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8 September 2015updated 26 Jul 2021 8:18am

Five years in the death of the British justice system

Cuts to legal aid don't just hit the vulnerable - they erode a fundamental right, explains Charlie Falconer.

By Charlie Falconer

Lord Bingham, the former Lord Chief Justice and one of our great judges, once said that the rule of law is “the nearest we are likely to approach to a universal secular religion”.

The importance of a strong, vibrant justice system to a secure society and a growing economy remains widely acknowledged. Yet five years of repeated attacks on its very principles have left many facing a crisis of faith.

Now, with the Ministry of Justice an unprotected department and cuts of up to 40 per cent coming down the tracks, it is worth pausing to consider the current state of our justice system.

Sadly, wherever we look, there is cause for concern.

An independent judiciary and adequate protection of fundamental rights are core tenets of the rule of law.

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On the first, the new Justice Secretary Michael Gove has offered warm words, praising the world class reputation of our judges and the need to insulate them from politics.  However, many on the bench are concerned with the deterioration of our justice system and the contempt often shown by the government for the judiciary. We must ensure that we continue to be able to recruit and retain the best judges, while seeking to increase diversity.

On the second, the very fact that Michael Gove is arguing for repeal of the Human Rights Act and dithering with the idea of leaving the European Convention on Human Rights suggest at best a misunderstanding and at worse a neglect of his position as Lord Chancellor.

While these are serious enough concerns, there is another aspect of the government’s failure, which despite having disastrous impacts, has been much neglected – the increasing collapse of the justice system as a protector of anyone other than the wealthy and powerful.

Gove, in one of his first speeches in the role, acknowledged it as his “mission” to make the case for the rule of law and decried our “two-nation” justice system.  The one nation lens, now much bandied about by the Conservatives, is the right one through which to look at reform. 

Yet behind the rhetoric and apparent change of tone is the fact that much of division that the Lord Chancellor decries is the consequence of his predecessors’ policies and the impact is only getting worse.

A functioning justice system is one that affords protection to people’s basic rights and ensures that all those who need it have access to both the courts and legal advice. Indeed, it was Bingham – again – who said that “denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law”.

To do so means protecting the right of the individual against the State, which includes a usable means of challenging the actions of the Executive, in particular proper access to the remedy of judicial review. 

It means ensuring that those who commit a crime are brought to justice.

And it means making sure that individuals are able to enforce their rights against each other, whether that is someone’s right against a partner who abuses them or fails to make appropriate arrangements for a child, an employee’s right against the employer who unfairly dismisses them, or the small business owner’s right to be paid on time.

Increasingly, however, vulnerable people are being left without protection. The level playing field is wiling away and exercising one’s legal rights is becoming the preserve of the few. 

It is clear already that far fewer people are accessing either legal help – where people receive advice and assistance about a problem– or representation. In the year after the Coalition’s reforms were introduced, the number of civil cases granted funding for representation and/or legal help dropped by almost two-thirds and has not recovered since. Family and social welfare law are some of the most affected areas, with drops of 60 per cent and close to 80 per cent respectively.   

In just over two years, ten Law Centres have closed. Many which remain open have to either refuse work or lose money, as they simply do not have the funding.

Hundreds of thousands of people who previously would have received legal advice no longer do.In consequence any legal rights they may have offer no protection.

And this has devastating effects on their lives.

Harry (not his real name) suffers from dementia.  He is aware of his surroundings.  He wants to continue to live at home.  The Local Authority provide home care for him. They want to move him out of his home.  He doesn’t want to go.  The Court of Protection will decide the issue.  £60 is deducted from his pension for domiciliary care arranged by the local authority, but the rules surrounding the financial threshold for legal aid mean this sum cannot be deducted from his income. As a result, he is unable to pay for a lawyer and, ineligible for legal aid, he has been left without any legal advice or representation. He therefore faces the resolution of the most important decision in his current life without advice and representation.  It’s a scandal.

Despite claims to the contrary by the Government, the biggest impact is being felt by the most vulnerable.

One Law Centre has taken to putting food out in its reception area, as some clients arrive having not eaten for days.

The resolution of relationship breakdown issues, in particular the future of children and protecting family members from continuing abuse, is one area where the effect of the reforms is that the State is in effect leaving victims to look after themselves.

