Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, legal aid was turned off for most private family cases (except those involving evidenced domestic violence, child abuse or abduction. Key further areas removed from the scope of legal aid were welfare benefits, clinical negligence, employment, housing disputes (other than serious disrepair, homelessness or anti-social behaviour), debt, immigration and education (except special needs cases).
Kenneth Clarke's plans to reduce prison numbers
by allowing greater sentence reductions for those who pleaded guilty were deemed unacceptable to Conservative supporters and the press and so they were vetoed by Downing Street. So it was that the civil legal aid budget bore the brunt of the Ministry of Justice's number-crunching with civil legal aid cuts amounting to £279m of the £350m that the Coalition government sought to save. Even where legal aid is available, the criteria for obtaining it are restrictive and the inadequate operation of the "exceptional funding" mechanism is proving to be a serious concern with very few cases qualifying. In the period 1st April to 31st December 2013 there were 1151 applications for exceptional funding but only 35 were granted and 21 of those were for inquests.
To compensate for removal of legal aid in private family cases, the Ministry of Justice painted mediation as the panacea. Notwithstanding this ambition, figures show that this policy has failed with family mediation referrals falling drastically. When told that legal aid is not available, it may be that separating couples pursue cases themselves.
A further tightening of access to justice will arise from significant increases in court fees. The Ministry's consultation closed in January and a response is awaited.
I recommend a full reading of Catherine Baksi's article where the despairing conclusion is that anyone looking to the prospect of a potential Labour government reversing the cuts must prepare for disappointment.
A further excellent article - Fig Leaves and failings - is published by the New Law Journal where Jo Renshaw writes about the devastating impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. With respect to "Exceptional Funding", Renshaw writes - "We all suspected that the exceptional case funding (ECF) regime was little more than a fig leaf to hide the injustices of LASPO and assuage consciences within Parliament. In practice, it has proved to be worse than that ....."
On 22nd April, the ability of the citizen to challenge government and other public bodies by way of judicial review will become further restricted because legal aid will generally only be payable if permission for the judicial review is granted. A good explanation of this may be seen at the website of Duncan Lewis Solicitors. For more on the government's actions seeking to limit the use of judicial review see the article by Sara Ogilvie - A State power grab against the rule of law. (Sara Ogilvie is a Policy Officer at Justice).
Justice Alliance UK has produced a short video highlighting some of the problems arising because of the cuts.
A independently produced report is that by the LOW COMMISSION which suggests a national strategy for advice and legal support. The Commission calls for a £100m implementation fund with half the money coming from government and half from other sources, including interest from lawyer client accounts and a levy on payday loan companies. However, the report stops short of calling for full reinstatement of civil legal aid.
All of this should be highly disturbing in a wealthy democracy. The courts of the land, mainly paid for through taxation, are effectively becoming closed to the average citizen. Without access to justice, legal rights will become illusory. Without the ability to go to court to keep powerful public bodies operating within the law, those bodies will become increasingly powerful and disrespectful of the rights of the citizen. At the end of the day, every government has choices as to how it spends public money. For this government, access to justice does not figure highly against expenditure in other areas such as overseas aid etc. There must be scope for any incoming government to review this area with a view to improvement. There should be greater commitment to do so from Opposition parties.
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