“A denial of justice”: Lady Hale speaks out on legal aid cuts

Family Law|November 1st 2013

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.

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  1. Paul says:

    Lady Hall would do better thinking about the massive denial of justice that took place when legal aid flowed freely. It was routinely abused by solicitors to distort family cases and deny justice. There have been countless thousands of family cases where fathers were unnecessarily separated from their children as a result of phony allegations funded by legal aid.
    Good riddance to it, I say.

    • Marilyn Stowe says:

      Dear Paul,
      Everyone is entitled to put their case whether you agree or not. That’s not the fault of the lawyer. The lawyer puts his clients instructions and legal aid was not a free for all, it was limited in scope and tightly budgeted.
      The only way a case can come to court and be fully and fairly argued is by both sides being legally represented. Both sides are entitled to put their argument as best they can and it is up to the judge to decide.
      Without legal aid one or both parties may not be able to afford to go to court, can’t possibly represent themselves adequately in the vast majority of cases, and substantial injustices will occur with the individual case and throughout the entire legal system.

  2. Paul says:

    No, I fundamentally disagree with you, Marilyn. Legal aid should NEVER go to an undeserving litigant who for bad reasons chooses to deny her child a paternal relationship and who abuses legal aid to prolong and distort a case that in any objective sense has little prospect of success.

    If a litigant cannot go to the court of appeal without a real prospect of success then an undeserving litigant ought not to receive legal aid for the same reasons. Two hundred quids worth of legal advice granted pro bono will tell them that.

    On a more general level, cases involving children need to be kept as far away as possible from the courts and the denial of legal aid is a necessary step in that direction. Too bad the government didn’t put its thinking cap on when it came to private law reform but that’s another story entirely.

    If litigants insist on pushing an undeserving case then let them do so at their own expense rather than mine or yours.

    • Marilyn Stowe says:

      Dear Paul
      We Brits live in a democracy and one of our basic British human rights, is the right to go to court.
      It isn’t up to you to decide who presents a case or how, and it’s not up to you to decide who wins. It’s for the British legal system and the judge. Taken to its extreme you could then argue no one should get the right to a fair trial in criminal cases either :- and that’s exactly what the Government is trying to do now.
      The denial of the right to fairly go to court puts the entire British justice system at risk. That freedom, is what makes this country’s justice system the envy of the world. Or it was. Now it’s a repository for the very rich and very rich foreigners.

  3. Paul says:

    Well, if judges continue to allow our courts to be abused by the foreign or super rich then the government ought properly to do something about that too, if the judges don’t themselves. But what has that got to do with Joe Public and the loss of state-funded legal aid for his family case?

    Our British legal systems (are Scottish and English law not different?) built their reputations over the course of hundreds of years, not in the relatively short period since WW2 in which centrally-funded legal aid has existed.

    You wrongly equate fairness with the provision of state-funded legal aid. Government legal aid, however, is no guarantee of fairness, particularly when it leaves the other side unrepresented. I attended nine hearings on my own against a mother on free legal aid as I didn’t qualify myself and the preceding four hearings had gobbled up what little savings I had to fend off her foul and unsubstantiated allegations. Where’s the fairness in that? Where’s the fairness for a child when it only gets to see its other parent in a contact centre because of some ridiculous nonsense spouted by a legal aid-funded solicitor acting for the other? Is that what you mean by fairness?

    Legal aid in family cases has been abused on a truly massive scale. It is one of the reasons, for example, why non-mols came to get dished out like Smarties. Even senior judges admit to that common abuse.

    The state of family law in this country is in the same condition as the fabled Augean Stables of old. It needs a damn good clear out, not tinkering around at the fringes. Much of the ordure can be attributed to effects brought about by the easy availability of legal aid. It has undoubtably played its part in the very substantial body of case law which allows mothers to abscond abroad and which has seen fathers relegated over the course of time to the role of second class citizen, deserving only of alternate weekend contact at best and that only when they’ve proved themselves safe. I don’t see any fairness in that, only bias, injustice and discrimination.

    There is a separate argument regarding criminal law. The government recognises that a party retains the right to decent representation when his liberty is at risk. That is not at stake and wrong of you to suggest it is.

    This is the wrong time for lawyers to shout foul, complaining about something which they helped to bring upon themselves..

