It would be no understatement to say that the Government’s cuts to the legal aid system have been controversial. The provisions of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill were met with widespread opposition from the legal profession from the word go. Those from social welfare, children’s rights and church groups were equally vocal in the concerns they expressed.
Nonetheless, the Government pushed on doggedly with implementing the proposals. As we know, that determination to see through the reforms has led to where we are today – a family justice system creaking under the weight of unprecedented numbers of unrepresented litigants, with Government struggling to find solutions to channel these people into out of court dispute resolution or to ensure that they have the information and advice they need to manage their case through court with no legal assistance. The removal of legal support for people on lower incomes is having, as we expected, serious consequences. Access to justice is under threat.
More than two years on from the implementation of LASPO, it is not only legal professionals who are expressing serious concern about the impact of the legal aid cuts. Two important reports, both highly critical of those who oversaw the implementation and aftermath of LASPO, have been released this year: the first from the Public Accounts Committee and the second from the Justice Select Committee. The reports provide are damning of the Ministry of Justice’s failure properly to think through the long-term consequences of the removal of most family cases from the scope of legal aid.
The report from the Public Accounts Committee (PAC), released in February, concluded that the Government’s cuts to family legal aid have hindered significantly access to justice for many ordinary people. This comes as no surprise to those of us who work with separating families every day.
The PAC’s report agrees that family solicitors played a key role in keeping family disputes out of court before the legal aid cuts were implemented. The rise in contested proceedings and drop in mediation numbers since the removal of the majority of family legal aid is no coincidence – it confirms that timely and appropriate legal advice is crucial to helping separating couples manage conflict and costs during their divorce.
The PAC report recommends that the Ministry review the impact of the reforms and the ongoing issues that the cuts to legal aid are causing to access to justice in this country. Resolution has long been pressing for a wholesale impact assessment, but as of yet we are yet to see any movement on this. Indeed, with the new Government’s Spending Review scheduled for the end of November, we may expect to see the programme of legal aid ‘cost savings’ continue. In truth, they are not savings if the impact is to deny access to justice.
The second report from a Government body on the legal aid cuts, released in March, came from the Justice Select Committee. Among other things the report was highly critical of the failure of the exceptional funding scheme to plug the gaps with funding in appropriate cases. In July this prompted what I described as a “bullish and unapologetic” response from the Ministry of Justice, which included a statement that the exceptional case funding scheme is operating as intended. The response fails to acknowledge at all the seriousness of the problems caused by the legal aid cuts and the very significant impact on families struggling with separation.
Resolution members gave evidence to the Justice Select Committee, during its enquiry, about the access to justice issues we are seeing day to day. Key amongst these is the failure of the exceptional case funding provision, hailed during the LASPO consultation as a ‘safety net’ to support the many cases that would not be within scope under LASPO but which nonetheless merited funding due to the exceptional circumstances of the case.
In practice, in very few cases have individuals managed to secure exceptional case funding. Those that have been successful have, in our experience, largely required extensive legal support (for no payment) in order even to complete the lengthy and complex application form. Resolution and the Justice Select Committee are far from the only bodies to criticise the operation of the scheme. In R (Gudanaviciene and Others) v DLAC and Lord Chancellor 2014 EWHC 1840 (Admin)), CH Mr Justice Collins held that the Legal Aid Agency’s current operation of the Exceptional Case Funding scheme is unlawful. The applicant for exceptional case funding was blind, had profound cognitive impairments, lacked litigation capacity and was unable to care for himself, but was refused exceptional case funding under s10 of LASPO, designed to provide legal advice and representation to those whose human rights would be at risk of breach without funding. Mr Justice Collins found that, ‘The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable.’
The Judge highlighted deficiencies in several aspects of exceptional case funding, including the complexity of the application procedure and the nature of the Legal Aid Agency’s decision-making. He concluded that s10 was failing to provide the safety net that was promised by Ministers, making it clear that there will need to be significant changes to the operation of the scheme. He also examined the basic legal aid merits tests and found that the Civil Legal Aid (Merits Criteria) Regulations 2013, as amended, were unlawful, as the amendments prohibited legal aid in poor or borderline cases. Although the LAA has not yet taken any action in relation to the exceptional case funding scheme, it amended the basic merits tests with effect from 27 July.
Against this backdrop, the Ministry of Justice’s extraordinary stance that exceptional case funding is operating as intended not only ignores the comments of the Justice Select Committee and Mr Justice Collins, but also ignores the many individual cases in which funding has been refused, despite judges’ strong protestations to the contrary. At the Select Committee hearings, we heard of alarming cases involving domestic abuse where, due to a lack of legal representation, an alleged perpetrator could cross-examine his victim directly in the courtroom. Resolution strongly advocates, at the very least, that the Government takes heed of the Justice Select Committee’s recommendation that legislation be drafted to protect vulnerable people from being put in this situation, which is tantamount to a perpetuation of the abuse. That this situation, long legislated against in the criminal courts, should continue to exist in our family justice system is a travesty.
So, what is the solution?
First, whilst it is unlikely that legal aid will be restored in full, at least under the current Government, the Ministry of Justice and Legal Aid Agency need urgently to carry out a thorough impact assessment and review of the cuts. So far their focus has been squarely on achieving savings in the legal aid spend, so to that end they have hailed LASPO a success. But what of the impact on the court system of all the extra unrepresented litigants? On the dad who doesn’t know how to secure time with his child on separation (and on the child himself)? On the benefits system of the spouse who does not know how to pursue financial remedies on divorce?
In addition, earlier this year Resolution released its Manifesto for Family Law. One of our proposals is that funding be made available for initial legal advice in family cases. It may be a combination of services, so that people are able to receive help from a legal professional at the points in the process where they need it most – so even if they end up representing themselves, they have an initial discussion about what they need or want to do.
This would provide a more comprehensive system of support and enable vulnerable people to find out about all of the dispute resolution options available to them. It is also likely to result in a higher referral rate to mediation, as it would restore a major source point of access that existed before the cuts to legal aid. This would reduce significantly the number of litigants in person using the courts, whose issues do not always require court time but who, without access to legal advice, invariably think that court is the only option.
As we face the spectre of yet further spending cuts, it is imperative that action be taken now – before yet further damage is done to the family justice system, perhaps irreparably. We owe that to all families going through separation.
Jo Edwards, Chair of Resolution