The English Legal System, post April 1

DRAFT

The information herewith gives general guidance. It should not be regarded or relied upon as a complete or authoritative statement of the law or treated as a substitute for specific legal advice concerning individual situations. Read our full legal notice on the left.

 

On 1 April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) came into force. It means that fewer people now have access to free legal representation than at any time since legal aid (state funding for legal advice and representation) was introduced, fundamentally the vast majority of family disputes has come to an end.  This means that if you have a legal problem there is now more chance that you will have to represent yourself – as a Litigant in Person – advice from the Bar Council below:

 “Make sure you speak loudly, slowly and clearly. Judges find it very frustrating when they cannot hear what you are saying”. It continues: “You might be tempted to speak like lawyers speak on television. Resist this temptation. Lawyers do not really speak like that.”

Public funding will still be available in a small minority of cases and while no exhaustive figures appear to be available, approximately 75 per cent of current applicants will be adversely affected.

What will the family justice system and the legal profession look like as a result, and what responsibility do lawyers have to ensure that litigants still have equal and fair access to justice?

Those clients affected are essentially going to face a three-way choice: Find the money somehow, represent themselves, or do not litigate at all. It does not require much imagination to conclude that the government would very much like a substantial number of people to choose the third option, which may in itself be of great concern.

But what of those who still feel they have no option other than to litigate and what of the respondents – those who have not instigated court action but find themselves on the receiving end?

These cases often involve the most important elements of one’s private life: arrangements for children, the future of one’s home, pension and retirement provision. They are not matters to be taken lightly, and unlike many forms of litigation, for those affected inactivity is unlikely to be an option. That is why these particular reforms are so invidious.

As lawyers, we are going to be faced with tough decisions. Most of those working in the legal profession have chosen to commit themselves to publicly funded practice because they also have a commitment to social justice and equal access to the courts.

 Lawyers such as myself have begun acting as advisers behind the scenes, offering a guiding hand rather than representing clients in the traditional sense. This has clear advantages in allowing clients to budget carefully for their legal fees in that a clear sum is indicated at the outset thus avoiding the dreaded hourly fees billed in 6 minute intervals.

If however such alternatives turn out unaffordable, what else remains? The voluntary sector is an unlikely solution. Law Centres, CAB’s, Shelter’s face enormous challenges themselves, those that remain are unlikely to be able to cope with the potential flood of people seeking family/welfare/property/litigation advice.

Will it fall, then, to the big commercial firms and niche private practices to fill the gap with pro bono advice? At first glance, such an option appears attractive: getting our trainees and junior assistants to cut their teeth by taking on some interesting family work. But how many firms in today’s climate will truly be able to commit to such a process, particularly since family law usually accounts for a disproportionately large slice of any firm’s complaints? Family clients very often need to be dealt with very carefully and sensitively, because they are going through times of acute distress; dealing with Litigants in Person is an entirely different experience to communicating with the opposing side’s lawyers.

Are these firms really going to want to take on the burden of the kind of cases where expert legal advice is necessary? More particularly, is it right that it should be so? Should people who require – and deserve – access to the courts have to rely on a form of charity? Should we just accept that they will routinely receive a lesser form of legal advice and representation?

Whatever the range of outcomes, it is clear that the role of the lawyer and the relationship between lawyer and client is going to change, and it will not be a change for the better. Every alternative is a compromise to the principle – hitherto acknowledged as inviolate – that a litigant was entitled to approach the court with equality of arms regardless of his or her financial means so long as the case had merit. This principle was underpinned by the availability of public funding.

Every part of the family justice system will lose: clients, judges, solicitors, barristers and, perhaps most importantly, the image of the system in the eyes of the public, who will rightly perceive that the court system is becoming the exclusive province of the wealthy. There will also be a real and tangible human cost. Clients are inevitably going to experience a greater degree of stress as they struggle to deal with litigation without full access to specialist legal advice.

Most worryingly, however, there is clearly a risk of serious miscarriages of justice leading to potentially disastrous outcomes for children who, let us not forget, are the only ones affected who can always be said to be blameless.

 

Camilla Choudhury Khawaja
LL.B Hons LL.M Barrister/Lecturer in Law

www.thewomenslawyer.co.uk

(There are ways of finding out if you are eligible to receive legal aid. This section of the Government website is a useful resource and includes a ‘legal aid calculator’ which will help you to understand if you can get funding: www. gov.uk/legal-aid/overview. It will ask you a number of questions about your employment and benefits status, the type of case concerned and, if relevant, your income, so make sure you have all the information to hand. There is more information available on legal aid here: http://www.justice.gov.uk/legal-aid.)

 

The information herewith gives general guidance. It should not be regarded or relied upon as a complete or authoritative statement of the law or treated as a substitute for specific legal advice concerning individual situations. Read our full legal notice on the left.

 

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