  4. Stitchedup says:

    I’m sorry Marilyn, I have to disagree also; our justice system is far from perfect. leaving the civil family courts aside, the magistrates courts were know as the Police courts and are obscenely biased towards the Police.

    Recent publicity has proven that the Police are prepared to lie to secure a conviction for the most petty allegations, and magistrates are conditioned to believe the Police.

    IMHO, the greatest denial of justice occurs in the family and magistrates courts. We do indeed live in a democracy, but we expect a fair trial not a lynching pandering to feminist political correctness.

  5. u6c00 says:

    I’m going to buck the trend here and say that I agree with Marilyn, although I think you make some excellent points Paul, particularly in regard to the case law that’s been established by legal aid solicitors.

    Declaring my biases here: I am a male ‘non-resident parent’ who receives legal aid for a private family law matter because I was eligible before April and the certificate continues.

    Without legal aid, I would have been in an extremely difficult position. My ex married a wealthy man and so has a great deal of funding to pursue allegations without legal aid.

    However, I can see the need for reform, because only a fool would argue that legal aid wasn’t deeply flawed. Most of the problems I have seen come from judges who have the attitude that legal aid is a bottomless pit of money so have ordered things that they might not have ordered otherwise. One example being drug tests based on speculation (not even evidence or assertion) that I might have used drugs, because legal aid would pick up the tab. Also, despite some extremely poor behaviour, judges are reluctant make costs orders in favour of a legal aided party because it’s ok, the tab is picked up by the public purse.

    These are reasons for reform though, not to scrap something entirely in my view.

    I am aware of legal tourism in the UK courts, but I don’t think the situation is as dire as you suggest Marilyn. Personally my view is that this is caused by 2 issues: our terrible free speech record and our lack of a written constitution. In fact, the closest I can see that we have to a constitution is the European Convention on Human Rights.

    I do agree entirely on the proposed changes to criminal legal aid. I think that if people knew more about them then they would be appalled by the proposals, knowing that if they go through they damage the very concept of justice in our country and the proposed saving (£220 million) is very small compared to the overall budget. Personally I think that the saving isn’t worth the cost, and no one I’ve spoken in detail about them has either.

  6. J says:

    I agree with Paul and I’m afraid Marilyn you remain out of step with the vast majority of fathers who end up excluded from their children. I note you still havent answered the questions I posed on 17 June despite promises to reply. https://www.stowefamilylaw.co.uk/2012/10/31/child-support-agency-routinely-breaching-the-human-rights-of-fathers/#comment-274734

    Legal aid even now allows for funding where there is an allegation of domestic abuse, however this will not stop the mumsnet generation of men haters lying to get it. I can prove the mother in my case lied repeatedly all supported by legal aid. I am not alone and no lawyer would have presented it as I had a lawyer the for the 1st year only sacking them when I realised they are just in it for the money. Again while Lady Hale makes an argument for legal aid it appear part of her argument is for increasing lawyer salaries, legal aid should not be a job creation scheme for the legal profession. A more credible way of saving money would have been a presumption of equal parenting and if judges bothered to enforce the orders they make. Then the mothers wouldn’t breach contact orders if it meant going to prison even for 1 day.

  7. Luke says:

    Here is the problem I have with Legal Aid (apart form it’s huge cost of course):
    If one person has Legal Aid and the other person does not what is to stop the person with Legal Aid dragging every single thing out and forcing the other party to spend vast sums on legal fees ?
    The net effect of course is that the party without Legal Aid will have to settle the case badly and effectively lose because they cannot continue the haemorrhaging of monies in costs. How is that the justice that Lady Hale claims to speak of ? What is her solution to this ?

    Can anybody explain this to me please ?

  8. jj says:

    Well lady hale

    this encourages the poorer party, usually the woman who can tie this up in court at taxpayers expense for as long as she pleases, to make a reasonable agreement with regards to access arrangements. just saying, what incentive does the poorer party have to make a reasonable arrangement when she can keep it going for as long as she pleases and get it all paid for, alot of peoples game is to tie it up in court til the person who has to pay runs out of money,…

  9. Andrew says:

    I hope Lady Hale will agree with me (and I am sorry to repeat what I have said in other threads but it won’t go away) that giving legal aid to the party who claims to be the victim of d.v. but refusing it to the party who denied committing d.v. creates a playing field about as level as the deck of the Titanic when the band were playing Nearer My God To Thee for the last time.

    And it’s also rough on the complaining party who will face cross-examination from the denying party,

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