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A safety net with a hole

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Legal aid as we know it was born in 1949, with the passing of the Legal Aid and Advice Act of that year. This was such a momentous event that in 2009 the Ministry of Justice, via the Legal Services Commission, marked its 60th anniversary by creating a special commemorative website entitled 60 Years of Legal Aid. Unsurprisingly, the MoJ, no longer with any reason to celebrate anything relating to legal aid, has since taken down the website. Happily, however, The National Archives has saved a snapshot of it, taken on 12 June 2010.

The website had a great deal of interesting material on it, and its celebratory tone is in stark contrast to the current outlook regarding legal aid. There are many things on the website that I would like to mention here, but I will limit myself to just one quotation:

Legal aid gives people who can least afford it access to justice which:

  • provides a vital safety net
  • makes our society a civilised one.

It is remarkable that a government department can say such a thing about legal aid just three short years before the government decimates it. Quite how one moment it can be true that legal aid provides a safety net that makes our society civilised and the next moment that is no longer true, I don’t know. Perhaps the truth is that we are actually a little less civilised than we were prior to the legal aid cuts in April 2013.

I mention all of this now because last week the independent fact-checking organisation Full Fact, which checks the claims we hear from politicians and the media, published a report examining the claims and counter-claims regarding legal aid provision referred to in the BBC’s recent Panorama programme that I have mentioned here previously, ‘DIY Justice’. It makes interesting reading, dealing with five claims.

The first claim came from the government. It was that by 2010, the annual bill for legal aid in England and Wales had risen to £2.1 billion. Full Fact found that that was true, but that the bill had actually dropped prior to the legal aid cuts being introduced, so that while some of the reduction in civil legal aid spending will be as a result of the cuts, spending was falling away anyway.

Not directly related to the government’s claim, but Full Fact point out that the number of family cases in which both parties were represented has halved since the cuts. They also point out that it remains the case that most people without a lawyer would have one, if they could afford it, or if legal aid were available to pay for it.

The second claim relates to the other side of the argument. It is that judges estimate that cases involving litigants in person can take 50 per cent longer than those represented by a legal professional. Full Fact urge caution about this figure, as it is based upon anecdotal evidence of the perception of judges, and there are not yet any proper statistics available. I agree entirely, but I strongly suspect that when there are proper statistics they will show that cases involving litigants in person do take considerably longer.

The next claim relates to exceptional funding, for cases that wouldn’t otherwise qualify for legal aid, but where denying it would be a breach of someone’s human or EU law rights. Lawyers have pointed out that of 1,500 applications for exceptional funding in 2013/14, only 69 were granted, a success rate of just five per cent. Full Fact confirm that this is true, but say that successful applications have been increasing since the scheme began and that the figure was ten per cent up to the end of 2014. OK, but even ten per cent is a very low figure, and I don’t think that it changes the legitimate concerns over the scheme.

Moving back to the other side of the argument, the next claim is the government’s claim that our legal aid system remains one of the most generous in the world. This is, of course, an easy claim to make, but a difficult one to prove or refute, particularly as other countries have different legal systems. Full Fact therefore suggest that a good comparison would be with other countries with similar systems, such as Australia, New Zealand and Canada. On that basis, it appears that the government’s claim may have some substance, but Full Fact point out that the latest research, from 2009, is now dated and they can’t be sure whether the legal aid system “remains” comparatively more generous under the new rules.

Lastly, Full Fact deal with the claim by the Labour Party that they will review the cuts if they get into office. However, Full Fact point out that the Shadow Justice Secretary has said that he cannot commit to reverse the cuts. Agree with them or not, it seems that the cuts are likely to be here to stay.

As I say, all very interesting. The one real and undeniable fact, however, is that a huge hole has been ripped in the legal aid safety net, through which thousands will continue to fall.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. Nordic says:

    Wow! 2.1 billion! No wonder you all miss it so much.
    Of course you can compare with other legal systems. Legal aid or free process is not a common law invention. I strongly suspect that common law would look ridiculously expensive by comparison. Maybe that’s a fact they would prefer not to check?

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