“The available evidence indicates that the proportion of litigants appearing before the civil and family courts without legal representation…has increased since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) took many civil and private law children and family cases out of scope for legal aid from 1 April 2013.”
This is the conclusion of a recently published Standard Note by the House of Commons Library – Litigants in person: the rise of the self-represented litigant in civil and family cases. The briefing starts from the findings of the November 2014 National Audit Office (NAO) report – Implementing Reforms to Civil Legal Aid – which examined the impact of the changes to civil legal aid. The NAO found that there had been a 22 per cent increase in cases involving contact with children, and a 30 per cent increase across all family court cases in which neither party had legal representation.
The changes introduced as a result of LASPO mean that in order to receive legal aid, since 2012 clients have had to fulfil the merits of much narrower financial and eligibility criteria than existed previously. Most private law children and family cases, the House of Commons briefing notes, were taken out of scope for legal aid, remaining only where there is “certain types of documentary evidence that the client has suffered domestic abuse.”
Access to justice denied
What do we know about the nature of self-representation? As well as the evidence reported by the NAO on the rise of self-representation (‘litigants in person’) in courts, the House of Commons briefing points to the findings of a study into the experiences and support needs of litigants in person (LIPs) in private family law cases, carried out for the MoJ in five courts. The study found that:
- The major reason for appearing in person was inability to afford a lawyer.
- Appearing in person was wholly or partially a matter of choice for only around one quarter of LIPs.
- Only a small minority were able to represent themselves competently and even those with high levels of education or professional experience struggled with aspects of the legal process.
- The great majority of LIPs were procedurally (and, where relevant, legally) challenged in some way.
- Around half of those observed had one or more vulnerabilities.
The Justice Committee noted this shift in the nature of LIPs as well, in their recently published report, Impact of Changes to Civil Legal Aid. The committee found that LIPs “are increasingly people with no choice other than to represent themselves and who may therefore have some difficulty in effectively presenting their cases.” Many people are being forced into a situation whereby, if they wish to pursue litigation, they will have to do so with no legal representation. No wonder, therefore, that the committee concluded that though the MoJ had achieved cost savings via the reforms, they “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.”
Further emerging evidence is extremely worrying. Napo and PCS report that in family courts, in 42 per cent of cases neither party had legal representation by the end of 2013, compared to 18 per cent before the legal aid cuts. Women’s Aid has conducted research which reveals that due to budget cuts, victims of domestic violence are now unlikely to get legal aid, putting them and their families at risk:
- Fifty per cent of women do not have the prescribed evidence needed to apply for legal aid in family law cases.
- Sixty per cent of women take no further action if they’re not eligible for legal aid.
- Over 30 per cent of women find it very difficult to find a Legal Aid solicitor.
Self-representation costs us all
The huge increase in self-representation has also hugely increased costs to the system. The House of Commons briefing points to the evidence given by the Judicial Executive Board to the Justice Committee’s inquiry, in which they noted “a considerable adverse impact on courts’ administration and efficiency as a result of more people being self-represented.”
In their inquiry, the Justice Committee also noted that “the courts are having to expend more resources to assist litigants in person and require more funding to cope, alongside increased direct assistance by the Ministry for litigants in person.
The number of judges, lawyers and legal professionals who have spoken out against the reforms seems to rise daily, as they see the direct impact of the changes. These include the President of the Supreme Court, Lord Neuberger, who has said that the rule of law itself might come under threat. Similarly, the Master of the Rolls, Lord Dyson, has been quoted as suggesting that the increase in the number of LIPs may be leading to miscarriages of justice.
No value for money
The Justice Committee found that even the cost savings achieved by the MoJ “are potentially undermined by its inability to show that it has achieved value for money for the taxpayer”. The Committee found that any cost savings have resulted in costs to other public services – such as the courts or local authorities, as legal aid has been aimed at a smaller amount of people, and only after crises have developed. The Committee concluded, “the Ministry must assess and quantify these knock-on costs if it is to be able to demonstrate it has met its objective of better value for the taxpayer.”
The problem of wider costs has been acknowledged by the Low Commission on the Future of Advice and Legal Support, set up by the Legal Action Group to develop a future strategy on access to advice and legal support on social welfare law in England and Wales. In their inquiry they concluded that reductions in the scope of legal aid would increase costs elsewhere:
“These cutbacks have destablised and reduced the advice and legal support sector at a time of increased need. As a result, instead of saving money, the cutbacks are very likely to end up costing more elsewhere in the system.”
The NAO reported that the reforms in civil legal aid could create additional costs elsewhere and noted with concern that the MoJ had not quantified these wider costs, and in not doing so risked overstating the impact of the reforms. The NAO’s own estimates of the wider costs to the MoJ of the increase in:
- The significant increase in LIPs in family courts had cost the MoJ £3.4 million in 2013-14.
- The impact of increased numbers of LIPs on court costs in family courts alone (where cases might take 50% longer) could be £3 million.
- In 2013-14, the MoJ had spent approximately £370,000 on various types of support for LIPs and would provide approximately £2 million over the next 2 years.
- In a survey, 50 per cent of respondents who were eligible for legal aid reported that their civil legal problem worsened their health and wellbeing. Where legal problems remain unresolved, the cost may be met by the taxpayer through additional costs to the NHS or welfare programmes.
- The loss to HM Treasury in lower VAT revenue through reduced payments from the Legal Aid Agency to providers could be £60 million in 2013-14.
Unjust reforms made with no evidence
The Public Accounts Committee report of their inquiry into the impact of the cuts to the civil legal aid budget introduced under LASPO arrived at a very damning conclusion in February 2015, that the MoJ “gathered little evidence before implementation and did not make good use of the information that it did have.” The Committee reported that the MoJ “still has little understanding of why people go to court and how and why people access legal aid”. Despite this, the government went ahead with their disastrous reforms.
Access to legal aid should be based on need, and there should be a sufficient budget to ensure access to justice for all. All available evidence shows the disastrous impact of the budget cuts and reforms made to legal aid by the government, which have failed to reach those most in need, have undermined access to justice and led to a huge rise in self-representation in courts.
The attitude of the government can be seen quite clearly in former Secretary of State for Justice Ken Clarke MP’s comments during an interview in 2011:
“What we mustn’t do is just leave untouched a system that has grown astonishingly, making the poor extremely litigious.”
The TUC and justice union-led Speak up For Justice campaign calls for an integrated, publicly owned, accessible and accountable justice system.
For more details and to sign our petition, please go to http://speakupforjustice.org/