Access to Justice

Beyond the Policies and Politics of Austerity

Ellie Palmer, Tom Cornford, Yseult Marique, Audrey Guinchard, Ellie Palmer, Tom Cornford, Yseult Marique, Audrey Guinchard

• Publisher: Hart Publishing
• Year: 2016
• Print ISBN:
  9781509921140
• Edition: 1
• eBook ISBN:
  9781849469333
• Topic: Law
• Subtopic: Public Law
• Index: Law

Building on a series of ESRC funded seminars, this edited collection of expert papers by academics and practitioners is concerned with access to civil and administrative justice in constitutional democracies, where, for the past decade governments have reassessed their priorities for funding legal services: embracing 'new technologies' that reconfigure the delivery and very concept of legal services; cutting legal aid budgets; and introducing putative cost-cutting measures for the administration of courts, tribunals and established systems for the delivery of legal advice and assistance. Without underplaying the future potential of technological innovation, or the need for a fair and rational system for the prioritisation and funding of legal services, the book questions whether the absolutist approach to the dictates of austerity and the promise of new technologies that have driven the Coalition Government's policy, can be squared with obligations to protect the fundamental right of access to justice, in the unwritten constitution of the United Kingdom.

Part I

Access to Justice: Theoretical, Legal and Policy Background

1

Access to Justice: The View from the Law Society

ANDREW CAPLEN

General election campaigns in the United Kingdom are generally fought on the battleground of the economy, the National Health Service and education, education, education. Questions of justice rarely come to the fore, although ‘Law and Order’ may find its way into political manifestos—for example, that a party was intending to be ‘tough on crime, tough on the causes of crime’. But matters relating to the administration of our justice system, such as investment in and the efficiency of our courts and tribunals, rarely make the headlines. They are simply not regarded as being ‘vote winners’.

The 2015 poll was no exception. Even though two clearly detrimental changes to our system of justice were ‘pushed through’ in the last days of the old Parliament which, apart from the legal press, were barely mentioned, let alone criticised:

1.The Government made an incredible hike in the cost of court fees for many mid-ranking civil actions of up to 622% (that is in some circumstances 40 times higher than in New York State).

2.The introduction of the Criminal Courts’ Charge imposing a non-means tested penalty for those convicted of criminal offences. For example, in ‘either way’ matters (that is those that can be heard in either the magistrates’ court or the Crown Court) heard by magistrates, a ‘guilty plea’ will mean a mandatory £180 charge irrespective of the financial circumstances of the defendant, without the ability for the Court to consider any mitigating factors. For conviction after a ‘not guilty’ plea this rises to £900.

‘Access to Justice’ did not ‘hit the mark’ either. The changes, cutbacks in legal aid that had been brought in by the outgoing government were barely mentioned. The major political parties ‘steered well clear’.

However, a government’s prime responsibility is surely to provide for the proper administration of justice within its boundaries and that includes providing adequate and affordable access to that system. This includes both the areas of civil and criminal law, the first regulating conduct between parties, the latter relating to the duty of the state to keep order, to ‘keep the peace’ within its realm.

The area of criminal law is clearly of importance so far as the provision of access to justice is concerned. The state will generally be the prosecuting authority. Without adequate resources being made available for an individual to defend himself, the balance of the scales of justice are weighted against the individual and towards the state. Access to justice in respect of civil law is also of vital importance. These cases frequently involve complex, life-changing issues, particularly when they are concerned with matters such as homelessness, refugee status, employment and children.

There is no doubt that recent changes have impacted on the provision of access to justice to some of the most disadvantaged members of our society. The intention of this chapter is to consider some of the problems that have arisen—primarily in relation to cuts in legal aid—and then to conclude by asking whether there is hope for the future.

How have We Got to where We Are?

The first real attempt to bring the legal aid budget under control occurred in the early 1990s when Lord Mackay of Clashfern was Lord Chancellor. Expenditure had been increasing over a number of years. Reasons for this included the effect of the Police and Criminal Evidence Act 1984 which had created a statutory Duty Solicitor scheme, giving for the first time those arrested the right for a lawyer to be present at their police station interview. There had also been an increasing public awareness of legal rights and obligations which understandably had resulted in citizens increasingly wanting to take the benefit of those rights and to enforce those duties. The legal aid budget was, however, essentially demand-driven rather than means-limited and the Government was concerned.

