Legal aid is, to its deep misfortune, a niche issue whose principal advocates are the judiciary and legal professionals. The sweeping cuts of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) removed legal aid provision from multiple civil law areas. LASPO was devastatingly effective; the annual legal aid budget is now £950 million lower than it was in 2010, more than double LASPO’s intended saving of £350 million.
As of April 2013, LASPO removed the provision of legal aid from the family courts in all cases bar where hard evidence of domestic violence or child abuse can be produced. The cuts have resulted in a precipitous rise in litigants-in-person (LiPs). LiPs are when someone represents themselves in court and does not engage a barrister. Whilst this is occasionally a free choice, most often those who represent themselves do so for reasons of financial pressure. Prior to LASPO, many such people would have been able to access a barrister via legal aid.
Post-LASPO, the National Audit Office found a 30% increase of instances in which neither party had legal representation, across all family court cases. In 2017, only 20% of family court hearings saw both parties represented. When these figures are viewed in combination with the findings that only a small minority of LiPs are capable of competently representing themselves, the scale of the issue reveals itself.
Here, three important points must be highlighted.
First, the legal system was not designed with the laity in mind. It was and is intended to be navigable only by trained lawyers. As one anonymous family court judge described it, “LiPs are a nightmare. 99.9% do not understand what is going on in court or outside court…they don’t understand the law.” LiPs not only complicate the functioning of the court, but their presence can lead to grimly farcical situations, such as where a possible victim of domestic abuse is cross-examined by their allegedly abusive partner in court.
Second, LASPO is a false economy. The £950 million saving per annum that it has garnered must be viewed in context with the value of the court’s time. The family courts are notoriously over-burdened and removing legal aid from them was partly motivated by a desire to discourage litigiousness and incentivise the resolution of private family law matters out of court, especially via mediation.
Not only have the number of family law proceedings before the court fallen by a mere 2% post-LASPO, but since LASPO’s introduction mediation assessments have fallen by 56% and mediation cases by 38%. This is because solicitors play a vital role in ‘signposting’ families towards mediation and away from the stressful, drawn-out adversarial process. Without legal aid, and thus a solicitor to suggest an alternative to court, mediation is neglected. Indeed, before LASPO, 80% of mediation referrals came from legally aided solicitors. This means that in the long term, LASPO will lead to fuller and fuller courts, as complainants neglect cheaper, possibly more suitable, forms of dispute resolution for lack of expert guidance.
Finally, whatever LASPO’s intentions, the result of the cuts has been to restrict access to law and legal advice based on little more than financial status. Access to justice is a crucial and unshakeable tenet of the rule of law. Where one partner is professionally represented, but the other must self-educate on complex legal matters, perhaps in balance with a job or childcare or with limited literacy, justice cannot be said to have been accessed. As such LASPO is an unacceptable threat to the rule of law.
A review of LASPO published this year maintained that the courts could function with LiPs present and that the answer to their exploding numbers was better support. This approach not only ignores the long-term issue of the neglect of alternative methods of dispute resolution but also the creation of a two-tier system between those represented by legal professionals and those financially compelled to become legal amateurs and represent themselves. If the Prime Minister decided to address the issues created by LASPO, he would show himself to be a true friend of justice.
Phoebe Arslanagić-Wakefield is a Research Assistant at Bright Blue. Image licensed under the Open Government Licence v1.0.
