Legal Aid cuts and what it means

Published 20th November 2015

When the cuts to Legal Aid were initially made back in April 2013 with the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) there was much speculation over the impact they would have.

The impact of which is now being seen in full effect by the courts and the judges which “according to the government’s own figures, in the last two years alone, 600,000 people have been excluded from legal aid following cuts set out in LASPO” (Tickle, 2015). A study called Innovation in Law assessed changes LASPO brought about “which sliced £350m a year out of the civil legal aid budget” (Bowcott, 2014) which in the short-terms has saved the government money. However, this has resulted in many not qualifying for Legal Aid as there are now more rigorous thresholds in place stopping many from getting their cases through the courts. According to the family law organisation Resolution, “as many as two-thirds of cases in the family courts now involve at least one side who has no lawyer to provide help” (Bowcott, 2014). Cases are now taking longer as more people are self-representing due to not qualifying for Legal Aid plus not being able to afford a solicitor or a barrister privately; as the National Audit Office report that, “in the first year after family legal aid was dispensed with, there was a 30% increase in the number of cases in which neither party had legal representation in court … This rise, it is argued, is eating into available court time” (Tickle, 2015).

There are many ways in which the legal profession are attempting to cope with less funding while still encouraging cases to go through the courts, mainly through pro-bono work and charities. The Personal Support Unit (PSU) is a charity that provides trained volunteers to offer free aid to those who have chosen to self-represent in court. However welcome their help is, they are not members of the bar or solicitors so their help can only go so far, “volunteers are not legal professionals, but can accompany a litigant into court but they are not permitted to offer legal advice” (Tickle, 2015). The demand for their service is “growing fast; it has helped just short of 40,000 people over the past 12 months, a number that is projected to increase to 50,000 in 2015-16” (Tickle, 2015) however, this is still less than a tenth of the 600,000 people than the government estimate. Although the work done by this charity is extensive it is still not a sustainable long term solution to getting help to the parties that need it and can’t qualify for legal aid.

Pro-bono work is done by the majority of solicitors and is highly advocated now by the government due to the cuts. However, the Law Society President Smithers warns that the gap made by the cuts “can’t be made up with free legal advice, lawyers will do a few hours pro bono maybe, but what you won’t get is someone to take on a complicated case. No one would argue for a pro bono dentist or doctor: if you want proper professional legal advice, there’s a cost” (Tickle, 2015). Also, solicitors and barristers cannot afford to do too much free work just to make quotas meet for the government.

Many have spoken out against the cuts including MP’s such as Margret Hodge in February calling the cuts “deeply disturbing” adding that “the Ministry has shown little interest in, the knock-on costs of its reforms across the wider public sector caused by the inability to access advice to resolve legal problems.” (Tickle, 2015). Andy Slaughter MP said “we warned the Government that these changes have led to chaos in the courtroom, a jump in numbers of unrepresented parties in cases, and a host of other additional costs” (Bowcott, 2014). Smithers also stated that “the lack of access to justice in this country for a significant proportion of our population undermines society itself… Cuts to funding and changes in eligibility have left vulnerable people without representation” with the “government’s swinging cuts to the legal aid budget approach the reform the nation’s justice system in the wrong way”(Tickle, 2015). The Innovation in Law study, by the law firm Hodge Jones & Allen, interviewing more than 500 senior solicitors and barristers “concluded that nearly two-thirds (61%) fear there is little trust in the fairness of the judicial process” (Bowcott, 2014). Barristers and solicitors have aired their views on the cuts resulting in demonstrations and protests. The study highlights the inequalities the cuts are believed to have caused as “87% believed that wealth is a more important factor in access to justice than it previously was and 79% said increases in court fees were making it harder for people to bring cases” (Bowcott, 2014).

To counteract the negative press surrounding the cuts a spokesperson from the Ministry of Justice said that “a large number of people have always represented themselves in court – this happened in around half of all private family law cases in 2012, judges also have expertise in supporting them” (Bowcott, 2014). However it is well documented that having to explain the court procedures, which are difficult to train for, to a person who is already under a lot of stress and prospectively losing family members or a child is time consuming and may make cases cheaper, due to the free labour in the short-term, but actually slows the courts down. As Julie Exton, the president of the Association of Her Majesty’s District Judges, writes “much of a hearing has to be spent not only explaining the process to the parties, but also calming them down” (Tickle, 2015). The Ministry claims that the “legal aid system will remain one of the most generous in the world” however “we have to ensure that it remains sustainable for those who need it and for the taxpayer, who ultimately pays for it” (Bowcott, 2014) perhaps not entirely keeping in mind that it is agreed the taxpayer pays for it but also they use it as well, and we should all have unfettered access to justice when it is needed most. As Smithers stated, “The case we’re trying to make to government is that justice is as important to society as education and health. Justice is not about going to court, it’s about achieving a fair outcome. And you get that when you get good legal advice” (Tickle, 2015).

The results of the cuts are clear, “the family courts are now becoming clogged up” (Tickle, 2014). Self-representation in the courts is not the appropriate long-term solution to the problem as due to the nature of family law which involves sensitive matters about vulnerable people. Particularly vulnerable people having to self-represent due to lack of Legal Aid can result in a party who may be “a victim of domestic abuse, subjected to years of violence and controlling behaviour with the likelihood of being an effective advocate on your own behalf is small”(Tickle, 2014). This is coupled with the fact that, “mothers now make up more than half (53%) of all unrepresented parents coming to court to contest arrangements for children” (Tickle, 2014) with it being a well-known fact women are more at risk to be a victim of domestic violence. As established, volunteer work and pro-bono can only stretch so far too. What the Ministry is ignoring is that they are denying taxpayers their rights to access the courts, as research conducted by Women’s Aid, Rights of Women and Welsh Women’s Aid showed that “60% of women take no further action if they are not eligible for legal aid – and delay in seeking the protection of a court can make a victim and her children extremely vulnerable” (Tickle, 2014).

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