Pressure built in earnest with the election of the Labour Party to government in 1997. David Blunkett referred to the ‘fat cats of legal aid’, ignoring the fact that many legal aid lawyers earned incomes of little over £20,000 per year. Then Jack Straw, when Justice Secretary, continually stated that our legal aid system was ‘the most expensive in the world’, a mantra repeated by the Coalition Government when it came into office at the 2010 General Election.

The latter comment was particularly unfortunate. First, it was not actually true—recent research puts England and Wales further down such a list. Second, this attempt at a comparison is very much comparing ‘apples with pears’. We have a common law adversarial system where a higher proportion of the cost is expended on lawyers, whereas in a civil law investigatory system more is ‘loaded’ onto the judicial function. Further, even if we are/were spending a higher proportion than other countries, could it be that there are problems within our social fabric that result in the need for such advice and assistance? Would it not be much more appropriate to focus attention there?

It was clear that whoever came into power in 2010 would look again at the legal aid budget either by cutting the fees paid to those lawyers providing such services (it should be mentioned that this was even though they had not received an increase in either actual or real terms for nearly 20 years) or by reducing the scope of matters covered by the scheme. The ‘driving force’ was the need for austerity, although there was clearly also a measure of ideology involved. And the result—The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which came into force on 1 April 2013.

This Act removed a number of matters from scope:

1.Legal aid for clinical negligence cases is now only available where a child has suffered neurological injury, resulting in them being severely disabled during pregnancy, childbirth or the eight-week postnatal period.

2.Legal aid is now no longer available in the area of employment unless the matter involves a breach of the Equality Act 2010 or it arises in relation to the exploitation of an individual who is a victim of human trafficking.

3.Legal aid remains available for public law family cases (eg, in care proceedings). However, it is generally only available for private family law cases (such as contact or divorce) if there is evidence of domestic violence or child abuse or in child abduction cases.

4.Housing law cases are now beyond scope unless there is a serious disrepair or homelessness, possession proceedings or for antisocial behaviour cases in the county court.

5.Debt cases are excluded unless there is an immediate risk to the debtor’s home.

6.Most immigration work is no longer covered by legal aid—except for persons in immigration detention or where torture is involved or in respect of claims arising under the Refugee Convention.

7.Education cases are only covered in respect of Special Educational Needs.

8.Welfare benefit cases are also excluded except for appeals to the Upper Tribunal or higher courts.

The Consequences

There have been a number of clear consequences as a result of the cuts and changes brought in by LASPO. The first relates to those who had provided such services previously, the lawyers operating primarily as small high street solicitors’ practices or as self-employed junior barristers. Their business models had been created on a throughput of legal aid work at a particular price. These changes have severely challenged their ability to survive as sustainable businesses and with the closure of their practices the expertise of individuals advising in these areas is undoubtedly being lost.

Primarily, however, the effect has been on the potential recipients of such legal advice and assistance—the clients, the individuals, those involved in often difficult legal circumstances. If a matter is no longer covered by the scheme or, even if it still is but an individual no longer meets the income or capital thresholds due to the reduction in those financial parameters, then there are just four options: to somehow obtain the money to instruct a lawyer privately; to hope that a lawyer will be prepared to provide some measure of help on a pro bono basis; to represent themselves as a litigant in person; or to just walk away.

According to the National Audit Office’s recent report, approximately 300,000 matters were funded by legal aid in the first 12 months after LASPO came into force. This is significantly less than the 665,000 matters that the Legal Aid Agency would have expected to fund if the ‘reforms’ had not gone ahead. This demonstrates that the cuts have had a significant direct impact. These figures do not however show the indirect impact on the individuals denied access to professional help.

It is useful to consider the issue of litigants in person. For example, figures issued by Cafcass for disputes involving children show that prior to LASPO coming into force 22 per cent of cases commenced with both parties being represented by lawyers. After the cuts, that figure has shrunk to just 4 per cent.

Conducting your own argument in court is not, of course, prohibited. It is, however, generally seen as being beneficial to both the courts and litigants for all parties to be legally represented.

There are five main reasons for this:

1.A litigator or advocate, whether a solicitor or barrister, is legally trained. Both the substantive law and court procedures can often be complex. When litigants act in person, hearings frequently take longer because judges need to spend time explaining procedural issues to the unrepresented parties.

