Leading judges in damning attack on civil aid cuts

Topics: Legal aid and access to justice,Courts business,Government & politics

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Senior judges have launched their most scathing attack yet on the government’s cuts to civil legal aid.

In written evidence responding to the government’s consultation on the first year of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act, the Judicial Executive Board said courts have faced an ‘unprecedented increase’ in numbers of litigants in person (LiPs).

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It stated that court systems have yet to be developed to deal with unrepresented litigants, with cases that might never have been brought had a lawyer been involved now being fully contested.

The board is made up of the most senior judges and their criticism will add pressure to the government to find a response to deal with rising numbers of LiPs.

The response said the judiciary’s experience is that the absence of pre-proceedings advice has caused an increase in unmeritorious claims and ‘almost certainly, some meritorious cases never being brought’.

And there is scepticism that the government will see the budget savings that were used to justify swingeing cuts to legal aid in civil cases. ‘Where legal aid has been removed and individuals have become self-represented, the adverse impact upon courts’ administration and efficiency has been considerable,’ said the judges.

‘The apparent saving of cost by a reduction in the legal aid budget needs to be viewed in context: often it simply leads to increased cost elsewhere in the court system as, for example, anecdotally cases take longer.’

Many LiPs are said to have little or no knowledge of their legal rights, how to initiate an application or how processes and procedures work. Others have learning difficulties, or psychological or psychiatric problems.

’Because generally LiPs lack knowledge of the legal system, some tend to be much more demanding of court staff (numerous lengthy telephone calls, more difficult to make contact, extensive, often irrelevant, correspondence), and some wrongly assume administrative staff can give legal advice,’ the response says.

‘The impact of those conditions compounds an already fraught exercise in gaining access to justice.’ 

Potential litigants who judges believe have seen the most pronounced consequences are tenants; those with debt issues; separated parents with children; those with shared property who have suffered relationship breakdowns; members of the wider family (such as grandparents) in both public and private law children cases; householders; and owners of modest-sized businesses.

The response also notes the ‘very significant impact’ upon the courts in cases where LiPs are unable to afford to commission expert evidence.

In March 2014, the Association of District Judges carried out a survey of its membership particularly focused upon the experts’ reports issue in private law family work. In 62 out of 188 cases (33%), expert evidence was considered necessary. 

But in only 19 cases (30.6%) was expert evidence ordered and in just under half of those the burden of payment fell on one party alone.

The response reveals there has been a 50% reduction in the take-up of mediation between separated parents.

‘Whereas previously most solicitors would advise their clients as to the advantages of mediation/ADR, there are now far fewer opportunities for cases to be diverted away from the courts.’

There is even criticism of the government’s policy of a safety net of exceptional funding for particular cases.

The judges’ response says: ‘Our experience appears to indicate that “exceptional cases” funding is very seldom obtained even where there are learning difficulties, mental health, drugs and domestic violence issues.’  

Apart from inquests, only 14 applications for funding out of 1,012 made between 1 April and 31 December 2013 were successful. ‘It is a considerable cause for concern that approval is granted for so few cases and in such a low proportion.’

The Judicial Executive Board is chaired by lord chief justice Lord Thomas. The other members are the: master of the rolls (Lord Dyson); president of the Queen’s Bench (Sir Brian Leveson); president of the Family Division (Sir James Munby); chancellor of the High Court (Sir Terence Etherton); vice-president of the Queen’s Bench and deputy head of criminal justice, and chairman of the Judicial College (Lady Justice Hallett); senior president of tribunals (Sir Jeremy Sullivan); senior presiding judge (Lord Justice Gross); chief executive, Judicial Office (Jillian Kay).

A Ministry of Justice spokesperson said: ‘We are closely monitoring the impact of LASPO's legal aid changes. Latest figures show family court performance is being maintained with the average time taken to complete cases remaining steady since April 2013.

‘We have listened closely to any concerns raised and committed to reviewing certain aspects of the scheme in response. As a result we are widening the types of evidence that can be used in domestic violence cases and are looking closely at the operation of the legal aid helpline. We will continue to monitor the changes introduced by LASPO and will do a thorough review in due course.’

Readers' comments (57)

  • Makes a change then from cases being fully contested which would never have been brought had a lawyer not become involved.

    And have these judges not heard of the debt or the deficit run up by 13 years of hard Labour? Something had to be done about it and at long last we are beginning to see the benefits of a lot of hard belt tightening. The NHS, schools, etc etc have all had to shoulder a part of the burden. This should be a lesson to all those who might be tempted to vote Labour, or even UKIP next year what to expect if they do.