Many victims of domestic abuse, supposedly exempt from the reforms, are struggling to get help as the criteria are too narrowly drawn. A recent survey by Rights of Women found that almost 40 per cent of women who had experienced domestic violence did not have the prescribed forms of evidence of abuse necessary to get help.

In its evidence to the Justice Select Committee, Gingerbread described the case of a single parent “who had experienced domestic violence in the past, her partner had not been on the scene for a number of years and then came back and wanted to go to court around a contact order, but she could not access legal aid through the domestic violence gateway because her domestic violence experience had been over two years”. 

Unable to pay for a lawyer, these women are faced with the stark choice of representing themselves and facing their abuser in court or continuing to be at risk of violence.

The distinction between what is and isn’t in scope for legal aid is blurred as many of the most vulnerable people often face a range of issues – the underlying cause of rent arrears in eviction cases, for example, is often a welfare benefits miscalculation or sanction and many immigration claims depend on the claimant, who might not have access to family law advice, having contact with a child. 

One typical case cited by Rights of Women is that of a woman from the US who had been in the UK since 2007 and had arrived as a visitor to see her boyfriend. Following the birth of their daughter in 2010 and having experienced physical violence during her pregnancy, the relationship ended but she was unable to leave her husband because she had no immigration status. She was unable to return to the US because her former partner did not give his permission for their daughter to go with her and a court order was in place. The family case was stayed pending resolution of her immigration status. At the time of the evidence, she remained financially dependent on her former partner, with whom she continued to live and from whom she continued to experience violence. 

Meanwhile, the exceptional cases funding is, according to a recent Supreme Court judgment, “not providing the safety net promised by Ministers”. Examples by the Justice Committee of cases refused exceptional funding include an illiterate woman with learning, hearing and speech difficulties facing an application which would determine her contact with her children or parents with learning difficulties who wished to contest their child’s adoption but were £35 a month over the eligible financial limit.

Many more people, denied legal representation, are being forced to represent themselves in court. The National Audit Office has shown that across all family court cases starting there was a 30 per cent increase in those in which neither party had legal representation in 2013-14 compared with 2012-13; and in the first quarter of 2015, 76 per cent of private family law cases had at least one party who was not represented.

Aside from the impact on courts – the NAO estimated the cost to be £3.4million in 2013-14 alone – this has a huge impact on the ability of people to effectively engage with the court process, often creating a clear inequality between the parties, such as vulnerable migrants facing experienced counsel for the Home Office. It also leaves an unquantifiable number of cases, which never get anywhere near a contested court case, where the victim of bullying and abuse in a relationship continues to be bullied and abused in the making of the arrangements for the future, without advice or representation.

Many are too vulnerable to represent themselves. One caller to the Coram Legal Centre was a father seeking advice in relation to the care arrangements for his two children, following their mother leaving the family home. The mother had initially taken the children to stay with the maternal grandparents. The father reported that the children did not want to do this, and that they were afraid of the grandmother. He had previously intervened to stop her smacking the children. Following a report to police and social services, he collected the children and returned them to his home. He applied for and was granted an Emergency Residence Order. A further hearing was scheduled for eight weeks’ time and he sought advice on his legal position and what process would follow. He could not read or write and was dyslexic, and was unable to complete court forms on his own. He had no access to legal aid for a family lawyer to assist him and could not pay privately.

The State has decided to leave people like this father to their own devices.  It is a denial of justice and has now become the norm. The courts are seeing it all the time.

The consequence of this absence of legal aid and representation means cases take longer in courts, more cases go to court because lawyers aren’t there to reach sensible settlements, social workers are more often called on to address the issues which would otherwise be resolved between lawyers.   

The reduction in court staff means there are no longer manned desks at which the public can be given basic help with, for example, which form to fill in. 

The pressure on judges to resolve cases quickly is increasingly at odds with the need to spend more time with litigants properly to understand what the case is about and resolve it fairly. 

Rising court and tribunal fees add another barrier to justice.

The introduction of employment tribunal fees in August 2013 saw the number of new cases plummet. In the six months up to March 2014, new cases were down 62 per cent on the same period in 2012-13; cases involving unfair dismissal were down by 64 per cent, those involving alleged sex discrimination by 80 per cent, and those relating to equal pay by 84 per cent.

