Ten years have passed since the Legal Aid Sentencing and Punishment of Offenders Act (LASPOA) devastated access to justice. A staggering 80% of family law cases were removed from scope leaving tens of thousands of families unsure and insecure about their legal rights or how to protect their families.
Without a clear guidance on options and potential outcomes, informed choices cannot be made. It is therefore of little surprise that the result is a huge, and expensive, increase in acrimony between separating families and a corresponding complete drop in non litigated solutions such as mediation.
The Government has identified the drop off in mediation however, instead of empowering individuals to understand their rights and options so that they might chose this route, strategies to force mediation are being canvassed. Knowing your rights and being able to take responsibility for protecting your family with the benefit of expert advice was not expensive. For a few pounds, diligent solicitors were guiding appropriate cases to mediation; warning of the perils of litigation and helping families focus on children’s best interests. What folly was it to remove this cost effective guidance.
The argument was that legal aid was unaffordable and was untargeted. It would ‘target’private law family legal aid where most needed by preserving legal aid for those eligible on means who could prove they had been victims of abuse. However, 50% of survivors were unable to ‘prove’ their abuse, requiring costly litigation to resolve and a subsequent change to the gateway rules. For the record, those rules are still inadequate and exclude victims of abuse in spite of clear statutory definition.
The consequences and risks of LASPOA were obvious from the start and have been highlighted month after month over the last decade. Report after report has catalogued rising numbers of litigants in person, clogged courts and advice deserts https://www.lawsociety.org.uk/campaigns/legal-aid-deserts
A report commissioned by the Law Society highlighted the antiquated means test had resulted in only those living below the breadline being able to access legal aid
Whilst expensive strategic litigation was necessary to address unfair application of trapped capital rules and the mortgage cap
Devastating stories of desperate people failing to get the help and support they need have become so common place that we are becoming desensitised. Junior colleagues are used to being unable to help and have to manage the personal conflict which arises every time we have to turn someone away.
And as we ourselves dwindle in number the rule of law is eroded further. The sustainability review found;
Legal aid lawyers go above and beyond in serving the public, but the business model on which they rely is increasingly unsustainable.
The report highlighted a worrying exodus of beleaguered, underpaid and under valued practitioners which does not bode well for justice. We turn clients away daily because we simply can’t take more on.
Having a legal right which cannot be exercised is the same as having no right at all….that’s where our prospective clients now find themselves.
But wait….didn’t the government accept things had gone too far at the Post implementation Review of LASPOA ?…..Yes, they did and there was cross-party support for revisions and some of successful, strategic litigation to try to ameliorate the edges of some of the dreadful harm caused by the Act.
However, we are now 10 years on, and what has actually changed? Sadly, very little. There is recognition that the huge escalation of unrepresented litigants has had a devastating impact and cost to our court system https://www.lawsociety.org.uk/topics/research/cost-of-day-in-court-new-analysis-by-law-society
There is considerable research to support the view that the removal of any means of exercising legal rights has impacted our nation’s health and social fabric. It is ridiculous to suggest that the suite of online available resources does anything other than pay lip service to proper bespoke, reasoned and compassionate advice. As a society we are poorer, angrier and less coherent as a consequence.
So, why is it that we have been so unable to defend ourselves and the rule of law from this devastation? Of all professions we should be better at making our case; it’s what we do for a living. Solicitors have always suffered from bad press because we represent those on the fringes of society. The remuneration is ridiculous. No rate increases for 30 years and many cases worked at a complete loss subsidised by private client work or charitable grants. There are no fat cats here!
The economic case is the best argument because apparently ‘money talks’. The difficulty we have is siloed budgets within central government so that passing the cost to another budget isn’t sufficiently concerning.
The difficulty with removing access to justice is that you really do remove one of the cornerstones of a civilised society. You create a system where you are unequal before the law. We need to galvanise, support and re-energise those at the junior end of the profession to make sure that we can start to claw back some sort of semblance of justice.
Jenny Beck KC (Hons)
Jenny is a founding director and an award-winning family lawyer committed to accessible justice and the rights of the individual. She specialises in complex financial disputes and helping resolve arrangements for children. She is an accredited Resolution specialist and an Advanced Family Law Panel member. In 2021 Jenny was made an Honorary Kings Counsel (KC Honoris Causa) in recognition of her contribution to changing the law of England and Wales.