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  • I hate to say I told you so but the profession predicted that these very consequences would arise from Clarke and Grayling's carpet-bombing of the legal aid system.

    To add to the perfect storm, the giant wave of LiPs is hitting Courts when they are in complete disarray due to chronic underfunding. How the entire edifice manages to limp on is beyond me.

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  • Just waiting for the car crash to happen when the affects of the criminal legal aid cuts start to bite. It's going to get much worse before it gets better.

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  • At the risk of stating the obvious, David, this is an article about how if you cut certain things, the consequence is counterproductive. That's what the judges are saying - you're actually making the situation even worse and more expensive by making this cut in this way.

    You can have a political argument about who caused the cuts, but it's blind political allegiance to say that every cut is good just because your favourite party made it. It doesn't stop you from voting Tory again if you so wish, but a little more critical thinking on your part might be more useful. This is a forum full of lawyers, remember. A weak argument will be torn to pieces.

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  • My point is, Frank, we have just been living beyond our means. No one can go on doing that forever without going broke. And the same applies to countries. A look across the Channel should be enough to tell us to rein in our public spending .

    Yes, it will hurt. But gone are the days when the state can support all the litigation, civil and criminal, which is going on. It is simply financially unsustainable. Something has to give. The books have to balance in the end. The coast guard service has been severely cut back. As a result lives will be lost. What is worse, confusion, delay, chaos in the courts, or loss of life?

    We have been lulled into thinking that we can continue to live in the manner to which we have become accustomed and we can no longer afford it, if ever we could, as it was paid for with borrowed money which now has to be repaid.

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  • David I think Frank is saying that the books are not being balanced by these cuts as the savings are illusionary. It’s pointless cutting one head of expenditure if that cut leads to equal/greater increase in other expenditure. In that case no saving has been made at all.

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  • Quite apart from anything else, government finances - as a matter of macro-economics - do not operate in the same way as business or household finances. Governments can and do routinely 'spend' in excess of their 'income' and by so doing stimulate the national economy.
    The 'national debt' is not a debt which is required ever to be 'paid off'.
    But this is a subject for an economics forum - not a legal one!

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  • In a country where 5 individuals now possess as much wealth as 20% of the entire population, I believe that questions have to be asked about just who always gets told to tighten their belts, and to what end.

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  • I was wondering when the coast guard would be brought into it. Never fails - it is all labour's fault and the coast guard is the tolling bell in almost every comments section. And never a word about how it might be the tories and lib dems just cutting the money in the wrong way from the wrong areas ...

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  • Whilst I value everybody's right to have their say and opinion has anyone actually bothered to read the report from the Judicial Executive Board. I have. The answers are compiled as the result of taking evidence from Judges from the Court of Appeal, High Court, Family Court, County Court and the tribunals. Not just general chit chat on a social forum.

    Para 5.4 says that in family courts the judicial perception is that private law appointments where both sides are unrepresented typically take in the region of 50% longer so the courts are less able to hitherto to deal with the same volume of work and by an appreciable margin.

    Para 5.7 says LiPs often do not understand practice and procedure, how to produce meaningful statements focussed on the relevant issues or how to differentiate between appropriate and hopelessly immaterial lines of inquiry. Delay is the inevitable consequence of the requirement for the judge to explain the basics of the statutory framework and the application of the fundamental principles.

    Most damning in my view is at para 14 which says this:

    "...50 respondents i.e. 78.1% gave at least one example of cases since April 2013 where the inability to order expert evidence had caused considerable difficulties, and often involving vulnerable parents. The most frequently occurring examples were:

    a) the inability to order drugs and alcohol testing (including when recommended by CAFCASS) resulting in potentially inappropriate supervised contact, or none at all

    b) parents with mental health difficulties who could not obtain public funding and whose present state of mind could not then be ascertained by the court

    c) the inability to obtain police disclosure because neither party could afford the necessary fees

    d) disputed paternity where neither party could pay for the necessary testing, and the child is left in the position of not knowing who his/her father is

    c) allegations of sexual misconduct where it was not possible to order a risk assessment

    MY CONCLUSION: who is failing these children - the parents or the state? There are real life vulnerable victims of the MOJ's decimation of access to justice.

    Really ... is this about living beyond ones means. Think on ...

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