The legal aid system was created in 1949 as part of the development of the post-war WelfareState, alongside the National Health Service. It provides funding both for legal adviceand out-of-court representation by lawyers, for example in negotiating the settlementof disputes, and — should it come to this — legal representation in court. While the NHS provides free, universal access to medical services, access to free legaladvice and representation has always been subject to a means-test and a merits-test. Although means-tested, the scheme was originally intended to reach beyond the very poorest,reaching 80 per cent of the population. However, the better-off never received entirely freelegal services under the scheme: they are required to make a contribution towards thecosts. And the means test has been progressively tightened up, so the scheme currently coversjust over a third of the population. So, part of the welfare state, but this limitedprovision of legal services is a poor relation of our universal free health care and education,its overall budget dwarfed by the running costs of the NHS. And the legal aid budgetis not spent on feeding so-called “fat-cat” lawyers. In 2009, the average legal aid lawyerearned £25,000. Legal aid is currently available to covera wide range of issues in the civil and family law arena, in particular those affecting poorermembers of society, such as problems relating to welfare benefits entitlements, debt andhousing, and problems arising on family breakdown. However, all this is set to change in April2013, when the controversial Legal Aid, Sentencing and Punishment of Offenders Act 2012 is dueto come into force. The Act raises profound concerns about access to justice, largelyremoving legal aid from many of the areas of law I have just mentioned. In an era ofausterity, cuts to legal aid were inevitable. But the way in which the Act seeks to makesavings — removing whole areas of law from the scope of legal aid – has attracted hugecriticism from the legal professions, non-governmental organisations representing vulnerable groupswho rely on legal aid, and from academics. I’m a family lawyer, so most interested inthe impact of these reforms on families going through relationship breakdown. Many couples who split up need to decide where their children are going to live and how muchtime they are going to spend with each parent. Couples also have to decide how to dividetheir property and whether one is going to pay regular financial support to the other. The government’s case for removing legal aid from these cases is based on the erroneousview that the involvement of lawyers inevitably means litigation. So instead of providinglegal aid for legal services, they are going to fund mediation — a process whereby oneimpartial person, the mediator (who may or may not be legally qualified) facilitatesthe parties in reaching their own agreement. Only a very small amount of funding will beavailable for limited legal advice to support the mediation. The government thinks thatmediation will achieve cheaper, quicker and more durable outcomes than lawyer-based outcomes. But there is very little if any robust research evidence to support the claimed benefits ofmediation. By contrast, we know from research that only about 10% of cases about arrangementsfor children after parental separation go to court. The vast majority of families currentlyreach agreement, many with the guidance of lawyers. By portraying lawyers as bent onlitigation, the government has entirely overlooked lawyers’ valuable role in managing clients’expectations, in helping them to understand what it is legally realistic for them to claim,and so in helping them to negotiate more reasonably. It’s important also to appreciate that thefamily cases that currently reach court tend to be the intractable ones, often involvingone or more parties with mental health or psychological problems, or substance abuseproblems, domestic violence or some other serious imbalance of power between the parties. These cases are very unlikely to be suitable for mediationA growing, but still small, number of couples do use mediation, but the availability offull legal services for the financially weaker party creates a realistic threat of litigationshould the mediation fail. This incentivises the stronger party to participate reasonablyin mediation. The removal of legal aid to bring proceedings effectively removes theprospects of litigation in many cases, and removes the incentive to cooperate in mediation. In turn, this may mean mediation fails to produce just outcomes, and it is the childrenof these couples who will often be the losers. Without lawyers’ support, we may see manymore parents failing to reach agreement and going to court, where — without a lawyer– they will try to represent themselves. It is widely expected that that will leadto greater delays in an already overburdened family justice system, as these self-representinglitigants struggle to present their cases effectively. The provision of legal aid to those who cannot afford to pay for a lawyer themselves is widelyregarded as an important aspect of the rule of law — ensuring that individuals who needlegal advice and representation to protect their legal rights are able to obtain thatassistance, and so to ensure that the law is given practical effect in the real world. The European Court of Human Rights has recognised that it may in some circumstances be necessaryto provide legal aid in order to ensure a fair trial, as an aspect of Article 6 of theEuropean Convention on Human Rights. The 2012 Act does recognise this, by allowingfor “exceptional funding” to be made available for legal services in cases where failureto provide it would breach, or would risk breaching, the individual’s rights under Article6. It remains to be seen how generously this will be interpreted, and so whether the vulnerablepeople who cannot properly and satisfactorily represent themselves in legal proceedingsare given the support that they need. Importantly, the Act also provides that legalaid will be made available for victims of domestic violence in relation to all typesof family dispute. It is very important for those cases that the criteria used to identifydomestic violence are not narrowly drafted, as that would prevent many victims from accessinglegal support. An independent commission on legal aid recently said that ‘legal aid is vital in protectingthe rights of vulnerable people’ whose lives may otherwise be left devastated. The problemsthat those people face are ‘not only of great personal importance to the individuals involvedbut are of importance to society as a whole, as they are rightly problems which a forward-thinkingsociety should strive to eliminate’. The 2012 Act effectively turns the clock backwardsrather than forwards. There are widespread concerns that many ofthe cuts made by the Act will prove to be a false economy. The cost of not dealing promptlywith people’s legal problems is likely to be further costs to the state and wider societywhen those unresolved problems escalate. Time — and future academic research — will revealthe Act’s true impact.

Comments are closed.

Post Navigation