach misunderstands the limits of law. The law provides a useful framework for managing conflict, conferring authority, enforcing legal duties and restraining the improper exercise of power. However, it is a relatively ineffective means of modifying personal behaviour and attitudes.

One can legislate for marriage but not for a happy marriage. Nor is it within the power of the criminal law to cleanse the Augean stable. The answer, insofar as there is one, lies in better parenting and civic education.

Originally, the legal aid scheme was a simple one administered by experts in the form of the Law Society, the solicitors’ professional body. These functions were then transferred to a succession of government quangos, currently the Legal Aid Agency.

As in so many areas, people who have never done the job and have no expertise or experience of practice, and certainly no intention of taking on the stress of practice, tell the expert — the front-line practitioner — how to practise.

The last Labour government bears much of the blame. It commissioned Lord Carter, an investment banker and entrepreneur, to review legal aid procurement. He recommended, and the government implemented, a competitive market system “based on quality, capacity and price.”

The proposals referred to “best value competition,” competitive tendering, “rolling up” payments, priming the market, “whole system reform,” market conditions, value for money, purchasing, stakeholders, “rolling out,” quality frameworks, diversity reference groups and other similarly empty cliches.

The second part of this article, on Monday, will look at how spending on legal aid and courts can be increased if no extra funding is forthcoming from the Treasury.

Anselm Eldergill was a judge. He is a solicitor, an associate at Doughty Street Chambers and an honorary professor at University College London. He is also a member of the Co-operative Party. In 2019 he received a special lifetime Legal Aid Lawyer of the Year Award.