How can there be a real possibility of going to court to settle matters fairly, if legal aid is not available to the one who cannot afford a lawyer?
This was the question posed by Lady Hale, the Deputy President of the Supreme Court, when she addressed a Young Legal Aid Lawyers event in London this week. The Supreme Court’s only female judge, Lady Hale is accustomed to standing out from the crowd and she certainly isn’t afraid to speak her mind: she has previously spoken out about her dismay that so many judges belong to the all-male Garrick Club, and on more than one occasion has been the sole dissenter when Supreme Court decisions have been made.
Now Lady Hale has spoken out about the effect of legal aid cuts upon justice, with particular reference to family law. The Supreme Court press office has been at pains to point out that the views expressed are Lady Hale’s own, and do not necessarily reflect the position of the UK Supreme Court. As you have probably guessed, she hasn’t minced her words. In truth, it is a brilliant speech.
You can read Lady Hale’s address in its entirety here, but I would like to draw your attention to the following extract, which covers cuts to legal aid, the decline of mediation and the difficult choices faced by up-and-coming legal aid lawyers:
The idea [of legal aid] was that those who could not afford it would still have access to lawyers. Now all of that has been brought to a shuddering halt by LASPO. The Act itself has taken many important areas of work completely out of scope. Of course I feel particularly concerned about the impact of removing legal aid from most private family law cases and relegating them to mediation.
Most family judges are great believers in mediation – they know that with suitable help the parties should be able to reach a better result than they can do. As President of National Family Mediation, I share their views. But that only works if both parties are willing to engage in mediation. And why would the stronger or richer party engage in mediation if there is not the real possibility of going to court to settle matters fairly if the mediation fails? And how can there be a real possibility of going to court to settle matters fairly if legal aid is not available to the one who cannot afford a lawyer?
The judges are worried at two prospects. The first is that people with good cases will not pursue them in court, which will be a denial of justice. The second is that people with bad or good cases will pursue them in person, which will be time consuming and inefficient. But the real problem is the case where one party can afford legal representation and the other cannot. There is a weaker and poorer party and a richer and stronger party in most family cases. Denying the weaker and poorer party a level playing field is a denial of justice.
But of course this so-called reform has done more than save money on lawyers. At present it is also saving money on mediators. Referrals have dropped dramatically. This is not surprising. Not only does the stronger party have little incentive to mediate; the lawyers were the primary source of referrals to mediation. Now that people can no longer get legal aid, they no longer have to go for an explanation of mediation as a pre-condition of getting it for family proceedings. The obligation to attend a MIAM is not coming into force until next year. NFM services are wondering whether they can hang on until then. I would like to think that the government regards this as an own goal.
The message is that legal aid lawyers and mediators must work together for the benefit of separating families – for lawyers to reassure the public that some money is still available for them to support people going to mediation, and that it is available for the mediation, so they do not need to go straight to court, and for mediators to adapt their practices so that the memoranda of understanding they produce are easier for lawyers to assess.
Thirdly of course there have also been severe cutbacks in the remuneration available for legal aid lawyers. I hear stories every day of very able practitioners who are having to leave because they cannot make ends meet. Some of these are the very diverse and socially mobile young lawyers whom we want to attract into the profession. But the combination of a high cost education and a low-paid career is going to be more and more of a deterrent.
Earlier today, Lady Hale’s speech came to mind as I passed the Liberal Democrat head office by St. James’s Park (left). As you can see, I bumped into a crowd of protestors from the Justice Alliance, which is dedicated to the preservation of legal aid as we know it. The protestors were standing there in the cold to hand a open letter to Nick Clegg, and the letter was accepted by Simon Hughes MP in Mr Clegg’s absence. Will the Liberal Democrat leader even see and read it? I don’t know. I admired the crowd’s cheer and energy, but as I stood and watched, I recalled the somewhat despondent final words of Lady Hale’s address:
I wish I could see a way ahead in these difficult days. I understand how difficult it is for the government to bring expenditure on legal services under control without taking drastic steps like these. I salute the courage and determination of the young legal aid lawyers who are bent on continuing to provide a service to the poorest and most disadvantaged in our society and also on promoting a more diverse and socially mobile legal profession. Good luck to you!
Right now I think the great judges Lord Bingham, Lord Devlin and Lord Denning must be turning in their graves. Our uncodified constitution is separated into three branches: the executive, the legislature and the judiciary. The judiciary is the most important check on the over exercise of power by the other two. Its independence should be sacrosanct. However the Government’s cuts to legal aid funding mean that people are finding it more difficult to access the courts. As a result, the power of the judiciary to check and to balance is being made to dwindle. While our constitutional safeguards and rights are being eroded, people here are being encouraged by the Government and by certain sections of the media to believe that lawyers, courts and law itself is bad and unnecessary.
Perhaps the only answer is for the judiciary to stand up and speak out, just as Lady Hale has done this week, and to keep speaking out in unison. Perhaps at this late stage, the judges are the only people who can stop what is happening.