Legal Aid review: welcome words, but time for action

 

In February, the Ministry of Justice published its long-awaited review into the impact of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), which aimed to cut £350m per annum from the annual Legal Aid bill from 2013.

I chair the Family Law Reform Group of the national family justice organisation, Resolution. The body represents around 6,500 family justice professionals – including barristers and solicitors – and we passionately and vocally opposed the cuts to Legal Aid during the Act’s passage through Parliament.

The Post-Implementation Review was not necessarily the whitewash many were perhaps expecting, and it did acknowledge the concerns raised by many, including Resolution, about the ability of individuals to access legal aid for civil and family matters.

We also welcomed certain aspects of the Review, for example, the commitment to expand legal aid to cover special guardianship orders in private family law and reviewing the legal aid means test.

Nevertheless, nobody can argue seriously against the proposition that cuts to legal aid have had a devastating impact on the provision of access to justice. This impact was brought to the fore in a survey Resolution carried out last September, with the help of our members, which informed our submission to the Review team. This survey showed that, since LASPO, 1 in 5 legal aid family practitioners had simply stopped doing legally aided work altogether. What’s more, a quarter of respondents said they were unable to signpost to a legal aid provider within a reasonable distance.

Almost every practitioner (98%) reported that their average client has either no or only basic legal knowledge, and 93% reported seeing increased numbers of litigants in person – something which I’m sure readers will be able readily to identify with. In the family sphere, at last count (for the final quarter of 2018) 81% of family court hearings involve at least one unrepresented litigant.

Based on the estimates of the 104 legal aid providers who responded to Resolution’s survey, they have had to turn away around 10,000 people over a 12 month period. It must be remembered that this is only the proportion of people who have actively sought help from legal aid providers. Extrapolated out to the entire legal aid profession, we could be faced with hundreds of thousands of people being turned away this year. These findings are reflected in the anecdotal evidence our members present to us on a regular basis.

The Review also recognised what Resolution and many others had told the MoJ team leading it – that early intervention, and access to legal support as soon as possible, can make a significant difference to those facing family disputes. It’s something we all know instinctively as practitioners, but evidencing it in the way policy-makers demand is more challenging.

I strongly believe that the government, if it invested in spending money on access to legal information and advice for those facing family disputes, could save far more further down the line in other areas: welfare payments, housing support and the care system, to name but a few. And this logic doesn’t just have a practical, economic angle : there is also a strong moral argument. The simple fact is that, without access to tailored legal advice, many vulnerable individuals will continue to be left to deal with the family courts with little or no help.

Without legal advice, couples and individuals are less likely to resolve matters away from the court and more likely to face lengthy delays within a creaking court system. If government is serious about reducing conflict and stress for couples and families in dispute, it needs to go further and ensure that everyone who needs it has access to early legal advice, to enable them to make informed choices about their options. These choices have a fundamental long-term impact on families and children and it is vital that people are properly supported – not just for those individuals, but for society as a whole.

This advice is also more likely to result in fewer couples using the courts to resolve their disputes. Despite making legal aid available for mediation as a result of LASPO, mediation figures fell significantly in the months and years following the cuts. There is now almost universal acknowledgment that the absence of early legal advice has had a direct impact in these numbers falling, as couples simply weren’t able to make informed decisions about their options.

What’s more, public funding is only available for one form of out-of-court dispute resolution. Why restrict it to mediation? I’m a mediator and know it can be very successful where the circumstances are suited to this approach. But it’s not the only way – collaborative practice, roundtable negotiation, arbitration – providing for these and other processes could help many more couples resolve matters without recourse to the courts, which in turn would reduce the burden on HMCTS and judicial resources.

Some have argued that the government should commission independent economic research, to assess more accurately how much investment in this area could save taxpayers elsewhere. This would seem a sensible approach.  As in many areas of government, there is a real danger of working in silos, where a department or agency, faced with a tough bottom line, is afraid to propose new initiatives which require funding, especially where the return on investment may not be seen during that government’s lifetime.

In a linked announcement on the day the Review was published, the government set out its Legal Support Action Plan, intended to explore new and different ways people could access help with legal problems, including in family cases. Whilst it’s refreshing to hear government talk about solutions rather than simply cutting budgets, it should be noted that the £8m of funding – across all areas of the law – represents little more than 2% of the £350m of annual cuts to legal aid.

Nobody was expecting this Review to reverse the cuts, but the commitment from government to early intervention, for example, has to be backed up by meaningful funding. Otherwise children and families across the country will continue to suffer from a lack of access to justice.

So whilst we hope the Review marks the first step in a change of tone from the government, the proof of the pudding, as they say, will be in the eating. Resolution will continue to stand up for our members and all needing support on relationship breakdown, and keep on making the case to Ministers and officials on the need for new ways to ensure people have access to the right advice at the right time.

By Jo Edwards, Chair of Resolution’s, Family Law Reform Group

 

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