Future of legal aid debated by MPs

Family Law|Industry News|November 5th 2018

Last Thursday MPs debated the future of legal aid. The debate was held in Westminster Hall, rather than the (House of) Commons Chamber. Now, I am certainly no expert upon the arcane complexities of parliamentary procedure, but the Parliament website tells me that “Westminster Hall debates give MPs an opportunity to raise local or national issues and receive a response from a government minister.” The MPs taking part do not vote upon the issues, but the website explains that: “If the question is challenged the Chair reports to the House”, and that:  “This could lead to a vote in the main Chamber.” By which I understand that if MPs are unhappy with the response from the minister, the matter can then go to the Commons, which can then vote and possibly therefore change government policy.

Whatever, on to the debate.

Now, it is rather long (it took place over two hours thirty-eight minutes, slightly short of the three hours that were allotted to it), and much of it is not relevant to family law matters. However, I have picked out a few nuggets that I think are relevant to those with an interest in the family justice system.

The debate was moved by Andy Slaughter, Labour MP for Hammersmith who referred, of course, to the Government’s post-implementation review of the effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’, under which legal aid was abolished for most private law family matters), which will be published before the end of the year. We will obviously have to wait to see what the review says, but as Mr Slaughter commented:

“No one is saying that all the cuts since 2010 will be reversed, or that the clock will be turned back, but if the Government wish to honour their stated objectives for LASPO, and in particular, “To target legal aid at those who need it most”, they must put something extra in the pot.”

Indeed, although even if they do, I would certainly not expect it to be a very substantial contribution.

Mr Slaughter referred to a cross-party group called ‘More United’ that champions the issue of legal aid. The group specified three ‘asks’ to put to the Government to deal with some of the worst consequences of LASPO, which were: access to early advice, access to welfare advice and simpler criteria for obtaining legal aid. As Mr Slaughter said:

“First, cutting early advice means problems fail to get sorted while they are small and manageable, with worse consequences to the individual and the state down the line. Secondly, taking welfare advice out of scope leaves those people who need help most struggling. Thirdly, restrictive and complex eligibility criteria have become an effective way of stopping even those of very limited means getting access to what legal aid is still available.”

Moving on, Catherine West, Labour MP for Hornsey and Wood Green, made the point that women have been particularly affected by the cuts to (family) legal aid. Often, she said, they will represent themselves at court and be repeatedly brought back to court by a perpetrator, perhaps their ex-partner, and have to face the trauma all over again. This point was taken up again later in the debate.

And then Teresa Pearce, Labour MP for Erith and Thamesmead, made the well-known point:

“…the Government said that they believed that withdrawing legal aid for family matters would increase mediation, but research shows a 56% decrease in mediation. The Law Society says that early advice from a solicitor was a significant source of referrals to mediation in family matters.”

Yes. Again, this point was discussed further later in the debate, with it being mentioned that access to early advice might entail lawyers suggesting mediation to litigants.

And then Mr Slaughter made another well-known point: “…however good pro bono services are, they cannot replace legal aid and it would be wrong to say that they could.” Exactly. The Government clearly expected far too much from pro bono. Lawyers (unlike most other professions) do a great deal of good by giving their services for free, but pro bono can only ever be a sticking plaster for the gaping wound left by the abolition of legal aid.

And other effects of the cuts were also mentioned, including of course the strain on the court system caused by the increase in the number of litigants in person (‘LiPs’), and the problems faced by those LiPs, who can struggle to understand court procedures and their legal entitlements. I don’t think I need to elaborate upon these points here.

Perhaps the most important part of the debate came about half an hour before its end, when the Shadow Justice Minister Gloria De Piero spoke. She said:

“It is essential that, regardless of someone’s wealth or background, our justice system should be easily accessible so that everyone is on the same playing field when it comes to the law of the land … Government cuts of a third in overall spending on legal aid since 2012 have, however, made a mockery of that principle.”

She went on:

“A particularly pernicious aspect of the Government’s attacks on legal aid is the impact on victims of domestic violence. It is well known that abusers often use the legal system to continue their abuse. There are a number of issues with the Legal Aid Agency’s assessment of women’s financial eligibility for legal aid via the means test. Such tests too often result in women making unaffordable contributions, or even having to sell their home to pay legal fees.”

And she made this commitment:

“A Labour Government will return all funding for early legal advice, because we know that prevention is better than cure. We will re-establish early advice entitlements in the family courts, restore legal advice in all housing cases to protect 50,000 households a year against rogue landlords, and review the legal aid means test.”

Of course, this all depends upon a Labour government coming to power.

And what of the response of the government minister? This was given by Lucy Frazer, the Parliamentary Under-Secretary of State at the Ministry of Justice. She said pretty much what one would have expected her to say: the government spends £1.6 billion a year on legal aid, it is listening to concerns, it is using technology to help litigants (e.g. online divorce), and so on. As to the family law legal aid cuts she was unsympathetic, saying:

“LASPO rightly removed most private family matters from the scope of legal aid, but legal aid remains available for mediation in certain family disputes where parties meet the eligibility criteria. Since November 2014, legal aid has covered the costs of the mediation information and assessment meeting and the first mediation session for both parties, even if just one is eligible for legal aid.”

And that was about it. There seemed to be no challenge to what the Minister said, the matter being left until the publication of the LASPO review.

However, the message is clear: the review may do a bit more tinkering to ameliorate the worst effects of the legal aid cuts, but anyone hoping that legal aid will be restored to all family matters is going to be severely disappointed.

If you wish you can read the full debate, here.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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