This year marks the 800th anniversary of the sealing of the Magna Carta, in which equality before the law was enshrined as one of the cornerstones of our justice system. Clause 40 of the Magna Carta reads: “to no one will we sell, to no one deny… justice”. It compels the justice system to treat everybody equally, without privilege, bias, or discrimination. This isn’t limited to making everybody subject to the same laws; it also entails safeguarding access to justice. It involves making sure everybody can vindicate their rights with adequate legal representation, irrespective of their means.
Our legal aid system, set up in 1949 as one of the pillars of the welfare state, has been instrumental to this. It has safeguarded access to justice for the most vulnerable in our society through subsidising legal representation fees for those that can’t afford them. The Atlee Government promised in 1949 that, in Britain, ‘no one will be financially unable to prosecute a just and reasonable claim or defend a legal right’.
The Coalition government today has defaulted on that promise, and in doing so, has tarnished Britain’s reputation as a world leader in legal affairs.
The 2012 Legal Aid, Sentencing, and Punishment of Offenders Act (LASPO) introduced an unprecedented series of attacks on legal aid funding. It has cut the legal aid budget by £350 million, removing means-tested subsidies for the majority of divorce, private family law, and medical negligence cases. Since the introduction of LASPO, 420,000 fewer people have been given legal help than what would have been the case under the previous system, representing and overall decrease of 62%. As a result, there has been a sharp increase in the number of ‘litigants-in-person’- people who can’t afford a lawyer, yet are left to construct their own cases in court. The effects of this have been catastrophic.
For one thing, miscarriages of justice have become more pervasive. The Master of the Rolls Lord Dyson told the House of Commons Justice Select Committee in a recent parliamentary report that since the introduction of LASPO, there have been “cases which were decided adversely that would have been decided the other way had the litigant been represented by a competent lawyer”. This was echoed in the report by the President of the Family Division, Sir James Munby, who noted that “even the most experienced judge does not spot something which would have been spotted by a legally represented claimant”, which could “mean the difference between victory and defeat”.
The report details how litigants-in-person are often overwhelmed by complex court procedures, causing many to “dry up” and fail to present their claims adequately. Unsurprisingly, undertaking tasks that are usually handled by highly educated legal professionals can be daunting for laypeople. A recent Panorama documentary highlights this, following cases where litigants-in-person struggled through the court system to varying degrees of success. In addition to miscarriages of justice in the courtroom, there has also been an inevitable increase in the number of people who have chosen not to pursue litigation as a result of the lack of access to legal representation.
The consequences of LASPO have been particularly acute where domestic violence is concerned. Legal aid for those pursuing domestic violence litigation has been withdrawn in cases where victims cannot provide evidence of severe or sustained domestic violence in the previous two years. Given the difficulty associated with proving such incidents, swathes of litigants have been left without help. Indeed, The Rights of Women organisation told the Justice Select Committee that “39% of women who were victims of domestic violence had none of the forms of evidence required to qualify for legal aid”. A recent Citizens Advice Report notes that in many cases, this has left victims who have no alternative but to represent themselves in court facing cross-examination by their perpetrators. Again, this has inevitably led to both an increase in miscarriages of justice in the courtroom, and a decrease in the number of domestic violence victims approaching the legal system.
While all this has been done to reduce the budget deficit, LASPO has failed to cut public spending by the amount intended. Indeed, the decrease in legal aid funding has necessitated an increase in funding elsewhere in order to deal with the consequences. The increase in the number of litigants-in-person has caused long delays in court sessions, given that judges now need a lot more time to ascertain relevant information. The Justice Select Committee report found that cases involving litigants-in-person can take up to 50% longer than cases involving legal professionals, who are more adept at arguing in a way that assists judges. Cuts in legal aid funding are also causing an increase in the amount of unnecessary litigation, given that legal representatives often encourage and facilitate mediation and other alternatives to courtroom confrontations. Resolution, the national organisation for family lawyers, has warned that the family courts system has been “at breaking point” since the introduction of LASPO, and the taxpayer is footing the bill. While LASPO has yielded a net saving, the economic justification for cutting legal aid funding may be more spurious than it appears.
In any case, should attacking the rights of the most vulnerable in society be the answer to balancing the books? Can deficit reduction not be achieved through taking measures to increase economic growth and adequately paid employment?
In February this year, London hosted the Global Law Summit, where delegates from over 100 countries came to commemorate the legacy of the Magna Carta. This event promoted Britain’s pre-eminence as a global legal centre, a standing grounded in the integrity and credibility of our world-renowned justice system. Central to this is the way our justice system is supposed to uphold the principle of equality before the law. Through gratuitously cutting legal aid spending despite the lukewarm economic justification, the Coalition government has restricted the access to justice for those in need. In doing so, it’s undermining the principles set out in the Magna Carta: principles that make our justice system so respected internationally.
How can Britain remain a world leader in legal affairs when we can’t lead by example?