The legal aid system was created in 1949 as
part of the development of the post-war Welfare
State, alongside the National Health Service.
It provides funding both for legal advice
and out-of-court representation by lawyers,
for example in negotiating the settlement
of disputes, and -- should it come to this
-- legal representation in court.
While the NHS provides free, universal access
to medical services, access to free legal
advice and representation has always been
subject to a means-test and a merits-test.
Although means-tested, the scheme was originally
intended to reach beyond the very poorest,
reaching 80 per cent of the population.
However, the better-off never received entirely
free legal services under the scheme: they
are required to make a contribution towards
the costs.
And the means test has been progressively
tightened up, so the scheme currently covers
just over a third of the population.
So, part of the welfare state, but this limited
provision of legal services is a poor relation
of our universal free health care and education,
its overall budget dwarfed by the running
costs of the NHS.
And the legal aid budget is not spent on feeding
so-called "fat-cat" lawyers.
In 2009, the average legal aid lawyer earned
£25,000.
Legal aid is currently available to cover
a wide range of issues in the civil and family
law arena, in particular those affecting poorer
members of society, such as problems relating
to welfare benefits entitlements, debt and
housing, and problems arising on family breakdown.
However, all this is set to change in April
2013, when the controversial Legal Aid, Sentencing
and Punishment of Offenders Act 2012 is due
to come into force.
The Act raises profound concerns about access
to justice, largely removing legal aid from
many of the areas of law I have just mentioned.
In an era of austerity, cuts to legal aid
were inevitable.
But the way in which the Act seeks to make
savings -- removing whole areas of law from
the scope of legal aid - has attracted huge
criticism from the legal professions, non-governmental
organisations representing vulnerable groups
who rely on legal aid, and from academics.
I'm a family lawyer, so most interested in
the impact of these reforms on families going
through relationship breakdown.
Many couples who split up need to decide where
their children are going to live and how much
time they are going to spend with each parent.
Couples also have to decide how to divide
their property and whether one is going to
pay regular financial support to the other.
The government's case for removing legal aid
from these cases is based on the erroneous
view that the involvement of lawyers inevitably
means litigation.
So instead of providing legal aid for legal
services, they are going to fund mediation
-- a process whereby one impartial person,
the mediator (who may or may not be legally
qualified) facilitates the parties in reaching
their own agreement.
Only a very small amount of funding will be
available for limited legal advice to support
the mediation.
The government thinks that mediation will
achieve cheaper, quicker and more durable
outcomes than lawyer-based outcomes.
But there is very little if any robust research
evidence to support the claimed benefits of
mediation.
By contrast, we know from research that only
about 10% of cases about arrangements for
children after parental separation go to court.
The vast majority of families currently reach
agreement, many with the guidance of lawyers.
By portraying lawyers as bent on litigation,
the government has entirely overlooked lawyers'
valuable role in managing clients' expectations,
in helping them to understand what it is legally
realistic for them to claim, and so in helping
them to negotiate more reasonably.
It's important also to appreciate that the
family cases that currently reach court tend
to be the intractable ones, often involving
one or more parties with mental health or
psychological problems, or substance abuse
problems, domestic violence or some other
serious imbalance of power between the parties.
These cases are very unlikely to be suitable
for mediation
A growing, but still small, number of couples
do use mediation, but the availability of
full legal services for the financially weaker
party creates a realistic threat of litigation
should the mediation fail.
This incentivises the stronger party to participate
reasonably in mediation.
The removal of legal aid to bring proceedings
effectively removes the prospects of litigation
in many cases, and removes the incentive to
cooperate in mediation.
In turn, this may mean mediation fails to
produce just outcomes, and it is the children
of these couples who will often be the losers.
Without lawyers' support, we may see many
more parents failing to reach agreement and
going to court, where -- without a lawyer
-- they will try to represent themselves.
It is widely expected that that will lead
to greater delays in an already overburdened
family justice system, as these self-representing
litigants struggle to present their cases
effectively.
The provision of legal aid to those who cannot
afford to pay for a lawyer themselves is widely
regarded as an important aspect of the rule
of law -- ensuring that individuals who need
legal advice and representation to protect
their legal rights are able to obtain that
assistance, and so to ensure that the law
is given practical effect in the real world.
The European Court of Human Rights has recognised
that it may in some circumstances be necessary
to provide legal aid in order to ensure a
fair trial, as an aspect of Article 6 of the
European Convention on Human Rights.
The 2012 Act does recognise this, by allowing
for "exceptional funding" to be made available
for legal services in cases where failure
to provide it would breach, or would risk
breaching, the individual's rights under Article
6.
It remains to be seen how generously this
will be interpreted, and so whether the vulnerable
people who cannot properly and satisfactorily
represent themselves in legal proceedings
are given the support that they need.
Importantly, the Act also provides that legal
aid will be made available for victims of
domestic violence in relation to all types
of family dispute.
It is very important for those cases that
the criteria used to identify domestic violence
are not narrowly drafted, as that would prevent
many victims from accessing legal support.
An independent commission on legal aid recently
said that 'legal aid is vital in protecting
the rights of vulnerable people' whose lives
may otherwise be left devastated.
The problems that those people face are 'not
only of great personal importance to the individuals
involved but are of importance to society
as a whole, as they are rightly problems which
a forward-thinking society should strive to
eliminate'.
The 2012 Act effectively turns the clock backwards
rather than forwards.
There are widespread concerns that many of
the cuts made by the Act will prove to be
a false economy.
The cost of not dealing promptly with people's
legal problems is likely to be further costs
to the state and wider society when those
unresolved problems escalate.
Time -- and future academic research -- will
reveal the Act's true impact.
