The legacy of LASPO

Posted on 23rd Apr 2017 in Family Law, Legal Profession

It is four years since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into effect, on April Fool’s day 2013. The Act itself was passed five years ago. Its effects, as we predicted at the time, have been seismic.

Image: The Manifesto of Justice (from UK General Election 2015)

The policy behind the Act

The Act, acronymised as LASPO (or sometimes LASPOA), seems in retrospect to sum up the regime at the Ministry of Justice of the then Lord Chancellor and Secretary of State, Chris Grayling. But the thinking behind the Act goes back to the earlier regime of the coalition government’s first Lord Chancellor (and the last one actually to be a lawyer), Ken Clarke.

As reported on Law in Action in 2011, he had initially espoused what might be considered quite liberal views on the punishment of offenders, aiming to replace knee-jerk incarceration with more imaginative community sentencing and, where imprisonment was mandated, shorter sentences (particularly in response to a guilty plea). Interestingly, in view of the recent storm over cross-examination of rape complainants, one of Clarke’s most controversial proposals was to cut dramatically the sentence served by guilty-pleading rapists, to encourage them not to fight the case and so avoid subjecting the victim to the trauma of re-living the ordeal in court. But he was forced to do a u-turn. Tough talk on the economy had to be matched with tough talk on offenders, it seems.

Clarke also aimed to cut the cost to the community of what he regarded as unnecessary reliance on legal advice from professional barristers and solicitors. Interviewed by Joshua Rozenberg on Law in Action in February 2012, Ken Clarke spouted that now well-worn line about how

‘we have by far the most generous system in the world, and as there is no other democracy which thinks it makes the slightest common sense for the taxpayers to pay so much money on lawyers and legal fees and expert witnesses in a vast flood of litigation, it has to be cut back…’

At the time, the Bill was still going through Parliament. But not without considerable opposition, as the programme reflected:

Advice centres, lawyers and even some from the government’s own benches say the changes will deny justice for vulnerable people, and will ultimately end up costing the government more money.

The Act was nevertheless passed, and came into force. By that time, Clarke had been replaced by Grayling, whose approach to sentencing and the punishment of offenders was sound-bitingly tough. He introduced what he called a ‘rehabilitation revolution’ designed to incentivise good behaviour by prisoners by limiting their access to luxuries (as perhaps he saw them) like books (which others pointed out might help with the rehabilitation and re-education aspect) and parcels from home. At the same time, prison staffing levels were steadily being reduced, primarily to save money, but with the undesired effect (as we’ve seen in the last few months) of laying the groundwork for the worst prison crisis of a generation.

Grayling also began a campaign against what he saw as the ‘fat-cat’ lawyers who seemed to him, in civil as well as the criminal sphere, to be milking the legal aid system for their own personal gain. The system’s excessive generosity, as cited by Clarke, became the leitmotiv of public pronouncements from the Ministry of Justice under the Grayling ascendancy.

The ambit of the Act

LASPO covered a number of areas. It’s a big Act, with 154 sections and 27 Schedules, occupying 314 pages. (Download the PDF.) Part 1 is concerned with legal aid, both civil and criminal;  Part 2 with litigation funding and costs; and Part 3 with the sentencing and punishment of offenders.  It’s hard to see why all this had to go into one Act, rather than at least two, and it makes it all a bit of a ragbag. However, the provisions in Part 2 relating to litigation funding were related to those in Part 1 relating to legal aid, because litigation funding is one way for an impecunious claimant to get their case heard, in the absence of direct legal aid from public funds.

This post is primarily concerned with Part 1 — which basically took a scythe to what was perceived, or presented to the public (see above), as an uncontrollably spreading weed-like demand for public funding for private litigation. The categories of claim for which legal aid ceased to be available included:

  • Clinical negligence cases (except certain cases involving neurological injury to infants)
  • Employment cases (except those under the Equality Act 2010 or in relation to victims of human trafficking)
  • Private family law cases, such as divorce and child contact (except cases involving domestic violence, child abuse or abduction)
  • Housing disputes (except where there is serious disrepair, homelessness or anti-social behaviour)
  • Debt (except where there is a risk of homelessness)
  • Immigration (except cases involving detention and refugee claims)
  • Education (except special needs cases)
  • Welfare benefits claims (except appeals to the Upper Tribunal or higher courts)

In addition, the scope of eligibility for legal aid even for those claims for which it was still available was reduced with the intention of excluding all but the poorest from having access to funding.

LiP service

The effects of cutting legal aid for civil and, particularly, private family law cases has been evident in a number of ways, many of which were predicted at the time. The most notable has been the rise in numbers of litigants in person (LiPs), whose lack of legal knowledge and training has in turn caused two further developments.

First, there has been a tendency for cases involving LiPs to take far longer and involve more work by all the professionals involved, something attested to by the judiciary, both anecdotally and in many judgments (see below).

