The Supreme Court decision proves what we already knew about the legal aid reforms

Family Law|April 20th 2016

When I began practising in the early 1980s, legal aid was available to all who needed it. It was also easy to obtain (a legal aid application required three sides of A4, whereas when I last made one it required the sacrifice of half a rainforest), and legal aid lawyers were easy to find in every town. As a consequence, our legal system was essentially a level playing field for all in society, irrespective of their means.

Back in those days I don’t remember any particular complaint from the government or the taxpayer over the cost of the legal aid system – it was simply accepted that it was another essential element of the welfare state, protecting the poor and needy, just as the benefits system and the National Health Service did. However, the cost of the system did increase dramatically and that increase, together with the financial crisis of 2008 put legal aid firmly in the firing line for government cuts.

Those cuts (or at least the first of them) came in 2013, with the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (affectionately known as ‘LASPO’). Family law was particularly savagely hit, with virtually all private law family matters taken out of scope for legal aid. At a stroke, it was decided that legal aid was no longer essential, and the level playing field was pulled from under the feet of family litigants who could not afford a lawyer.

Now, I am fully prepared to accept that it was quite right for the government to examine the possibility of reducing legal aid expenditure. However, with such an important matter as access to justice it was obviously essential that any cuts were thoroughly thought through, both in how they would be made and in all of their consequences.

On Monday, just two months after the Court of Appeal declared that the legal aid regulations which require documentary evidence in support of applications for legal aid for domestic violence claims to be no more than 24 months old were invalid, the Supreme Court held that the government’s proposed residence test for legal aid applicants is ultra vires. Sadly, the Supreme Court’s decision proves what we already knew about the government’s legal aid reforms: that they were ill thought-out, and rushed through without proper consideration of their consequences.

But the Supreme Court’s decision, remarkable though it is (it was reached with a swiftness almost unheard of previously), is only the tip of the iceberg of poor thinking behind the cuts. I have spoken here previously about some of the other bad consequences that do not seem to have been properly considered: courts overburdened with litigants in person (LiPs), LiPs being put at the mercy of charlatan legal advisers who are unqualified, unregulated and uninsured, people taking the law into their own hands and many people simply giving up, rather than face the prospect of court proceedings without legal assistance. Put simply, legal aid was taken away and nothing was offered in its place.

But there is more. Also on Monday there was a story in the news that the cuts were creating new advice ‘deserts’ in the legal aid sectors that remain in scope. More and more firms of solicitors are giving up legal aid work, with the result that for some types of work many areas no longer have any cover. So even if legal aid is still available for your matter, you may have great difficulty finding a legal aid lawyer. Housing and debt are the particular types of work mentioned in the story, but what if the same happened with the one main area of family law still in scope: care proceedings? What if a family who faced the prospect of the state removing their children from them could not find a lawyer to represent them in their area? Has such a scenario been considered by the government?

It’s all very well the government wrapping the cuts up with fine words about legal aid. “Legal aid is the hallmark of a fair, open justice system”, said the then Lord Chancellor Chris Grayling as he introduced proposals for further reform of legal aid in 2013, including the residence test. However, those words are betrayed by the reality, which is that the government doesn’t care at all about legal aid, or therefore about access to justice. If it did then any cuts would have been properly thought-out, and their consequences fully considered before they were implemented.

Photo by David Holt via Flickr under a Creative Commons licence

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Comments(3)

  1. Andrew says:

    You are generally right; but the former law was grossly unfair to successful unassisted and uninsured opponents of assisted parties and if the cuts are ever restored that needs to be remedied by putting the LAA in the assisted party’s shoes in such cases.
    .
    Anyone disagree and why?

  2. The Devil's Advocate says:

    Blimey Graying, Gove…head of unbridled balance in our Justice system, and they still can’t get their facts of why they want to leave the UK on a boat off Penzance on 24th June????? Sorry I mean if they know they cannot fight HM Government line on facts for their feelints of hwo to fight the real facts, and they having an Bre”Exeter” position (they all own second or third homes there), then what hope do we have for justice let alone reinstating Legal Aid as it was when Mrs. Thatcher was our Great Leader…

  3. David Bourne says:

    If there is no appeal for legal aid
    Then all practice ex are illegal no fair process it’s what the gov. Uk says it is
    Then gov.uk can de fraud expoilt and use bad practice as legal guide lines how is this a fair an balanced democratic society if our rights are being taken away by corrupt gov systems
    Water gas TV and also child maintenace services
    The system of taxing a working mans wages so he’s left with 10% of his wage
    A family court system that does not expept that a father has a right to live love see his children or toto work because the system is using itself to make money out of low earners wages
    With threats of prison loss of liberty over % that are not reasonable to a persons living costs or debts bill etc
    To mothers who use the system to stop fathers being fathers
    I thought we won the war on tyranny but the new Cms is just about making money
    How can a system take from fathers who make the effort through adversity of equality for their children backed up by bad practice Financal and emotional abuse
    Using children as a cash cow
    If I work and they take £300 at source from my wages I cannot get help or support from state benefit because I want to work which is a right of a person
    For that right to be taken away by putting a tax on being a father which is not reasonable to a living wage
    I cannot understand that I tried to pay what I could afford but was rejected so they could take £400 before Xmas
    So how can a system that woman earn more than men I’m not a breadwinner and they are not in hardship
    Me as a man a father home owner employed and activity seeing my children be stolen from by the amount they want and I could be sent to prison over racketeering I thought was to be fair an balanced
    No process for appeal against Cms no information about bad practice about its a debt collection agency deguised as a Goverment agency
    How can this be legal practice
    How is beneficial to be working if another tax takes away the right to earn a living
    Tax for the most natural act of having children
    If mothers stop access they are criminals who use Cms to make free money who can scam as much as possible how is that not fraud backed up by a corrupt agency
    My children have a home I go to work for so how can Cms steak my right to work and to up keep it or feed my children or basis right to take them on a holiday if the system wants £300 out of £1000 before housing energy fuel car home insurances debts bills loans
    Fed up is not the word
    I’m being made out to be crimilsed by this system which they say is fair
    Real fact is my living way is gone so putting me in hardship earning the bit to live on
    It is financal abuse set out by the gov if you cannot afford to eat travell or clothing then it is abuse

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