Legal aid was first enshrined in British law in statute namely the Legal Aid and Advice Act 1949. The primary objective was to provide universal access to justice as a vital element of the welfare state, a service as essential to the British public as healthcare for all through the NHS and social insurance. Its purpose was to ensure that every person who required legal advice or assistance can access it, irrespective of their social or financial status.
Undeniably, when legal aid was introduced, it provided 80% of people with means-tested entitlement to funding for civil cases; this meant that those organizations providing pro bono assistance for those who did not have access to justice due, to financial constraints, had to fill in the gaps and provide legal advice and representation to those who did not qualify for public funding. Nonetheless the gap between those who see means meant that they were entitled to public funding and those who did not qualify widened significantly with only 40% of the population being entitled to public funding in 1973 and 29% by 2008.
Arguably the most profound impaction legal aid since its inception was the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). In terms of family law, the introduction of LASPO means that public funding is no longer available for advice or representation for most cases concerning family breakdown where the state is not involved (that is to say divorce and cases between individuals involving disputes over children). For many families who are not financially well off, the daunting fact of self representing in family proceedings has become a reality. Families who are going though relationship breakdown are suffering the consequences of removal of public funding and administrative strain on the family court as a result of the cuts.
Apart from individuals who can demonstrate that they are victims of domestic violence, representation in family courts is no longer available under the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Fewer organizations and solicitors are now able to provide assistance; for those families who are less well-off and are unable to afford representation, the cuts in legal aid have caused a congestion in the courts system overwhelmed by litigants in person. Lack of legal knowledge has resulted in more contested cases which take up more time and cause more aggression and distress in court. According to Nigel Shepherd, the newly appointed head of the Family Law Organization Resolution, “As many as 80% of all family law cases may now involve one party who is unrepresented”.¨
It is arguably clear that the government failed to prognosticate or precisely measure the possible wider effects of legal aid cuts. Whilst it would be difficult to establish the wider effects of LASPO and balance it against the costs of public funding, the consequences in respect of bureaucratic management of the court service alone provides evidence that the cuts in public funding have had a negative impact on access to legal advice. Unfortunately it took less than a quarter of a century for the government to undermine many of the objectives identified by Lord Woolf. For many who can not afford to pay the cost of legal advice the essential tenet of the Woolf reforms, an equal footing,, is sadly now no longer possible and they embark on litigation knowing that this may have a detrimental impact on the outcome of their family case.
It is worth reminding ourselves of the recommendations of Lord Woolf (in his Access to Justice reports) which precipitated the Civil Procedure Rules which came into force in 1998. Lord Woolf set out the “Overriding Objective” embodied in Part 1 of the Rules, which states:
(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.