Aid cuts leave thousands in hands of amateur lawyers, MPs told

Topics: Family and children,Legal aid and access to justice,Government & politics

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  • Andrew Caplen

MPs voiced concern over the ‘cult of the amateur’ lawyer as they heard that thousands of vulnerable people are falling through the net of legal aid funding following cuts.

Law Society deputy vice-president Andrew Caplen, Bar Council chair Nicholas Lavender QC and Jenny Beck, co-chair of the Legal Aid Practitioners’ Group, were giving evidence this morning to the House of Commons Justice Committee on the impact of the civil legal aid cuts under the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

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They highlighted as particular concerns the failings of the exceptional funding system, complex eligibility rules and forms, an over-restrictive domestic violence gateway threshold and the impact of family legal aid on children who are denied contact with a parent.

Caplen (pictured) said the ‘dramatic fall’ in legal help means thousands are ‘falling through the net’.

All three warned of the dangers of untrained, uninsured and unregulated professional McKenzie friends, who have emerged to fill the gap as people are left without access to proper legal advice and representation.

Beck told the committee that McKenzie friends give only the ‘illusion of equality of arms’ while Lavender said judges need to be stricter in not allowing paid McKenzie friends to speak in court.

MPs expressed concern at the growing phenomenon. Conservative MP Steve Brine called it the ‘cult of the amateur’, which Labour MP Jeremy Corbyn said is a ‘dangerous scenario’.

MPs were also concerned at the evidence given on the low figures for the grants of exceptional funding, intended to be a safety net for cases no longer within the scope of public funding.

The witnesses told the committee that since LASPO came into force, there have been 1,520 applications, against the government’s expected 5-7,000, with only 69 granted.

Of these 53 were for inquests and only 16 for civil legal aid cases. The witnesses said the scheme is complex and confusing, the application form takes hours to complete, the threshold is too high, and the Legal Aid Agency is not exercising its discretion.

Labour MP John McDonnell responded saying: ‘It’s not a problem; it’s a nightmare.’

Caplen proposed that solicitors, as officers of the court, should be able to self-certify exceptional funding cases.

The committee will hear further evidence and report towards the end of the year.

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Readers' comments (28)

  • this would be the funniest joke of the century if it wasn't so serious. Once again, Parliament and the civil service have decided to bash lawyers. The law of unintended consequences is, as any practitioner in the County Court will know, is that with no legal aid far too many cases get issued and each of those cases takes twice as long and simply serves to clog up the court system. I take my hat off to the staff at the County court desks dealing with the public. Instead of having a proper look at the cost benefit analysis legal aid is further cut, the court service no longer offers a service instead you have to make an appointment to see somebody at the counter, the judges are taking the lead and being extraordinarily robust and therefore creating more appeals. It seems to me that in a functioning democracy the court service has to work and to be properly available to litigants regardless of their financial status.a lot of this is of course a direct consequence of those solicitors who fundamentally abused the legal aid system in order to make a quick buck, remember those firms who handed out trainers to residents of estates in the north-east if they signed a green form? My concern is that the MPs don't have a clue, practitioners are having to explain to their client why the court service doesn't work, the judiciary are facing a deluge of cases which should never get off the ground all in all there is no justice which can only be bad.

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  • Wow, Mr Grayling was so clever to ignore the obvious concerns of the many experts of law who simply wanted to avoid the results they forcast now being considered as realities by the House of Commons Justice Committee?

    Of course, Grayling can never be plainly and knowingly wrong or negligent?

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  • The Government is achieving its goal though - sadly many family lawyers, my firm included feel so sorry for these people that we are doing work for massively reduced fees where it costs us more in overheads to do the work than we can every hope to recover, or for free, of course still having to do the tick boxing to meet all the onerous requirements imposed upon us. Most family lawyers have a real social conscience and that is what Grayling relies on. One day however there will be none of us left to fight another day as we will all be bankrupt. A terrible state of affairs - Grayling and his minions should hang their heads in shame.

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  • As a trained, experienced and insured McKenzie Friend I can sence the fear of competition and the abuse of the vunerable by those who would prefer to continue to live off Legal Aid.

    Equality of Arms never concerned those with Legal Aid in Family Court when the other side had no representation - why should it trouble them now?

    On the whole, I welcome the long overdue changes to Legal Aid, the curtailing of the Domestic Violence industry and the introduction of compulsory mediation to help parents resolve conflict for their children sake.

    There is much to do, a culture change to be made - get on with moving forwards with all that is positive and productive.

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  • The point is being missed - The government intended to ensure that the poor could have no legal representation. That way they can be the more easily oppressed and the rule of law becomes at best an illusion.

    And I'd love to hear how a "paid McKenzie Friend" can be insured or avoid being in breach of the Solicitors Acts etc.

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  • McKenzie Friends aren't in competition with Solicitors or barristers. They operate in dark corners in an unregulated and opportunistic manner to take from those who can't afford proper legal advice encouraged to do so by an over burdened Court system. McKenzie Friends should not be acting as Advocates and Judges need to apply the rules properly.
    As for Mediation, if it's so good why do so few choose it? The mediation is better mantra is wearing very thin. The horse is dead! Stop flogging it!

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  • All this "burn the witch" stuff is disappointing to read, especially here.

    Has no-one considered the probability that many of these "McKenzie Friends" are fully qualified lawyers who have just been driven out of business by the government?

    Clearly this very obvious point has not occurred to the MOJ, or to MPs generally.

    But then as far as the MOJ and this government are concerned, the one law they have got spot on in the last 41/2 years, is the law of unintended consequences. They are veritable masters, fumbling while justice burns.

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  • Legal Aid is essentially a subsidy to make certain legal services free (or nearly free) to the consumer. Like many subsidies, there are often very good and genuine reasons to support them, including lowering prices to acceptable levels, or protecting a strategic industry that would struggle to survive without them.
    However, subsidies by their very definition distort the market, expanding the gap between what consumers are willing to pay for a product, and the price at which producers are willing to sell it.
    The rise of paid McKenzie friends gives a snapshot of a part of the market that shows people lower on the socio-economic scale are willing to pay for personal legal services, just not at the prices demanded by solicitors and barristers.
    The market is telling us something, and in the absence of the massive subsidy of legal aid, we can either listen to that message and figure out how to lower prices, or go bust.
    The answer is not to ban McKenzie friends in order to eliminate competition at the lower end of the market, but figuring out how to offer a service people want at a price they will actually pay for.

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  • There is no reason for legal aid as such to be a subsidy. The threshold for legal merit in a case should rise, and there should be an additional test - for example that a well funded private litigant would consider it worthwhile to pursue the case. Then the legal aid charge should turn out to be capable of recovering expenditure.

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  • The reasonable private paying litigant test has formed a part of the merits test for as long as I can remember, and that's a long tie.

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