Second, there has been the development of a market for fee-charging McKenzie Friends. Traditionally, McKenzie Friends have been unqualified friends or volunteers who provide moral support for litigants in person and practical help with managing their cases. With the consent of the court, they may even be permitted to speak on behalf of a litigant, though not to examine or cross-examine witnesses. But in recent years, so-called “professional” McKenzie Friends have set up business, charging fees for their services, without any requirement to be qualified, insured or be regulated.

The appearance of professional McKenzie Friends has been greeted with mixed signals. On the one hand, professional lawyers, who need to be fully qualified, insured, and regulated, resent these interlopers who are not subject to such requirements and who can therefore afford to undercut them. Likewise the bodies, such as the Law Society and Bar Council that represent and regulate those professions, who point to the risks that negligent or incompetent (or indeed fraudulent) McKenzies present to their often desperate or vulnerable clients.

On the other hand the Legal Services Board (LSB), the body that regulates the professional regulators and is supposed to promote the growth of properly regulated legal services, rather complacently welcomes the arrival of fee-charging McKenzies on the scene as a way of fulfilling “unmet need” in the marketplace — chiefly because of the number of litigants in person. (Curiously enough, some fee-charging McKenzies actually charge higher fees than the lawyers for whom they are supposed to be a cheaper substitute.)

Some McKenzies do a good job; and others are tolerated anyway because, for the inundated courts, and for judges — who would otherwise have to do the unrepresented parties’ advocacy for them, while remaining impartial — they are better than nothing. But no one thinks the situation is ideal. And without even the help of McKenzies, the litigants in person often flounder in court, taking up extra time through failing to understand the procedure or what is expected of them. This only adds to the overall costs of each case and the time taken to resolve it.

The burden on the court

The additional burdens which the cutting of legal aid under LASPO has put on the courts and the judiciary have been well documented, not least in a series of judgments given in the Family Division. One of the most trenchant was given by Mostyn J in MG v JF [2015] EWHC 564 (Fam); [2016] FLR 424. Having noted how, “at a stroke, 63 years of state funding of [private family law] cases such as this was swept away” (para 4), he said it was “impossible” that the unrepresented parties in the case should be “expected to represent themselves having regard to the factual and legal issues at large” (para 10):

“There would be a gross inequality of arms, and arguably a violation of their rights under Arts 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and Art 47 of the Charter of Fundamental Rights of the European Union (2000) OJ C 364/1.

The “blithe assumption” that litigants in person would be able to overcome their emotional involvement and that the case would not be overly complex was unfounded (para 15). He went on to cite a “formidable catalogue” of similar cases in which the denial of legal aid under LASPO had caused “gross unfairness”.

I do not think it would be right to say that these were examples of the operation of the law of unintended consequences since, as I say, the problems were so entirely predictable.

In one such case, Lindner v Rawlins [2015] EWCA Civ 61 at [34], Aikens LJ had recounted the knock-on effect of these entirely predictable problems:

‘Yet again, the court was without any legal assistance and had to spend time researching the law for itself then attempting to apply it to the relevant facts in order to arrive at the correct legal answer. To do the latter exercise meant that the court itself had to trawl through a large amount of documents in the file. All this involves an expensive use of judicial time, which is in short supply as it is. Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges’ and court time. The result is that there is, in fact, no economy at all.

Moreover, as Mostyn J noted, there was also a “serious risk of the court reaching incorrect, and therefore unjust, decisions”.

Exceptional funding

Although LASPO removed the right to legal aid for many types of civil proceedings, particularly for private family law cases, it does provide under section 10 for “exceptional cases” to be funded, where denial of legal aid would result in a breach of the litigant’s human rights under the European Convention or rights to the provision of legal services that are enforceable EU rights or, having regard to the risk of such breach, that it would be “appropriate to do so, in the particular circumstances of the case”.

However, the bar for such funding is set high, and in practice is rarely met. In the first year after LASPO came into force it was only granted in nine individual cases, according to statistics published by the MoJ and cited by Sir James Munby, President of the Family Division in Q v Q [2014] EWFC 31; [2015] 1 WLR 2040 at [13], who went on to observe, at [14]:

Views may differ as to whether the “exceptional” funding scheme is working effectively, a matter on which I express no opinion. If the scheme is indeed working effectively, then it might be thought that the scheme is inadequate, for the proper demand is surely at a level very significantly greater than eight or nine cases a year.

In a letter to the court, quoted by Sir James, the Public Law Project, a non-political legal charity, said:

“Public Law Project’s consistent experience of the application process was that it was time-consuming, legally and evidentially involved, and that applications were almost inevitably bound to fail.

Pro bono

Another noticeable effect of the cutting of civil legal aid has been a new emphasis on pro bono work. This has been driven partly by lawyers themselves, many of whom have been very active in supporting schemes such as the Bar Pro Bono Unit, and partly by exhortations from the government and Ministry of Justice, in what many regard as a cynical ploy to replace public funding with professional charity.