One woman who contacted the Working Families helpline was employed on a zero-hours contract and had had her working hours substantially cut since she had taken time off for a pregnancy-related illness. When she challenged her employer, pointing out that several new staff had been taken on, she was told “we need people we can rely on”. The helpline team advised her that her treatment amounted to pregnancy discrimination, but she said there was no way she could afford to pay the fees of £1,200 to pursue a tribunal claim.

Recent proposals to further increase court fees -by more than 1000 per cent in under six months for certain claims – coupled with delays in the court system – in the first quarter of 2015, the average time to trial for small claims trials was the longest since data were collected – are bound to impact disproportionately on small businesses, many of whom rely on the courts to pursue late payments and maintain cash flow in the business.   One solicitor told the Law Society prior to the recent rise that, if it went ahead, it was likely that the SME he represented would drop its claim and instead fold the business as it could not carry that level of debt. 

So far, the Government’s attempts to go even further and remove legal aid from non-residents, a policy which would hit some of the people who need advice the most, have been thwarted by the Courts. But it’s only a matter of time until the issue re-surfaces.   

Criminal legal aid hasn’t escaped the axe either. One of Gove’s first acts as Justice Secretary was to press ahead with a second fee cut of 8.75 per cent and the implementation of the two-tier contracting model – a system many fear will be unsustainable and leave parts of the country without access to a legal aid solicitor. As the impacts of the reforms bite and more young lawyers are discouraged from a career in legal aid, access to high quality representation will fall and the risk of miscarriages of justice will grow.

Delays in the criminal justice system –Gove himself cited the case of a young woman who had to wait two years for her rape case to be heard – have a devastating impact on the victims of crime but also undermine trust in the system.

At the same time, it is becoming increasingly difficult to challenge the government’s decisions as the essential safeguard that is judicial review has been severely restricted.

Then there are the wider impacts of the reforms on our society. Many law centres are reporting evidence that there has been a deterioration in practice by some employers and landlords, as the threat of being taken to court no longer acts as an incentive to tackle poor standards.

Such impacts, worryingly, are not being measured. While the legal aid budget has fallen –

the NAO estimates that the reforms could reduce spending on civil legal aid by £300 million per year in the long term –  the NAO, Justice Select Committee and Public Accounts Committee have all criticised the government’s lack of understanding of the knock-on costs and value for money of the reforms.

Michael Gove, as Lord Chancellor, is failing in his constitutional duty to ensure that there genuinely is access to justice. He cannot simply continue to remove services and ignore the consequences.

Public policy requires savings and the courts cannot watch the rest of the public service tighten its belt without some sacrifice themselves. 

Our society has evolved and so has the way in which we “consume” services. So while alternative savings and sources of funding will need to be found so that we can start to rebuild a decent provision, our response to fixing a system that is already creaking needs to be smarter.  

It should start with a proper review of the reforms to date, to understand their effectiveness and impact and make sure that we target the funds available and deliver services in the most efficient way.

Reforms to make the courts more efficient and better use of technology, as suggested by some of our judges and embraced by Gove recently, are needed and welcome. 

But better use of technology offers no meaningful solutions to those who can hardly read or write, or are not IT literate, and on their own they are not sufficient to address the problem that is the increasing lack of a level playing field.

What we need above all are minimum guarantees –the right to have access to your child, the right not to be subjected to physical or emotional abuse, the security of a roof over one’s head and the right to be treated fairly at work – through adequate, sustained legal advice and representation (not, as suggested by Gove recently, by pro bono lawyers unfamiliar with the area of law).

Our response should also look at the way in which such guarantees are delivered.  That could involve, for example, better integrating advice with other aspects of our lives – one idea that Lord Low’s Commission said merited greater consideration is the further integration of social welfare advice with health and social care services.   We should also look at how best to empower innovative thinking locally and support the sharing of best practice.

But we must restore access to justice. There is widespread acceptance that there must be minimum standards of health care or education provided by the State.  The same should be true of access to justice.  The examples given here are not the occasional case which has slipped through the net.  They are the tip of an iceberg which has been deliberately created by the Coalition Government and maintained by the current Government.

Hand-ringing and crocodile tears from the Lord Chancellor butter no parsnips.  He has a duty to maintain the rule of law for all and that duty is one which the law says trumps collective responsibility. 

Our once much admired justice system is a state of disrepair and it is clear that we cannot rely on the Conservative Government to fix it.

We will shortly have a new leader of the Labour party. Whoever it is, I hope that they will embrace this task as a priority.

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