It’s a subtle change in terminology, but it could contain huge meaning, and serious implications for many thousands of people who find themselves embroiled in the justice system every year.
Previously we have had ‘legal aid’, which essentially meant a full legal service, involving not just advice but also representation at court. We also had ‘legal help’, which usually just covered initial advice but no representation.
Now a new term has been introduced by government ministers: ‘legal support’.
The term has been mentioned in the context of a review of the effects of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) which, amongst other things, abolished legal aid for most private law family matters back in 2013, and a general review, which will include two new green papers:
Firstly, justice minister Sir Oliver Heald told parliament last week that a green paper on ‘legal support’ would be published in 2018. He said that “the reform programme will deliver a justice system that is more accessible to the public” and that “aims to support people in resolving their disputes using simpler, modern procedures”. Justice Secretary Liz Truss elaborated by saying that the green paper would help the public get to grips with online courts. She also told a meeting of the House of Lords constitution committee that online courts would mean “fewer lawyers” were needed to help people navigate their way through a “cumbersome and complex” system.
Secondly, Liz Truss announced that there would be another green paper on family justice, where she said that “things were not being done early enough” and that there were “big opportunities for us to intervene earlier in families to help protect children better”.
She went on:
“Our redesigned system will cut out a lot of money that is being wasted helping people navigate a very complicated process and instead will make sure lawyers are used to best effect, giving expert legal advice and representation.”
So, what are we to make of all this? Well, obviously we will have to wait and see, but I think that already some things are clear.
Firstly, and unsurprisingly, the new term ‘legal support’ surely implies that there will be no return to full legal aid, as per pre-LASPO. This is of course expected, but it still seems odd to me that you carry out a review of the effects of abolishing a system, having already decided that there can be no return to the abolished system. Surely, if the effects of abolition are found to be unsatisfactory, then the answer is to re-introduce the old system?
So if ‘legal support’ is not to entail a full advice and representation service for those who cannot afford a lawyer, what will it entail?
Well, the green papers may of course come up with something new, but the words of Sir Oliver and Ms Truss sadly suggest much of the same as we have had from government for some time now, including:
1) A further push for alternative dispute resolution (i.e. resolving disputes out of court), in particular probably mediation. I’m not really sure that much more can be squeezed out of this, but all the while the government think it is cheaper than resolving matters through court then no doubt it will keep pushing it.
2) More advice for litigants in person available online. The problem with this, of course, is that you can give all the advice you want, but it will always be non-specific. What people really want is advice tailored to their specific situation – you can tell them what the law is, but the vital question is: how does it apply to them? That advice can only really come from qualified lawyers. Ms Truss mentions lawyers being used to give “expert legal advice and representation”, but it’s difficult to see how that can happen without a return to legal aid.
3) Online courts, which are expected to reduce the need for litigants to instruct lawyers by simplifying the processes. OK, I can see this working for undefended divorces (provided, of course, that the government can actually come up with a computer system that works), but what about contested children disputes, or arguments over finances on divorce? As someone pointed out in a comment in the Law Society Gazette, these matters are not the same as applying online for your road tax. It is just not possible to simplify them to the level where they can be dealt with by litigants sitting at home in front of their PC screens.
I may just be pessimistic, and I hope I am proved wrong, but to me it seems that ‘legal support’ will just mean that our two-tier legal system, whereby the wealthy get a Rolls-Royce service and the poor are left with a rusty Trabant, is to be fixed in stone.
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