In Q v Q (at para 15), Sir James Munby P, having noted the difficulties of obtaining legal aid even by way of exceptional funding, said:

All this has led to increased calls on the Bar Pro Bono Unit. In 2012 (I take the figures from a letter from the unit dated 4 July 2014), it received 171 applications for assistance in family law children cases; in 2013, 291 applications; and, in the first five months of 2014, 205 applications.

The Bar Pro Bono Unit, which celebrated its 20th birthday in 2016, is one of a growing number of such bodies, including the Solicitors Pro Bono Group (LawWorks), the CILEX Pro Bono Trust, the National Pro Bono Centre, the Access to Justice Foundation, the Legal Education Foundation, and the Litigant in Person Support Strategy.

Funds for pro bono services are regularly raised in a number of ways, including most obviously by direct donations to the organisation concerned. But a key date in the legal calendar is now the annual walks organised by the Legal Support Trusts. The President of the Supreme Court, Lord Neuberger has been among the senior judiciary who have supported and participated in The London Legal Walk.

A related phenomenon, which may not have been directly caused by LASPO but has certainly coincided with the decline of publicly funded legal advice in the era of austerity, has been the growth of free legal commentary and voluntary information services. Legal bloggers, of which there is now a growing number, have started either singly or in teams to provide what amounts to a crowd-sourced public service. The coverage they provide may not yet be systematic or comprehensive, but if you know where to look, almost every area of law is now covered by some form of free commentary service, including notably crime, family law, public law and human rights, and more specialist areas such as tax and intellectual property. They help demystify and explain the law to lay readers, including the rapidly increasing number of litigants in person in recent years.

Calls for review

The dire effects of LASPO on access to civil justice led to calls for urgent reviews of its effects almost as soon as it came into force. As early as 2014 Simon Hughes, then a junior minister responsible for family justice, called for “an urgent review of the impact of legal aid changes on children’s rights” after the Office of the Children’s Commissioner reported that 70% of children cases involved one or both parties without legal representation. It was later revealed by The Justice Gap that Hughes’ review had been “quietly swept under the carpet”.

In May 2015, nearly 140 judges, peers, prominent lawyers and doctors working in the civil and criminal justice system signed a public letter in The Guardian calling on the incoming government to restore legal aid to prevent “widespread miscarriages of justice”. This followed a damning report by the Commons Justice Committee in March that year, which had found that:

while it had made significant savings in the cost of the [legal aid] scheme, the Ministry had harmed access to justice for some litigants and had not achieved the other three out of four of its stated objectives for the reforms.

Having noted the increase in litigants in person and the burdens they were placing on the system, the Justice Committee report also pointed out that the changes had been introduced without adequate prior research:

It was clear to us that the urgency attached by the Government to the programme of savings militated against having a research-based and well-structured programme of change to the provision of civil legal aid.

A year later, with nothing done, calls for review continued. Marking what was then the three-year anniversary of the coming into force of LASPO, Jon Robins in the New Law Journal

notes the latest figures from the Legal Aid Agency showing the workload for advice and assistance about a legal problem is now one third of pre-LASPO levels and civil representation is about two-thirds of what it was. Despite Ministry of Justice (MoJ) promises, however, there has been no government review of LASPO.

In November 2016 the Labour party launched an interim report on “the crisis in the justice system in England & Wales”, published by the Commission on Access to Justice chaired by Labour peer Lord Bach. One of the Bach commission’s members is Sir Henry Brooke, retired Lord Justice, who writes about its work on his own (rather marvellous) blog.

Other reports have been equally depressing. In October 2015 Full Fact confirmed that Far fewer social welfare cases get legal aid: under the previous (ie coalition) government, social welfare cases receiving legal aid had fallen from 470,000 to 53,000 following LASPO. In October 2016, under the title Cuts That Hurt, Amnesty International published a report suggesting that LASPO had “decimated” access to justice. In December 2016, under the heading “Justice in free fall”, Lucy Logan Green and James Sandbach reported for the Legal Action Group on “the dire consequences of the civil legal aid cuts for access to justice and associated knock-on costs in other public services, and provide six recommendations to government to halt the crisis”.

The long-promised government review has still not taken place, though that may be about to change — unless the election knocks it off schedule. In January this year justice minister Sir Oliver Heald announced at an all-party parliamentary group meeting on legal aid that the long awaited review would now take place. According to the Law Society Gazette,

The government had promised a review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) by April 2018. … Heald told the meeting that the ministry plans to submit a post-legislative memorandum on LASPO ‘as a whole’ to the justice select committee. This process has to be done by May but Heald said the ministry hopes to do it before then.

He said: ‘We will look at how the act has been affected by litigation, the various reviews of legal aid done by bodies such as the National Audit Office and others. This will lead to an initial discussion to the extent to which changes to legal aid met their objectives which is the test for the post-legislative memorandum. Then we will begin work on the full post-implementation review of legal aid.’

In the meantime, the dire effects on the administration of justice described above continue. Such is the legacy of LASPO.

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.

 

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