Will the Government listen to one of their own on legal aid?

In the debate surrounding the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill there has recently been a glimmer of hope that some of the government may in fact be listening to the serious concerns about the impact of the proposals, namely the Attorney-General Dominic Grieve, who has recently been reported to be prepared to intervene on the issue (see story).


Zoe Saunders
Zoe Saunders

Zoe Saunders is a family barrister at St John’s Chambers

In the debate surrounding the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill there has recently been a glimmer of hope that some of the government may in fact be listening to the serious concerns about the impact of the proposals, namely the Attorney-General Dominic Grieve, who has recently been reported to be prepared to intervene on the issue (see story).

So if I were the Attorney-General what would I be saying to my colleagues? Just one simple thing: Beware of the law of unintended consequences. The impact of LASPO could well be to cost the government far more than they are trying to save.

The effect of the LASPO proposals is that an estimated 600,000 people will no longer receive legal aid as a result of the proposals. Legal Action Group suggest more like 650,000 will be denied legal aid. Of those represented in the family court, the Government estimates that there will be c.54,000 fewer people represented annually. This will affect c.68,000 children: per JustRights [2011]. As a percentage of the total number of cases, the Government estimates that 75% of cases currently before the courts will not be eligible in the future. So what will happen to all those people? What will the impact of these cuts be?

The simple answer is that no one knows. The impact of these cuts is impossible to estimate because the government simply doesn’t have the evidence available to which to estimate the impact: In their response to the Justice Committee on Legal Aid they were forced to concede that “The lack of a robust evidence base means that we are unable to draw conclusions as to whether wider economic and social costs are likely to result from the programme of reform or to estimate their size”.

Inevitably many of those denied legal aid will try to represent themselves. Government research (view PDF) has already identified that Litigants in Person were more likely to have lower incomes and lower educational levels and to be younger than those who receive representation.

They often have problems with understanding evidential requirements, difficulties with forms, and identifying facts relevant to the case, difficulty in understanding the nature of proceedings, were often overwhelmed by the procedural and oral demands of the courtroom, and had difficulty explaining the details of their case.

A significant minority of unrepresented litigants in family cases (20% of injunction cases and 15% of Children Act cases) had a specific indication of vulnerability (such as being victims of violence, having depression, a problem with alcohol/drug use, having a mental illness or being extremely young parents).

Many unrepresented appellants and applicants felt ill-equipped to present their case effectively at their hearing. They felt intimidated, confused at the language and often surprised by the formality of proceedings.

In family cases specifically, non-representation was generally associated with cases taking longer, particularly where the applicant or both parties were unrepresented. The weight of the evidence indicated that lack of representation generally had a negative effect on case outcomes.

The impact of increasing numbers of litigants in person on the court system is an area in which the government admits that “… there are still a number of gaps in our understanding of this issue” (view PDF).

Anyone who has dealings with litigants in person in court proceedings would be well able to explain to the government the catastrophic impact that a vast increase in their numbers will have, for example:

“How can a busy Judge conduct an FDR with two individuals who continually produce new documents from plastic bags, who will not listen to each other and who are unable, emotionally, to compromise?” (see feature).

Even if compromise could be reached in such a case, there will be no one to assist the court in drafting the order. It is almost impossible to imagine how detrimental the impact on court listing will be of our busy judges having to use court time to draft complex financial remedy orders, often with their accompanying pension sharing annexes.

In cases involving children legal aid will not be available for those facing allegations of domestic violence, physical, emotional and sexual abuse of children. This will lead to those who allege that they have been the victims of such abuse facing cross-examination by those who have abused them.

The government does allow funding for those making such allegations, but ironically those who have been subjected to the more subtle but equally damaging forms of domestic abuse such as threatening behaviour, psychological abuse, intimidation, financial or emotional abuse – which can be the hardest to prove, are not  going to be eligible for legal aid. I can only imagine how difficult and time consuming any judge would find conducting a fact-finding hearing relating to psychological abuse with litigants in person on both sides.

Let’s hope the Attorney-General’s undoubted advocacy skills are up to the challenge of persuading his colleagues that the costs of court proceedings without lawyers are likely to be far greater than the savings they are hoping for.

Zoe Saunder, barrister, St John’s Chambers
@ZASaunders