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Civil justice system ‘closed to the poorest’

Amnesty calls for an immediate review of LASPO as legislation ‘decimates’ access to justice

11 October 2016

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Cuts to civil legal aid have ‘decimated access to justice’ leaving thousands of vulnerable people without essential legal advice and support, Amnesty International has declared in a damning new report on LASPO.

The report ‘Cuts that Hurt: The impact of legal aid cuts on access to justice’ exposes the impact the controversial legislation has had on family and civil legal aid in England and Wales.

The report documents the disproportionate impact on marginalised groups; the emergence of ‘advice deserts’ in the South West, parts of the Midlands, and in the North of England; and how the government’s exceptional case funding safety net is failing to protect the most vulnerable in society.

According to Amnesty’s research, some 925,000 cases were granted legal aid the year before the introduction of LASPO. This figure plummeted to 497,000 cases the following year, a staggering drop of 46 per cent.

Alice Wyss, Amnesty International’s UK researcher, said government cuts to legal aid had ‘decimated’ access to justice and risked creating a two-tier civil justice system ‘closed to the poorest’.

‘From parents fighting for access to their children, to those trying to stay in the country they have grown up in, and to people with mental health problems at risk of homelessness, these cuts have hit the most vulnerable, the most,’ she said.

‘If Theresa May is really determined to deliver a country that works for all then there needs to be a justice system for everyone, not just those who can afford it. The government must start by protecting the most vulnerable and launching a review of this failing system immediately.’

The Amnesty report also highlighted the plight of individuals forced to represent themselves in court without the aid of a publicly funded lawyer.

A House of Commons briefing paper, published earlier this year, revealed that there had been 22 per cent rise in proceedings involving children where neither party is represented by a solicitor, a 30 per cent increase in litigants in person in family proceedings overall, and 80 per cent of cases involve at least one party who is ‘going it alone’.

The most recent statistics released by the Ministry of Justice showed that new legally aided family law cases were down 9 per cent during the last quarter of 2016.

More than a third of family court cases took place without legal representation of either party. The 34 per cent figure is double the number reported prior to the introduction of LASPO. Cases where both parties benefitted from the input of a lawyer dropped from 40 per cent in 2013 to 27 per cent in the last quarter.

One unrepresented woman told Amnesty: ‘I don’t have anyone. When I go to court I have to cross-examine my ex. That terrifies me. I have so many sleepless nights. If I lose I know I will blame myself, it’s because I wasn’t good enough, but then I think how can I be good enough when I’m up against a barrister.

‘I just don’t know if I can do it on my own and I have looked and asked everywhere for help but everything needs money and I don’t have it. So what am I meant to do?’

The government estimates there are almost 2,500 cases each year involving children who can no longer obtain legal aid for immigration cases and must therefore act as litigants in person. As a result, Amnesty has called for all under-18s to have access to legal aid, regardless of their circumstances.

One anonymous lawyer told Amnesty: ‘The idea that children and young people can represent themselves just does not work. This is such a vulnerable group.

‘It’s not just that they don’t understand legal processes and legal concepts, which they don’t, but it’s also that they have no idea how to fill forms out properly, what to write, where to send paperwork, where to get advice, and who to speak to.

‘Without professional support they simply can’t access justice and they can’t engage with the legal process.’

The government has committed to undertaking a review of LASPO’s impact by April 2018. Amnesty is calling for that review to commence immediately. It comes following the news that Labour’s Lord Willy Bach’s review into legal aid has been delayed until next summer.

The Law Society’s president, Robert Bourns, said the report was the latest in a ‘growing body of evidence highlighting serious concerns about the adverse consequences of LASPO.

‘We know the MoJ is already working constructively to seek to address the practical problems faced by victims of domestic violence and we welcome that the Lord Chancellor has stressed the importance of a justice system which is proportionate and accessible.

‘We would urge the government to address some of the other difficulties arising under LASPO. Amnesty’s recommendations reflect many of the concerns the society has been expressing, particularly in relation to the value of early legal advice, the barriers faced by victims of domestic violence, and the problems around the operation of the exceptional funding scheme.’

Also responding to the report, the chairman of the Bar, Chantal-Aimée Doerries QC, said Amnesty’s call for a review of LASPO was a ‘timely intervention’ in the debate over access to justice.

‘The government has committed to a review of LASPO three to five years after its implementation. We continue to urge the government to start this review and to complete it before further reforms are advanced,’ she said.

‘We know that successive cuts to legal aid and substantial increases in court fees have restricted access to legal representation for the most vulnerable in society. What we don’t know is the extent of the problems now faced, and no assessment has been carried out of the how these cuts have impacted the individuals and communities affected.

‘We know that the cuts are leading to an increasing demand for pro bono work from the Bar and from solicitors which cannot be sustained in the long term.’

Doerries suggested that greater use of technology by the courts had the potential to improve the justice system. However, she cautioned against further reform until there was a ‘clear understanding as to the current state of our justice system and the extent to which the problems we face have been caused by past reforms, in particular the cuts to social welfare and family legal aid and the increased court fees’.

A MoJ spokesperson said: ‘We have a generous legal aid system - last year spending more than £1.5bn on legal aid. We must ensure legal aid is sustainable and fair - both for those who need it and the taxpayer who pays for it. That is why we have made sure support remains available to the most vulnerable and in the most serious cases, and are taking action to ensure people can access the help they need.’

John van der Luit-Drummond is deputy editor at Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD

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Legal Aid Funding & Costs Family Children

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LASPO Ministry of Justice Immigration