November 30 2023

Legal aid cuts: ‘Little more than rough justice’

Legal aid cuts: ‘Little more than rough justice’

closed curtains

Photo (‘closing the blinds on mediocrity’) from billaday, Flickr, creative comms

In April last year, the government introduced drastic legal aid cuts under its LASPO Act (Legal Aid, Punishment and Offenders Act slashing £350m from a £2.2bn scheme. It removes public funding from entire areas of legal advice including most of what is known as ‘social welfare’ law – in other words, housing (except where there is homelessness), employment, welfare benefits and debt; and most family (except where there is domestic violence). This is the first in a series of articles by Jack Simpson looking at the effect that LASPO has had on Britain’s courts.

Sammy was born in Nigeria, but arrived in the UK with his mum at the age of 11. Despite suffering with some learning difficulties, he did well at school and was looking forward to his GCSEs. He hoped that with good grades he could go to college and pursue a career in filmmaking.

Then, at the age of 16, Sammy was dealt a hammer blow.

His mother, who was the only immediate family Sammy had in Britain, was arrested and deported back to Nigeria. Immigration authorities never made any enquiries as to whether she had any dependent relatives still in the country, and Sammy was left behind in the UK.

With nowhere to go, the abandoned 16 year-old had to sleep rough for a few days, until he finally told one of his teachers about his situation. Social services were alerted and Sammy was put into foster care.

He enjoyed a close bond with his foster parents and social services, on his behalf, put in an application to the Home Office to try and naturalise Sammy’s citizenship so he could stay in the country legally.

After weeks of waiting, the Home Office replied.

Sammy would have to leave the country on his 18th birthday.

He had five weeks.

Sammy had the right to appeal the decision, however, he would have to carry out the appeal on his own.

In April 2013, Justice Secretary Chris Grayling brought in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Part of the government’s austerity measures it aimed to cut the legal aid budget by £350 million. While the cuts attacked both criminal and civil courts, it was the civil (non-crime) scheme that bore the brunt. Under LASPO, the majority of civil cases that once came under the scope of legal aid and ensured that Britain’s most vulnerable no longer did.

Parents who needed legal help to secure custody of their children, families that had been kicked out of their homes as a result of the ‘bedroom tax’ and people, like Sammy, who were attempting to legalize their stay in Britain, could all still get legal assistance, but now they would have to pay.

A duty of care?
Unable to afford legal representation, an abandoned 18 year-old in the middle of his A-Levels would have to grasp legal concepts in a matter of weeks that many professionals had spent years learning.

Winning would mean staying in Britain, the country Sammy now called home; losing would mean being sent back to Nigeria. With no traceable family, Sammy would have to go back to the country of his birth and try to forge a new life alone.

Luckily for Sammy, Manchester-based barrister Lucy Mair, decided to take up his appeal case on a pro-bono basis.

‘This idea that that this man who since he was 16 has been under the care of social services would be going to a tribunal facing a representative of the government and presenting his case to an immigration judge all on his own is really sad to me,’ says Mair, ‘I think we have a duty of care to young and vulnerable people like that.’

Sammy is still waiting in limbo after his appeal case was suspended until July. Nevertheless, with the help of Mair he will be assured professional assistance.

Sammy is fortunate.

But for an increasing number of people this is not an option. For these people, their access to fair civil justice has been all but taken away since

Following the decision to bring in LASPO last April, the Ministry of Justice said that it ‘will ensure a more efficient, cost-effective and sustainable legal aid scheme for the future’.

Now just over a year after its anniversary, the reality is very different.

Instead, the message from those working in Britain’s courts is that the increasing number of Litigants in Person (LiPs) that have come about as a result of LASPO are ultimately slowing down judicial processes and costing the government more.

In a published submission to the Commons Select Committee looking into the impacts of the LASPO reforms, the Judicial Executive Board reported that since the LASPO changes there had been a significant rise in the number of LiPs in Britain’s civil courts. In the submission, published a month ago, the judiciary said that they had seen a massive increase in the number of people now representing themselves and those litigants that did have representation were now seen as “a rarity”, particularly in family courts. This, according to the judiciary, was having a knock on effect on courts, with cases taking up to 50% longer as judges having to carry out their role of quasi legal advisors as well as their own judicial duties.

This was backed up last month when an investigation by the Bureau for Investigative Journalism and the Independent surveyed nearly 500 magistrate courts and found that just under half of all of the people that they saw in private family law cases were now representing themselves. Of these magistrates, 97 per cent said that LiPs were having a negative impact on courts work.

‘It is not only that,’ says Lucy Mair who works as a barrister at Garden Court North Chambers. ‘So many cases that could have been dealt with in the first instance with the help of legal representation are now going to tribunals and appeals and this is adding to the length of time certain cases are taking to process.’

And with this increase, there is a fear that more people representing themselves obstructs the work of Britain’s courts and will lead to a situation where fair judgments cannot be made.

Rough justice
While the government has said that self-representation should be no barrier to justice, there is a different message coming from those in the courts.

Sir Justice Holman who sits on the British High Court explained the situation during a published ruling during a divorce case at Britain’s final appeal court.

‘I have no legal representation…no expert evidence of any kind. I do not even have such basic materials as an orderly bundle of the relevant documents; a chronology; case summaries, and still less, any kind of skeleton argument. Instead, I have had to rummage through the admittedly slim court file..I shall do my best to reach a fair and just outcome, but I am the first to acknowledge that I am doing little more than “rough justice”.’

And the worry is that this will create a situation where civil justice is only an option for the rich. With more of these ‘rough justice’ cases, there is a fear that a two-tiered system is being created where the poor will inevitably have less chance of winning cases and defending their civil rights.

In 2012, following the royal assent of LASPO, Secretary Chief of Justice Chris Grayling said that the Ministry of Justice would be adopting a ‘wait and see’ approach when it came to the LASPO changes.

Speaking in the House of Commons he said the Ministry of Justice would not be ‘afraid to reconsider’ aspects of LASPO, ‘if it proves that what we have done has created a major problem’.

With just over a year having passed since the introduction of LASPO it seems as if the cuts are creating a major problem for civil justice in the country. Across the board, law centres and firms are now closed or unable to provide to civil legal advice to those that need it, the civil law profession has been massacred as these closures have led to wholesale redundancies, with all these changes denying access to justice for Britain’s most vulnerable.

In October 2013, just six months after LASPO had been implemented, Lord Chief Justice Lord Neuberger warned the government of the harm the government’s cuts to the legal aid budget would have on society. ‘Cutting the cost of legal aid deprives the very people who most need the protection of the courts of the ability to get legal advice and representation,’ he said.

Yet despite the words of Britain’s highest ranking judge in Britain, it seems Chris Grayling has made his position clear. In March this year, he announced that the government were to go ahead plans to cut another £220 million from the legal aid budget by 2018/2019 – this time from the criminal defence budget.