Justice for All

Two months ago an award winning legal advice centre in London had to temporarily close its enquiry system for the first time in nine years due to a surge in demand.

The consequences of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which removed legal aid from hundreds of thousands of people,  are coming home to roost . Before the cuts, the Queen Mary Legal Advice Centre received around 120 enquiries a month. In September last year, it received more than twice that, with 243 requests for legal advice, in areas where the cuts have had the most impact.

Despite a surge in volunteers, pro bono charities are struggling to cope. Legal aid is no longer available in social welfare, benefits and employment cases. It has been severely restricted for housing, debt and immigration cases as well as those seeking legal advice for most family law cases such as divorce and ensuring contact with their children. Claims where patients have been harmed by the NHS have also been affected.

Vast column inches have been devoted to stories of people who previously benefited from legal aid and are now effectively deprived of access to justice. But there is also a growing dossier of evidence proving that the legal aid changes have failed to meet the government’s own objectives.

A report, published at the end of October 2015 by Tonybee Hall and Middlesex University, ‘Sleepless nights: accessing justice without legal aid’, focuses on the lives of ordinary people across London. The study shows that 78 per cent of respondents across all ages and ethnicities who don’t have the means to pay for legal advice and representation are experiencing high levels of anxiety which can lead to mental and physical problems with increased GP and hospital visits.

These findings trigger a distinct sense of déjà vu. A poll of GPs, conducted in late 2014 for the Legal Action Group (LAG) and the Law Society by the polling and research company, ComRes reached similar conclusions.

A total of 88 per cent of the GPs questioned for the survey agreed that patients not being able to get legal or specialist advice about their problems was having a negative impact on their health either to a great extent or to some extent.

Likewise, a National Audit Office (NAO) report published in early 2014 warned that people who were no longer eligible to receive advice might well suffer health and other problems, which would have a knock-on impact on public services.

Even before the LASPO cuts of 2012 came in, the Justice Committee’s report on the Operation of the Family Courts 2011 made very sound observations and predicted these problems. The Law Society also repeatedly warned the MoJ about the impact of its cuts and the increased costs they would create elsewhere, but the Ministry turned a deaf ear.

In February last year the government was criticised by the Public Accounts Committee (PAC) and Justice Committee for not fully considering the consequences of implementing LASPO.  Predictably, the concern among parliamentarians and legal professionals contrasted sharply with the sanguine attitude of justice ministers. In June 2015 Lord Faulks even described the reforms as “sensible and well-directed changes” and told the House of Lords that that the new government would not carry out an immediate review of the cuts. In fact, so comfortable was the MoJ with the implementation of LASPO that a “systematic review” was to be held back until 2018.

However, in a sharp about-turn, the Ministry of Justice (MoJ) revealed in mid November that the MoJ had carried out three research projects to assess the impact of the LASPO reforms, which would be published by the end of 2015.

It remains to be seen whether these reports acknowledge the growing number of people now struggling to navigate the family courts without legal assistance or knowledge of what support might be realistically available to them, in cases where solicitors would have previously resolved the issues via mediation or negotiation.

Sir James Munby, Britain’s most senior family judge, said the huge rise in people acting without solicitors in the absence of legal aid is forcing judges to change how they behave.  The scale of the problem has prompted the Bar Council, CILEx and the Law Society to prepare guidelines which offer practical advice for lawyers who face litigants in person in the civil courts and tribunals. However, these approaches do not help the many domestic violence victims who are being failed by the system as they face tough evidence requirements before they can even receive advice and assistance under the legal aid scheme. Something Parliament never intended.

Equally, the exceptional case funding scheme, a mechanism which was designed to help between 5,000 and 7,000 people taken out of eligibility for legal aid, is not, and never has been, in any way effective. Between 1 April and 28 October 2013 only 23 applications were successful. Applicants face significant obstacles in applying for exceptional funding. The Law Society has written to the Justice Select Committee recommending that LASPO be amended to provide exceptional case funding where it is in the interests of justice and the public purse to do so.

Harnessing technology can help towards filling the access to justice gap created by legal aid cuts and the digital revolution is starting to provide some interesting ideas for innovative ways to provide access to justice. However, the development of a personal relationship between an adviser and a vulnerable client is often necessary to progress a matter effectively. Advancement in this area is in the early stages.

In the mean time, we await the Ministry of Justice findings on the impact of its policies on access to justice. The experience of the past two years has proved that removing lawyers from the process is a false economy and it is having a significant knock-on cost for the public purse, as well as a devastating personal impact on people who cannot get help.

Jonathan Smithers, Law Society President

 

 

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