2.It helps keep in check high emotions, something which is particularly likely to come to the fore in family cases. In such proceedings it can often be difficult to separate strong feelings from what is appropriate or acceptable from a legal perspective.

3.Because litigants in person can risk the quality of the hearing, for example, sometimes it can be difficult to appreciate exactly what evidence and legal points are relevant and which are not. Irrelevant issues may be raised and important ones missed, thus risking unfairness to the final outcome.

4.Litigants in person are much more likely to submit incomplete documentation or fail to follow the required procedural steps. They will often have to rely on the judge to an extent that could raise concerns as to the appearance of bias.

5.Finally, cases are more likely to proceed to a fully contested final hearing because there is no advice available from qualified lawyers as to what is a reasonable basis upon which to settle the matter.

The potential difficulties were highlighted in the recent family law case of Q v Q. Here the father was a convicted sex offender who was seeking contact with his child. Experts were instructed to advise the court as to whether he posed a risk to that child. However, because he was ineligible for legal aid, no funding was available for those experts to attend court to give evidence, resulting in the case grinding to a complete halt.

An additional difficulty was that the father did not speak very good English. Again, in the absence of legal aid, there was no money available for the translation of court documents into his own language.

The President of the Family Division (Sir James Munby) said:

The absence of public funding for those too impoverished to pay for their own representation potentially creates at least three major problems: first, the denial of legal advice and assistance in drafting documents; second. and most obvious, the denial of professional advocacy in the courtroom; third, the denial of the ability to bring to court a professional witness whose fees for attending are beyond the ability of the litigant to pay.

The situation with regard to those who just ‘walk away’ is even more disturbing. Legal aid is still available for victims of domestic violence. It is clearly right that it should be as those unfortunate enough to be caught up in violent relationships need the protection that the law provides, including, for example, the ability to obtain non-molestation injunctions in order to protect them from further abuse.

However, LASPO changed the initial requirements that needed to be fulfilled before someone can receive public funding to resolve disputes over finances or arrangements for children. Individuals must now provide ‘prescribed evidence’ indicating that they have suffered domestic violence within two years prior to an application for legal aid being submitted. The stringent nature of these requirements has caused considerable difficulties. Many victims simply do not have the documentary evidence, particularly if there has been psychological rather than physical abuse.

As an aside, a disturbing aspect that has arisen has been the need at times for GPs to provide medical report letters, a specific type of ‘prescribed evidence’ under the regulations. Anecdotally, some GPs are seeking to charge up to £80 for these letters even though the person suffering such abuse would almost certainly be on income support levels. No funding has been provided to GPs by the Government for this.

Research carried out in 2014 by Rights for Women, Women’s Aid and Welsh Women’s Aid has concluded that these new evidential burdens are having a considerable adverse effect. Over half of the respondents—women who had suffered or were suffering as a result of an abusive partner—simply did not have the evidence required to obtain legal aid, often for very good reasons. Victims are frequently too isolated or too frightened to speak out at the time. Further, as mentioned above, if the abuse is psychological then it can be much more difficult to prove.

Further, the research showed that up to 60 per cent of the women who could not obtain legal aid because of these increased burdens just ‘walked away’, meaning that they did not have the benefit of the remedies that the law was designed to provide.

On 10 September 2014 the Guardian newspaper reported on these difficulties under the headline: ‘Women will die—it’s not too dramatic to say that’. The article has a point.¹

The Attitude of Government

Governments do, of course, have many conflicting priorities. National security has to be balanced against individual freedoms, welfare programmes with the need for fiscal stability. The latter has been the principal argument used to justify the cuts to legal aid. As has frequently been reported, the 2008 financial crisis has caused the need for stringent austerity measures in many countries, the UK included.

Governments do, however, make political choices and thus decisions have been made to ring-fence the budgets of some departments, for example, Health and Education. Justice—even though one of the fundamental responsibilities of the state—has not been protected, meaning that potential areas...

Table of contents

• Cover
• Dedication
• Title Page
• Foreword
• Acknowledgements
• Contents
• List of Contributors
• Introduction
• Part I: Access to Justice: Theoretical, Legal and Policy Background
• Part II: Pressure Points on the Justice System
• Part III: Alternative Approaches to Funding Legal Services
• Index
• Copyright Page