‘Reforming’ legal aid?
Alan Bean argues that proposed reforms to the legal aid system will create a more unjust society – not a more just one – and adversely affect the vunerable
One evening in 1974 I watched a television documentary that highlighted contemporary manifestations of injustice in our society. As a result I spent two months volunteering at Camden Community Law Centre and then trained as a lawyer. Most of my career has involved work under the Legal Aid scheme. This scheme has been one of the pillars of this country’s social welfare system for the past sixty years. It is rightly held in high esteem worldwide. On 21 June 2011, a Bill was laid before parliament that purports to ‘reform’ Legal Aid – the Legal Aid, Sentencing and Punishment of Offenders Bill. The ‘Legal Aid’ part of this Bill received very little coverage in the news, since both parliamentarians and the media were focused on the furore arising from the Lord Chancellor’s perceived U-turn on sentencing policy.
This follows on from a Green Paper produced late in 2010 by the Ministry of Justice. The reforms were intended to save the ministry £350 million every year. The proposals were sufficiently controversial as to generate more than 5,000 responses, with over 1,000 of these being from representative organisations – an unprecendented situation.
The government response, which makes very few concessions, was published on 21 June 2011, together with the implementing draft legislation. The government intends to ‘fast-track’ this Bill – the second reading took place after only a week, on 29 June.
Many Friends concede that the government needs to cut expenditure. However, Friends may not be aware of serious flaws in the ministry’s approach. It is worth examining their justifications for ‘reform’ in some detail.
1. ‘These proposals will save money.’
Entire fields of law are being removed from the scope of legal aid and advice services. These include employment, debt and welfare benefits, and nearly all immigration law. Housing law goes too, except if a person is imminently homeless, or unlawfully evicted. In family law, all private law cases except those involving domestic violence will be excluded. The Citizens Advice and other voluntary agencies won’t be able to plug the gaps. The Legal Services Commission won’t fund them to do so. These agencies’ other main funders – local councils – are themselves seriously affected by the cuts.
Quite apart from the injustice of these proposals, they won’t achieve the stated goal of saving £350 million – or any money at all. At the moment the provision of legal aid is based on the well researched findings that disadvantaged people generally experience multiple difficulties. For example, unfair dismissal can easily lead to debt, homelessness and family breakdown; or family breakdown can lead to homelessness, debt and dismissal. That is why advice and assistance has for many years been available to deal with a broad range of problems.
Failure to deal with escalating problems is going to have a knock-on effect. Savings to this part of the Ministry of Justice’s budget will be offset by the effect on other agencies – including government departments, the police, health and benefits services. It will affect the Ministry of Justice itself: courts will come under increased pressure from large numbers of additional ‘litigants in person’. Local authority budgets, already under pressure, will suffer added strain on housing and children’s services.
2. ‘The Ministry has come up with constructive new ideas – and well-researched proposals.’
‘Impact assessments’ are meant to consider such issues when there are proposed changes to the law. The assessments that have been prepared refer to the possible adverse consequences as including reduced social cohesion, increased criminality, increased resource costs for other departments, transfer payments from other departments but then, without explaining the reasoning, assert that the proposals aim to minimise any wider social and economic costs. This looks like a case of wishful thinking.
The Green Paper suggests that there is no need for courts or lawyers to sort out arrangements for children when relationships break down. Everyone can use mediation instead. Mediation has been around for over fifteen years. Family lawyers encourage people to use it. It has long been compulsory for anyone who wants legal aid to see a mediator first – except in circumstances where it’s obviously inappropriate. From April 2011 new rules also made it compulsory for everyone to attempt mediation before going to court. In proposing mediation the government have misinterpreted 2008 research that they themselves commissioned! ‘The vast majority of children [the Green Paper says] had the contact arrangements with their non-resident parent arranged informally without the assistance of the courts, lawyers or mediators.’ But what the research actually says is that a large majority (seventy-four per cent) of persons who had been able to reach agreement without a court order had benefited from the help of lawyers, judges and other professionals within the family justice system.
Making legal aid unavailable will also result in more people going to court as ‘litigants-in-person’. Most will find it very difficult to prepare and present their case. Also, cases where someone is representing themselves take up a lot more court time. That is what the available research says, and what any judge will tell you. Yet the Green Paper brushed all that aside: ‘Research conducted… did not find a significant difference between cases conducted by a litigant-in-person and those in which clients were represented by lawyers, in terms of court time.’ The government grudgingly acknowledge now that there will be more litigants in person, but ducks the issue: ‘Litigants-in-person are already a feature of the current justice system and the current assistance will be maintained.’
3. ‘The effect of these changes will be spread equally across the community.’
There is a real risk that large areas of the country will become ‘advice deserts’ – no longer having legally aided lawyers and advice services. People who are poorly educated, socially isolated or can’t communicate in English, already find it difficult to get access to justice. The Green Paper’s proposals will hit them disproportionately hard. There will be no help for people who will have lived settled lives in this country for many years, with children in school, who fall foul of the Border Agency for overstaying, or for those who originally entered the country illegally. (These are ‘lifestyle choices’, according to the Green Paper.) There is nothing for people who are being harassed or overcharged by their landlord and help for people who can’t get repairs done will be very limited.
In family law, there is an exception from the ‘mediation only’ rule for those who are suffering domestic violence. They will be able to obtain protective injunctions. But after getting that immediate help – what then? Women who have not actually got a court injunction in their hands, and who need to deal with issues relating to their children and their financial affairs, will be expected to attend mediation sessions – even if they are afraid of their former partner, have suffered years of emotional abuse at their hands, or have children who have been physically or sexually abused by them. (The exceptions drafted by the government are so tightly drawn as to be virtually worthless.) If the woman’s partner then snatches the children and disappears to another part of the United Kingdom, there will be no legal aid to trace them, or to obtain a court order for their return. If the mother manages by herself to obtain a court order for the children’s return, there will be no legal aid to ensure this is served by an enquiry agent on the former partner. Is she really being expected to serve it herself?
If the children are taken abroad, that will be a different matter. Here the government has no choice. The United Kingdom has international treaty obligations that require it to provide legal aid in such circumstances. But so far as the abducted child is concerned, what is the difference? What sort of justice is this?
